Asian Legal Business (SE Asia) Aug 2010

ISSUE 10.8

Thailand

Smiles return to the capital markets

Employment law

What ‘employee-friendly’ workplaces mean for lawyers

Wealth management

Next battleground for Asia’s law firms?

Managing the

mega

mergers Akiko Yamahara – Citi Japan

PLUS

THE BEST ADR FIRMS IN ASIA

Market-leading analysis Comprehensive deals coverage debt & Equity market intelligence ISSN 0219 – 6875 MICA (P) 103/07/2010

www.legalbusinessonline.com

EDITORial >>

12-18 months IN THE FIRST PERSON

W

hen the Singapore government announced the six recipients of its Qualifying Foreign Law Practice (QFLP) licenses in December 2008, the government declared that it would revisit whether the scheme would be expanded in ’12-18 months time’. And while both the Ministry of Law and the Attorney General’s Chambers seem to be no nearer to christening the next bunch of QFLP recipients, they may be well served by looking first at some of the unintended consequences of the scheme.

The true impact of legal sector liberalisation will always take time to be felt.

It took almost a decade for Japan to see the full effects of liberalisation there, and Hong Kong perhaps even longer. Yet even allowing for a time lag, signs are already emerging that Singapore’s venture may not be heading for the same level of success.

On the surface, life in the Singapore offices of the six licensees has never been better – perhaps with the exception of White & Case. But those firms who either missed out on licenses, or were not invited to apply, are coming to grips with what is fast becoming a two-tiered legal services market for international law firms.

As one partner at a US law firm recently told ALB, “Liberalisation either had to be all or nothing. What we have now are six firms who have an unfair advantage and countless others who are left playing catch up”.

While such bifurcation of the country’s legal services sector was surely not the intention of Singapore’s regulators, the process is, somewhat alarmingly, deepening. One only needs look at the firms that have landed the largest mandates over the last 12 months.

The key to correcting this process may be, as the US partner says above, taking an ‘all or nothing’ approach. Perhaps this is the only way to ensure Singapore can look back at its liberalisation process in two decades time, just as proudly as Japan or Hong Kong can now.

“Thailand has good market infrastructure. The only issue is the political situation, which hopefully will abate as the government’s plan provides more stability” Kittipong Urapeepatanapong, Baker & McKenzie (p8)

“In the past, or at least before the financial crisis, one would talk about a company’s risk appetite. But now it is not about avoiding risk – it is about finding ways in which we can accept that risk” In-house counsel, ADR rankings, (p36)

“There’s a gap in the market, in particular Hong Kong, to provide complex contentious trust and estate cases services” Rupert Ticehurst, Herbert Smith (p43)

The true impact of legal sector liberalisation will always take time to be felt. It took almost a decade for Japan to see the full effects of liberalisation there, and Hong Kong perhaps even longer

www.legalbusinessonline.com

1

| deals>> CONTENTS News >>

contents 50 cover story In-house Perspective: Citigroup Citigroup Global Markets Japan’s general counsel Akiko Yamahara explains how she kept a legal team together through one of the biggest transactions in Japanese corporate history

34 NEWS ANALYSIS

FEATURES

Regulars

8 Thailand’s capital markets master plan Despite civil and domestic unrest, Thailand’s capital markets could lead the region – and lawyers will be at the vanguard of change

34 ALB’s leading arbitration and dispute resolution firms in Asia In-house lawyers, general counsel and business leaders single out the region’s top arbitration and dispute resolution practices

4 DEALS

10 Vietnam’s mining tax While the effect of a ‘super-tax’ on the mining industry is expected to be minimal in Australia, in Vietnam it could decimate inbound FDI 12 M&A: the first half Asia’s mergers & acquisitions business is as healthy as it has been in a long time – and local Asian law firms are dominating the work

42 Wealth management With Asia tipped to house most of the world’s wealthiest individuals by 2015, now is the time for law firms to invest in their private client business 46 Employment law Many of the region’s major economies are on the brink of promulgating employee-friendly employment laws. ALB finds out what impact this will have on employment law practices

14 • • • • • • • • • • •

Country editors The Regional Updates section of ALB is sponsored by the following firms:

NEWS Shin & Kim opens second PRC office Dacheng opens in Hong Kong A&O launches Indonesia office US firms build capital market practices as HK IPO work flourishes Freshfields optimistic for Asia Korean firms form PRC alliance Squire Sanders subsumes IP boutique in Tokyo Albrecht anointed new Sidley Asia MP Charles Russell expands Bahrain practice Mayer Brown and Simmons & Simmons call off merger Pinsents and MPillay enter joint law venture in Singapore

Practice area and industry editors

The Industry Updates section is sponsored by the following firms:

China

Vietnam

Intellectual property / Employment

Paul, Weiss, Rifkind, Wharton & Garrison LLP is a globally oriented, full-service law firm employing over 500 lawyers worldwide. Paul Weiss is headquartered in New York and has offices in Hong Kong, Beijing, London, Tokyo and Washington, D.C.

Indochine Counsel is a commercial law firm focusing on business law practice in the Indochina region. Our areas of practice include: Foreign Investment, Corporate & Commercial, M&A, Securities & Capital Markets, Banking & Finance, Property & Construction, Taxation, Intellectual Property, Information Technology & Internet, International Trade, Outward Investment & Offshore Incorporation, and Dispute Resolution.

ATMD Bird & Bird is a dynamic and progressive firm with an established IP, corporate & commercial, competition and dispute resolution practice. The firm also has extensive regional experience advising both domestic and foreign clients on cross-border transactions. ATMD Bird & Bird has been voted Singapore’s Intellectual Property Firm of the Year at the 2005 and 2006 ALB Awards and the 2005 AsiaLaw (IP) Awards.

Malaysia

International tax

Wong & Partners is a Malaysian law firm dedicated to providing a quality and solution-oriented legal services to its clients. Wong & Partners has grown steadily with international standards of quality and experience and the Firm has a solid commitment to training its lawyers, and invests in training, professional development and quality management programs with the aim of producing lawyers of global standard.

AzureTax Ltd provides transparent strategic and ethical tax advice. Through our professional corporate and International, tax advisory and trustee services your tax plan is comprehensively implemented. Our advice provides you with independent innovative and rigorous solutions which deliver results and long-term accountability. We are qualified UK, US, Hong Kong and PRC tax advisors and complete tax filings for UK, US and Hong Kong tax returns.

Philippines Founded in 1945, SyCip Salazar Hernandez & Gatmaitan is one of the most-established law firms, and the largest, in the Philippines.

Principally based in Makati City, the country’s financial and business centre, the firm also has offices in Cebu City, Davao City and the Subic Bay Freeport. SyCip’s practice covers all fields of law and the broad range of the firm’s expertise is reflected in its client base, which includes top local and foreign corporations, international organisations and governments. SyCip combines the traditions of professional integrity and excellence with a time-tested ability to break new ground.

Singapore Loo & Partners was founded in 1985 as a niche practice, handling mainly banking, corporate, securities and commercial work.

With the support of a comprehensive network of correspondent law firms, the firm serves its clients in their regional needs. Loo & Partners has been regularly noted for its IPO, M&A and general corporate work.

2

Indonesia Bastaman Enrico is an Indonesian law firm comprising a team of prominent and dedicated professionals who are recognized for their knowledge and experience in handling many notable and high profile transactions in Indonesia. The firm’s specialisations include corporate/ commercial law, mergers & acquisitions, energy & natural resources, plantations and telecommunications law.

M&A Azmi & Associates is reputably known as one of Malaysia’s leading firms in the areas of Mergers & Acquisitions, Capital & Debt Market, Corporate & Commercial, Energy & Utilities, Restructuring, Projects, Construction, Privatisation and Financing, Litigation and Arbitration and is also rapidly building its reputations in the areas of Intellectual Property and information technology.

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Junior journalists Jess Seah Rashida Yosufzai Alice Yan

46 14 UK Report 16 US Report 54 M&A deal update 56 Capital markets deal update INDUSTRY UPDATES 22 Intellectual Property ATMD Bird & Bird 23 Islamic Finance Mohamed Ridza & Co 24 Employment ATMD Bird & Bird 25 Malaysia Tax Azmi & Associates 27 PDPA Obtains Royal Assent Naqiz & Partners

30 REGIONAL UPDATES • China Paul Weiss • Singapore Loo & Partners • Philippines Sycip Salazar Hernandez & Gatmaitan • Vietnam Indochine Counsel • Malaysia Wong & Partners • Indonesia Bastaman Enrico

profiles 44 Labuan IFC

Australia editor Renu Prasad

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Mohamed Ridza & Co. was established in June 2005. A member of LaWorld, the firm specialises in a wide spectrum of law which includes, inter alia, Banking & Finance, Capital Markets, Construction, Corporate & Commercial law, Foreign Investment, Mergers & Acquisitions, Oil & Gas, Privatisation, Projects and Real Estate. The firm has won many awards from Asialaw Leading Lawyers, International Financial Law Review (IFLR), Asia Legal Business, Islamic Finance News (IFN), Chambers Asia and many other publications.

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NEWS | deals >>

• Transaction subject to South African anti-trust approval

deals in brief | SINGAPORE | ►► Wilmar–Sucrogen acquisition Value: US$1.5bn Firm: Minter Ellison Lead lawyer: Leigh Brown Client: Wilmar International Leigh Brown Firm: Freehills Minter Ellison Lead lawyers: Andrew Pike, Philippa Stone, Clayton James Client: CSR

• Singapore commodities group Wilmar outbid China’s Bright Food to acquire CSR’s sugar unit Sucrogen • Acquisition comprises of equity and debt: Blake Dawson acted for Bright Foods • Minters advised new client Wilmar on all aspects of acquisition, including corporate, employment, tax, stamp duty, FIRB, NZ’s Overseas Investment Office, real property, IP and transitional services • Freehills has long involvement with CSR Group – previously acted on demerger of the Rinker business (takeover bid from Cemex) and on appeal to the Full Federal Court in April 2010 against a decision refusing to convene meetings for its demerger scheme • Deal marks third M&A closed by Freehills within three business days of the new Australian 2010/11 financial year

| India/US | ►► Reliance–Pioneer Natural Resources JV Value: US$1.3bn Firm: Vinson & Elkins Lead lawyers: David Cohen, Michael Wortley Client: Pioneer Natural Resources

4

Firm: AZB & Partners Lead lawyer: Shuva Mandal Client: Reliance Firm: Baker Botts Lead lawyers: Hugh Tucker, George Goolsby, Joe Poff Client: Reliance • JV between Indian mining giant Reliance and US firm Pioneer Natural Resources: Reliance to acquire 45% interest in Pioneer’s core Eagle Ford Shale acreage position in two separate transactions • AZB has acted for Reliance over several years, maintaining longstanding partnership across all major corporate and litigation transactions

• Jones Day’s team drawn from Hong Kong, Cleveland, Singapore, Sydney, London, Atlanta and Washington

| KOREA | ►► Lotte Group–GS Retail acquisition Value: US$1.1bn Firm: Kim & Chang Lead lawyers: Jay Ahn, Young Man Huh, Jong Hyun Park Client: GS Retail Firm: Yulchon Client: Lotte Group • GS Retail sold department store and hypermarket business to Lotte Group, Korea’s largest department store operator

Shuva Mandal AZB & Partners

• Baker Botts retained seven-lawyer team on deal, acting as US counsel to Reliance • Vinson & Elkins advised Reliance on April stake acquisition in Atlas Energy

| MALAYSIA |

• One of the largest business transfer deals completed in Korea: sale conducted through complex business transfer of three department stores and 14 hypermarket Young Man Huh Kim & Chang stores

• Kim & Chang represented GS Retail in deal structuring, obtaining all relevant regulatory approvals, and negotiating/drafting transaction documents • Yulchon are longstanding counsel to Lotte: advised on US$60m acquisition of Mybi in 2009

| Hong Kong | ►► AutoNavi Holdings IPO Value: US$108m

Firm: Fangda Partners Client: Underwriters Firm: Jun He Client: AutoNavi Holdings Julie Gao Firm: Simpson Skadden Thacher & Bartlett Lead lawyer: Leiming Chen Client: Underwriters

Firm: Thorp Alberga Lead lawyer: Richard Thorp Client: AutoNavi Holdings Firm: Skadden Lead lawyer: Julie Gao Client: AutoNavi Holdings

►► Weir Group–Linatex Consolidated acquisition Value: US$200m Firm: Jones Day Lead lawyers: John Dunn, Katherine U Client: Weir Group Firm: Pinsent Masons Lead lawyer: Dale Fischer Client: Navis Capital • UK-based engineering solutions provider Weir Group to acquire Malaysia’s Linatex Consolidated Holdings from Hong Kong private equity firm Navis Asia Fund IV • Deal to expand Weir’s emerging market footprint and for Linatex, provides leverage to Weir’s global sales network

Katherine U Jones Day

Asian Legal Business ISSUE 10.8

NEWS | deals >>

• Beijing-based navigation technology firm AutoNavi sold 8.6 million American depositary shares to investors

►► your month at a glance Firm

Richard Thorp Thorp Alberga

Allen & Gledhill

• Proceeds to be used for data processing facilities, R&D centre

• Deal represents another Chinese IPO for Skadden’s Gao – she has acted on NYSE/NADSAQ listings for more than 20 China-based companies including Baidu

Firm: Gibson Dunn & Crutcher Lead lawyers: Paul Harter, Peter Baumbusch Client: Gulf Capital • PE firm Gulf Capital acquired strategic stake in Consultant Radiology Centres, Saudi Arabia’s largest chain of diagnostic imaging centres • Gibson Dunn is longstanding counsel to Gulf Capital – in Feb 2010 advised company on 75% acquisition in TechnoScan

120 Equity market

Singapore

CDL Hospitality Trusts securities placement

Singapore

Treasury China Trust listing

Singapore

Neptune Orient Lines Euro MTN Program

Singapore

K-Green Trust listing

Undisc Equity market 10,000 Debt market

120 Equity market Undisc Equity market 1,500 Debt market

ASTRO Entertainment–Endemol Asia JV

India

Reliance–Pioneer Natural Resources JV

India

Tata Power Company–Bhira Investments acquisition

India

RaboBank–YES BANK divestment

215 Corporate

India

SBG Projects Investments–Maytas Infra stake acquisition

134 M&A

India

Sumitomo Mitsui Banking Corp–Kotak Mahindra Bank stake acquisition

296 M&A

Baker Botts

India

Sumitomo Mitsui Banking Corp–Kotak Mahindra Bank stake acquisition

296 M&A

Cleary Gottlieb

India

RaboBank–YES BANK divestment

Clifford Chance

Hong Kong

Rabobank–Agricultural Bank of China MOU

85 Private equity Undisc Corporate 1,300 Energy & resources 300 M&A

215 Corporate Undisc Corporate

China/Hong Kong

China Liansu Hong Kong IPO

China/Hong Kong

Trauson Holdings Hong Kong IPO

Davis Polk & Wardwell

China

Hanergy–Apollo Solar Energy acquisition

2,650 M&A

DeHeng Law Offices

Hong Kong/China

Agricultural Bank of China IPO

1,920 Equity market

Dewey & Leboeuf

Kazakhstan

Ekibastuz power station financing

Fangda Partners

Hong Kong

AutoNavi Holdings IPO

108 Equity market

Singapore

Lend Lease–Jurong Gateway Road acquisition

540 M&A

Singapore/Australia

Wilmar–Sucrogen acquisition

1,500 M&A

Thailand/Australia

Banpu–Centennial Coal takeover offer

2,200 M&A

Japan/Turkey

Sompo Japan–Fiba Sigorta

UAE

Abu Dhabi Commercial Bank–Royal Bank of Scotland acquisition

Hong Kong/China

Agricultural Bank of China IPO

Fried, Frank

China/Hong Kong

China Liansu Hong Kong IPO

Gibson Dunn & Crutcher

Saudi Arabia

Gulf Capital–Consultant Radiology Centres stake acquisition

Undisc Private equity

China

Hanergy–Apollo Solar Energy acquisition

2,650 M&A

Hong Kong/China

Agricultural Bank of China IPO

Hourani Associates

Saudi Arabia

Gulf Capital–Consultant Radiology Centres stake acquisition

Jackson Woo & Associates

China/Hong Kong

Trauson Holdings Hong Kong IPO

Jones Day

Malaysia

Weir Group–Linatex Consolidated acquisition

200 M&A 250 Equity market

Freehills

Freshfields

250 Equity market 96 Equity market

700 Project finance

308 M&A 50 M&A 1,920 Equity market 250 Equity market

1,920 Equity market Undisc Private equity 96 Equity market

China/Hong Kong

China Liansu Hong Kong IPO

Hong Kong

AutoNavi Holdings IPO

108 Equity market

Singapore

Oversea-Chinese Banking Corporation–United Engineers’s SPV acquisition

350

India

Subhkam Ventures fund structuring

Undisc Private equity

India

iPro Capital fund formation

Undisc Private equity

Korea/Hong Kong

Nomura Securities Seoul subsidiary conversion

Undisc

Korea

Air Liquide Sante International–Medions Homecare stake acquisition

Undisc M&A

Korea

Nexon–NDOORS stake acquisition

Undisc M&A

Korea/US

JDS Uniphase–Agilent Technologies acquisition

Undisc M&A

Korea/US

Hanwha Securities–Prudential Investment & Asset Management acquisition

Korea

Lotte Group–GS Retail acquisition

1,100 M&A

Kim, Chang & Lee

Korea

Nexon–NDOORS stake acquisition

Undisc M&A

King & Wood

Hong Kong/China

Agricultural Bank of China IPO

Latham & Watkins

China/Hong Kong

Trauson Holdings Hong Kong IPO

UAE

Abu Dhabi Commercial Bank–Royal Bank of Scotland acquisition

Kazakhstan

Ekibastuz power station financing

700 Project finance

Korea/US

Hanwha Securities–Prudential Investment & Asset Management acquisition

406 M&A

Khaitan & Co

Kim & Chang

| India |

Linklaters Lee & Ko

www.legalbusinessonline.com

Overseas Union Enterprise share placement

Singapore/Malaysia

Paul Harter

Firm: AZB & Partners Lead lawyer: Ashwin Ramanathan Client: RaboBank

200 Debt market

Singapore

ATMD Bird & Bird

KhattarWong

Value: US$215m

200 Debt market

Goodpack multicurrency MTN

Warburg Pincus–Metropolis Healthcare investment

Jun He

►► RaboBank–YES BANK divestment

Land Transport Authority bonds issue

Singapore

DBS Bank debt issuance program

Herbert Smith

• Saudi firm Gibson Dunn & Crutcher Hourani Associates worked alongside Gibson Dunn on transaction as local counsel

Singapore

India

Commerce & Finance

Firm: Hourani Associates Client: Gulf Capital

Value Deal type (US$m)

Singapore

| SAUDI ARABIA |

Value: Undisc

Deal name

Amarchand & Mangaldas

AZB & Partners

►► Gulf Capital–Consultant Radiology Centres stake acquisition

Jurisdiction

Real estate/ property

Corporate/ employment

406 M&A

1,920 Equity market 96 Equity market 50 M&A

5

NEWS | deals >>

Firm: Cleary Gottlieb Client: Citigroup Firm: S & R Associates Lead lawyers: Sandip Bhagat, Uday Walia Client: Citigroup • Dutch agribank RaboBank sold off 37 million shares owned in YES BANK to Citigroup Global Markets India, in order to establish its own presence in India • AZB was exclusive counsel to Rabo; advised on structuring of transaction, drafting, negotiation and finalisation of the Secondary Trade Agreement and other ancillary documentation • YES BANK retained in-house counsel

| UAE | ►► Abu Dhabi Commercial Bank–Royal Bank of Scotland acquisition Value: US$50m Firm: Linklaters Lead lawyer: Nick Garland Client: RBS Firm: Freshfields Lead lawyer: David Higgins Client: Abu Dhabi Commercial Bank • RBS sells off retail banking business in the UAE to Abu Dhabi Commercial Bank – first time UAE bank bought out an international banks’ local franchise

bank last year in its Asia assets sale (sold off 54 Asia branches to ANZ)

| kazakhstan | ►► Ekibastuz power station financing Value: US$700m Firm: Linklaters Lead lawyer: Michael Bott Client: financiers Firm: Dewey & Leboeuf Lead lawyers: Aset Shyngyssov, Matthew Hinxman Client: Ekibastuz GRES-2 Power Station • Kazakhstan’s Ekibastuz power station one of the largest coalfired power stations in the world.

Generates approximately 12% of electricity produced in the country through two existing units • Follows recent significant projects in Kazakhstan advised on by Dewey: $900m, 15-year agreement between Kazakhstan’s national railway operator and GE Transportation in May 2009 • Dewey retained cross-border team from Kazakhstan, London offices • Financing provided by a consortium comprising Russian State Corporation Bank for Development and Foreign Economic Affairs, Eurasian Bank of Kazakhstan

| Hong Kong/China | ►► Agricultural Bank of China IPO Value: US$19.2bn Firm: King & Wood Lead lawyers: Yang Xiaolei, Tang Lizi, Su Zheng Client: Underwriter

• If underwriters’ over-allotment exercised, issuer to raise US$22bn; making it world’s largest-ever IPO • Dual listing on Shanghai and Hong Kong exchanges, at least US$12m in legal fees will be paid to lawyers, financial advisers on deal, according to Bloomberg

Firm: DeHeng Law Offices Wang Li DeHeng Law Office Lead lawyer: Wang Li Client: Agricultural Bank of China Firm: Herbert Smith Lead lawyers: Tom Chau, John Moore Client: Underwriters Firm: Davis Polk & Wardwell Lead lawyer: Show-Mao Chen Client: Agricultural Bank of China

Firm: Haiwen & Partners Client: Joint sponsors, bookrunners, lead managers

Yang Xiaolei King & Wood

Firm: Freshfields Lead lawyers: Teresa Ko, Anthony Dapiran Client: Agricultural Bank of China Firm: Allen & Overy Client: Joint sponsors, bookrunners, lead managers

• Freshfields – longstanding counsel to Agricultural Bank of China – were Hong Kong counsel on deal advising on all aspects including investments by eleven major sovereign, institutional and corporate investors, for a total of US$5.45bn • Freshfields has now acted on the IPOs of all ‘Big Four’ Chinese stateowned banks: China Construction Bank (2005), Bank of China (2006), ICBC (2006) and this one • Herbert Smith said its appointment was result of strong relationships with both issuer and investment banks. Firm also advised on past ‘Big Four’ deals – ICBC China Construction Bank; China Merchants Bank • CICC, Citic Securities, Galaxy Securities and Guotai Junan Securities were lead underwriters on deal • Slaughter and May’s Hong Kong and London offices advised

• Freshfields (advising ADCB) also advised ANZ Bank last year on its acquisition of RBS’s Asia-wide assets sale.

Partner David Higgins also advised RBS on its £26.5bn bid for NatWest back in 2000 • Freshfields David Higgins retained Freshfields lawyers from London and Dubai to advise ADCB general counsel Simon Copleston and vice-president legal counsels Olivia Birchall and Nabil Azar • RBS are longstanding clients of Linklaters, who also acted for the

6

Asian Legal Business ISSUE 10.8

NEWS | deals >>

Standard Chartered Bank on its US$250m investment in offering • Clifford Chance’s Roger Denny advised Rabobank’s US$250m investment in offering

| EQUITY MARKET | ►► China Liansu Hong Kong IPO Value: US$250m Firm: Jun He Client: China Liansu Firm: Fried, Frank Lead lawyers: Victoria Lloyd, Joshua Wechsler Client: China Liansu Firm: Maples and Calder Lead lawyer: Christine Chang Client: China Liansu Firm: Commerce & Finance Client: Underwriters Firm: Skadden Lead lawyers: Dominic Tsun, Edward Lam Client: Underwriters • Despite uncertainty in Europe economy, Liansu raised around US$250m • JP Morgan and UBS acted as joint global coordinators for the transaction • Jun He also recently helped NVC Lighting launch its US$196m IPO on the HKSE amidst difficult market conditions.

• Marks second PRC company IPO closed by Skadden in July 2010 (AutoNavi Holdings IPO)

| Thailand | ►► banpu–centennial coal takeover

►► your month at a glance (CONT) Firm

Jurisdiction

Deal name

Value Deal type (US$m)

China/Hong Kong

China Liansu Hong Kong IPO

China/Hong Kong

Trauson Holdings Hong Kong IPO

Minter Ellison

Singapore/Australia

Wilmar–Sucrogen acquisition

Nishith Desai Associates

India

Mid-Day–Jagran Prakashan demerger

Norton Rose

Thailand/Australia

Banpu–Centennial Coal takeover offer

2,200 M&A

Orrick

Japan

FMC Corporation–Kumiai Chemical Industry herbicide acquisition

Undisc M&A

Pinsent Masons

Malaysia

Weir Group–Linatex Consolidated acquisition

200 M&A

Rajah & Tann

Singapore

Oversea-Chinese Banking Corporation–United Engineers’s SPV acquisition

350

Simpson Thacher & Bartlett

Hong Kong

AutoNavi Holdings IPO

108 Equity market

S & R Associates

India

RaboBank–YES BANK divestment

215 Corporate

China/Hong Kong

China Liansu Hong Kong IPO

250 Equity market

Hong Kong

AutoNavi Holdings IPO

108 Equity market

Singapore

Depa Interiors–Design Studio share acquisition

100 M&A

Singapore

Rickmers Maritime loan facility restructuring

130 Debt market

Maples and Calder

Skadden

Stamford Law Corporation

250 Equity market 96 Equity market 1,500 M&A 54 M&A

Singapore

Top Global three-for-one rights issue

125 Equity market

Thorp Alberga

Hong Kong

AutoNavi Holdings IPO

108 Equity market

Vinson & Elkins

India

Reliance–Pioneer Natural Resources JV

Watson, Farley & Williams

Singapore

Fortis Bank (Nederland) loan facility to Korean Development Bank Shipping Program

Yulchon

Korea

Lotte Group–GS Retail acquisition

1,300 Energy & resources

Client: Banpu Firm: Freehills Lead lawyers: Tony Damian, Andrew Rich Client: Centennial Coal www.legalbusinessonline.com

100

Shipping/maritime law

1,100 M&A

Does your firm’s deal information appear in this table?

Please contact

• Thailand’s biggest coal miner, Banpu makes friendly cash takeover bid for remaining 80.1% of shares in Tony Damian Freehills Australia’s Centennial Coal (Banpu already owns 19.9%) • Marks first deal for Norton Rose advising Banpu. Previously advised Thai company PTT on A$800m stake acquisition in Straits Resources’ coal assets • Freehills advised Centennial Coal

alb@keymedia.com.au

61 2 8437 4700

on all aspects; in 2007 previously advised client on its sale of Anvil Hill project.

• Six-lawyer team worked closely with Louise Baldwin, GC of Centennial Coal

| equity | ►► blackstone group–china animal healthcare investment Value: US$45m Firm: Jingtian & Gongcheng Client: China Animal Healthcare

Value: US$2.2bn Firm: Norton Rose Lead lawyer: James Stewart

Real estate/ property

“With some of the uncertainty of the [Australian government’s] Resources Super Profits Tax now behind us, this could be the start of a renewed round of mergers and acquisitions in the resources sector” Tony Damian Freehills

Firm: Rajah & Tann Lead lawyers: Chia Kim Huat, Danny Lim Client: China Animal Healthcare Firm: Deacons Client: China Animal Healthcare Firm: Conyers Dill & Pearman Client: China Animal Healthcare Firm: Jun He Client: Blackstone Firm: Shearman & Sterling Client: Blackstone • Blackstone will subscribe for and CAH will issue US$40m in principal amount of convertible bonds • In 2009, Blackstone Group made a US$600m acquisition of China Bluestar Corporation, which Fangda Partners was the group’s legal advisor and Commerce & Finance acted for the target company

7

NEWS | analysis >>

Analysis >>

Thailand’s enticing master plan

Thailand’s corporate lawyers are a resilient group of professionals.

In March they watched as yet another political crisis unfolded, delaying government plans to reform the country’s struggling capital markets. Now they’re waiting to see whether those plans will ever come to fruition and bring in the promised flood of work

T

hailand’s equity capital market is undoubtedly struggling: so far this year only one company (petrochemicals firm Indorama Ventures) managed to list on the stock exchange of Thailand (SET). Compared to last year’s total of six IPOs, the current market for major company listings is not looking too bright.

In comparison to its regional neighbours, Thailand’s share market is growing at a snail’s pace. As of June last year the size of Thailand’s market was only 51% of its GDP. Compare this to Hong Kong, where the stock market’s size compared to GDP is 845%. “Should that trend continue, Thailand’s capital market will stagnate and become marginalised,” reads a 2009 government report.

8

“Various studies have shown that inadequate development of the capital market will impact [Thailand’s] ability to raise, channel and monitor resources efficiently. In the end this will lead to loss of growth opportunities, standards of living and prosperity.” The report has clearly tapped into the wider issue of a stagnating capital market:

►► Capital market development master plan: five-year development objectives 1. Abolish monopoly and improve competitiveness of the Thailand Stock Exchange (SET) 2. Liberalise securities business to promote market efficiency 3. Reform legal framework relating to the capital market 4. Streamline tax system 5. Develop new financial products 6. Establish a National Savings Fund 7. Develop culture of savings and investments 8. Develop domestic bond market Source: SET

“Thailand has good market infrastructure. The only issue is the political situation, which hopefully will abate as the government’s plan provides more stability. Then the market will pick up because there is so much liquidity here in Thailand” Kittipong Urapeepatanapong, Baker & McKenzie Asian Legal Business ISSUE 10.8

NEWS | analysis >>

loss of business confidence all-round.

Law firms cannot afford to see such a situation eventuating.

In 2008 the government (now ousted) introduced a much-needed Capital Market Development Masterplan, which was carried on by the new government in 2009, to mitigate the risk of this happening.

Under the Masterplan, the hope is that by 2013 Thailand’s capital market will be in a better competitive position vis-a-vis the rest of Asia, luring foreign Arkrapol Pichedvanichok companies with easier Allen & Overy market access, new financial products, cheaper fundraising and transaction costs, and a host of other offers. New draft laws are being drawn up to give more tax incentives to transactions involving M&As, debt issues and Islamic bonds.

Baker & McKenzie’s Bangkok office chairman Kittipong Urapeepatanapong is optimistic about the measures.

“These are very big issues up for reform,” he says. “[Reforms] will create new opportunities and more work for law firms, such as in dual listings, tax issues, M&A, regulatory advice, and more.”

The most important among the eight reform measures proposed is demutualisation of Thailand’s stock exchange, expected to be completed by 2012. By converting the SET into a public company the exchange will become regionally competitive. It will also reduce the SET’s market monopoly so that Thailand can welcome new and alternative trading platforms.

The other significant measure is to ease license restrictions on some foreign companies, which will mean that law firms can tap into larger client bases. “The purpose is to try to make the stock market more competitive and attractive for companies to list on the SET, and if you liberalise laws for foreign companies, you will of course have more work from SET listings,” says Allen & Overy equity market specialist partner, Arkrapol Pichedvanichok.

For law firms having more foreign clients also means working on largervalue deals. In the last few years, local capital markets practices have largely been relying on listings or www.legalbusinessonline.com

►► New and upcoming IPOs in Thailand Newly listed companies in 2010 Companies received approval; as yet unlisted Companies under approval process

SET (main) 1 4 0

MAI (alternative) 0 4 1

Total 1 8 1

Source: SET. Data correct as at June 2010

offerings by SMEs. They have been somewhat starved of bigger-value IPOs because the larger companies have no immediate plans to raise capital.

“In the past ten years there has been a wave of new privatisations of stateowned enterprises which were the big-cap deals. Those deals have since dried up, and we don’t have any big privatisations anymore. Other big companies are simply not interested in the IPO route,” says Pichedvanichok.

Foreign companies

While lawyers are optimistic about these measures, it remains to be seen whether the plans will ever be realised – or once again be stalled by another

Thailand. “That’s quite a new thing – it’s never been heard of here,” he says. Auychai is currently advising an Australian bank looking to issue USdollar denominated bonds through this route.

Chatri Trakulmanenate, a partner at Bankgok-based Weerawong C&P, is perhaps the luckiest lawyer in Thailand, after receiving the Indorama IPO mandate earlier this year. He says that another political crisis will undoubtedly hamper dealflow but the legal industry remains hopeful of an eventual turnaround.

“Frankly speaking, I think we might be getting accustomed to this type of thing,” he says. “But the [fact is] that

“My prime mission is to make the bourse a bigger cake and this will be done through developing the capital market. We want to make more people come and eat our cake” charamporn jotikasthira, stock exchange of thailand

bout of political unrest. Allen & Overy’s debt capital market specialist Suparerk Auychai says that Thailand is slowly making headway towards capital markets reform. “I can sense that in the past four to six months the Securities Exchange Commission has been more liberal-minded and more commercial, and they’re serious about bringing more work to Thailand,” he said. “Something that wouldn’t be possible a year or two previously now is. It’s clear they’re trying to [be] accommodating.”

Auychai explains one such ‘breakthrough’ Chatri Trakulmanenate achieved due to a more Weerawong C&P liberal-minded SEC. A new regulation which the firm worked with the SEC on getting approval for allows any type of foreign issuer to raise funds, by issuing plain vanilla bonds denominated in foreign currency to retail and institutional investors in

foreign investors are not comfortable with the political situation. Our firm’s been working on a number of transactions and, even though the political situation is unstable, on the equity side there are deals happening.”

For now, lawyers are waiting to see whether one rumoured big-ticket IPO

by CIMB Group will open the equity market floodgates. The hope is that CIMB – which plans to list 50 million shares by the end of the year – will be able to test the waters for smaller companies that are waiting out the political crisis. Judging by the number of companies awaiting listing approval (see table one), there is certainly interest in the marketplace.

Yet CIMB isn’t the only company reportedly adopting the wait-and-see approach. “There were a lot of listings in the pipeline, but the companies stopped those efforts because of the political situation. Lots of foreign investors moved their shares out of the market,” explains Trakulmanenate.

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NEWS | analysis >>

“And they’re not likely to come back for another five or six months.” Baker & McKenzie’s Urapeepatanapong agrees: “We’ll need to wait until the end of the year to see what happens,” he says. “Thailand has good market infrastructure. The only issue is the political situation, which hopefully will abate as the government’s plan provides more stability. Then the market will pick up because there is so much liquidity here in Thailand.”

The true test will be in 2013, when the eight objectives under the government’s master plan are expected to be realised. President of the SET, Charamporn Jotikasthira, is charging through the year with the legal industry’s hopes on his shoulders. “My prime mission is to make the bourse a bigger cake and this will be done through developing capital markets,” he said in June. “We want more people to come and eat our cake.” ALB

Analysis >>

Vietnam:

bleeding minerals Investment in Vietnam’s mining sector has been booming, but amendments to mining laws could stop companies and future investments flowing in. That could lead to a drastic cut in FDI inflows and also less work for the local legal industry

W

hile the Australian Federal Government recently overcame a major battle with its biggest mining companies over passing controversial proposals for new mining taxes on them, Vietnam’s government is only now facing a similarly tough battle. The Socialist Republic’s Law on Minerals (LoM) was introduced only 15 years ago

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but has been subject to much scrutiny from concerned investors since.

In 2005, the government quickly issued amendments to the law, but this was auctioned more so due to an upcoming WTO accession. That meant there was a lack of clarity in the amendments, according to Freshfields’ Vietnam managing partner Anthony Foster. Perhaps due to the rush, the Asian Legal Business ISSUE 10.8

NEWS | analysis >>

revised law does not touch on most of the regulatory problems contained in the previous law, he wrote in a client briefing released soon after the amendments were made. As the revised law does not contain any significant reform, neither the decree nor the circular contains many substantive changes.

Now the government is considering new reforms, expected to come into effect from 1 July 2011. Among the most controversial proposals is the one to probe into the number of mining companies – including foreign ones – that benefit from the country’s mineral deposits. That’s in part because of a widespread problem in the industry: most of those companies don’t have mining licenses.

According to the Ministry of Natural Resources and Environment, the number of mining companies in Vietnam jumped from 427 in 2000 to 1,400 in 2009, yet only 150 of those have been licensed by the Ministry.

The problem is that if this situation is left uncontrolled by the government it will lead to “minerals bleeding,” say

locals, who are calling for sustainable mining operations through the new draft LoM. Clamping down on the mining companies is legitimised as the 1996 LoM clearly states that Vietnam’s mineral resources “are owned by the entire people and are uniformly managed by the State.”

Not unsurprisingly, both local and foreign mining companies are worried because they argue the draft law will cut foreign investment in the local mining industry. At the Vietnam Business Forum’s April 2010 meeting mining executives discussed how the draft proposals will also increase taxes, and how short mining license periods cannot sustain an exploration period.

“If the goal is to develop the mining industry and discover new mines, the new law should encourage this,” said Steven Dudka, a chief representative of Archipelago Company. “Investors expect to receive incentives, not punishment for their investment. High taxes and insecure tenure are not incentives but restrictions to investors.”

The mining companies have a point.

The last time the tax rate on mining

“There will be a drop in foreign investment, but if that investment isn’t willing to comply with environmental protection, safety, and registration rules, it probably isn’t the kind of investment Vietnam wants or needs” STEVE JACOB, INDOCHINE COUNSEL

►► FDI in Metal Mining 98

100 90 80 US$ Mill

70

59

60 50 40

39 31

30 18

20 10

29

5

6

7

6

2000

2001

2002

2003

0 2004

2005

2006

2007

2008

2009*

Source: VBF Mining Working Group

www.legalbusinessonline.com

“If the goal is to develop the mining industry and discover new mines, the new law should encourage this” STEVEN DUDKA, ARCHIPELAGO COMPANY projects was increased (by almost 20%) FDI in the metal mining sector dropped dramatically in just one year – from US$98m in 2008 to US$29m in 2009 [see table]. While the changes could cut back on work for law firms, some lawyers, like Indochine Counsel foreign legal consultant Steve Jacob, aren’t too worried about the LoM’s impact. “I think the new law will have a minimal effect on the legal industry,” he says. “Until we get a better idea of how the geological baseline studies are going to be implemented, the changes really amount to a bit more red tape.”

Steve Jacob Indochine Although investment Counsel inflows could decrease, Jacob said that there might be more regulatory work as a result. “I can see problems with mine closures and frustrations with the 10year master plans, but I don’t think the [new LoM] is going to markedly change the quantity of legal work, at least not at a big deal level. You’ll see little things increase, like certifications of mining managers, but there shouldn’t be a major change,” he said.

Jacob added that while unregistered mining is a problem, there is no implementation legislation that provides for enforcement. “This is a problem throughout Vietnam’s legal system.

Ministries and ground-level enforcers need specific entitlements before they can actually penalise violators. Until they have those entitlements, there tends to be rampant violations. There won’t be much practical crackdown until specific penalties and enforcement is promulgated. If that does happen, there will be a drop in foreign investment, but if that investment isn’t willing to comply with environmental protection, safety, and registration rules, it probably isn’t the kind of investment Vietnam wants or needs,” he said. ALB 11

NEWS | analysis >>

Analysis >>

Asia-Pacific leads global M&A renaissance ►► Legal Advisors to Asia (ex- Japan & Australasia) M&A deal volume Company Rank AZB & Partners WongPartnership Kim & Chang DLA Piper Jones Day Freshfields Bruckhaus Deringer Allen & Gledhill Amarchand & Mangaldas; Suresh A Shroff & Co Lee & Ko Linklaters

H1 2010 H1 2009 Deal count Value (US$m) Rank Deal count

1 2 3 4 5 6

38 24 24 22 17 16

16,608 3,927 3,727 406 3,057 4,580

14 20 1 10 7 2

9 8 24 11 13 19

Deal count – Change 29 16 0 11 4 -3

7 8

16 14

4,151 4,712

12 21

10 8

6 6

9 10

14 13

1,164 20,920

3 6

16 14

-2 -1

Source: Merger market

A

ccording to a recent independent M&A report commissioned by Allen & Overy, Asia-Pacific was the only region globally to show an increase in M&A activity by deal volume this year. Hong Kong and China make up over 30% of M&A activity.

In the first half of 2010, M&A volumes in the region grew by 11.3% against global growth of 7.8% for the same period. Mergermarket says the region announced US$137.2bn worth of deals in H1 2010. Emerging markets saw US$241.1bn worth of deals announced in H1 2010, a 58.8% rise in year-on-year data.

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Asian Legal Business ISSUE 10.8

NEWS | analysis >>

India’s AZB leads the pack as the region’s most active advisors in H1 2010, working on 38 deals worth US$16.6bn.

Cross border transactions between regions recorded the highest half year percentage growth since H1 2008, and global private equity maintained a steady upward trend, up 40.4% from last year.

Inter-Asian M&A deals rise, local firms dominate

One of the more notable trends to emerge from the 1H10 M&A reports was the increasing volumes seen in inter-Asian transactions. This has set the scene for greater involvement of local law firms from across the region, and is something clearly evident on the legal advisory leader boards.

According to Mergermarket, Asian firms are creeping into the top 10 league table of M&A deals closed in the AsiaPacific. Singapore’s WongPartnership jumped to second place from 20th on the M&A volume to Asia (ex-Japan & Australasia) rankings, from the same period last year. Kim & Chang retained its top three spot; and Amarchand & Mangaldas & Suresh A Shroff & Co and Lee & Ko made eight and ninth spots, respectively. “It’s an increasingly competitive market because you see the rise of [local] Asian firms coming into league tables as shown in the report, but also an increased presence and resourcing amongst the international firms,” said Jill Gauntlett, a corporate partner with Norton Rose.

But although firms like AZB, WongPartnership and Kim & Chang have benefited from a resurgence in Asian M&A (ex-Japan and Australasia) in the first half of this year, international firms still dominated the M&A league table for this region by value.

Making the most improvements, Debevoise & Plimpton, Slaughter and May and Norton Rose dominated the M&A Top 10 deal value by Asia, taking giant leaps of 87 places (to finish 2nd), 38 places (to finish 3rd) and 48 places (to finish 7th), respectively. “Clearly Asian firms are responding to the vibrant activity in the market by strengthening their offering, but so too are the international firms,” Gauntlett said.

“Valuations have become a little more realistic because they’ve had to. It has given the opportunity for people to look at how they can construct deals” alastair da costa, dla piper

Future outlook

Lawyers noted that although M&A volumes and values are up on previous years, acquirers are still pursuing targets with greater caution. Norton Rose’s Gauntlett contends that while there are plenty of deals in the market, these are taking longer to close, thanks largely to more exhaustive financial and legal due diligence. “Dealflow is up on last year and the pipeline is looking much healthier, but some deals are taking longer, reflecting underlying caution,” she said.

Other senior lawyers close to the market made similar observations. “As a general point, there is a degree of more caution.

I think people are not willing to over-pay right Alastair Da Costa now. The last 18 months DLA Piper has required caution on the diligence, timing of things, and certainly private equity is taking a deeper view on how they look at value,” DLA Piper Asia managing director Alastair Da Costa explained.

“But at the same time, there is value. What has happened over the last 18 months is that valuations have become a little more realistic because they’ve had to. It has given the opportunity for people to look at how they can construct deals.” ALB

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NEWS >>

china >>

Shin & Kim opens

uk report Halliwells sells off practices to rival firms Manchester-based law firm Halliwells could be forced into administration, after the firm filed a second notice of intent to appoint an administrator in late June. The firm has been in discussions with rival firms to sell off its practices in the last month.

It has already secured a deal with Barlow Lyde & Gilbert where they will acquire Halliwells’ insurance practice, and is also reportedly in negotiations with Hill Dickinson and HBJ Gateley Wareing. The firm’s demise was said to result from high overhead costs and lack of transactional work during the downturn. It reportedly owed the Royal Bank of Scotland £17.7m. Executive chairman Ian Austin has left to join another firm, Heatons.

Baker & McKenzie spin-off firm acquired London-based boutique litigation firm Stewarts Law has acquired Baker & McKenzie spin-off firm, Masseys. Masseys is a litigation boutique founded by a group of Bakers litigation lawyers in 2004, and will move to the Stewarts office in London. The two firms merged in early July with Stewarts assuming the Masseys brand.

Stewarts will gain commercial litigation, antitrust and employment expertise for its litigation practice, with the appointments of Masseys’ founding partners Jane Colston and Sean Upson, fellow partners Fiona Stewart and Fiona Gillett and their respective teams. Managing partner John Cahill said “during our discussions we were struck by the extent of our shared values and vision. We will work together to establish Stewarts Law as a leading litigation brand.”

K UK law society’s virtual appointment The UK Law Society has elected the managing partner of a virtual law firm as its new deputy vicepresident. Lucy Scott-Moncrieff, a mental health and human rights lawyer who heads online legal practice Scott-Moncrieff Harbour and Sinclair, takes up the post working under Law Society president Linda Lee and vice-president John Wotton.

Scott-Moncrieff was chosen for her role having founded an ‘innovative’ legal practice, said the law society. On her appointment, Scott-Moncrieff said: “It is both an honour and a great responsibility to be elected deputy vice-president, especially at such a challenging time for the profession as a result of the transformation of legal aid and the licensing of alternative business structures. I very much look forward to championing the profession as we move into the next decade.”

Reed Smiths boosts energy practice Reed Smith has appointed four new partners to its energy, trade & commodities group in London. The addition of Keith Hartley, Peter Cassidy, Vincent Rowan and Gordon Bell will grow the firm’s London energy practice to 13 partners.

“The energy and natural resources sectors have enjoyed unprecedented growth over recent years – including through the economic crisis.

Our trading clients are aggressively diversifying beyond trading, creating integrated supply chains enabling them to add value across their commodity portfolios at every stage from production to marketing/trading,” said head of the energy practice, Kyri Evagora.

orean firm Shin & Kim has opened another office in China, four years after its debut in Beijing. The firm has also merged with local real estate boutique, Evergreen Law Group.

Its new Shanghai office was launched in March after approval was received from Chinese authorities. The firm is aiming to get closer to local clientele – both the Shanghai-based subsidiaries of Korean companies, and Chinese companies looking to invest in Korea – and target corporate, M&A and capital markets work.

Shanghai partner Byoung Seon Choe will be supported by Byoung Seon a Chinese lawyer and Choe Shin & Kim lawyers from the firm’s China practice, based in Seoul.

Shin & Kim said the opening was prompted by expected growth in appetite by Korean corporates for investments in China. Trade is flourishing between the two nations: China last year became South Korea’s largest trading partner, taking HONG KONG >>

US firms scramble for

U



ROUNDUP • Pinsent Masons’ GFC-prompted flexible working scheme saved the firm around £2m and avoided 50 redundancies. The scheme involved 204 staff taking 13 weeks of annual leave as their incomes dropped to a minimum of 80% of normal rates • Clyde & Co has appointed Martin Davies to its London corporate practice. Davies arrives from Howard Kennedy, where he headed the international group. At Clydes he will lead a new Middle East business strategy • Charles Russell has made up seven lawyers to partner as part of its new financial year promotions.

The firm now counts four new partners in London, two in Cheltenham and one in Oxford • Lee Doyle, the former head of RBS’s UK corporate and global restructuring legal team has moved to join Ashurst as partner in its London loan markets practice

14

S firms Jones Day and Fried Frank have both strengthened their Hong Kong capital markets practices with key appointments, as demand for specialists Joseph Lee grows with the surge Jones Day in IPO activity seen in Hong Kong.

Jones Day has appointed Fried Frank corporate partner Joseph Lee to its Hong Kong capital markets practice.

In response, Fried Frank elevated two lawyers focused on capital markets work, Jay Aggarwal and Marianne Cheng, to the position of international counsel. This firm now counts 14 lawyers in its Hong Kong capital markets practice (some of whom work across the firm’s US bases); while Jones Asian Legal Business ISSUE 10.8

NEWS >>

news in brief >>

second Chinese office, signs merger

up 24% of its exports. The firm has represented clients such as Hyundai Heavy Industries, Kumho Asiana and STX Corporation in their Chinese corporate transactions.

Shin & Kim also bolstered its lawyer and client roster after acquiring real estate boutique Evergreen Law Group, earlier this year. All of Evergreen’s 32 lawyers have transferred, including ex-Shin & Kim lawyers Kyung Don Lee, Robert Young and Yong-Seok Park. It is understood that Evergreen lawyers chose the bigger firm in order to retain bigger clients – the ‘economy of scale’ theory. “It was a good time to merge,” explained partner Robert Young.

Norton Rose gives new hope to Sichuan earthquake victims A hundred children in the earthquake-ravaged region of Guangyang City in Sichuan have been granted a chance at education at the newly built Norton Rose Hope School. The construction of the school began in 2009 and was funded by the firm’s staff in Beijing and Shanghai through personal donations.

“Some of us started off at Shin & Kim before we went off on our own.

We’ve always [maintained] discussions with Shin & Kim about merging and now was a good time to do that, because of the synergy between the two firms, and the [attraction] of Shin & Kim being a larger firm that provides the full scope of services,” he explained.

The firm will now join fellow Korean firms Bae Kim & Lee and Jisung Horizon in having a Shanghai office (another Korean firm, Lee & Ko, has an office in Beijing). Both Yoon Yang Kim Shin & Yu and Yulchon are also believed to be in the process of launching China offices. ALB

In addition to constructing the premises, stationery, sporting equipment, musical instruments, desks and chairs were also provided as a goodwill gesture to get the students started.

“The enormity and tragedy of this earthquake caught the attention of the whole world but it was the plight of the region’s children that was most distressing. We wanted to do everything we could to make sure the children and teachers in this region could make a fresh start following the trauma they suffered as a result of the earthquake,” said Peter Martyr, Norton Rose’s group CEO. The Norton Rose Hope School is located in the northern part of Sichuan Province where the 3.1 million-strong population were directly affected by the 7.8 earthquake in 2008.

capital markets lawyers as HK IPOs surge Day has 22. These moves come as Hong Kong’s capital markets see significant growth in the number of IPOs this year.

To date, 22 new listing applications were received for the Main Board of the HKEx, in comparison to 10 received during the same period last year. In May alone, ten new listing applications were received – only three were received in May 2009.

Matthew Bennett, director of specialist recruiter Robert Walters in Hong Kong, said capital market lawyers are currently hot property for law firms.

“We’ve seen a notable uplift [of jobs] in the legal sector, as there’s been an increase in IPOs and new regulatory conditions on reporting standards, requiring a higher number of legal and compliance staff,” he said.

But as the work flows in, law firms www.legalbusinessonline.com

that place too much focus on their capital markets practices may also be at risk of overworking their lawyers, losing them in the short term. “We’re witnessing a trend of legal professionals demanding more variety in corporate work as opposed to being “pigeonholed” on pure flotation and IPO projects,” said Ricky Miu, legal division manager of Robert Walters in Hong Kong.

“Therefore, they are currently focused on finding firms that can offer broadranging experience or alternatively an in-house position where they can obtain more general corporate/commercial experience.” ALB ►► Quick facts: HKEx - IPO applications New listings - Main Board Jan – May 2010

22

Jan – May 2009

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Shanghai HHP finds European ‘best friend’ Shanghai firm HHP has entered into a “long-term entrustment agreement” with Marccus Partners, a law firm of European origin and a member of Mazars an international audit, accounting and advisory group.

HHP will adopt the Marccus brand in mainland China exclusively.

The new relationship extends the previous working ties between the firms’ partners and is rooted in their common interests and values. Between 2000 and 2006, HHP was the China member firm of Haarmann Hemmelrath, which joined forces with Mazars in 2006. The next year, Bernd Sagasser, former partner of Haarmann Hemmelrath, was elected to the managing partner of Marccus.

Sagasser noted that his firm is pleased about the “reunion” of the partners and the strategic component of the agreement is to build a platform to expand into the Asian Pacific region together with HHP and alongside Mazars.

15

NEWS >>

Korea >>

us report Chadbourne taps into BRIC market Chadbourne & Parke is planning to launch in Sao Paulo and has hired two finance lawyers to be based in the office there. The Sao Paulo branch, which will provide foreign legal advice, will launch once regulatory approvals from the Brazilian Bar Association have been received.

The office will have new finance partners Charles Johnson and Daniel Spencer; and Felipe Creazzo, a New York corporate lawyer who will relocate. “The success and growth of our Latin America practice, and the increasing significance of Brazil in the world economy, encouraged us to move decisively to gain on-the-ground capabilities in Brazil,” said Chadbourne managing partner Charles O’Neill.

Former Toyota VP launches new Washington law office US labour law firm Fisher & Phillips has opened an office in Washington DC, led by the former senior vice president of Toyota Motor North America, Dennis Cuneo, who is joining the firm as partner.

Chairman Roger Quillen said: “We believe it’s important for us to bring a voice to Washington on behalf of our clients, especially at a time of rapidly changing workplace laws and regulations.

Dennis is the right person at the right time to lead this new effort.”

Hogan Lovells builds DCM practice Hogan Lovells has expanded its debt capital markets and structured finance practice with the appointment of Emil Arca as a partner in its New York office. Arca joins from Dewey & LeBoeuf in New York and is expected to drive the development

of the firm’s Latin America and Europe practice.

Finance co-heads Ben Hammond and David Hudd said in a statement “The work handled by Emil is at the high end of the securitisation business and is a very good fit alongside the team based in Europe.

We are seeing definite signs of improvement in the securitisation market and this is exactly the right time for the team to be growing its capability in this area.”

US still leading M&A market by value The US is still leading the world as the biggest M&A market, capturing 34% of market share according to Thomson Reuters. However, deal volumes have declined: in the US alone there were 3,902 M&A deals in the period from January to July this year.

This is a drop from the 4,105 deals recorded in the same period last year.

The data also shows that the Americas saw US$559bn worth of inbound deals (determined by the acquirer’s net debt). The Americas closed 6,035 M&A transactions, which is a slight drop from the same period last year when there were 6,043 M&A deals closed.

Nixon Peabody loses more lawyers Nixon Peabody has reportedly lost another 14 lawyers to rival firm Pillsbury, after losing nine lawyers to DLA Piper in June.

Among those that have left for Pillsbury include Mats Carlston, who had headed up global finance; Bart Pisella, who will now lead Pillsbury’s corporate trust team; and Doug Schneller, who will now head Pillsbury’s distressed investment practice.

Korean firm forms PRC ties P

RC firm Jincheng Tongda & Neal (JT&N) has formed an alliance with Korean firm San Gyung Law Firm, citing increased Sino-Korean business.

Initiated by six JT&N partners – Jason Pang, Liu Zhihai, James Yang, Wang Yong, Yang Cheng and Fang Yan – the agreement forms part of the firm’s response to increasing demand for legal service from Korean clients.

“This is a breakthrough for both firms in view of our existing business model,” said JT&N in a statement. “Both firms have rich resources, political, business and legal knowledge in our homegrounds and this will prove to be greatly beneficial for both firms.”

According to JT&N’s partners, the agreement works on a referential Lui Zhihai basis. When clients are JT&N seeking legal advice regarding either firm’s home jurisdiction, the work would then be referred to the alliance firm and a temporary team with experts from both sides will be formed specifically for the project. ALB japan >>

Squire Sanders firm, outlines IP plan

U 

ROUNDUP • The US legal industry is still shedding jobs. In June, around 3,900 jobs were lost, according to the US Bureau of Labor Statistics. In May that number was 600, seasonally adjusted from the initial expectation of 300 jobs lost • London-based law firm Olswang has reportedly formed an alliance with US firm Cooley, in an effort to boost its international work • Loeb & Loeb has appointed Alan Cutler as its chief operating officer. Cutler will succeed Jerry Post who retired from the firm after serving for ten years in the position • Nixon Peabody has appointed Ernst & Young healthcare group professional Peter Egan as a partner in its health services practice in New York • White & Case has hired two new partners for its global IP practice in Washington DC. Alston & Bird lawyers Trevor Nagel and Lee Van Blerkom will join the firm’s sourcing and technology transitions group

16

S firm Squire, Sanders & Dempsey has joined forces with specialist Japanese IP firm Miki & Yoshida Law and Patent Office, to bolster its resources in what is one of the fastest-growing areas of practice for international law firms in Japan – IP. Squire Sanders’ Tokyo managing partner and Asia practice coordinator Ken Kuruso said the union was both timely given the increasing importance of IP to Japanese corporates. “Japanbased companies increasingly perceive IP as a strategic asset that is critical to their global success, and so it is important for us to be able to assist Asian Legal Business ISSUE 10.8

NEWS >>

indonesia >>

A&O launches in Indonesia with former Bakers partner A llen & Overy has formed an Indonesia presence to target Islamic finance and energy & resources work, with the help of a former lawyer from Hadiputranto Hadinoto & Partners (HHP), Baker & McKenzie’s Indonesia alliance firm.

It has sealed an association with the law firm of Daniel Ginting, a former energy & infrastructure projects partner at HHP. The office is situated near the Indonesian Stock Exchange, and will link up with A&O’s recently launched Doha office, which is also targeting Islamic finance work. The alliance makes an eighth office in the AsiaPacific for Allen & Overy and follows on from its dual assault on the Australian market with openings in Perth and Sydney in March.

Allen & Overy’s Asia managing partner Thomas Brown said that the firm was receiving more Indonesiarelated work and interest from its clients. “Indonesia is now one of the most important emerging markets in Asia. Increased interest from clients has led to steady and sustained growth in the amount of Indonesia-related work

we do,” he said. The decision was also prompted by what global managing partner Wim Dejonghe said was Indonesia’s fiscal shield from the GFC. “Indonesia is one of the few countries whose GDP has continued to grow, despite the financial crisis and global Daniel Ginting Allen & Overy recession,” he said.

Dejonghe – who said the Asia-Pacific was an “important and successful region for us”– made the announcement on the same day that the Magic Circle firm announced its financial results for the 2009-2010 financial year. Turnover fell by 4%, decreasing from £1.09bn to £1.05bn.

Profits per equity partner (PEP) however, increased by 10%.

Prior to the association, Indonesiarelated work was carried out by lawyers from A&O’s Singapore office, where they had been receiving some bigticket Islamic finance mandates. For example, last year the firm advised the Indonesian government on a US$650m sukuk issue, the country’s first international sukuk. ALB

news in brief >> A&O revenue falls by 4% Allen & Overy’s end of financial year results have revealed that 60% of the firm’s revenue is now achieved outside of the UK. The results were driven by strong performances across the banking, litigation, regulatory and restructuring practices. However, the London-based firm saw revenue fall 4% to £1.05bn (A$1.9bn) for the year ended April 30.

Profits per partner (PEP) increased 10% to £1.1m, the result of a reduction in lawyers during the GFC. Staff costs fell 11% to £384m, following a restructure which saw 250 lawyers and 200 office staff cut in Wim Dejonghe Allen & Overy February 2009. For the third year running, two-thirds of the firm’s work involved two or more offices, reinforcing its global office model.

Managing partner Wim Dejonghe said in a statement: “While the outlook for the global economy remains uncertain, especially in some European markets, we are in the best possible shape to handle whatever challenges the market presents.”

M&A Region Breakdown – ASIA PACIFIC

►► 1/1/2010–15/7/2010 Target primary nation region

subsumes boutique clients in these matters,” Kuroso said.

Miki added that Squire Sanders’ international reach was also an important factor in the decision to merge. “Squire Sanders’ global reach… will benefit our clients in Japan, particularly those merging with companies that have assets outside Japan,” he said.

“Japan-based companies increasingly perceive IP as a strategic asset that is critical to their global success” ken kuruso, squire sanders www.legalbusinessonline.com

Value of deals (US$m)

Number of deals

The Americas

559,512

Europe

303,410

7,538

Central Asia/Asia-Pacific

211,713

5,399

Africa/Middle East

42,868

619

Japan

33,186

1,166

Unknown Total

6,035

-

-

1,150,688

20,757

►► 1/1/2009–15/7/2009 “A firm that operates globally can better meet our clients’ needs and help handle the increasingly important IP matters, both at a local and global level.” In addition to Miki and Yoshida, Kanako Inokuchi (partner) and Masazumi Kano (associate) will also join the firm, bringing the total number of lawyers in the Tokyo office to 27. ALB

Target primary nation region

Value of deals (US$m)

Number of deals

The Americas

457,769

Europe

312,321

6,043 7,381

Central Asia/Asia-Pacific

199,956

5,076

Africa/Middle East

18,181

443

Japan

35,084

1,337

Unknown Total

4

1

1,023,316

20,281

Source: Thomson Reuters

17

NEWS >>

XXX >> singapore >>

Pinsent Masons forms JLV with Singapore ally P

insent Masons has formed a joint law venture practice in Singapore with its local ally, MPillay. The two firms have converted their successful three-year old association agreement into a formal practice which will target the local dispute resolution market.

The new JLV firm, Pinsent Masons MPillay, will be Singapore’s sixth.

MPillay’s founder Mohan Pillay will lead the practice and join the Pinsent Masons partnership, while MPillay equity partner Chris Chong will be a consultant and two other partners will be counsel.

Pinsent Masons will contribute construction law specialist Jon Howes and dispute resolution lawyer Wei Yaw Lam, who will both relocate from the Hong Kong office. They will advise on construction, energy and engineering disputes resolution matters and link up with overseas offices including those of its European ally, Salans.

In formalising the association both firms said they now have a more efficient practice. “Instead of two separate law firms the JLV allows for services to be provided by a single legal services provider,” said Pillay. “It’s now a separate self-standing practice... with the convenience of a single point of communication, engagement, and invoicing.”

Under the previous association agreement the law firms had built up a steady roster of clientele, acting on local projects such as the Marina Bay Sands Integrated Resorts Development and the Singapore Mass Rapid Transit System. “Working together, we have even been able to buck the economic trends experienced in many parts of the world, with a significant increase in client instructions in the region and in Singapore in particular,” said the head of Pinsent Masons’ Asia-Pacific practice, Vincent Connor.

Pinsents last year announced its

“The logical move for us having been established in Asia was to get that capacity in Singapore” vincent connor, pinsent masons

►► Singapore Joint Law Ventures – law firms • • • • •

Allens Arthur Robinson TSMP Baker & McKenzie. Wong & Leow Dacheng Central Chambers Linklaters Allen & Gledhill Hogan Lovells Lee & Lee

intention to become a law firm of ‘truly international reach’ by 2020. Last year it formed an alliance with Salans and it continues to have arrangements with domestic firms across Asia. Howes said that the Singapore JLV satisfies part of that plan.

“This is a very important step in that process. The logical move for us having been established in Asia was to get that capacity in Singapore. We can now say that we have an Asia presence in all of the region’s major four cities – Beijing, Shanghai, Hong Kong and Singapore,” he said. ALB

singapore >>

Law Soc president prefers Dubai T he founder of WongPartnership, Wong Meng Meng has been appointed as interim President of the Law Society of Singapore after current president Michael Hwang vacated the position he has held for three years.

Hwang’s recent appointment as chief justice of the Dubai International Financial Centre Courts has prevented him from serving his full term as president, which was due to end on 31 December this year.

Instead, Hwang will stay on until July 31 and Wong will take the helm for the rest of the term, before standing for re-election next year.

18

Wong is the current vice-president of the Law Society, and is recognised as a leading litigator in building and construction law. He is active in corporate and financial litigation as well as on construction disputes. Along with Hwang, he was among the pioneer batch of senior counsel appointed by the Chief Justice in January 1997.

Wong founded WongPartnership in 1992, a firm that has grown in stature to form part of Singapore’s ‘big-four’.

He currently remains as a consultant to the firm. ‘Wong Meng Meng will have a clear vision of the needs and functions of the Law Society. He also

has the nous and drive to meet these ends. He will be a forthright leader and has my full support,’ said former Law Society president and senior counsel of Tan Rajah & Cheah, Chelva Rajah.

Wong is known to harbour a number of concerns regarding the ability of Singapore’s law firms to withstand the competitive pressures that Wong Meng Meng have been unleashed by WongPartnership the liberalisation of the country’s legal services sector. Changes to protect the interests of such firms could be high on his agenda. ALB Asian Legal Business ISSUE 10.8

NEWS >>

industry >>

Latham & Watkins latest to build Asia litigation capability

L

atham & Watkins joins other international firms that are establishing litigation practices in Asia, a result of the dry-up of corporate work during the height of the GFC. Simon Powell, a Hong Kong-qualified lawyer from Jones Day, has been appointed a partner in Latham’s Hong Kong litigation department.

Powell’s practice spans numerous sectors including advising financial institutions and companies in commercial litigation and arbitration proceedings, contentious insolvencies, securities and competition regulation.

Recently he was special counsel on Asia litigation for the Lehman Brothers estate, handling the company’s bankruptcy proceedings.

The firm has significantly expanded

its presence in Asia over the last decade with new offices in Hong Kong, Beijing, Shanghai, Singapore and Tokyo. Latham now joins Skadden, Herbert Smith and Linklaters in strengthening or launching their litigation practices in Hong Kong, the region’s financial capital, during the downturn in 2008 and early 2009.

Asia is a growing market with an increasing number of local companies embroiled in US law suits, as well as a rising number of Latham’s own Asian clients seeking litigation advice locally. According to Powell, increased securities enforcement and greater regulatory scrutiny of companies involved in major transactions in Asia will lead to an increased demand for litigation advice. ALB

news in brief >>

DIFC Courts courtroom

Michael Hwang appointed Chief Justice of DIFC Court Former Allen & Gledhill partner Michael Hwang has been appointed Chief Justice of the Dubai International Financial Centre’s (DIFC) Court. Hwang will replace Sir Anthony Evans who retires after five years in the position.

Hwang, who has served on the court since 2005 as Deputy Chief Justice, was a partner at Allen & Gledhill from 1972 and head of the firm’s litigation and arbitration department for 10 years. In 1997, he was one of the first lawyers in Singapore to be elevated to the position of senior counsel and is currently president of the Singapore Law Society and Singapore’s non-resident ambassador to Switzerland.

Sir Anthony Evans’ tenure as Chief Justice was characterised by a number of milestones for Dubai’s common law judicial system. He oversaw the development of a pro bono scheme, the establishment of a Small Claims Tribunal and implemented a Professional Code of Conduct for all DIFC Courts users. In addition, his term saw the introduction of the urgent case handling facility and an electronic case management system as well as the signing of various memorandums of understanding and enforcement protocols with the Dubai Courts.

15 Italian firms showcase Italian opportunities at Shanghai Expo Lawyers from 15 prominent Italian law firms showcased investment opportunities in Italy at the 2010 Shanghai World Expo, highlighting key legal aspects Chinese investors need to pay attention to when investing into Italy.

Representatives from the 15 firms gave speeches on various aspects of foreign investment in Italy during the morning session. A roundtable discussion on topics of common interest between China Italy was held in the afternoon, with Lv Hongbing, the vice president of All China Lawyers Association, among the guest speakers.

The 15 Italian firms include Bonelli Erede Pappalardo, Chiomenti, de Meo & Associati, Gianni, Origoni, Grippo & Partners and Scognamiglio. Among them, Chiomenti has two representative offices in China.

www.legalbusinessonline.com

19

NEWS >>

middle east >>

Charles Russell expands Bahrain practice, continues Awal proceedings

U

K firm Charles Russell has expanded its Bahrain practice by hiring three new lawyers, as it continues a major cross-border case against troubled Awal Bank. The bank was placed into administration last year after defaulting on its loan repayments.

The firm picked up the mandate last July as Awal’s external administrators on behalf of the Central Bank of Bahrain, Clive Hopewell to carry out legal Charles Russell proceedings for the banks’ creditors. An appeal by Awal Bank’s chairman against the appointment had potentially threatened the firm’s role as external administrators before it was overruled by a Bahraini court in June this year.

Charles Russell will now continue its role initiating legal proceedings across a number of countries – Bahrain, London, New York, Saudi Arabia and the

Cayman Islands – to recover assets for creditors of Awal bank. Central Bank of Bahrain said it supported the firm’s appointment, and of it’s placing Awal Bank in administration was to protect the local banking sector.

“The ruling … clearly validates our decision [to appoint administrators] and we will continue to support the independent administrators,” said Khalid Hamad, CBB’s executive director, banking supervision. “Their priority is the realisation of Awal Bank’s assets for the benefit of all stakeholders and creditors, through all available means.” The news comes as three new lawyers were appointed by

“Their priority is the realisation of Awal Bank’s assets for the benefit of all stakeholders and creditors, though all means” khalid hamad, cbb

the firm for its Bahrain office in July: Shariah banking & finance specialist Nicholas Polley, corporate lawyer Sherif Hampton and paralegal Basma AlAlawi.

In March the firm transferred corporate partner Andrew Sharpe from London, and now has 10 fee-earners in the office. Bahrain managing partner Clive Hopewell said that the appointments are intended to support the financial services sector in Bahrain.

“We continue to expand the office to cover those disciplines where we see particular client demand and strategic advantage,” he said. ALB

industry >>

Mayer Brown and Simmons: the merger that wasn’t T rans-Atlantic tie-ups have become a current fad in the international legal industry. Hot on the heels of the Hogan Lovells merger and the SNR Denton combination, UK firm Simmons & Simmons and its US counterpart Mayer Brown had been on the verge of seeking a possible tie-up, before calling off the discussions a week later.

Just one week after various media reports confirmed merger discussions, the firms jointly released a statement announcing that a combination is not going ahead. “Simmons & Simmons and Mayer Brown have held preliminary discussions with regard to the potential for a merger. Mergers are complex and present a number of issues which need to be resolved before discussions can proceed. We have concluded that a

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combination between our firms is not the right option. There is, however, considerable goodwill and continuing respect on both sides.”

Had the union gone ahead, the combined firm would have had over 300 legal professionals including 80 partners in China. It could have taken over Baker & McKenzie’s position and become the largest international firm in the country.

Simmons & Simmons has recently hired partner Davis Wang from King & Wood and is in the process of establishing an office in Beijing.

Mayer Brown’s merger with Hong Kong firm Johnson Stokes & Master (JSM) in January 2008 has significantly expanded its presences in China. This merger added three new offices to its China practice, which previously only had a Hong Kong office. ALB

►► what would have been – the simmons/mayer brown numbers Simmons & Simmons

Mayer Brown

Offices in China

Shanghai, Hong Kong

Beijing, Shanghai, Guangzhou, Hong Kong

Total offices worldwide

22

22

China headcount

80 legal staff, 18 partners and consultants

228 lawyers, 64 partners

Global headcount

777 lawyers, 134 equity partners

1657 lawyers, 274 equity partners

Global turnover in the previous FY*

US$1.1bn

£291.3m (US$430.7m)

*Source: 2010 Am Law 100 and 2009 The Lawyer UK 200

Asian Legal Business ISSUE 10.8

NEWS >>

hong kong >>

china >>

Australia’s taxing issue and China’s energy needs W

Dacheng opens in Hong Kong after another merger

P

RC firm Dacheng has opened yet another office – this time in Hong Kong – after merging with fellow PRC firm Guangdong Xin Yang. Xin Yang has an association agreement with Hong Kong-based Wong Poon Chan Law & Co, and Dacheng intends to target Chinese clients on family business governance legal issues.

The merger agreement was finalised in April 2010 and Dacheng received its license to operate from the Law Society of Hong Kong in May. In addition to its Hong Kong presence, Xin Yang has offices in Beijing and Guangzhou and advises on capital markets, private equity and venture capital, international trade, M&A, IP and project finance. The firm is also noted for its strong family office practice where it assists Chinese and other Asiabased clients on succession planning, employment policies for family members in a business and inter-generation transition management.

Dacheng plans to access the burgeoning Asian family office market as well as extend its presence to reach Hong Kong businesses through its alliance with Xinyang, which is notarized to provide legal services in both Mainland and Hong Kong.

Partners from Xing Yang were absorbed into Dacheng’s Hong Kong operations, with Yang Jinzhu, the previous co-managing partner of Xinyang now the MP of Dacheng’s Hong Kong office. “The merger is mutually beneficial as we have expanded to a much broader offering in regards to clients and network,” Yang said, adding that the firm is presently looking to recruit lawyers domestically as well as internationally to expand its operations organically in the coming years.

www.legalbusinessonline.com

►► Registered association of foreign law firms (PRC-HK) Hong Kong Solicitor’s Firm

Registered Foreign Law Firm

No. of foreign lawyers in HK*

Ho & Co., Roger

Zhong Lun

4

Ng & Shum

D&S Law Firm

1

Wong & Chan

Jin Mao

1

Wong Poon Chan Law & Co

Guangdong Xin Yang Law Firm (HK)/ Dacheng Law Office

3

-

Chen & Co

2

-

China Law Office

6

-

Duan & Duan

3

-

Grandall (HK)

3

-

Guangdong Huafa Law Office

3

-

Guantao (HK)

2

*Number of foreign lawyers as registered with the Hong Kong Law Society

►► Dacheng in Numbers Number of partners

396

Number of lawyers in Beijing

375

Overall number of lawyers

1,200

Number of worldwide offices

33

New international branch offices May 2009–May 2010

Los Angeles, Taiwan, Hong Kong, Singapore

New PRC branch offices May 2009–May 2010

Inner Mongolia, Taiyuan, Kunming

“Many lawyers in Dacheng mainland, especially those experienced in foreign legal services have expressed interest to join our office,” he said. “We’ve had a tide of referrals in the form of projects, cases and clients from Dacheng mainland to Hong Kong.”

Arrangements have already been made for 15 partners to move from Dacheng’s mainland branches to the HK office meaning it will have one of the largest Hong Kong offices among PRC firms. ALB

hile many were clouded with uncertainty by the proposed resources tax introduced by former Prime Minister Kevin Rudd, China and Australia still signed commercial deals worth more than AUD$10bn.

Witnessed by visiting Chinese Vice President Xi Jinping in June, signings between the two countries included deals for state-owned China Development Bank (CDB) to provide financing for several major mining projects, including a US$1.2bn loan for an iron ore development.

The new Minerals Resources Rent Tax (MRRT) was announced in early July, with a levy to apply only to iron ore and coal projects. The separate Petroleum Resource Rent Tax (PRRT) which is currently applicable to offshore oil and gas projects will now be extended to onshore oil and gas projects.

China is ustralia’s biggest trading partner and a major investor in its resources sector. Advisors believe work will continue to increase. Tony Damian, a Sydney-based partner at Freehills said that the new tax regime clears up the clouds of doubt that were plaguing investors.

“The MRRT reduces uncertainty and some of the deals that may have been holding back no longer need to hold back, leading to an increase in M&A activity.” ALB ►► Sino-Australian deals signed in June 2010 1. US$1.2bn facility agreement between Karara Mining Ltd and CDB 2. MOU on project development between South Australia and CDB 3. MOU on project development between Aquila Resources and CDB 4. JV agreement between China National Offshore Oil Corporation and Arckaringa Energy 5. Cooperation agreement of China First Coal Development between Resourcehouse, ExportImport Bank of China, Metallurgical Corporation of China and China Power Holdings 6. MOU between the Department of Resources, Energy and Tourism of Australia and the National Energy Administration of the PRC on enhancing cooperation in the field of energy

21

NEWS >>

Update >>

asia-pacific >>

Intellectual Property Proving Goodwill in a Business: Raffles Fine Arts Auctioneers Pte Ltd v Raffles Corporate Consultants Pte Ltd [2010] SGIPOS 1

I

n 2007, Raffles Fine Arts and Auctioneers (“RFAA”) applied to invalidate the two marks (the “Raffles Marks”) registered

by Raffles Corporate Consultants (“RCC”). The Raffles Marks comprised the sole word “Raffles” in plain capital font, and for secretarial, business management consultancy and financial consultancy services, among others.

RFAA argued that their unregistered marks “Raffles” and “Raffles Fine Arts” had been used prior to the registration of the Raffles Marks, and in respect of similar services; accordingly, the Raffles Marks would amount passing off of the goodwill in their unregistered marks.

The decision by the Intellectual Property Office of Singapore discussed the issue of whether there was goodwill in the market at length.

The Registrar observed that “it was clear that passing off protects a plaintiff’s business or goodwill and not the mark used”. The mark was simply a tool by which a plaintiff educated its customers to identify that goods or services originated from the plaintiff’s business.

Nevertheless, the Registrar stressed that the role of a mark was “crucial when proving the element of goodwill”, because the test used by the courts to determine whether the plaintiff’s business had goodwill, was whether “the mark adopted by the plaintiff has become distinctive of his services in the sense that it is associated or identified exclusively with his goods” (Emphasis in original.)

In this case, the mark “Raffles Fine Arts Auctioneers”, instead of “Raffles”, was found to be distinctive of RFAA’s services, since the former was used in RFAA’s publications and stationery.

Although RFAA’s memorandum & articles (“M&As”) stated that of RFAA provided services such as art auctioneering, business consultancy and financial solution services, the M&As were not conclusive evidence of the services actually provided by RFAA. It was necessary for the Registrar to look at the evidence tendered by the parties to determine the actual scope of services provided.

The Registrar found that RFAA did provide art auction sale services, but not financial services as there were no tax invoices to prove the actual provision of such services. The Registrar was of the view that three posters in a span of eight years to promote RFAA’s financial services was insufficient evidence.

Accordingly, the Registrar concluded that there was insufficient goodwill to support an action for passing off.

Terri Koh, Associate IP & Technology Group Tel: +65 6428 9883 Terri.koh@twobirds.com Web: www.twobirds.com ATMD Bird & Bird LLP is a Singapore law practice registered as a limited liability partnership in Singapore. The firm is associated with Bird & Bird, an international legal practice. It is solely a Singapore law practice and is not an affiliate, branch or subsidiary of Bird & Bird or Bird & Bird LLP.

22

Terri Koh

Sidley appoints new MP, reveals plans for Asia-Pacific

S

idley Austin has named Chicago-based partner Thomas Albrecht as its new Asia-Pacific managing partner. The US firm created the new leadership position as part of a ‘strategic plan for the Asia-Pacific region’, which includes adding more offices to the six it currently has in the region.

Albrecht will transfer from his current post in Chicago to take up the role based in Hong Thomas Albrecht Kong. He will work closely with Sidley’s Tokyo Sidley Austin managing partner Tomoo Nishikawa and Hong Kong corporate finance partner Constance Choy, both of whom sit on the executive committee alongside Albrecht.

Sidley’s management committee chairman and partner Charles Douglas said the new appointment is imperative for the firm’s growth in Asia-Pacific. “We’re tapping [Albrecht’s] experience [to further develop] our operations in the AsiaPacific region, recognising the increasing importance to our clients of that fast-growing part of the world,” he said.

“The firm’s ability to realise its ambitions for our Asia-Pacific platform will be greatly enhanced by basing Tom in our Hong Kong office.” Before Albrecht’s appointment, management responsibilities over Sidley’s six Asia-Pacific offices – Beijing, Hong Kong, Shanghai, Singapore, Sydney and Tokyo – were loosely divided between Greater China William Fifield managing partner William Fifield and other Sidley Austin partners within each office. asia-pacific >>

Revenue drops but Freshfields

F

reshfields’ Asia managing partner Simon Marchant said he remains optimistic for the firm’s regional growth, despite the firm posting an 11% decrease in global revenues and a 3% decrease in profits per equity partner (PEP) in FY2009/10.

Global revenues at the Magic Circle firm dropped to £1.14bn (US$1.7bn), from £1.3bn (US$2.1bn) for the previous financial year, when revenue grew by 9%. PEP also dropped slightly to £1.4m (US$2.15m), from £1.443m (US$2.37m). The firm’s headcount in Asia also decreased from a combined 206 lawyers and Simon Marchant partners to 181 this year.

Freshfields In announcing the declining revenues, Freshfields now joins other Magic Circle firms Linklaters (down 8%), Clifford Chance (down 5%) and Allen & Overy (down 4%) reporting drops. Yet Marchant said that while global economic uncertainty remains, he is optimistic about his firm’s growth in Asia.

Asian Legal Business ISSUE 10.8

NEWS >>

Update >>

Islamic Finance Adviser’s Duty Of Care In Bond Issuance

I “Increased client demand compels us to plan for growth and to consider other jurisdictions where we should add offices” thomas albrecht, sidley austin Fifield will step down from that role at the end of 2010 and return to Dallas, where he was office managing partner before taking up the China role in 2005. “Over the past five years, Fifield has made a tremendous contribution to Sidley’s regional expansion, but increased client demand compels us to plan for growth and to consider other jurisdictions where we should add offices,” said Albrecht.

Some observers have questioned the appointment, being concerned over the message being sent by appointing a US lawyer to lead an Asian practice. “I’m not sure that this is necessarily the best move. For a firm that prides itself on a strong Asia practice, you’d think they would tap an Asian attorney to manage the region,” said Thomas Chow, the writer of legal blog, China Esquire. Meanwhile, Sidley recently appointed Chinese lawyer Yabo Lin as a partner, to work across the firm’s Palo Alto and China offices advising on crossborder investments between the US and Asia. ALB

‘optimistic’ for Asia “As people will be aware, the economies in Asia came out of the downturn much faster than in other markets and this translated into strong activity by our clients and a good performance by our business in the region,” he said.

“We made significant investments throughout last year in financial services, regulatory, disputes, global investigations, anti-trust, energy, capital markets and M&A.” All eyes will now be on the firm’s new Hong Kong managing partner, capital markets lawyer Kay-Ian Ng, who took over the position from retiree Clive Rough in March. The firm is investing heavily in its Hong Kong practice where capital markets work has formed the backbone of the Greater China practice. Work in this area is becoming increasingly more competitive to secure amongst international law firms in Hong Kong.

This year Freshfields secured roles acting for the issuers on the Hong Kong IPOs of L’Occitane (US$708m), China Merchants Bank (US$3.2bn), and NVC Lighting (US$196m). ALB www.legalbusinessonline.com

n July, 2010, an oral judgment by a High Court in Malaysia sent ripples in the PDS market when it ruled that the lead arranger and trustee are equally liable as the issuer for losses suffered by the bondholders. The judgment was based on a lawsuit filed by 10 financial institutions (“Plaintiffs”) against bond issuer Pesaka Astana Sdn Bhd (“Pesaka”), KAF Discounts Bhd, Mayban Trustees Bhd and others (collectively referred to as “the Defendants”).

The Plaintiffs alleged that:i. a fundamental term of the bonds issuance is the sole operation of 3 Syariah compliant designated accounts by Mayban Trustees , one of which is to be ear-marked to redeem the bonds on its maturity; ii. Pesaka failed to open the 3 designated accounts; iii. when the bonds proceeds were disbursed, they were not paid into any of the designated accounts but instead were, at Pesaka’s instructions, paid to various accounts which were neither Syariah compliant nor operated by Mayban Trustees without the knowledge of bondholders.

In September, 2005, upon its maturity, Pesaka failed to redeem the first tranche of the bonds. During a meeting with bondholders, Pesaka admitted its failure to deposit payments received into the designated account. Instead a portion of the monies were utilized for overseas investments in its related companies. At the same meeting, Mayban Trustees informed the Plaintiffs that it had not become the sole signatory to the 3 designated accounts.

The Plaintiffs’ argued that they had gone into the deal on the basis of an information memorandum by KAF Discounts that was ‘false and misleading’ while Mayban Trustees failed to exercise the necessary care and due diligence expected of a trustee. The court accepted this argument and held that the Plaintiffs had depended on the information memorandum to make informed investment decisions and therefore it is the lead arranger’s responsibility to ensure that there are no misstatements therein.

The message by the High Court to all market players in the industry is clear i.e. It is not so much about making the arrangers and advisers liable to investors throughout the tenure of the bonds issuance, but it is the responsibility of such arrangers and advisers to ensure that utmost duty of care has been exercised by all parties, including the legal advisers, to ensure that information furnished to investors are true and accurate and have been complied with.

Sharifah Shafika Alsagoff, Partner Tel: +603-20924822 Email: shafika.alsagoff@ridzalaw.com.my

Sharifah Shafika Alsagoff

23

NEWS >>

Update >>

china >>

Hwang Mok Park leaves Shanghai

Employment When A New Hire Terminates Before Starting Work

W

ith hiring picking up as the economy improves, employers may find new hires pulling out or not showing up for the first day of work. This article considers what employers might do in such

situations.

What employers will not be able to do is to rely on the notice provision in the employment contract to claim salary in lieu of the notice.

In an unreported 2003 case, a company sued an individual it had hired for failure to report to work. The company claimed S$4,500 equivalent to three months’ salary in lieu of notice of termination under her contract of employment.

The company also claimed damages of S$1.2 million – for wasting the company’s time looking for a replacement, placing a job advertisement and for projected loss of revenue that the candidate would have generated.

The judge ruled that the termination notice in the employment contract did not apply, as the candidate had never started work. The individual was ordered to pay only S$41.60 for the company’s cost in placing the job advertisement to replace her.

According to the Ministry of Manpower, if a new hire has signed the employment contract but does not start work, the Employment Act will not apply because an employeremployee relationship has not started. Hence, the employer cannot claim salary in lieu of notice or compensation from the individual under the Act. Nevertheless, even if the employment has not begun, there is a contract which the individual will have breached by not starting work. The breach entitles the employer to damages.

However, damages are likely to be limited to “actual” damages incurred by the employer as a result of the breach.

Employers may consider including in the employment contract a provision that expressly addresses the situation of the individual withdrawing from the employment before the start date. Such a clause would set out the individual’s liability to pay a reasonable estimate of the employer’s loss if the individual does not start work. The amount must be reasonable or it risks being deemed a penalty which will not be enforceable.

Such a provision may cause the individual to consider his/her liability before deciding to pull out, and it gives the employer some basis for quantifying its claim. The employer will however need to be prepared to pursue the claim if the individual does not pay up.

Susan de Silva, Head of Corporate & Commercial Group Direct: (65) 6428 9817 susan.desilva@twobirds.com

Susan de Silva

Kavitha Rajan, Foreign Lawyer Corporate & Commercial Group DID: (65) 6428 9419 Kavitha.rajan@twobirds.com ATMD Bird & Bird LLP 2 Shenton Way #18-01, SGX Centre 1, Singapore 068804 Tel: (65) 6534 5266 / Fax: (65) 6223 8762 Web: www.twobirds.com ATMD Bird & Bird LLP is a Singapore law practice registered as a limited liability partnership in Singapore. The firm is associated with Bird & Bird, an international legal practice. It is solely a Singapore law practice and is not an affiliate, branch or subsidiary of Bird & Bird or Bird & Bird LLP.

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Kavitha Rajan

K

orean firm Hwang Mok Park has closed its Shanghai office less than a year after acquiring it through a merger with another law firm, saying the office was ‘unsustainable.’ Although managing partner Sang Il Park did not outline a specific date, he said the decision to close the Shanghai office was made “months after” the merger with boutique firm Hansueng was finalised, in September 2009.

That merger had handed the firm control of Hansueng’s two-year old Shanghai office, its first base outside of Korea.

Park said that partners had considered various ways to make use of the office, but that it was ultimately closed based on business rationale, which has cut costs and time for the firm.

All three Shanghai-based partners have been moved permanently to Hwang Mok’s base in Seoul. “It was a business decision to find a more efficient way to manage our time and our local alliances,” said Park. “We determined that [closing the office would be] more efficient for our China practice, and for our coordination and alliance with the Chinese law firms.”

Park said that the China practice is still operational, with its lawyers working on a fly in/fly out basis with the firm’s PRC ‘best-friend’ alliance firms. “We’re still doing work for our Chinese clients and whenever it is necessary, our lawyers travel to China. We have our Chinese law firm friends who we work with on a case-by-case basis to assist us through local matters, but this way we can save costs and time,” said Park.

The news comes as fellow Korean firm Sang Il Park Shin & Kim and Japanese firm Nishimura Hwang Mok Park & Asahi both opened a China representative office this year. Park said each firm has its own business motivations for going abroad, and that china >>

China to seize HK’s crown A

ccording to reports released by both PricewaterhouseCoopers (PwC), PRC companies are expected to raise US$55.7bn on the Shanghai Stock Exchange this year, while in Hong Kong the figure is expected to be US$47.7bn. Last year Hong Kong raised approximately US$30bn in new listings with Shanghai tagging closely behind with US$27.3bn.

“The China IPO market, especially Shenzhen SME Board and ChiNext, has picked up significantly in the first half of the year, despite the uncertainties on global recovery and the Euro debt crisis impact causing greater market volatility. This really demonstrates that Chinese companies are developing well along with the continuing growth of domestic economy and become more mature,” said Frank Lyn, China markets leader of PwC in a statement.

Investor confidence is how Wayne Chen, partner and head of capital markets at PRC firm Llinks, explains the booming Asian Legal Business ISSUE 10.8

NEWS >>

Update >>

Malaysian Tax Malaysian Tax Issues in Cross-border Transactions

T

wo important Malaysian tax issues for companies to be aware of in doing cross-border transactions are, namely (i) withholding tax reduction via Double Taxation Agreement (“DTA”), and (ii) transfer pricing.

DTA: Is It a Relief from Taxation?

“We have our Chinese law firm friends who we work with on a case-by-case basis” sang il park, hwang mok park for now Hwang Mok Park is remaining in the domestic market. “Many Korean firms are interested in opening offices abroad, and each has their own unique background and business strategy for doing so. I think basically it’s a good sign that Korean firms are going abroad to expand practices, but the issue is which of those is better suited. For our firm now it’s better to remain in Korea to coordinate with our friends rather than having a fixed base,” he said.

Park did not rule out re-opening the office in the future, but said it would depend on deal flow. “[It would] depend if our work volume grows, and to the extent that we need a fixed place there then probably we would open. But we don’t have a specific timeline for that yet,” he said. ALB

as IPO centre? local market. “There are many elements that have boosted investor interests in local listings.

These include the increasing listing value and the strict regulations of the China Securities Regulatory Commission (CSRC),” says Chen.

CSRC has been reputed to be extremely strict with its approval procedures and Wayne Chen Chen explains that the authorities are Llinks requiring more than just meeting basic listing requirements but also a review of the status of the company in its industry according to its peers. Such strict regulations have resulted in the local board being dominated by the top-tiers companies, which is both inviting and assuring to potential investors.

“This type of confidence, at this time, is a notion that is lacking in investors in international markets,” says Chen. ALB www.legalbusinessonline.com

A DTA is an agreement defining the taxing rights, tax credits or exemptions, created between two countries to avoid double taxation due to cross-border flow of income. According to the Inland Revenue Board of Malaysia (“IRB”), as at 2nd February 2010, Malaysia has signed DTA with 68 countries.

The most apparent effect of the ratification of a DTA is the reduction of withholding tax for interest, royalties and fees for technical services, ranging from 2% to 10% reduction distinct in each country. Notwithstanding this, there are instances where a DTA does not provide any relief for withholding tax payments.

Example 1: The Malaysia-Singapore Tax Treaty places all royalties under one category and effectively makes the royalty payments to non-residents subject to 8% withholding tax. In this instance, the Malaysia-Singapore Tax Treaty is helpful because the tax rate set forth for royalties in the treaty (8%) is lower than the rate of 10% under the Income Tax Act 1967 (“the Act”).

Example 2: The Malaysia-China Tax Treaty does not offer any withholding tax relief for royalties because the applicable tax rates of 10% or 15% are either higher or remain the same as provided in the Act (10%).

Transfer Pricing: Section 140A of the Act The new Section 140A of the Act introduced two major provisions in minimising the risk of double taxation: (i) the IRB is empowered to impose arm’s length prices for related party transactions which are not conducted at arm’s length prices; and (ii) the introduction of thin capitalisation, i.e. the deduction of interest incurred from borrowings among associated companies would be restricted to the debt-toequity ratio prescribed by the IRB. In conclusion, tax issues in relation to DTA and transfer pricing warrant the attention of multinational enterprises based in Malaysia. Taxpayers should be constantly aware of the relevant taxation rules and developments in order to minimise costs associated with crossborder transactions.

Juhaida Mior Zulkifli, Associate Phone: +603- 2118 5064 Fax: +603- 2118 5111 E-mail: juhaida@azmilaw.com

Juhaida Mior Zulkifli

Don Soh She Ji, Legal Executive Phone: +603- 2118 5183 Fax: +603- 2118 5111 E-mail: sheji@azmilaw.com Azmi & Associates 14th Floor, Menara Keck Seng, 203 Jalan Bukit Bintang, 55100 Kuala Lumpur, Malaysia.

Don Soh She Ji

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NEWS >>

industry >>

Norton Rose guns for more Islamic finance work N orton Rose aims to extend its Islamic finance and asset capabilities beyond London into Asia and the Middle East, according to Peter Haslam, head of the firm’s Asian Banking practice. In July, the firm bumped up the total number of partners in Asia to 46, after Davide Barzilai relocating London-based Norton Rose partner Davide Barzilai to its Hong Kong office, along with the lateral hire of Bahrainbased partner Mohammed Paracha from Al Salam Bank Bahrain BSC to the firm’s Bahrain office.

According to the firm, Islamic finance and banking will continue to grow as the global financial markets adjust to new regulatory requirements and as the economies of Muslim-majority countries develop.

Despite Singapore being the most natural relocation option for Barzilai, he was posted to Hong Kong to expand

Norton Rose’s banking capabilities in North Asia. We have a smaller banking team within our Hong Kong office and are looking to grow within Northern Asia side of our banking practice that includes China, Taiwan, Hong Kong and Korea,” Barzilai said.

According to Barzilai, the large number of partner relocations into Asia as well as the Middle East is a response to client demand. “What we’re hearing from clients is that they want full service in these areas. There is

a lot of work out here and we are just meeting demand,” Barzilai said.

“There are good opportunities and strong growth potential in Asia Pacific. I’ve just hired Neil Millar two lawyers and there Norton Rose is always shortage of suitable lawyers in the Islamic finance sector who have strong banking legal skills as well as an understanding of Islamic drivers,” he said. ALB

south-east asia >>

Australian firm Allens focuses energy on South-East Asia A ustralian law firm Allens Arthur Robinson has poached Clifford Chance asset finance partner Rod Howell and has transferred two other partners to its Singapore office, to focus on growing key practice areas in South-East Asia. Howell had previously worked with Allens before leaving the firm in 1997 for Clifford Chance in London, becoming a partner in 2005 and later moving to the New York office.

He will be responsible for leading the development of an aircraft financing practice for the Australian firm, working in the banking & finance practice alongside the Singapore office head Robert Clarke and partner Robert Fish. In addition, Sydney-based insurance & reinsurance partner

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Matthew Skinner and Perth-based energy & resources partner Darren Murphy have moved to Singapore. Both partners will use the Singapore base to build their respective practices; Skinner heading a South-East Asian dispute resolution practice and Murphy working on regional infrastructure projects.

Clarke said that the firms’ strategy is based on South-East Asia’s swifter recovery from the global financial crisis. “It’s important to us that we continue to build a strong presence in Singapore given its role as a growing financial, insurance and arbitration hub for South-East Asia,” he said.

Allens operates in Singapore – where its South-East Asia practice is based – through a joint venture with local firm TSMP, but works in a separate office.

“It’s important to us that we continue to build a strong presence in Singapore given its role as a growing financial, insurance and arbitration hub for South-East Asia” robert clarke, aar Clarke has ruled out applying for a local practicing license and said the JV continues unaffected: “We are very happy with the JV relationship that has been built up over several years.

TSMP has also grown its numbers in the last 12 months,” he said.

However, Allens’ regional Asia strategy comes in direct contrast to many of its fellow Australian firms which are focusing instead on North Asia. Clayton Utz opened an office in Hong Kong this year while Blake Dawson opened in Japan. ALB Asian Legal Business ISSUE 10.8

NEWS >>

Middle East >>

DLA blames Middle East for poor ’09 performance

Update >>

PDPA obtains Royal Assent The Development of Personal Data Protection in Malaysia

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D

LA Piper has cited the economic meltdown in the Middle East as the main reason behind its poor financials last year.

The firm saw its profits per equity partner for the 2009/2010 financial year slide to £527,000 (US$801,514) from £645,000 (US$980,980) in the previous year- which represents an 18 percent drop.

The firm’s turnover last year was also down. DLA Piper generated £581m (US$883.7m) in fees which is a one percent drop on its 2008-09 performance.

“PEP suffered as a direct result of the market conditions in the Middle East which resulted in a substantial underperformance by our business in the region,” said Nigel Knowles, the firm’s joint chief executive.

“We have restructured that business, the hit has been taken and we have made a strong start to the 2010-11 year.”

DLA Piper was one of the worst hit firms in the Gulf during the financial crisis. It was the only international law firm to undertake three redundancy consultations in the Middle East (laying off 30 staff and 15 lawyers), in addition to losing a number of high-profile partners to rival firms (Olivier Agha to Agha & Shamshi, Alex Saleh to Al Tamimi, and Peter Hodgens to Clydes) and also saw an alliance with local Saudi firm Abdulaziz A Al-Bosaily crumble after only six short months.

The only bright spot last financial year for the firm, it seems, were its Asian financials. According to Knowles, the firm saw a 21 percent improvement on its revenues taking in £56.5m (US$86m). ALB

www.legalbusinessonline.com

he Personal Data Protection Bill 2009 (“PDP”) has recently received Royal Assent in June this year.

Since the PDP was first mooted, Malaysia has seen a literal explosion in the number of companies and service providers that have taken to the internet, offering Malaysians a plethora of goods and services that are no longer confined by the limitations of time and geography.

However, with this move towards the internet as an accepted medium of commerce, comes the unfortunate need to exchange and disclose personal data. In light of this, the lack of regulation in this arena was particularly troubling.

Therefore, it comes as no surprise that the PDP has often been regarded as the “missing link” in Malaysia’s slew of IT-centric legislation, one borne out of an increasing and obvious need to regulate the unchecked ability of companies and service providers to utilise, share, disclose and disseminate personal data.

The PDP achieves this aim by specifying standards by which personal data is collected, stored and managed and creating specific “rights” for persons providing their personal data to such entities. These rights include the obligation of nondisclosure imposed on data users and the limitation on the purpose of use wherein personal data may only be utilised for the purpose for which it was collected.

Those familiar with the data protection regime in Europe will most likely notice the similarities in the Malaysian approach towards data protection. Within the European Union, the Data Protection Directive (Directive 95/46/EC) was implemented in 1995 by the European Commission as an integral part of its bid to improve upon the human rights and privacy laws of member states. The Directive contains provisions with obligations that are not entirely dissimilar from the PDP. Enforcement of the new legislation has been enhanced by provisions in the PDP providing for the appointment of a personal data protection commissioner, the setting up of a data user forum, a personal data protection fund, an appeal tribunal and a data protection advisory committee to advise the commissioner on the administration and enforcement of the PDP. The consideration of candidates for the post of commissioner and the formation of an associated regulatory commission is already in progress, as highlighted by the recent announcement in June this year by the Malaysian Information, Communication and Culture Minister, Datuk Seri Dr. Rais Yatim. The new commissioner and commission will be closely linked to the Malaysian Communications and Multimedia Commission (“MCMC”) and is expected to be formalised by January next year.

Written by Eric Chin, Partner E-mail: eric@naqiz.com (assisted by Mr. Ahmad Asyraq) Naqiz & Partners PL01, Plaza Level, No. 45, Block A, Medan Setia 1, Plaza Damansara, Damansara Heights, 50490 Kuala Lumpur, Malaysia Tel: + (603) 2095 1188 Fax: + (603) 2095 1186 www.naqiz.com

Eric Chin

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NEWS >>

appointments ►► LATERAL HIRES Name

Leaving

Going to

Practice

Location

Michael Hwang

Singapore Law Society

Dubai International Financial Centre Court

Chief Justice

Dubai

Darren FitzGerald

Bird & Bird

Salans

International arbitration Hong Kong

Angelina Chia

Kelvin Chia Partnership

Lee & Lee

Corporate

Singapore

Gary Feulner

SHUAA Capital

Chadbourne & Parke

Corporate

Dubai

Kartik Ganapathy

Nishith Desai

Indus Law

Investment head

Bangalore

Mohammed Paracha

Al Salam Bank Bahrain BSC

Norton Rose

Banking

Bahrain

Paul Lantz

Deutsche Asset Management

MFC Global Investment Head of Investment Management Legal and Compliance

Singapore

Joseph Lee

Fried Frank

Jones Day

Hong Kong

Rod Howell

Clifford Chance

Allens Arthur Robinson Aircraft financing

Singapore

Simon Powell

Jones Day

Latham & Watkins

Litigation

Hong Kong

Bruce Cooper

Freshfields

Clayton Utz

Banking & finance

Sydney

Wong Meng Meng

NA

Law Society of Singapore

Interim president

Singapore

Capital markets

►► Relocations Firm

Lawyer*

From

To

Clifford Chance

Nigel Wellings

London

Dubai

Allens Arthur Robinson

Matthew Skinner

Sydney

Singapore

Allens Arthur Robinson

Darren Murphy

Perth

Singapore

Norton Rose

Davide Barzilai

London

Hong Kong

►► Promotions Name

Firm

Promotion

Practice

Location

Graham Lovett

Clifford Chance

Gulf managing partner

Corporate

Dubai

Jay Aggarwal

Fried Frank

Partner

Capital markets

Hong Kong

Marianne Cheng

Fried Frank

Partner

Capital markets

Richard Hall

Conyers Dill & Pearman

Partner

Corporate

Hong Kong

Kung Whooi Phing

Conyers Dill & Pearman

Partner

Corporate

Singapore

Jay Nee

Appleton Luff

Partner

International trade

Singapore

Timothy Cooke

Baker & McKenzie.Wong & Leow

Partner

Dispute resolution

Singapore

Nadia Nasoetion

Hadiputranto Hadinoto & Partners

Partner

Corporate

Indonesia

Ponti Partogi

Hadiputranto Hadinoto & Partners

Partner

Corporate

Indonesia

Samer Eido

Simmons & Simmons

Middle East financial markets head

Finance

Qatar

Various

Clyde & Co

Legal director

Dispute resolution, real Dubai, estate, strata law, IP, Doha construction

Various

Clyde & Co

Senior associate

Dispute resolution, corporate, real estate, commercial, aviation, marine law, construction, banking & finance

Clifford Chance

Clifford Chance confirms Middle East head, grows Dubai office Dubai-based partner Graham Lovett has been re-elected as the firm's Gulf managing partner for a second five-year term. First elected to the Middle East management position in 2005, His new leadership term will commence in July this year and last until 2015. Lovett said in a statement

28

Salans

Bird & Bird

Dubai, Abu Dhabi, Riyadh

accompanying the announcement that he considers the region "one of the most exciting places to be practicing law", due to the firm's "ambition for the future" in the bourgeoning region.

The firm has 10 partners based in Dubai and Abu Dhabi. CC’s has also transferred London corporate partner Nigel Wellings to its Dubai office, in order to build up its Middle East practice. Wellings join two other partners based in Dubai’s corporate group, and reports to practice head Simon Clinton.

Salans Hong Kong gains Bird’s disputes head Salans has appointed international arbitration specialist Darren FitzGerald, the former head of Bird & Bird’s Asia dispute resolution and China employment practices, as a partner in its Hong Kong office. FitzGerald has 15 years experience in dispute resolution and regulatory matters in the Asian region, with a focus on disputes in Hong Kong and the PRC. He will join four other lawyers stationed permanently in the Hong Kong office of Salans (five others stationed there also work across other offices).

Conyers Dill & Pearman

Conyers promotes two corporate partners in Asia Conyers Dill & Pearman has made up five lawyers to partner from its British Virgin Islands, Bermuda, Hong Kong and Singapore offices, raising the total number of partners for the firm to 42.

Richard Hall In Asia the firm has promoted Richard Hall from the Hong Kong corporate practice and Kung Whooi Phing from the Singapore corporate practice to partner. Both lawyers specialise in capital markets and advise BVI, Bermuda and Cayman companies on their IPOs. Hall’s recent work includes advising on Cayman and BVI laws in Glorious Property Holding’s restructuring of promissory notes, ALB China’s ‘Real Estate & Construction Deal of the Year’. Phing has worked on the first listings by Bermuda companies on the Malaysian stock exchange, for Xingquan International Sports Holdings and MultiSports Holdings.

Lee & Lee

Various

Lee & Lee hires 'due to M&A activity' Singapore firm Lee & Lee has added four new associates to its corporate division in response to the growing demand for capital markets, M&A and privatisation work, according to the firm.

The appointments of Angelina Chia (from Kelvin Chia Partnership), and former Lee & Lee interns Low Zhi Ni, Lee Ben-Jie and Jeremy Lin bring up the number of associates added to the firm this month to nine. The corporate division has grown to 25 and this takes the firm’s total headcount to approximately 80 partners and associates.

Chadbourne & Parke

Chadbourne looks in-house Chadbourne & Parke has rehired Gary Feulner as a senior counsel in its Dubai office. Feulner worked in the firm’s NY, Washington and UAE offices from 1984-1990, after which he left the firm to take up Asian Legal Business ISSUE 10.8

NEWS >>

a position as general counsel of Dubai-based investment bank SHUAA Capital.

Feulner’s appointment brings the total number of lawyers in the firm’s Dubai office to ten, four who are partners. Daniel Greenwald, Daniel Greenwald head of the firm’s Dubai office, said he is “extremely happy" to welcome Feulner back to the firm, adding that "we will benefit from his broad general experience and insight into local and regional legal and regulatory issues, and from his in-house perspective.

Specifically, he strengthens our capital markets and PE experience in the region, as well as our overall corporate know-how."

Appleton Luff

Appleton Luff appoints new Singapore partner Boutique law firm Appleton Luff has promoted international trade lawyer Jay Nee to partner. He will join Edmund Sim as the firm’s second partner in their One Raffles Quay office in Singapore, and will be the eighth Appleton Luff partner internationally.

Nee’s practice areas will cover trade remedies (including anti-dumping and countervailing duties), customs, foreign investment, international business operations, IP and WTO issues. “Our clients have expressed great confidence and satisfaction in Jay’s and Kelly’s work. We are proud to call them partners,” said founding partner Arthur Appleton.

Prior to his appointment with the firm, Nee spent nine years with White & Case as a trade consultant and foreign attorney in Taipei, Shanghai and Washington, DC and three years with Hunton & Williams in their Washington DC and Singapore offices as a legal consultant.

Baker & McKenzie

Baker & McKenzie strengthens Asia practice Baker & McKenzie’s member firms in Singapore, Indonesia and Malaysia have made new appointments and promotions. Nadia Nasoetion and Ponti Partogi from Baker & McKenzie’s Indonesia member firm, Hadiputranto Hadinoto & Partners have been promoted.

Nasoetion comes from the firm’s Nadia Nasoetion finance and projects practice and covers banking & finance work, loan syndication, debt restructuring, acquisition finance and project financing.

Partogi specialises in the firm’s tax practice, focusing on domestic and international tax planning relating to inbound and outbound investment, corporate and debt restructuring of multinational Ponti Partogi companies, as well as tax litigation services. www.legalbusinessonline.com

In Singapore, Baker & McKenzie.Wong & Leow promoted Timothy Cooke to partnership. He hails from the firm’s dispute and resolution practice and advises clients in international arbitrations and mediations in a variety of commercial disputes, notably oil & gas, telecommunications, engineering, construction, banking and trusts.

Nishith Desai

Indus Law

Nishith Desai loses fund investment head Kartik Ganapathy has been poached from his role as head of investment practice of Asia’s sixth- largest firm by Indus Law’s fund and M&A group, joining as an equity partner. Ganapathy, an alumnus of the National Law School of India University and New York University Law School, was an executive committee member at Nishith Desai Associates and the managing partner of the Bangalore office.

Ganapathy specialises in venture capital and PE investments across sectors including micro-finance, education and healthcare, securities law and structured finance transactions. He said it was his aim to make Indus Law “the ‘go-to firm’ for legal advice in the financial sector, particularly for PE, venture capital and M&A.”

construction partner Mark Blanksby said the appointments are part of the firm’s regional plan.

The firm has promoted three lawyers in Dubai and one in Doha to the role of legal director, with thirteen others elevated to senior associate positions, mostly in Dubai.

Norton Rose

Norton Rose’s new Islamic finance lawyers Norton Rose has relocated Davide Barzilai from London to its Hong Kong office, and hired Bahrainbased partner Mohammed Paracha from Al Salam Bank Bahrain BSC to its banking practice in Bahrain, as partner and deputy global head of Islamic finance.

The appointment follows the relocation of Neil Miller, global head of Islamic finance, to the Dubai office last year. Barzilai previously worked at Norton Rose (Asia) in its Singapore office from 20052007. His role involves managing the firm’s Islamic finance business in the region from the HK office.

Paracha specialises in Islamic financial and banking transactions, and joins the firm from Al Salam BankBahrain BSC, where he was executive vice-president and head of Europe. Previous to that he spent three years in the London banking team at Norton Rose.

MFC Global

Deutsche

In-house: MFC Global Investment appoints Deutsche compliance head MFC Global Investment Management, the asset management division of Manulife Financial, has appointed Paul Lantz as head of investment legal and compliance in Asia. In this newly-created position, Lantz will be responsible for overseeing the legal and compliance procedures of the company’s investment operations, including those of the company’s rapidly growing third-party asset business in the region.

As at April 2010, the company manages over US$31bn in assets in Asia, of which US$10bn is managed for external institutional clients. Based in Hong Kong, Lantz will head an in-house legal and compliance team that spans 10 locations in Asia. He joins the company from Deutsche Asset Management in Singapore, where he was head of Asia & MENA compliance for the last four years.

In addition to his time at Deutsche, Lantz has spent more than six years in senior compliance and legal roles for Fidelity Investments and PwC in Japan.

Clyde & Co

Clyde & Co on Gulf promotion spree Clyde & Co has promoted 17 lawyers from its four Middle East offices to positions as legal directors and senior associates. A majority of the promotions are from the construction, corporate and banking practices – which were the most affected sectors in the regional financial crisis. Dubai-based

Simmons & Simmons

Simmons & Simmons announces new finance head Simmons & Simmons has promoted Qatar-based finance lawyer Samer Eido to head its Middle East financial markets practice. Eido replaces outgoing partner Philip Abbott, who has Samer Eido held the position since 2008 and is returning to practice in the London office’s banking group.

Eido will take charge of the regional financial markets practice, which serves the Islamic finance, banking, insurance and private funds industries, working under global head Jeremy Hoyland. His transactional experience includes advising regular client Commercial Bank of Qatar on its US$1.2bn bond issue last year.

Freshfields

Clayton Utz

Clayton Utz recruits Freshfields star Australian firm Clayton Utz, which recently opened a Hong Kong office, has announced that former Freshfields project finance lawyer Bruce Cooper will join the firm's Sydney banking & financial services practice as a partner in September.

Cooper has spent the past 18 years in Asia, most recently in Hong Kong where he led Freshfields' regional finance practice group, overseeing a practice that spanned from China to Nigeria.

29

News | regional update >>

Regional updates

CHINA

30

CHINA

Paul Weiss

Philippines

SyCip Salazar Hernandez & Gatmaitan

SINGAPORE Loo & Partners

Vietnam

Indochine Counsel

MALAYSIA

Wong & Partners

INDonesia

Bastaman Enrico

Each month, ALB draws on its panel of country editors to bring readers up to date with regulatory developments across the region

Precaution Called For Dealing With “State Secrets” When Doing Business In China China’s recent trials on Australian citizen Stern Hu and American citizen Feng Xue caught worldwide attention to China’s State secrets protection regime. Although due to the political wrestling behind the scene, charge on Stern Hu was eventually “downgraded” to commercial secrets infringement, Feng Xue was sentenced to 8-year imprisonment for infringing State secrets by purchasing a database regarding oil reserves in China on behalf of his US employer IHS Energy.

Both cases involve accessing economic data and strategy information held by state-owned enterprises (“SOEs”), government-sponsored associations or “institutional units(事业单位)”, which is quite often deemed by the Chinese government as “affecting the security and interests of the State” therefore should be cautiously dealt with. However, despite the fact that the penalties imposed for infringement of these two types of secrets are vastly different, the PRC government does not provide clear guidance for where the line should be drawn between “commercial secrets” and “State secrets” in China. The recent published PRC Preservation of State Secrets Law (the “State Secrets Law”, effective on October 1, 2010) did not make a lot of progress in this regard too.

State secrets are defined in the law as information that “affects the security and interests of the State, confirmed by appropriate proceedings and only known to certain persons within a certain period of time”, the disclosure of which will “damage State security and State interests from a political, economic, national defense or diplomatic perspective”.

Confidential information relating to national economy and social development,

as well as science and technology, which is usually considered to be “commercial” internationally, is listed in the State Secrets Law as covered. This is particularly problematic when such information is held by SOEs etc., taking into account that under the Interim Rules on Protection of Commercial Secrets of Central SOEs (published on March 25, 2010), it was confirmed that commercial information relating to business and technology of central SOEs may also be State secrets.

Further, while the State Secrets Law does provide that State secrets should be confirmed by appropriate proceedings, in practice the confirmation requirement has not prevented the prosecution of alleged offenses involving information not been officially “confirmed”.

International companies doing business in China should be cautious with guarding against violation of the State Secrets Law. International companies should pursue a robust internal compliance system for handling classified information. It is advisable to procure the disclosing parties to covenant that they will not disclose State secrets related information. In addition, foreign companies should conduct periodic training to their employees for dealing with information that is not in the public domain and should maintain complete and accurate records of information exchanges with counter-parties.

Written by Wei Chen, associate Yi Hu, China law consultant Paul, Weiss, Rifkind, Wharton & Garrison Unit 3601, Fortune Plaza Office Tower A No. 7 Dong Sanhuan Zhonglu Chao Yang District, Beijing 100020, PRC Email: WChen@paulweiss.com Ph: (8610) 5828-6300 or (852) 2846-0300

Philippines

Development On Adr Last May 2010, the Rules on Alternative Dispute Resolution (ADR) for Disputes Asian Legal Business ISSUE 10.8

News | regional update >>

Between National Government Agencies, issued by the Philippine Office of the Solicitor General (OSG), took effect. The Rules cover disputes between any government entity, office or officer, other than a court with the power to adjudicate or resolve disputes, and other than a government owned or controlled corporation.

The Solicitor General (SolGen) shall choose the most appropriate ADR for a particular dispute. However, those involving constitutional issues, public order, public policy, morals, principles of public exemplarity or other matters of public interest, shall be resolved through adjudication.

Mediation shall be conducted by an accredited OSG lawyer-mediator, either chosen by the parties or by the Assistant SolGen assigned. The mediation shall be terminated after 30 days from the initial mediation conference, unless the parties request for an extension of another 30 days, and the request is granted by the mediator with the written approval of the SolGen. Arbitration is declared to be a condition precedent before disputants may file complaints before the regular courts. The petition to arbitrate is filed before the SolGen, who then orders the respondent to file an answer. The failure of the respondent to answer and participate shall not affect the arbitration proceedings.

The dispute may be resolved on the basis of the complaint and its supporting documents. The SolGen shall choose either a sole arbitrator or panel of arbitrators depending on the complexities of the dispute, but all from the list of accredited OSG lawyer-arbitrators. The parties may agree on the procedure but, in default, the procedure provided in the Rules shall primarily govern. The arbitral award is transmitted to the Secretary of Justice within 10 days for final action approving, disapproving, or modifying the award. A motion to vacate, modify or correct an arbitral award may be filed with the Secretary of Justice within 10 days from receipt. The order of the Secretary of Justice may be appealed to the Office of the President within 15 days from receipt; otherwise, the arbitral award shall become final and executory. www.legalbusinessonline.com

Written By Ricardo Ma. P.G. Ongkiko, Partner SyCip Salazar Hernandez & Gatmaitan 3rd Floor, SSHG Law Centre 105 Paseo de Roxas 1226 Makati City, Philippines T: (632) 982 3500; (632) 982 3600 F: (632) 817 3896; (632) 817 3567 E: rmpgongkiko@syciplaw.com W: www.syciplaw.com

SINGAPORE

Joint Effort Of Sgx And Acra In Providing Guidance To Audit Committees 1. The effective interaction between Audit Committees (“AC”) and external auditors plays a critical role in preserving the quality of audit outcome as well as promoting the effectiveness of corporate governance framework.

The value of audit is enhanced when auditors are able to engage the AC effectively on all audit and related matters and that the audit report is further substantiated by underlying audit work of high quality. In view of this, the Accounting and Corporate Regulatory Authority (ACRA) and the Singapore Exchange Limited (SGX) have jointly issued the “Guidance to Audit Committees on Evaluation of Quality of Work Performed by External Auditors” on 15 July 2010 (“Guidance”).

2. The Guidance provides practical guidelines to AC to assist them in the evaluation of the quality of work performed by external auditors based on key indicators of audit quality observed through a programme developed by ACRA that assesses public accountants’ compliance with auditing standards and pronouncements known as Practice Monitoring Programme (PMP).

3. The key indicators of audit quality are known as E-A-S-E indicators and these represent: (a) Emphasis on quality by the audit

engagement partner and the audit firm; (b) Allocation of adequate and appropriate human resources; (c) Substantial involvement of the audit engagement partner; and (d) Exercise of professional scepticism.

4. The Guidance encourages the AC to ask for a description of the audit firm’s quality control system; to observe as to the priority placed in ensuring robustness and effectiveness of such controls and further that the audit plan be presented, discussed and approved at the early stage of the audit cycle. AC are also advised to assess the sufficiency of the audit partner and team members’ experience and to enquire as to the extent of the audit partner’s involvement in the audit. More importantly, AC are advised to be alert to the auditors’ level of professional scepticism and their willingness to speak up on key issues and to challenge management’s assertions to contribute towards the effectiveness of the audit.

5. The Guidance is not expected to impose additional compliance requirements or to replace any existing requirements to which AC may already be subject. It should be used predominantly by AC, company directors and persons involved in corporate governance activities and financial reporting.

6. For a better understanding of the Guidance, a list of sample questions directly relevant to the identified indicators is also annexed to the Guidance. The Guidance is available on the websites of ACRA (www.acra.gov. sg) and SGX (www.sgx.com).

Written by Mr Teo Boon Hai and Ms Chew Lee Sian Mr Teo Boon Hai, Foreign Counsel Legal Associate (Corporate Practice) Ph: (65) 6322-2235 ax: (65) 6534-0833 E-mail: teoboonhai@loopartners. com.sg and Ms Chew Lee Sian, Foreign Counsel Legal Associate (Corporate Practice) Ph: (65) 6322-2237 Fax: (65) 6534-0833 E-mail: chewleesian@loopartners. com.sg Loo & Partners LLP 16 Gemmill Lane Singapore 069254

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News | regional update >>

Vietnam

Vietnam’s New Commercial Arbitration Law – The World’s Local Law On 17 June 2010, Vietnam’s National Assembly passed the Commercial Arbitration Law No. 54/2010/QH12 (“Arbitration Law”), which from 1 January 2011 replaces the 2003 Ordinance on Commercial Arbitration.

In the country’s hierarchy of legislation, a law has an implication of something more long-lasting than an ordinance. That ambition appears to have been realized in this Arbitration Law, through the apparent adoptions of many provisions from the “international standard” one: the UNCITRAL’s Model law on international commercial arbitration (“Model Law”).

Such adopting efforts can be seen in the Arbitration Law’s provisions on arbitration agreement, composition of arbitration tribunal, interim measures, conduct of arbitration proceedings, making award and termination of proceedings, to recognition and enforcement of awards. From these, the Arbitration Law serves as a major step towards what is considered international standard.

Further, the Arbitration Law has also confirmed the country’s market opening for foreign commercial arbitration services, in the forms of branch and representative office.

Foreign arbitration centers wishing to expand to Vietnam should note, however, that according to the country’s commitments to the WTO, the chief of the branch has to be a resident in Vietnam.

The Arbitration Law is a country’s law, and to some extent, it might have stepped away from the Model Law. For example, there remains some fine print on recognition and enforcement

32

of foreign arbitral awards. In the Model Law, one of the grounds for a State to refuse recognition or enforcement is that the recognition or enforcement of the award would be contrary to the State’s public policy. In the Arbitration Law, State’s public policy has been translated to “basic principles of Vietnamese law”, which in turn may cover a vaguer term, “interest of the State”. Such a translation may become justification for setting aside awards deemed going against the interest of the country’s interest. Although minor, this change may ultimately prove to have a negative effect on enforcement of foreign awards.

Compared with the 2003 Ordinance on Commercial Arbitration, the Arbitration Law shows a lot more court’s involvements in arbitration activities. These involvements may be, in term of legal culture, appropriate in that the courts sound more authoritative to the disputing parties. However, courts are currently overloaded. And such work referral to the court may result in some delay to arbitration proceedings, which is chosen to speed up the parties’ dispute settlement.

Adopting provisions of the UNCITRAL’s Model law on international commercial arbitration, Vietnam’s Arbitration Law brings the country’s arbitration laws closer to international standards. Nevertheless, like many other laws in Vietnam, further clarifications are to be provided by relevant State authorities. As such, it remains to be seen how localized the law may become.

Written By Bui Ngoc Hong, Partner Indochine Counsel Unit 4A2, 4th Floor, Han Nam Office Bldg.

65 Nguyen Du, District 1 Ho Chi Minh City, Vietnam (Tel) +848 3823 9640 (Fax) +848 3823 9641 hong.bui@indochinecounsel.com www.indochinecounsel.com

MALAYSIA

Gst Offences – Will You Be Liable?

The question on many minds is when Goods and Services Tax (“GST”) will be implemented in Malaysia.

Although Malaysia has announced the introduction of GST since 2005, it is only in December 2009 that the GST Bill has been tabled for first reading in Parliament. The Bill’s second reading has recently been deferred to allow time to gather public feedback and acceptance.

Considering the uncertainties as to GST’s implementation, some may wonder whether it is worthwhile investing time and resources to prepare for GST. Companies may perhaps be swayed to begin preparations for GST considering the Bill imposes onerous liabilities not only on the company, but also on a wide range of officers of the company.

Directors of a company, partners of a firm or officials or committee members of a society will be jointly and severally liable for any unpaid GST or penalty. The Bill also creates typical offences found in tax legislation such as offences for submitting false returns and tax evasion. In comparison with the income tax legislation, the list of persons against whom penalties may be levied is rather extensive. Section 103 of the Bill provides that any person who at the time of the commission of the offence was a director, partner, manager, secretary or other similar officer, was purporting to act in the capacity, was in any manner or to any extent responsible for management of any of the affairs of the company or was assisting in management, shall be deemed guilty of the offence.

Unfortunately, “management” and “assisting in management” are not defined, but could conceivably encompass a large number of Asian Legal Business ISSUE 10.8

News | regional update >>

employees in the management of a company. The onus is on the person concerned to prove that the offence was committed without his/ her knowledge, that he/she took all reasonable precautions and exercised due diligence to prevent the commission of the offence.

Section 103, which seems to be modeled after Section 74 of Singapore’s GST legislation, is rather onerous and designed to ensure compliance with the GST regime. The deferment of GST’s implementation provides a valuable opportunity for businesses to begin understanding the proposed GST regime and to prepare for its implementation.

This article is for information purposes only. The contents do not constitute legal advice and should not be regarded as a substitute for detailed advice in individual cases. No decision to act or not to act in a particular way should be taken merely on the basis of this article, and detailed legal advice should always be sought at the earliest possible moment.

Written by Adeline Wong, Managing Partner Yvonne Beh, Associate Wong & Partners Suite 21.01, Level 21 The Gardens South Tower Mid Valley City, Lingkaran Syed Putra 59200 Kuala Lumpur, Malaysia Tel: +603 2298 7888 Fax: +603 2282 2669 adeline.wong@wongpartners.com yvonne.beh@wongpartners.com

INDonesia

Indonesia Introduction Of New Measures To Reduce Forestry Exploitation On 26 May 2010, the Government of the Republic of Indonesia (“GoI”) and the Kingdom of Norway had www.legalbusinessonline.com

executed a Letter of Intent on Cooperation for reducing greenhouse gas emissions from deforestation and forest degradation (“LoI”). Following the execution of the LoI, the GoI has announced that for a 2 year period commencing early 2011, the GoI will prohibit any opening of primary forests and peat land areas and will not be issuing any new licenses for forest and plantation concessions.

The two year moratorium introduced by the President as a initial measure in consideration for the 1 Billion Dollar fund granted by Norway to implement the REDD scheme (Reduce Emissions from Deforestation and Forest Degradation), which is believed to be the most effective and lowcost method to decrease greenhouse emissions.

As a developing country with vast natural resources, mass utilization of natural resources has become the most effective strategy for Indonesia to support its economic growth and also the main attraction for foreign investment in Indonesia. Although the Presidential moratorium will have a positive effect on the preservation of Indonesian natural resources, the other impact of this measure is the creation of additional hurdles against foreign investment in Indonesia, which will not be very beneficial for the development of the Indonesia’s investment climate.

In order to balance the commitment of natural resource preservation and the need to maintain economic sustainability as well as developing the investment sector, the GoI is currently directing and strongly advising new investors to utilize another scheme of investment by acquiring the existing converted forests or peat land areas or developing new industries in the special reserved areas commonly known as the Other Allocated Area (Area Peruntukan Lainnya).

During the actual implementation of the moratorium, the GoI will subsequently issue several Presidential Regulations to regulate other licensing policies and additional terms of the moratorium. Although the draft of this Presidential Regulations is currently still in the development stage and not yet ready to be issued, the GoI has taken initial steps by implementing an

unwritten policy not to issue any new forest concession licenses in the near future.

Written By Enrico Iskandar and Debu Batara Lubis Enrico Iskandar Managing Partner, Bastaman Enrico E-mail: enrico@bastamanenrico.com Debu Batara Lubis Associate, Bastaman Enrico E-mail: debu@bastamanenrico.com Bastaman Enrico (Attorneys At Law) Plaza Asia, Zone 12C Jl. Jend. Sudirman Kav. 59 Jakarta 12190, Indonesia Tel: +(62 21) 514 01 380 Fax: +(62 21) 514 01 379 www.bastamanenrico.com

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Feature | ALB Asia’s leading ADR firms >>

►► Greater China

Baker & McKenzie; Clifford Chance; Herbert Smith; Jones Day; Pinsent Masons; Orrick

►► PRC

►► HONG KONG (DOMESTIC FIRMS)

Deacons; Gall & Lane; Richards Butler (in association with Reed Smith); Wilkinson & Grist; Woo, Kwan Lee & Lo

Duan & Duan; Fangda; Global Law Office; Jun He; King & Wood

►► India:

Advani & Co; Amarchand & Mangaldas & Suresh A Shroff & Co; AZB & Partners; Bharucha & Partners; Kachwaha & Partners

►► Vietnam ►► Thailand

Baker & McKenzie; Chandell; Herbert Smith; Kanung & Partners; LS Horizon; Watson Farley Williams

►► Malaysia

Lee Hishamuddin Allen & Gledhill; Shearn Delamore; Shook Lin & Bok; Skrine; Zul Rafique & partners

Allens Arthur Robinson; Audier & Partners; Baker & McKenzie; DC Law; Freshfields

►► Singapore (Local firms)

Allen & Gledhill; Drew & Napier; MPillay; Rajah & Tan; TSMP Law Corporation; WongPartnership

►► Singapore (INternationaL)

Baker & McKenzie; Herbert Smith; Norton Rose; Shearman & Sterling

►►Methodology Now its second year, ALB’s survey on ‘Leading Arbitration & Dispute Resolution Law Firms – Asia’ was conducted among the region’s most senior in-house lawyers and business leaders, from 30 April 2010 through 1 July 2010. ALB’s editorial team contacted respondents directly through a mix of telephone calling, direct e-mails and face-to-face interviews at ALB’s extensive ‘In-house Summit’ series. Respondents were asked to provide off-therecord opinions on the leading firms and lawyers in arbitration and dispute resolution across the region. They were asked to name the ‘top 5’ firms in each jurisdiction where they, or their company, conduct substantial business. In jurisdictions where international law firms have a presence, respondents were asked to provide opinions on both domestic firms and international firms.

Respondents were also asked to name leading practitioners in these areas in each of the law firms they selected, in addition to being asked why they should be considered leading law firms for arbitration and dispute resolution work. In-house lawyers and business leaders offered their opinions on the condition of anonymity. *Firms listed in alphabetical order in each jurisdiction

34

Asian Legal Business ISSUE 10.8

Feature | ALB Asia’s leading ADR firms >>

►► Japan (local)

Anderson Mori & Tomotsune; Matsuo & Kosugi; Mori Hamada & Matsumoto; Nagashima Ohno & Tsunematsu; Nishimura & Asahi

►► Japan (international)

Baker & McKenzie; Clifford Chance; Freshfields; Herbert Smith; Morrison & Foerster

►► Korea

Bae Kim & Lee; Kim & Chang; Lee & Ko; Shin & Kim

►► TAIWAN

Baker & McKenzie; Formosan Brothers; Jones Day; Lee and Li; Tsar & Tsai

►► Indonesia

Frans Winatra & partners; Hadiputranto Hadinoto & Partners; KarimSyah; Lahut MP Panaribuan & Partners; Lubis Santosa & Maulana

ALB’s Leading Arbitration & Dispute Resolution Firms: Asia

2010

In-house lawyers, general counsel and business leaders from across the region single out Asia’s leading arbitration and dispute resolution practices for review

A

rbitration may be one of the fastest-growing forms of dispute resolution in the Asia-Pacific region. It’s a vital insulation against the vagaries of unfamiliar legal systems in places like mainland China and various parts of South-East Asia - but it is one that is not without its critics.

Some of the words being used by corporate counsel throughout the region to define international arbitration include ‘slow’, ‘cumbersome’, ‘expensive’, ‘vague and inefficient’. It’s a dispute resolution method these counsel prefer to avoid, yet despite such views, international arbitration is certainly not dying. On the contrary, it has become of the more robust practice areas for law firms in Asia.

For this to continue to hold true, law firms who have used the economic downturn to invest in building up their arbitration and dispute resolution practices will need to do

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more to ensure this option remains as popular with their clients, as it does with them.

State of the market

Both private practice and in-house lawyers surveyed as part of ALB’s latest report cited an upturn in arbitration and dispute resolution work over the past 12 months though both groups cautioned against drawing a direct link between depressed macroeconomic conditions and an increased amount of arbitration cases. As one respondent noted, “while the economic crisis has undoubtedly been accompanied by an increase in litigation, these have tended to be more recovery-type claims … this is not the type of work which goes to arbitration.”

Similarly, arbitration has not always been preferred by SMEs. Here respondents note that pursuing arbitration when conflicts arise can often prove too damaging and costly, 35

Feature | ALB Asia’s leading ADR firms >>

“In the past, or at least before the financial crisis, one would talk about a company’s risk appetite. But now it is not about avoiding risk - it is about finding ways in which we can accept that risk” given that many small operations are already struggling to come to terms with the effects of the downturn.

This is, of course, not the situation for larger corporations who are more likely to pursue claims, irrespective of the prevailing economic conditions.

Mixed among this is a rise in adhoc arbitration, as well as using the format to settle disputes outside its traditional strongholds. Respondents note that parties continue to look to arbitration even where there is no preexisting arbitration clause - although many do highlight that not having

►► Rise of Asian arbitration: international cases over five years 2005

2006

2007

2008

2009

China International Economic and Trade Arbitration Commission

979*

981*

1,118*

1,230

1,482

Hong Kong International Arbitration Centre

281

394

448

602

649

International Chamber of Commerce

521*

593*

599

663

817

Japan Commercial Arbitration Association

11

11

15

12

N/A

Korean Commercial Arbitration Board

53

47

59

47

78

Kuala Lumpur Regional Centre for Arbitration

30

37

40

47

N/A

Singapore International Arbitration centre

45

65

70

71

114

Source: HKIAC

arbitration clauses in international contracts is “dying out slowly”.

Arbitration is also being used to settle more than just construction and joint venture disputes, with respondents noting its use over courts (even where courts in a particular jurisdiction are

considered dependable) and for an increasingly wide array of legal and commercial matters. One respondent says this is influenced not only by the opportunity to have an arbitrator who is an expert in the same field as the dispute, but also because arbitration

Arbitration & Dispute Resolution

Firm overview: Skrine is one of the largest full-service legal firms with an integrated range of specialist business groups providing a comprehensive range of legal services to a large cross-section of the business community in Malaysia as well as abroad. Today, the firm has 38 partners, 5 consultants, 48 associates. Skrine has three principal divisions, namely, corporate, dispute resolution and intellectual property Unit No 50-8-1, 8th Floor, Wisma UOA Damansara, 50, Jalan Dungun, Damansara Heights 50490 Kuala Lumpur E: skrine@skrine.com T: 603 2081 3999 W: www.skrine.com Contact persons: Vinayak P. Pradhan (vp@skrine.com) Mubashir Bin Mansor (mbm@skrine.com) Leong Wai Hong (lwh@skrine.com) Ivan Loo (il@skrine.com) Lim Chee Wee (lcw@skrine.com) Ashok Kumar Mahadev Ranai (amr@skrine.com) Kamraj Nayagam (kn@skrine.com)

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Skrine is the exclusive Malaysian member of Lex Mundi (Law of the World), a network of leading independent law firms in over 160 jurisdictions around the world and is also the sole Malaysian member of the Pacific Rim Advisory Council (PRAC), a unique strategic alliance within the global legal community which consists of more than 30 major independent law firms, each with substantial presence and expertise in the pan-Asian region.

Malaysian Law Firm of the Year 2008, 2009 and 2010, Who’s Who Legal Awards Pacific Business Press Asian Counsel Firm of the Year 2010 for International Arbitration and Litigation & Dispute Resolution (Malaysia)

Asian Legal Business ISSUE 10.8

Feature | ALB Asia’s leading ADR firms >>

can be conducted in private, unlike court proceedings.

But despite arbitration’s growth over the last 12 months, there is still a perception that there is a very deep pocket of work around the region which has not yet been uncovered.

Survey respondents feel that a great number of arbitrations in progress at the moment are a result of past economic peaks and troughs. The industry will only see GFC-related disputes bubble to the surface over the next 12 months.

Respondents singled out Hong Kong (40%) as their preferred arbitral seat, followed by Singapore (18%) and mainland China (9%). Aside from having choice of law and enforceability of arbitral awards, the convenience and efficiency of arbitral institutions, coupled with the availability of experienced arbitrators, were also noted as the most important factors in determining venues.

Of the emerging arbitral bodies and systems located across the region,

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“Procedurally, international arbitration can sometimes be extremely frustrating and on occasion it feels more like being in a court room” China (28%), Indonesia (20%) and Dubai (14%) were considered to have made the most progress over the last 12 months. Respondents roundly noted that where South-East Asia was once considered to be the worst place in the region to arbitrate, this is now no longer true. Indonesia, for example, is more receptive to the use of foreign law in contracts and the government is now seen as less likely to interfere in commercial arbitration as governments elsewhere, notably mainland China.

New arbitral centres in Sydney and Bahrain as well as the developments in Seoul were seen as the most

exciting events for the industry over the past 12 months but few survey respondents (8%) believed that these developments would have any discernable impact on the complexion of the industry. Fewer still (4%) believed that they would take cases away from the region’s leading arbitral seat, Hong Kong.

Seeds of discontent

Recent surveys conducted by a number of publications have found that anywhere between 90-100% of the region’s largest companies have used international arbitration at least once, to resolve an international dispute.

Yet a great number of these surveys have also highlighted that in-house lawyers and general counsel still perceive arbitration to be frustrating.

A major reason is, perhaps somewhat ironically, that arbitration is starting to bear a striking resemblance to commercial litigation - the other form of dispute resolution which it was designed to improve on. “Procedurally,

37

Feature | ALB Asia’s leading ADR firms >>

international arbitration can sometimes be extremely frustrating and on occasion it feels more like being in a court room,” said one respondent. “In terms of costs, arbitration is often just as expensive [as commercial litigation]. In terms of reaching a settlement, it often takes longer [than litigation],” said another respondent.

But despite these frustrations, a number of in-house lawyers note that they are implementing a number of systems to ensure arbitration works as optimally as possible for them. For instance, a majority of respondents (58%) say they had, or would in future - modified their arbitration clauses to address issues of delay.

More are willing to include terms allowing for arbitration to take only so many months in which to deliver an award. Others say they will only use institutions offering some kind of ‘fasttrack’ procedures.

Some were even willing to use complex and untested ‘joinder’ terms (clauses which seek to consolidate disputes/bring all parties into a single proceeding). There were also those respondents who were consciously 38

“In our case, we wouldn’t use a CBA if the amount in dispute was sizeable or there were other interests in play, but if the dispute or the issues are borderline, we’d rather settle and save the money and time” looking to take more of the arbitration burden on their own shoulders. Rather than looking to retain outside counsel at the first sign of a matter, nearly a third of general counsel respondents (34%) say they will seriously look to handle the matter in-house if they have the resources to do so, and if farming it out to external counsel would be prohibitively expensive.

Where handling a matter inhouse is not possible and engaging external counsel is not feasible, inhouse lawyers and general counsel are increasingly likely to bring on external legal counsel, in a limited role as ‘case managers’ to assist in-house teams in the running of an arbitration matter.

Managing arbitration

One of the more interesting trends to emerge out of ALB’s extensive survey

was that many at the region’s largest companies now had dedicated and complex internal systems in place to deal with disputes. For instance, a greater number of general counsel will apply a cost-benefit analysis to arbitration before embarking down the long road of securing an award.

“In our case, we wouldn’t use a CBA if the amount in dispute was sizeable or there were other interests in play, but if the dispute or the issues are borderline, we’d rather settle and save the money and time,” says one respondent.

The reason that such pragmatic assessments are possible is in no small way due to changes in the mindset of corporate counsel vis-à-vis arbitration and disputes, as one respondent explains. “It was not so long ago that the guiding principle was that companies must win at all costs when it Asian Legal Business ISSUE 10.8

Feature | ALB Asia’s leading ADR firms >>

www.legalbusinessonline.com

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Feature | ALB Asia’s leading ADR firms >>

comes to dispute resolution. This is not the case anymore. Now the culture is more about managing arbitration like we do litigation - look at what disputes are active, and decide whether they are appropriate for early resolution.”

As arbitration becomes more

choice of law firm and/or arbitrator, it does mean that they must look deeper into the market. Sometimes this is in the direction of boutique or specialist law firms who focus on international arbitration and dispute resolution.

This, of course, is a blessing for many

“It was not so long ago that the guiding principle was that companies must win at all costs when it comes to dispute resolution. This is not the case anymore. Now the culture is more about managing arbitration like we do litigation - look at what disputes are active, and decide whether they are appropriate for early resolution.” commonplace, more respondents have noted conflicts arising not only in relation to law firms, but also arbitrators. Here, many highlyqualified and sought-after arbitrators may be unable to appear neutral due to the work performed by other lawyers in their firm.

While this means that in-house lawyers and general counsel occasionally do not get their first 40

law firms in the region, as a steady stream of conflict work can be just as lucrative as instructions obtained from that particular firms’ clients.

External counsel

It should come as no surprise that the majority of in-house lawyers and general counsel cite the ‘quality of the individual’, ‘ability to achieve desired result,’ and ‘cost-effectiveness’ as

three of the most important criteria considered when seeking external counsel in dispute resolution and arbitration matters. Surprisingly, a high number of respondents (45%) suggested that their external counsel had either ‘met or exceeded’ their expectations on costs, even during the financial crisis. This was achieved through ostensibly abandoning the billable hour and embracing blended fees and capped quotes.

But in a market where everyone is offering more or less the same discount, what separates the ‘good’ arbitration and dispute resolution practices from the ‘great’ ones is an ability to put themselves in the shoes of the client. As one respondent says, “we really look for our disputes lawyers to be our business partners.

In the past, or at least before the financial crisis, one would talk about a company’s risk appetite. But now it is not about avoiding risk - it is about finding ways which we can accept that risk. That is how businesses grow and a good disputes lawyer is one who recognises this.” ALB Asian Legal Business ISSUE 10.8

Feature | ALB Asia’s leading ADR firms >>

“We are delighted to be voted as a winner for the arbitration & dispute resolution law firm in Hong Kong.”

Conveyancing Corporate & Commercial PRC practice Dispute Resolution Woo Kwan Lee & Lo is a leading law firm in Hong Kong established in 1973 and now has more than 80 lawyers. We offer a wide range of legal services with main areas of practice in Dispute Resolution, Real Estate and Conveyancing, Corporate and Commercial services. The firm has three offices in Hong Kong and two representative offices respectively in Beijing and Shenyang.

Hong Kong Offices : 25th Floor, Jardine House, 1 Connaught Place, Central, Hong Kong Tel: +852 2847 7888 Fax: +852 2845 0239

26th Floor, Jardine House, 1 Connaught Place, Central, Hong Kong Tel: +852 2847 7999 Fax: +852 2845 9225

Room 2801 & 3238, Sun Hung Kai Centre, 30 Harbour Road, Wanchai, Hong Kong Tel: +852 2586 9898 Fax: +852 2827 6046

Email: wkll@wkll.com www.legalbusinessonline.com

Website: www.wkll.com 41

Feature | wealth management >>

Wealth of opportunities As the global economy shifts towards Asia, the region is becoming home to the world’s wealthiest individuals. This presents new opportunities for law firms to launch wealth management practices and tap into a growing pool of big-ticket clients

“In terms of investments, estate planning and asset protection, there should be a growing pool of opportunities for law firms to serve high-net-worth individuals” Robert Sawhney

SRC Associates

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A

sia is the biggest potential growth market for wealth management practices, according to the ‘2009 World Wealth Report’ released by Merrill Lynch and technology outsourcer Capgemini. Wealthy individuals with more than US$1m in liquid assets in the Asia-Pacific region surged by 26% this year, and now number over three million people with a combined wealth of US$9.7trn.

Yet more importantly – and for the first time ever – Asia’s wealthy population surpassed that of Europe’s.

“The star performer was AsiaPacific, the only region in which both macroeconomic and market drivers of wealth expanded significantly in 2009,” the report stated.

This growth also signals the predicted global economic shift towards the Asian region. As law firms around the world implement their recovery process from the global financial crisis, this data is all the more useful. Firms are beginning to ask the all-important question: where to now?

Unsurprisingly, it seems to be China and India: China is home to the world’s fourth-biggest population of millionaires – 477,000. Although the number is smaller for India – around 126,000 – India’s wealthy population shows the fastest potential

for growth, surging 51% last year.

This sends a clear message to law firms in the US and UK, where wealth management practices have been largely based for the last decade. As the population and combined wealth of Asia’s high-net-worth individuals (HNWIs) continues to soar, three million reasons exist for law firms to meet new and growing client needs.

A US$9trn market for brand-new practice areas to help Asia’s new rich to store or grow their wealth has now appeared.

Robert Sawhney, managing director of Hong Kong boutique legal consultancy SRC Associates, identifies a number of key areas that law firms can tap into the growth of HNWIs in Asia. “In terms of investments, estate planning and asset protection, there should be a growing pool of opportunities for law firms to serve high-net-worth individuals,” he says.

“Not only personally, but many of these HNWIs are business-owners and there is scope to offer a bundle of services to fulfil their needs.”

One law firm that jumped into the pool early on was UKbased Herbert Smith.

Earlier this year the firm launched a private Rupert Ticehurst wealth and charities Herbert Smith practice in Hong Kong, Asian Legal Business ISSUE 10.8

Feature | wealth management >>

designed to meet the new needs of Asia’s wealthy for their estate planning, tax and trusts issues. Given Hong Kong’s status as a regional arbitration hub, the firm added advice on dispute resolution over those practice areas to its services too.

Before launching the Hong Kong practice, London partner Rupert Ticehurst (who heads up the main UK private wealth and charities practice) did some research into the potential for business in Asia, given the infancy of the wealth management industry in the region. Ticehurst visited a number of private banks there and found that

management firms – JP Morgan – moved from New York to Hong Kong to take charge of all private banking outside the US.

Asset management Many regional lawyers say that asset management is by far one of the fastest-growing practice areas for the legal industry. Among them is Hong Kong-based lawyer Rolfe Hayden, who heads up the financial services practice at Simmons & Simmons.

“Without a doubt, economic growth in the region has spurred increased asset management activity,” he says.

“There’s a gap in the market, in particular in Hong Kong, to provide complex contentious trust and estate cases services” market services for private-client lawyers was relatively bare. When the firm launched the practice in February, it received interest from executives and legal counsel at Asian private banks such as Bank of America Merrill Lynch, Credit Suisse, Goldman Sachs, HSBC, JPMorgan Chase, Morgan Stanley, RBS, UBS and CITIC Ka Wah Bank.

“There’s a gap in the market, in particular in Hong Kong, to provide complex contentious trust and estate cases services,” said Ticehurst.

“Over the past few Anne-Marie years [we’ve] advised Godfrey on a number of complex Bingham McCutchen contentious trust and estate cases in Hong Kong and … it became apparent that many of the problems that arose in those matters could have been avoided by the parties taking steps to properly manage their affairs.”

In June, US-based firm Bingham McCutchen expanded its investment management practice in Hong Kong, by adding Maples and Calder specialist Anne-Marie Godfrey as partner. These appointments also echo similar moves seen outside the legal industry this year. Recently, the head of one of the private bank divisions for one of the world’s largest asset www.legalbusinessonline.com

Rupert Ticehurst

Herbert Smith

“Many firms have identified asset management as a growth area. In Hong Kong we have seen a number of new entrants, including a number of US firms, trying to establish here.”

Part of that growth is due to the investments made by Hong Kong’s government in the sector, to position itself as a regional asset management centre. Hayden says there is no question that this region will be the cornerstone of the industry in coming years. “Hong Kong has been Asia’s leading international asset management centre for some time, the government has [made] it a financial services priority for a while,” he says.

“For example the offshore funds profits tax exemption.”

Sawhney agrees. “Hong Kong has achieved record growth over the last few years in the asset management area. The Securities and Futures Commission is working hard to position it as an asset management centre as opposed to just a market to raise funds, expanding the range of investment products on offer,” he says.

Both lawyers say that law firms should be keeping abreast of all the developments happening in the industry, including Robert Sawhney opportunities and risks.

SRC Associates “The big opportunity

going forward will be Hong Kong’s relationship with the mainland and PRC fund managers’ activities throughout the region, starting in Hong Kong,” says Hayden.

Rolfe Hayden “Increased access in and Simmons & Simmons out of China, the large number of HNWIs in the PRC and continued growth of the fund industry means those firms with the right expertise available in Hong Kong will prosper.”

Hayden adds that the overlap between traditional asset management practices and regulatory practices is growing, and due to that firms that want to tap into wealth management should diversify and expand their range of advisory services. “Both traditional and alternative fund managers – local or foreign – need the backup of a wide range of legal services,” he says. “In our experience they prefer the one-stop-shop model.

This is a particular challenge for new entrants to the Hong Kong market because a strong Hong Kong law offering across a range of practice groups is not something which can be created quickly.”

Nevertheless, as the wealth management legal industry gradually builds up, the prospects for ongoing business remains positive. As the latest ‘World Wealth Report’ states, there will be enough work to sustain more competition in the market. “In Asia-Pacific, China and India will continue to lead the way with economic expansion and growth likely to keep outpacing more developed economies,” the report states. ALB

“Many firms have identified asset management as a growth area. In Hong Kong we have seen a number of new entrants including a number of US firms, trying to establish here” Rolfe Hayden

Simmons & Simmons 43

Jurisdiction Profile NEWS | news >>

Labuan IBFC

New Foundations Law in Labuan ibfc

T

he Labuan Foundations Act 2010 (“LFA”) is the most recent Foundations law. Labuan IBFC is a common law jurisdiction offering not only Trusts but also the civil law solution of a Foundation.

There are many similarities and differences between Trusts and Foundations, the differences being in the nature of the solutions. A Trust is not a legal entity; a Foundation is a registered legal entity. A Foundation owns the property concerned. Therefore a Foundation is more structured, governed by its Charter and Articles or Regulations. A Foundation provides more certainty and is less likely to be treated as a sham.

Foundations and Trusts can be perpetual. Foundations have stated objects and purposes; often the law prevents the doctrine of ultra vires applying. Trustees may act in breach of Trust or create a fraud on the exercise of a power.

If those who administer a Foundation act outside the governing rules of the Foundation, they are personally liable to the Founder and to the Beneficiaries. Trustees have unlimited liability in respect of the Trust; if those who administer a Foundation and the Founder comply with the requirements of the Charter and the Articles, they are not personally liable for the debts of the Foundation.

Once a Trust is set up, the interests of the Beneficiaries are paramount, even though the Settlor may provide a letter of wishes. With Foundations, the will and intentions of the Founder may carry more weight and the rights of the Founder are assignable by him.

What does a Labuan Foundation offer which other jurisdictions may not?

Confidentiality is of great importance.

Under Section 71 LFA, it is a criminal offence with a possible custodial penalty for wrongful disclosure of any information concerning the Foundation.

Exceptions include the Labuan Financial Services Authority or Labuan FSA (“the Authority”) in its regulatory capacity, a Court order and information provided with the consent of the Foundation.

Further, Labuan is a ‘white listed’ jurisdiction that endorses the OECD ‘level playing field’ approach to the bilateral exchange of tax information

44

with foreign tax authorities. But Labuan has safeguards and limitations on the sharing of information which forbids ‘fishing expeditions’.

Rights to information are clearly dealt with. Any Officer, or the Secretary, if requested to do so must provide accurate information to the Court, the Authority, Founder, Council member, Supervisory Person or any Beneficiary, except when there is duress. Even then, the Court may restrict the rights of any such individual.

Section 73 LFA also provides strict confidentiality requirements on Council members, the Supervisory Person and any Officer and the Secretary. Section 63 LFA provides for confidentiality with regard to disclosure of information to a Beneficiary, if other Beneficiaries have requested this or if the Council, Supervisory Person or officers determine confidentiality to be in the best interests of the Beneficiaries. However, the Court may, on an application by a Beneficiary, order information to be provided (Section 64 LFA).

In Section 9 LFA, there are provisions for the amendment of the Charter which go further to provide assistance than in other jurisdictions. Sections 18 and 19 LFA cover the change of name of a Foundation and how this shall not affect the rights or obligations of the Foundation.

Sections 23 and 24 LFA cover the redomiciliation of a Foundation into or out of Labuan.

Asset protection is also important.

Provisions in Section 8 LFA cover what is a fraudulent disposition to a Foundation which will leave the Foundation liable to meet the claims of creditors. The property of a disposition is saved from such a claim if the Foundation was established or registered, or the disposition took place after two years from the date on which the creditor’s cause of action arose.

Section 61 LFA prevents a foreign claim or judgment being enforced against a validly established Foundation with particular regard to the personal and proprietary consequences of marriage, succession rights or the claims of creditors in an insolvency. In this way, claims of foreign forced heirship are also protected, as they are for Trusts in many jurisdictions.

There are default provisions in Section

65 LFA concerning distribution to a Beneficiary. Unless the Charter and Articles otherwise provide, a valid distribution is made only when the document providing for it is signed by all the Officers. However, all the Officers may delegate the power to one of their number. No such distribution can be made to defeat the claim of any creditor of the Foundation.

Sections 67 to 69 LFA provide a good legislative framework for dissolution and entitlement to property remaining at the end of dissolution.

Conclusion: the legislation sits well with the new Trusts Act. Both are modern, innovative and sensible. It is good that an Asian jurisdiction offers such opportunities for solutions to a world which needs them.

Marketing Office Labuan IBFC Inc. Sdn. Bhd. (817593D) Suite 2B-11-3, Level 11 Block 2B Plaza Sentral, Jalan Stesen Sentral, KL Sentral 50470 Kuala Lumpur, Malaysia.

Tel: +6 03 2773 8977 Fax : +6 03 2780 2077 Email: info@LabuanIBFC.my www.LabuanIBFC.my Written by MARK LEA Managing Director of Lea & White International Advisers Limited Partner of Lea & White International Advisers Limited 12/F HK Diamond Exchange Building 8-10 Duddell Street Central, Hong Kong Tel: 00 852 2528 2097 Fax: 00 852 2840 0480 Email: mark.lea@leawintl.com

Asian Legal Business ISSUE 10.8

NEWS | news >>

www.legalbusinessonline.com

45

Feature | employment law >>

The changing tide of the workplace relations landscape ►► Some leading Employment Law/ Dispute Resolution Practices in Asia Jurisdiction Firms Hong Kong Baker & McKenzie Mayer Brown JSM Simmons & Simmons Japan Mori Hamada & Matsumoto Nagashima Ohno & Tsunematsu Nishimura & Asahi Philippines Angara Abello Concepcion Regala & Cruz (ACCRALAW) Platon Martinez Flores San Pedro & Leaño Quisumbing Torres Siguion Reyna Montecillo & Ongsiako India Amarchand & Mangaldas & Suresh A. Shroff & Co Kesar Dass B. & Associates Singapore Freehills Allen & Gledhill WongPartnership Drew & Napier Rajah & Tann

Malaysia ►► employment law highlights 2009-2010 • Retrenchment work picked up during GFC • Greater government restriction on foreign worker policy especially from specific countries such as Bangladesh and Pakistan • Industrial disputes remain high • Employee friendly

Proposed changes /due to come into effect/unconfirmed • Employment Act

1995 amendments • Industrial Relations Act 1967

amendments • Trade Unions Act

1959 amendments

In Malaysia, pro-employee legislation changes to the Employment Act 1995, Industrial Relations Act 1967 and Trade Unions Act 1959 have experienced some amendments, but are still waiting for a breakthrough in parliament after years of debate. “The Industrial Relations Act is still being debated, especially regarding the rights of employees – it’s broad and still very much in 46

As governments and corporations grapple with the changing needs of a globally mobile workforce, Pamela Hamer-Koh looks at recent trends in employment law across Asia-Pacific

A

n attitudinal change toward protecting employee rights is sweeping through a number of jurisdictions in the Asia-Pacific region. Employee-friendly legislation is being hotly debated in some parliaments and enacted in others.

Employee-friendly legislation changes

Introduction of minimum wage and anti-discrimination legislation, and the passing of other pending Employment Act amendments across North and South-East Asia, are clear indications that most jurisdictions are recognising the obligation to respect and protect the rights of workers.

“As a general trend, employment law across the Asia-Pacific region

favour of employees,” said Jeff Leong Poon & Wong partner, Wong Kar Hwee. For example, the onus of proving the company’s innocence in terminating an employee in most instances rests with the company.

According to Wong, the broadly worded Section 20 of the Act creates a high volume of industrial relations disputes and with legislation amendments minimal, the number of disputes in court remain high.

Singapore ►► employment law highlights 2009-2010 • Maternity and childcare leave legislation changes • Enhanced entitlements and protection for employees • Re-employment of retirees past 62 to 65 years of age • Government policy to strike balance between employer and employee friendly, but comparatively employer friendly

Proposed changes /due to come into effect 2011-2012 Retirement and re-employment legislation

is becoming increasingly employeefriendly,” said the practice leader of Freehills’ Singapore-based Workplace Law and Advisory–Asia group, George Cooper.

“Starting with Singapore, we recently saw some significant changes to the Employment Act and maternity leave and childcare legislation that were all quite employee-friendly.

In Hong Kong the moves afoot to introduce a minimum wage have been controversial,” he said.

“The new Fair Work Act introduced by the Rudd/Gillard government in Australia, as well as new labour contract laws passed in China are further examples of governments enacting better entitlements and protection for employees,” he said.

In Singapore, legislation concerning maternity leave and childcare leave has been enhanced, in addition to the 2009 Employment Act amendments that seek to protect a wider scope of employees, and improve entitlements and access to the Ministry of Manpower’s labour court.

Drew & Napier director Kelvin Tan says the Singapore government manages a fine balancing act between employee protection and legislative flexibility, in order to cultivate a conducive environment for Kelvin Tan multinational companies. This Drew & Napier is an intrinsic element to the lifeblood of the country’s economy.

“I think the law is there to protect employees, certainly. But you hear the government say it from time to time that Singapore is a small country, where multinationals can leave quickly. Therefore there is a need to be flexible about employment practices in Singapore,” he said.

Cooper echoes Tan’s view on Singapore’s regulatory climate but maintains most of the changes in regulations and legislation in the region tended to be pro-employee, with a few exceptions.

Asian Legal Business ISSUE 10.8

Feature | employment law >>

General trends: globalisation and employee mobility

Another marked trend seen across Asia is growth in employment mobility across borders, international postings and labour migration as the impacts of globalisation are increasingly felt.

“I’ve detected over the last few years a greater focus on employment mobility.

Companies are becoming more global and they are starting to look at employment as a global issue rather than a domestic issue,” Cooper said.

He said the increasingly common practices of senior executives operating across multiple locations, or supporting operations in one country from an office in another, gives rise to a whole range of employment law issues that clients will need assistance with. “I think we will see more of that and I think that eventually, it will flow down to lower levels of employment.”

The need for specific and specialised legal advice is heightened where staff are seconded to mainland China – or even where the employment markets straddle both Hong Kong and China, according to Winston & Strawn partner Michael Phillips. “An issue I see commonly now involves employees based in Hong Kong who are increasingly also working in China,” he said.

“The [Singapore] government walks a tightrope.

They have to strike a balance between ensuring that workers get their fair share of the benefits of growth and, on the other hand, provide workplace flexibility to foster the general prosperity of the country,” Cooper said.

Additional legislative changes in Singapore include re-employment legislation for older workers, due to take effect in January 2012.

Guidelines have been released by the Singapore government to prepare for the new laws, which will require employers to offer re-employment to their workers past the current retirement age of 62 to 65. According to Cooper, this is legislation that many employers should look out for.

“One of the most interesting points in the guidelines is the reference to special assistance payment for employees who cannot be reemployed by the employer once they reach their retirement age. This is a special severance or retirement payment, if you like, and many employers in Singapore would be interested to hear about this,” he said.

“The guidelines refer to a minimum payment of $4,500 and a maximum payment of $10,000. It’s not clear that the legislation will exactly reflect www.legalbusinessonline.com

“China introduced a new labour law in 2008 which had some fairly significant changes that are a lot more employee-friendly, so employers need to know if their employees will be subject to the employment laws of the legal jurisdictions of both places. It’s an issue they need to be aware of and

►► Freehills employee relations practice recent awards Chambers Global

top tier firm, 2010

PLC Which Lawyer

top tier firm, 2010 (latest publication, Yearbook 2009)

Asia-Pacific Legal 500

top tier firm, 2010

Best Lawyers

ranked number 1 in Australia, with 9 Freehills Employee Relations lawyers identified as ‘best lawyers’.

“Companies are becoming more global and they are starting to look at employment as a more global issue rather than a domestic one” as it becomes more complicated, clients need lawyers to work through and plan strategically,” he explained.

Post-GFC pick-up

Many lawyers agree that the spike in work predicted at the apex of the GFC was brief, over-hyped and dissipated rather quickly. Many employment practices in Asia experienced a 20% spike in restructuring and redundancy work during the first-half of calendar 2009, but this promptly subsided to normal levels.

With most of Asia escaping the brunt of the crisis, this was a common these guidelines and make it compulsory to pay but I think there’s a chance of that. Therefore this is an interesting development, something we should look out for,” he said.

Korea ►► employment law highlights 2009- 2010 • End to monopoly unionism through changes to the Trade Union and Labour Relations Adjustment Act

• Childcare leave expanded through the Equal Employment and Support of Work-Family Reconciliation amendments • Disabled employment requirement increased • Age discrimination complainants enabled with the power to start an investigation • Expanded exception to fixed-term employees

Proposed changes /due to come into effect 2010-2011 • The prohibition on employers paying remuneration to full-time union officials came into effect on 1 July 2010.

• The ability for multiple unions to be established at a single worksite will come into effect on 1 July 2011.

George Cooper

Freehills

trend seen amongst many Asian jurisdictions. Now with better times ahead, employment lawyers are keeping busy with a varied range of work. As the dust settles, many companies are now taking the opportunity to re-examine their workplace relations models, documentation and policies, to ensure sufficient workplace flexibility in the aftermath of the GFC – and in the face of continuing market volatility.

Also, as hiring picks up secondment issues, employee transfers, outsourcing and setting up licenses to trade have also been keeping employment specialists busy in the region.

In Korea, several new laws have impacted the labour market. Most notable is the amendments to the Trade Union and Labour Relations Adjustment Act regarding union representation in the workplace, which are intended to curb union power. The new law regarding trade unions flags the end of government support for union monopolies in the workplace and enables employees the freedom of choice in representation.

The expansion of childcare leave has served to significantly advantage employees.

The Equal Employment and Support of Work-Family Reconciliation Act which came into effect in February 2010, was amended to allow employees with children who are six years or younger to take childcare leave. The previous cut-off was for parents of three-year old children or younger.

“A general trend can be identified in the variety of recent and planned labour law changes,” said Yulchon partner Hee Chul Kang. “It appears to be a combination of proHee Chul Kang business and pro-employee Yulchon legislation, with pro-employee 47

Feature | employment law >>

characteristics sometimes being a side-effect of laws intended to limit union power, rather than a primary goal of legislation.”

According to Kang, the Korean economy is strongly integrated into the global economy with many of his clients taking advantage of global employment trends, including using outsourcing and dispatched workers. In addition, he says Korean lawmakers typically benchmark global trends in an effort to better compete with other economies when proposing labour law changes.

Other major changes highlighted by Kang regarding employment and labour law regulations in Korea include the Disabled Employment Requirement Increase (effective 1 Jan 2010), where large private employers (defined as 50 or more) are required to increase their disabled employees percentage from 2% to 2.7% by 2014; and amendments to the Prohibition of Age Discrimination in Employment and Aged Employment Promotion Act (effective 1 Jan 2010) where employees facing age discrimination are now able to request an investigation by filing a petition with the National Human Rights Commission. Finally, amendments to the Protection of Fixed-term and Part-time Employees Act (effective 4 Feb 2010) has expanded the list of eligible employees to be included, on the use of the two-year limit exception of fixed-term contracts.

Korean firms, like their Asian counterparts, have witnessed only a slight increase in general employment-related advisory work, layoffs and wage reduction schemes during the global financial crisis. On the challenges for employers with the fast-improving economic conditions, Yulchon partner Sang Wook Cho expects strong growth in the coming months, with bullish sentiment floating the Korean marketplace.

“In the wake of the GFC many of our clients have been looking for new opportunities through deals such as mergers and acquisitions,” Cho says. “Acquiring new employees through these deals may lead to unexpected employment-related liabilities, such as severance payment obligations.

These kinds of liabilities can give rise to deal-

breaking scenarios, and we strongly recommend that due diligence for merger or acquisition or other deals in Korea include a thorough employment component,” he says.

Hong Kong

Japan ►► employment law highlights • Labor Standard Law (amended) • Child-care and Family-care Leave Act (amended)

Proposed changes/ due to come into effect Employee Dispatch Law (still pending)

►► employment law highlights 2009-2010 • Race discrimination legislation operative • Minimum wage legislation enacted • Unfair dismissals (case authority) • Employer friendly

Proposed changes/due to come into effect 6-12 months (estimate) Minimum wage legislation

Changes are slowly unfurling in favour of the employee in Hong Kong but the region still has a long way to go. “The high amount of work predicted at the apex of the GFC didn’t come to pass for employment law practitioners in Hong Kong even though there have been company failures and employees rights have to be dealt with,” Michael Phillips Winston & Winston & Strawn Partner Strawn Michael Phillips says.

“This goes to the core of Hong Kong employment law. Compared to other legal systems, it is relatively benign, or employer-friendly.

So while employees do have a number of rights, in practice it’s not difficult to terminate someone’s employment in Hong Kong without the threat that such action will be challenged as it can be in other jurisdictions such as the UK, Europe or Australia.

Basically in Hong Kong, if you give the required notice period and you pay the employee his or her statutory and contractual entitlements, you can’t really challenge a termination of employment. In for example Australia and the UK, one has to act reasonably. In Hong Kong, there is no requirement to act reasonably as such,” he says.

In Japan, several labour-related laws have taken a pro-employee turn with the Labour Standard Law and the Childcare and Family-care Leave Act facing recent amendments. On 1 April, a series of amendments to the Japanese labour standards law came into force with the objectives of reducing overtime work achieved by imposing additional controls and restrictions on employers.

“New overtime allowance ratios have been introduced and annual leave by hourly basis is now available,” Mori Hamada & Matsumoto partner Chisako Takaya says.

Other significant legislation changes involve the Childcare and Family-care Leave Act amendments– which entail introducing mandatory short-time and no-overtime arrangements for employees responsible for children younger than three years.

In addition, restrictions on childcare leave on fathers have been loosened. Special leave could now be granted for employees who need time off to care for their sick children or members of their families.

A law that is still in discussion is the new restrictive requirements for employee dispatch arrangements, expected to come into force soon.

And Takaya notes that the trend in Japan is similar to most of the region, in terms of legislative changes that favour employees. “In Japan, labour-related laws are basically pro-employee and employers do not have much flexibility in terminating employment or changing employment conditions. Therefore, generally speaking, even after GFC, employers in Japan are still careful about re-hiring,” she says.

Takaya says during the apex of the financial crisis, the number of individual labour disputes rose and currently, M&A related employment issues, individual labour disputes, redundancies and restructurings are the work that is keeping her practice busy.

Opinion among Takaya’s clients is mostly that employment laws are tipped far too much towards the employee’s favour. “Without easing of labourrelated laws in Japan, companies in Japan may lose competitive power,” she says. ALB

►► Asia- Pacific ALB Award Winners (Employment law awards) Country Firm Relevant award Australia Harmers Workplace Lawyers Employment Specialist Firm of the Year (ALB Australasian Awards 2010- Winner) Hong Kong Simmons & Simmons Employment Law Firm of the Year (ALB HK Awards 2010- Winner)

48

Asian Legal Business ISSUE 10.8

Feature | employment law >>

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www.legalbusinessonline.com

49

Feature | interview >>

citi Deals of the year: ►► 1. The Sumitomo Trust & Banking– Nikko Asset Management Acquisition: US$1.26bn Firm: Anderson Mori & Tomotsune Client: Citigroup/Nikko Asset Management Role: Japanese counsel Firm: Davis Polk & Wardwell Client: Citigroup/Nikko Asset Management Role: Counsel to vendor Firm: Mori Hamada & Matsumoto Client: Sumitomo Trust & Banking Role: Japanese counsel Firm: Paul Weiss Client: Citigroup Role: Counsel to vendor Firm: Kim & Chang Client: Sumitomo Trust & Banking Role: Advisor on Korean anti-trust law Firm: Paul Hastings Client: Warburg Pincus

►► 2. Sumitomo Mitsui Financial Group–Nikko Cordial Acquisition: US$8.7bn Firm: Skadden Client: Sumitomo Mitsui Financial Group Role: International Counsel Firm: Nagashima Ohno & Tsunematsu Client: Sumitomo Mitsui Financial Group Role: Japanese counsel Firm: Paul Weiss Client: Citigroup/Nikko Citi Holdings Role: International counsel Firm: Nishimura & Asahi Client: Citigroup/Nikko Citi Holdings Role: Japanese counsel

►► 3. Nomura Trust–Nikko Citi Trust acquisition : US$197m Firm: Nagashima Ohno & Tsunematsu Client: Nikko Citi Trust Role: Advisor on Japanese law Firm: Paul Weiss Client: Citigroup/Nikko Citi Trust Firm: Sullivan & Cromwell Client: Nomura Trust & Banking Co

50

“There is a uniqueness to how things are done in Japan that is difficult for people overseas to understand. There are cultural, market practices and regulatory expectations that must be addressed. On top of this we need to try and understand things from new York or Hong Kong’s point of view” Asian Legal Business ISSUE 10.8

Feature | interview >>

In-house perspective

Akiko Yamahara, Citi Japan:

Staying close to the business Citigroup Global Markets Japan’s general counsel Akiko Yamahara explains how she kept a legal team together through one of the biggest mergers in Japanese corporate history

A

ll general counsels aspire to being as close to their company’s core business as possible, but few can say they are as physically close as Citi Japan’s Akiko Yamahara. “Unlike some other general counsels, I don’t sit in an office far away from the centre of activity.

My office is actually on the trading floor," she says. “I can see our business being done every second of the day and it’s usual for traders, bankers and our CEO to wander in and out of my office throughout the day… it keeps each and every day interesting, diverse and very busy.”

Yamahara and her 40-strong legal team have certainly been busier than most in-house departments over the last 18 months. She has been recently elevated to the position of chief country legal counsel for Japan, meaning she now is responsible for all the legal issues generated by the bank’s investment banking, corporate & commercial, and cards and consumer banking businesses.

Yamahara was also heavily involved in a few of the largest transactions in the country's banking history – the sale of three of Citi’s Japanese business units.

Dealmaker

In early 2009, Citi announced that it would be splitting its global operations www.legalbusinessonline.com

into ‘core’ and ‘holdings’ units. In Japan, this entailed the end of the decade-long joint venture between Citi and Nikko Cordial and the sale of three businesses: Nikko Citi Cordial, Nikko Asset Management and Nikko Citi Trust. As the business would be sold to different purchasers, each entity would close simultaneously on 1 October, 2009.

“Each of the transactions was huge, complex and somewhat overwhelming,” Yamahara recalls.

“Not only did we have to negotiate with different buyers and ensure each sale closed simultaneously, but we also had to split apart a joint venture that had been around for ten years and was quite closely connected on a number of different levels – from operations to human resources and IT systems.”

It was this latter aspect of the process – the fact that Citi and Nikko’s operations had become so intertwined – that made the deal especially challenging for Yamahara and her team. “The question we had to grapple with at the time was how to split apart the joint venture and sell it along with the Nikko Cordial business,” she says. “The whole process was so complex and heavily lawyered to ensure that things were done properly. We also had to create a series of bridge agreements to ensure that we preserved alliances.”

Multi-tasking

But of course, these transactions were not the only thing that Yamahara and her team had on their plate at the time. Despite the fact the bank itself was in the process of reorganisation, it was still very much business as usual for its investment banking division.

“We had the de-merger to deal with in addition to our day-to-day work and at the time things were really starting to take off. The market was just starting to emerge from a horrible 18 months after the Lehman shock and we saw a number of really chunky equity offerings. On the debt side quite a few quasi-governmental organisations and foreigner issuers entered, or re-entered the Samurai market… it was a logistical nightmare at the time but I think we’ve all come out of this much better, and definitely more knowledgeable, for the experience.”

Value-add

Yamahara is unequivocal when she says that external counsel played a huge role in helping her and the team weather what was an undeniably busy 18 months. While their counsel on these transactions was an important factor, it was advice outside of these deals which was critical.

“It was so important to me in this period, and really throughout my career, to have a network of sources that 51

Feature | interview >>

can be tapped whenever I need quick advice,” she said. “As a general counsel, it is indispensable to have partners who you can reach out to and who will reach out to you regardless of whether there is a transaction in sight.”

It’s no surprise that Yamahara prefers to appoint external counsel who take a ‘relationship’ rather than a strictly ‘transactional’ approach. “Ideally, we’d like to have relationships with external counsel who not only have a relationship with me and my in-house team, but also with our bankers," she says.

“The best type of value-adding external counsel can offer to someone in my position is to work closely with the people producing and creating financial products, from the initial stages of an idea right through to its structuring and implementation.”

Proving worth in-house

In an environment where in-house budgets and resources have been slashed due to the financial crisis,

“Not only did we have to negotiate with different buyers and ensure each sale closed simultaneously, we also had to split apart a joint venture that had been around for ten years and was quite closely connected on a number of levels” Yamahara cites connectivity as one of the biggest challenges she faces in her role: staying abreast of developments in the US, as well as across the rest of Asia, and taking those who are unfamiliar with Japan through the 'insand-outs' of what can be a complicated and insular financial market.

“There is a uniqueness to how things are done in Japan that is difficult for people overseas to understand. There are cultural, market practices and regulatory expectations that must be addressed,” she says. “On top of this we need to try and understand things from New York or Hong Kong’s point of view. Striking a balance between this local uniqueness and global expectations is critical.” ALB

Yamahara believes that there is a similar onus on general counsel to demonstrate ‘value-add’ to their companies.

Although she does concede that this is far more difficult to achieve for those in-house, a key factor is immersing oneself as deeply into the business as possible, irrespective of whether or not there are purely legal matters at play.

“You really need to make yourself as available as possible, and avoid passing up something just because there are no legal issues on the surface. Nine times out of ten, the legal issues will be there under the surface and they can be elevated straight away,” she says.

“Asian Legal Business has done a great job covering local news, deals, and general trends in the legal market in Asia” PARTNER MINTER ELLISON

Asian Legal Business is Asia’s leading legal magazine. Published from three regional centres, each issue is packed with news, hard hitting analysis and investigative journalism. Regional editors provide up to the minute legal and regulatory updates, while a team of dedicated journalists provide in-depth analysis of all the issues facing lawyers and in-house counsel throughout the region.

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Feature | interview >>

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53

MARKETdata DATA| M&A | M&A market >>>>

In association with

M&A TRANSACTIONS AND STATISTICAL ANALYSIS Top 10 Announced Deals - Asia-Pacific (June 25, 2010 - July 23, 2010) Announcement Date

Target Company

30-Jun-10

OJSC Polyus Gold

Target/Seller Legal Advisor

Bidder Company

Bidder Legal Advisor

KazakhGold Group Ltd

Debevoise & Plimpton

Seller Company

Deal Value (USDm) 10,238

Advising financial advisor (BMO Capital Markets Corp): Skadden Arps Slate Meagher & Flom 15-Jul-10

Dimension Data Holdings Plc

Eversheds

Nippon Telegraph and Telephone Corporation

Linklaters; Webber Wentzel

2,822

1-Jul-10

Parkway Holdings Ltd (74.73% Stake)

WongPartnership

Fortis Healthcare Ltd

AZB & Partners; Rajah & Tann; Stamford Law Corporation

2,626

Advising financial advisor (Morgan Stanley): Shook Lin & Bok Singapore

Advising finanical advisors (Macquarie Group; Royal Bank of Scotland): Drew & Napier

19-Jul-10

Healthscope Ltd

Minter Ellison; Sullivan & Cromwell

The Carlyle Group; and TPG Capital

Freehills

2,284

5-Jul-10

Centennial Coal Company Ltd (80.1% Stake)

Freehills

Banpu Public Co Ltd

Norton Rose

1,891

12-Jul-10

Mangistau Investments BV (50% Stake)

Advising seller: Norton Rose

JSC KazMunaiGas Exploration Production

Field Fisher Waterhouse; Olympex Advisers

16-Jul-10

Titan Chemicals Corp Bhd

Kadir, Andri & Partners

Honam Petrochemical Corporation

Yulchon; Zaid Ibrahim & Co

5-Jul-10

Reliance Natural Resources

5-Jul-10

Sucrogen Ltd

30-Jun-10

Shandong Expressway Operation & Management Co Ltd; and Shandong Weilai Expressway (51% Stake)

Notes:

NC KazMunaiGaz

1,660

1,625

Reliance Power Ltd Advising seller: Freehills

1,539

Wilmar International Limited

Minter Ellison

Shandong Expressway Co Ltd

CSR Ltd

1,469

Shandong Expressway Group Co Ltd

1,106

Top deals table includes lapsed and withdrawn bids, and is based on geography of either target, bidder or seller company being Asia-Pacific•Quarterly trend graph excludes lapsed and withdrawn bids, and is based on dominant geography of target only being Asia-Pacific•League tables are based on geography of either target, bidder or seller company being Asia-Pacific. League tables of legal advisors include lapsed and withdrawn bids, while league tables of financial advisors exclude lapsed and withdrawn bids. League tables are ranked by value • Statistics includes all deals valued over USD 5m. Where deal value not disclosed, deal has been entered based on turnover of target exceeding USD 10m•Activities excluded from statistics include property transactions and restructurings where the ultimate shareholders’ interests are not changed.

League Table of Legal Advisors to Asia-Pacific (ex-Japan) M&A (Jan 01, 2010 - July 23, 2010) Rank

House

League Table of Financial Advisors to Asia-Pacific (ex-Japan) M&A (Jan 01, 2010 - July 23, 2010)

Value (USDm)

Deal Count

Rank

Value (USDm)

Deal Count

18,297

38

1

House UBS Investment Bank

33,796

30

1,134

38

2

Goldman Sachs

18,412

30

4,065

27

1

AZB & Partners

2

DLA Piper

3

Freehills

19,991

33

3

KPMG

4

Mallesons Stephen Jaques

23,449

29

4

Deutsche Bank

30,029

26

5

WongPartnership

8,354

25

5

JPMorgan

32,513

24

6

Minter Ellison

5,906

25

6

Ernst & Young

1,712

24

7

Baker & McKenzie

11,819

24

7

Deloitte

6,880

22

8

Kim & Chang

3,727

24

8

Morgan Stanley

31,802

21

9

Jones Day

3,311

24

9

Credit Suisse

17,836

21

10

Norton Rose

42,269

22

10

Macquarie Group

24,499

20

Based on announced deals, including lapsed and withdrawn bids, from 1 January 2010 to 23 July 2010

Based on announced deals, excluding lapsed and withdrawn bids, from 1 January 2010 to 23 July 2010

Asia-Pacific M&A Activity - Quarterly Trends 900

200,000 180,000

800

Value (USDm) Volume

140,000

700 600

120,000

500

100,000

400

80,000

300

60,000

200

40,000

100

20,000 0

54

Number of deals

Value (USDm)

160,000

Q1 03

Q2 03

Q3 03

Q4 03

Q1 04

Q2 04

Q3 04

Q4 04

Q1 05

Q2 05

Q3 05

Q4 05

Q1 06

Q2 06

Q3 06

Q4 06

Q1 07

Q2 07

Q3 07

Q4 07

Q1 08

Q2 08

Q3 08

Q4 08

Q1 09

Q2 09

Q3 09

Q4 09

Q1 10

Q2 10

Q3 10*

0

AsianLegal LegalBusiness BusinessISSUE ISSUE 10.8 Asian 10.8

MARKET DATA | |M&A M&A>> >> market data

In association with

Notes:

League tables are based on geography of either target, bidder or seller company. League tables of legal advisors include lapsed and withdrawn bids, while league tables of financial advisors exclude lapsed and withdrawn bids.

League tables are ranked by value•Statistics includes all deals valued over USD 5m. Where deal value not disclosed, deal has been entered based on turnover of target exceeding USD 10m•Activities excluded from statistics include property transactions and restructurings where the ultimate shareholders’ interests are not changed.•Q3 10* = 1 July 2010 to 23 July 2010

League Table of Legal Advisors to Greater China M&A (Jan 01, 2010 - July 23 , 2010) Rank

House

Value (USDm)

League Table of Financial Advisors to Greater China M&A (Jan 01, 2010 - July 23, 2010)

Deal Count

Rank

Value (USDm)

Deal Count

1

DLA Piper

404

21

1

Deutsche Bank

House

8,055

11

2

Jones Day

2,502

14

2

KPMG

2,178

11

3

Freshfields Bruckhaus Deringer

4,235

13

3

Optima Capital

715

9

4

Slaughter and May

40,574

10

4

China International Capital

13,803

8

5

King & Wood

1,411

10

5

JPMorgan

11,088

8

6

Grandall Legal Group

630

7

6

Credit Suisse

7,668

8

7

Herbert Smith/Gleiss Lutz/Stibbe

38,731

6

7

Morgan Stanley

6,785

8

8

Haiwen & Partners

9,268

6

8

Goldman Sachs

4,231

6

9

Linklaters

8,525

6

9

UBS Investment Bank

3,625

5

10

Baker & McKenzie

5,475

6

10

Somerley

2,931

5

Based on geography of either target, bidder or seller company being China, Hong Kong, Macau or Taiwan

League Table of Legal Advisors to Japanese M&A (Jan 01, 2010 - July 23, 2010) Rank

House

League Table of Financial Advisors to Japanese M&A (Jan 01, 2010 - July 23, 2010)

Value (USDm)

Deal Count

Rank

10,095

34

1

House Nomura Holdings

Value (USDm) 12,661

Deal Count 38

1

Mori Hamada & Matsumoto

2

Nagashima Ohno & Tsunematsu

8,384

19

2

Mizuho Financial

2,516

25

3

Nishimura & Asahi

7,363

19

3

Daiwa Securities

1,831

17

4

TMI Associates

2,115

12

4

Sumitomo Mitsui Financial

2,047

16

5

Anderson Mori & Tomotsune

6,012

11

5

GCA Savvian

1,429

11

6

Morrison & Foerster

4,293

9

6

Morgan Stanley

6,143

10

7

Skadden Arps Slate Meagher & Flom

8,250

7

7

JPMorgan

7,891

8

8

Shearman & Sterling

7,181

7

8

Goldman Sachs

4,328

7

9

Baker & McKenzie

379

7

9

KPMG

732

7

10

Freshfields Bruckhaus Deringer

3,526

5

10

PricewaterhouseCoopers

535

6

Value (USDm)

Deal Count

Rank

Based on geography of either target, bidder or seller company being Japan

League Table of Legal Advisors to Indian M&A (Jan 01, 2010 - July 23, 2010) Rank

House

League Table of Financial Advisors to Indian M&A (Jan 01, 2010 - July 23, 2010) House

Value (USDm)

Deal Count

1

AZB & Partners

18,297

38

1

Ernst & Young

554

10

2

Amarchand & Mangaldas & Suresh A Shroff & Co 4,875

18

2

ENAM Securities

541

8

3

Desai & Diwanji

797

14

3

Barclays Capital

14,005

6

4

Khaitan & Co

1,091

7

4

UBS Investment Bank

13,529

6

5

Tatva Legal

438

7

5

HSBC

11,993

6

6

Trilegal

403

7

6

Deloitte

239

6

7

Allen & Overy

12,578

5

7

Avendus Capital

98

6

8

J Sagar Associates

306

4

8

Morgan Stanley

16,325

5

9

Linklaters

12,170

3

9

Standard Chartered

13,026

5

10

Luthra & Luthra Law Offices

3,751

3

10

ICICI Bank

681

5

Based on geography of either target, bidder or seller company being India

League Table of Legal Advisors to Southeast Asian M&A (Jan 01, 2010 - July 23, 2010) Rank

House

League Table of Financial Advisors to Southeast Asian M&A (Jan 01, 2010 - July 23, 2010)

Value (USDm)

Deal Count

Rank

Value (USDm)

Deal Count

1

WongPartnership

8,354

25

1

House CIMB Group

8,093

12

2

Allen & Gledhill

5,952

17

2

Morgan Stanley

5,465

7

3

Stamford Law

3,854

8

3

HSBC

3,100

7

4

AZB & Partners

3,901

7

4

Deloitte

851

7

5

Rajah & Tann

3,765

5

5

Deutsche Bank

5,829

6

6

Clifford Chance

1,663

5

6

Credit Suisse

4,928

6

7

Linklaters

628

4

7

Goldman Sachs

4,854

6

8

Allen & Overy

562

4

8

OSK Investment Bank

576

6

9

Shook Lin & Bok Singapore

5,504

3

9

UBS Investment Bank

6,044

5

10

Drew & Napier

2,994

3

10

Rothschild

1,958

5

Based on geography of either target, bidder or seller company being Southeast Asia

www.legalbusinessonline.com www.legalbusinessonline.com

55

market data | capital markets >>

Equity Capital Markets TRANSACTIONS List

Asia, inc Japan, ex Australia & New Zealand 27 June – 24 July Proceeds Issuer Issue date (USDm)

Currency

Bookrunner(s)

Sector

Hongkong & Shanghai Bank (HK); ICBC (Hong Kong); UBS (Hong Kong) HSBC Holdings PLC CCB International Capital Ltd UBS Securities Inc; DSP Merrill Lynch Ltd; Citibank NA (India); Enam Securities; ICICI Securities & Finance Co; IDFC-SSKI Ltd; Kotak Mahindra Capital Co; Morgan Stanley

Financials Consumer Staples Materials

IND IND IND USD IND

Credit Suisse; CLSA ECM; IIDFC; Morgan Stanley HSBC Investment Bank Asia Ltd; Kotak Mahindra Finance Ltd IDFC-SSKI Ltd; JM Financial Group Jefferies International Ltd Edelweiss Capital; Kotak Mahindra Capital Co

Financials Consumer Staples Financials Energy and Power Media and Entertainment

IDR IDR IDR IDR

Dinamika Usahajaya PT BAHANA SECURITIES; PT CIMB Securities Indonesia Recapital Securities PT OSK Nusadana Securities

Retail Financials Financials Materials

HONGKONG Guotai Junan(Hong Kong)Ltd Global Bio-chem Tech Grp Co Chiho-Tiande Group Ltd

226.5 89.3 78

06/29/10 07/08/10 07/05/10

HKD HKD HKD

Adani Enterprises Ltd

848.2

07/21/10

IND

570.1 115.0 81.5 75.0 57.9

06/29/10 06/28/10 07/16/10 07/08/10 07/15/10

1,363.1 160.0 56.3 53.1

06/28/10 06/30/10 06/29/10 07/01/10

India IDFC GCPL Dhanalakshmi Bank Ltd Shiv-Vani Oil & Gas Explor Hindustan Media Ventures Ltd Indonesia Golden Retailindo Tbk PT Bank Jabar Banten Tbk PT Bank Eksekutif Intl Tbk PT Indopoly Swakarsa Industry PT Japan Mizuho Financial Group Inc Malaysia CMMT Lafarge Malayan Cement Bhd Telekom Malaysia Bhd Philippines Semirara Mining Corp Korea

Consumer Products and Services

8,797.6

07/13/10

JPY

Mizuho Securities Co Ltd; Nomura Securities

Financials

246.4 185.4 180.8

07/08/10 07/16/10 07/21/10

MYR MYR MYR

JPMorgan Securities (Malaysia); CIMB Investment Bank Bhd; Maybank RBS Nomura Singapore Ltd; Maybank Investment Bank Bhd

Real Estate Materials Telecommunications

BDO Capital Investment Corp

Materials

95.1

07/09/10

PHP

ChinHung International Inc

133.0

07/22/10

KRW

iMarketKorea Inc Taiwan Taiwan Mobile Co Ltd

113.5

07/19/10

KRW

Woori Invest & Sec Co Ltd; Shinhan Investment Corp; Korea Investment & Securities; Hyundai Securities Co Ltd; Dongyang Securities Mirae Asset Securities

60.5

07/02/10

TWD

Goldman Sachs International

Industrials Financials Telecommunications

DEBT CAPITAL MARKETS TRANSACTIONS LIST

Asia, inc Japan, ex Australia & New Zealand 27 June – 24 July Issuer

Issue date

Currency

445.7 363.5 300 203.6 150.2

07/09/10 07/09/10 07/18/10 07/07/10 07/19/10

USD USD USD CNY USD

State Bank of India-London

997.1

07/22/10

USD

Power Grid Corp of India Ltd

615.9

07/06/10

INR

ICICI Bank Ltd - Hong Kong Br

500.0

07/08/10

USD

Rural Electrification Corp Ltd

425.4

07/07/10

INR

Power Finance Corp Ltd

332.5

07/20/10

INR

Indiabulls Finl Svcs Ltd

269.4

07/05/10

INR

Power Finance Corp Ltd

236.3

07/02/10

INR

NABARD

139.0

07/05/10

INR

NABARD

129.2

06/30/10

INR

Indian Bank

108.2

06/28/10

INR

Union Bank of India

108.2

06/28/10

INR

Bank of Baroda National Housing Bank

107.7 107.2

06/30/10 07/12/10

INR INR

Bookrunner(s)

Sector

Citi; JP Morgan Citi; HSBC Holdings PLC; JP Morgan Credit Agricole CIB Bank of China Ltd Citi; JP Morgan

Financials Consumer Products and Services Financials Industrials Financials

IFCI Ltd

107.1

07/14/10

INR

HDFC

106.1

07/19/10

INR

Export-Import Bank of India

100.0

07/07/10

INR

86.6 74.7 64.9 53.4 53.3

06/29/10 07/08/10 07/02/10 07/08/10 07/23/10

INR INR INR INR INR

Banc of America Securities LLC; Citigroup Global Markets Inc; Deutsche Bank AG; HSBC Holdings PLC; RBS; UBS Investment Bank Standard Chartered Bk (India); ICICI Sec Primary Dealership; Darashaw & Co Ltd; Kotak Mahindra Bank Ltd; HSBC India; Axis Bank Ltd; Trust Investment Advisors; Almondz Global Securities Ltd; SBI Capital Markets Ltd; AK Capital Services Ltd; LKP Shares & Securities Ltd; ICICI Bank Ltd Banc of America Securities LLC; Deutsche Bank (Singapore); HSBC Holdings PLC Standard Chartered Bk (India); Yes Bank Ltd; Axis Bank Ltd; Barclays Bank PLC; Trust Investment Advisors; Almondz Global Securities Ltd; Deutsche Bank (India); ICICI Bank Ltd Barclays Bank PLC; Axis Bank Ltd; ICICI Securities & Finance Co; Trust Investment Advisors; Almondz Global Securities Ltd; ICICI Bank Ltd; Kotak Mahindra Finance Ltd; LKP Merchant Financing; SPA Merchant Bankers; AK Capital Services Ltd; Yes Bank Ltd; Edelweiss Capital; Darashaw & Co Ltd; Sec Trading Corp of India; R.R. Financial Consultants; Deutsche Bank (India); Real Growth Projects Ltd; Standard Chartered Bk (India) Axis Bank Ltd; AK Capital Services Ltd; ICICI Bank Ltd Barclays Bank PLC; Standard Chartered Bk (India); AK Capital Services Ltd; Trust Investment Advisors; ICICI Bank Ltd; HSBC India; ICICI Sec Primary Dealership; Edelweiss Capital; Axis Bank Ltd; Deutsche Bank (India); Kotak Mahindra Bank Ltd; LKP Shares & Securities Ltd; Yes Bank Ltd UBS AG; Yes Bank Ltd; Axis Bank Ltd; ICICI Sec Primary Dealership; Trust Investment Advisors; ING Vysya Bank; Barclays Bank PLC; ICICI Bank Ltd Axis Bank Ltd; Barclays Bank PLC; Deutsche Bank (India); Trust Investment Advisors; ICICI Sec Primary Dealership Yes Bank Ltd Kotak Mahindra Finance Ltd; AK Capital Services Ltd; ICICI Sec Primary Dealership; Axis Bank Ltd; ICICI Bank Ltd AK Capital Services Ltd; Axis Bank Ltd; ICICI Bank Ltd; ICICI Sec Primary Dealership; ING Vysya Bank ICICI Bank Ltd; ING Vysya Bank Trust Investment Advisors; Almondz Global Securities Ltd; Axis Bank Ltd; Religare Capital Markets Ltd; BNK Capital Markets Axis Bank Ltd; ICICI Bank Ltd; ICICI Sec Primary Dealership; Kotak Mahindra Finance Ltd Axis Bank Ltd; ICICI Sec Primary Dealership; Standard Chartered Bk (India); Taurus Finsec Pvt Ltd; Trust Investment Advisors Axis Bank Ltd Axis Bank Ltd Barclays Bank PLC; Trust Investment Advisors; IDBI Capital Markets Services; ING Vysya Bank Yes Bank Ltd Trust Investment Advisors

646.6 350.0 330.0 330.0 275.0 1,998.3 1,316.6 1,136.2 1,131.3 1,128.6 1,025.7

07/22/10 06/30/10 07/06/10 07/08/10 07/08/10 07/14/10 07/23/10 07/14/10 07/14/10 07/09/10 07/02/10

USD USD IDR IDR IDR USD JPY USD JPY JPY JPY

Citigroup; DBS Bank Ltd; Deutsche Bank AG; HSBC Holdings PLC; RBS Deutsche Bank (Singapore); Credit Suisse (Singapore) Ltd PT BAHANA SECURITIES; PT Mandiri Sekuritas; Danareksa Sekuritas; Trimegah Securities Tbk PT PT BAHANA SECURITIES; PT Indo Premier Securities; Trimegah Securities Tbk PT Danareksa Sekuritas; PT Mandiri Sekuritas; Trimegah Securities Tbk PT Barclays Capital; Citi; Goldman Sachs & Co; Credit Suisse Daiwa Sec Capital Markets Deutsche Bank Securities Corp; BNP Paribas SA; RBS Mizuho Securities Co Ltd Nikko Cordial Securities Inc Mizuho Securities Co Ltd; Daiwa Sec Capital Markets

Telecommunications Materials Telecommunications Financials Energy and Power Financials Government and Agencies Financials Financials Financials Financials

571.9 564.5 519.1 400.3 362.6 344.7 343.1 343.1 342.0 338.4 295.4 287.5 285.9 285.9 284.9 282.0 230.0 230.0 230.0 229.8 228.8 228 228

07/15/10 07/09/10 06/29/10 07/23/10 07/02/10 07/22/10 07/15/10 07/15/10 07/07/10 07/13/10 07/14/10 07/21/10 07/23/10 07/23/10 07/02/10 07/13/10 07/21/10 07/21/10 07/21/10 07/22/10 07/15/10 07/07/10 07/07/10

JPY JPY JPY JPY AUD JPY JPY JPY JPY JPY CNY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY

Daiwa Sec Capital Markets Mitsubishi UFJ Morgan Stanley Nikko Cordial Securities Inc Mitsubishi UFJ Morgan Stanley Citigroup Global Markets Inc Nomura Securities Mizuho Securities Co Ltd Mizuho Securities Co Ltd Mizuho Securities Co Ltd Daiwa Sec Capital Markets China Citic Bank; Industrial & Comm Bank China Mizuho Securities Co Ltd; Daiwa Sec Capital Markets Mizuho Securities Co Ltd Mizuho Securities Co Ltd Mitsubishi UFJ Morgan Stanley Daiwa Sec Capital Markets Mizuho Securities Co Ltd Nikko Cordial Securities Inc Citigroup Global Markets Japan Nikko Cordial Securities Inc Mizuho Securities Co Ltd Nomura Securities Daiwa Sec Capital Markets

Financials Financials Financials Industrials Financials Industrials Energy and Power Financials Energy and Power Government and Agencies Industrials Industrials Government and Agencies Government and Agencies Consumer Staples Financials Materials Materials Financials Industrials Financials Energy and Power Energy and Power

LIC Housing Finance Ltd LIC Housing Finance Ltd IDBI Bank Ltd Ballarpur Industries Ltd Export-Import Bank of India Indonesia Indosat International Finance Berau Capital Resources PTE Telkom Indonesia Eximbank PerusahaanListrik Negara Sumitomo Mitsui Banking Corp Japan Housing Finance Agency TAOT 2010-B Mizuho Corporate Bank Ltd Sumitomo Mitsui Banking Corp Orix Corp JAPAN Sumitomo Trust & Banking Bank of Tokyo-Mitsubishi UFJ SMBC's 21st RMBS Mitsubishi Corp Toyota Motor Credit Corp Kintetsu Corp Kansai Electric Power Co Inc Nissan Financial Services Tokyo Electric Power Co Inc JFM DongFeng Motor Co Ltd East Nippon Expressway Co Ltd JFM JFM Suntory Holdings Ltd Yamaguchi Financial Group Inc Oji Paper Co Ltd Oji Paper Co Ltd Orix Corp JTEKT Corp Nissan Financial Services Chubu Electric Power Co Inc Tokyo Electric Power Co Inc

56

Proceeds (USDm)

HONGKONG Bank of East Asia Ltd Li & Fung Ltd FPMH Finance Ltd Hopewell Highway Bank of East Asia Ltd India

Financials Energy and Power Financials Financials Financials Financials Financials Financials Financials Financials Financials Financials Financials Financials Financials Financials Financials Financials Financials Materials Financials

Asian Legal Business ISSUE 10.8

market data | capital markets >> Metropolis of Tokyo Metropolis of Tokyo Kanagawa Prefecture JFM Yamaguchi Financial Group Inc Toyota Motor Credit Corp Japan Housing Finance Agency Genesis Trust 2010 Japan Housing Finance Agency Kansai International Airport Kansai International Airport East Japan Railway Co East Japan Railway Co Odakyu Electric Railway Co Ltd City of Yokohama Japan Housing Finance Agency Sapporo Holdings Ltd Mitsui Fudosan Co Ltd Sumitomo Metal Industries Ltd City of Kawasaki City of Kitakyushu Sotetsu Holdings Inc Sotetsu Holdings Inc Kansai International Airport JFM Michinoku Bank Mitsubishi Estate Co Ltd Chugoku Electric Power Co Inc SBI Holdings Inc Orix Corp Suntory Holdings Ltd City of Fukuoka Japan Real Estate Investment NBB Ijarah Nippon Accommodations Fund Inc Tokyo Tomin Bank Ltd Toyota Motor Credit Corp ITOCHU ENEX Co Ltd ITOCHU ENEX Co Ltd Fuji Oil Co Ltd JFM JFM Monex Group Inc Malaysia Ara Bintang Berhad Sports Toto Malaysia Bhd Bank CIMB Niaga Tbk PT Sabah Development Bank Bhd Philippines PLDT Smart Communications Inc Singapore Temasek Financial (I) Ltd Temasek Financial (I) Ltd Housing & Development Board Singapore Airlines Ltd SPIAA WBL Corp Ltd Goodpack Ltd

227.9 227.8 225.8 225.6 225.6 218.3 201.4 185.6 182.2 172.3 172.3 169.3 169.3 169.3 169.3 162.9 135.3 115.5 115.5 115.4 115.4 115.0 115.0 114.9 114.4 114.4 114.4 114.0 114.0 114.0 114.0 113.2 113.1 100.0 80.1 68.6 60.0 57.5 57.5 57.2 57.2 57.2 57.0

07/02/10 07/07/10 07/09/10 07/13/10 07/13/10 07/15/10 07/08/10 06/30/10 07/08/10 07/22/10 07/22/10 07/09/10 07/09/10 07/09/10 07/09/10 07/08/10 07/13/10 07/16/10 07/16/10 07/16/10 07/16/10 07/21/10 07/21/10 07/22/10 07/23/10 07/23/10 07/23/10 07/07/10 07/07/10 07/02/10 07/02/10 07/08/10 07/14/10 07/06/10 07/23/10 07/15/10 07/15/10 07/21/10 07/21/10 07/15/10 07/23/10 07/23/10 07/05/10

JPY JPY JPY JPY JPY AUD JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY JPY USD JPY JPY USD JPY JPY JPY JPY JPY JPY

Nomura Securities Nomura Securities Mizuho Securities Co Ltd; Merrill Lynch Securities Co Daiwa Sec Capital Markets Daiwa Sec Capital Markets; Tokai Tokyo Securities Co Ltd Nomura International PLC Mitsubishi UFJ Morgan Stanley; Mizuho Securities Co Ltd; Merrill Lynch Securities Co Deutsche Securities Inc Mitsubishi UFJ Morgan Stanley; Mizuho Securities Co Ltd; Merrill Lynch Securities Co Mizuho Securities Co Ltd Mizuho Securities Co Ltd Nomura Securities; Mizuho Securities Co Ltd Nomura Securities; Mizuho Securities Co Ltd Nikko Cordial Securities Inc Mizuho Securities Co Ltd; GSJCL Mitsubishi UFJ Morgan Stanley; Mizuho Securities Co Ltd; Merrill Lynch Securities Co Mizuho Securities Co Ltd Daiwa Sec Capital Markets; Nikko Cordial Securities Inc Nikko Cordial Securities Inc Mitsubishi UFJ Morgan Stanley; Daiwa Sec Capital Markets; Nomura Securities Mitsubishi UFJ Morgan Stanley; Nomura Securities Nikko Cordial Securities Inc Daiwa Sec Capital Markets Mizuho Securities Co Ltd Mitsubishi UFJ Morgan Stanley Nikko Cordial Securities Inc Nikko Cordial Securities Inc Nomura Securities Mizuho International plc Daiwa Sec Capital Markets Mitsubishi UFJ Morgan Stanley Mizuho Securities Co Ltd; GSJCL; Nomura Securities Mizuho Securities Co Ltd; Mitsubishi UFJ Morgan Stanley Kuwait Finance House(Malaysia) Nomura Securities; Merrill Lynch Securities Co Mizuho Securities Co Ltd Nomura International PLC Nikko Cordial Securities Inc Nikko Cordial Securities Inc Nomura Securities Shinkin Securities Daiwa Sec Capital Markets Mizuho International plc

Government and Agencies Government and Agencies Government and Agencies Government and Agencies Financials Financials Government and Agencies Financials Government and Agencies Industrials Industrials Industrials Industrials Industrials Government and Agencies Government and Agencies Consumer Staples Real Estate Materials Government and Agencies Government and Agencies Industrials Industrials Industrials Government and Agencies Financials Real Estate Energy and Power Financials Financials Consumer Staples Government and Agencies Real Estate Financials Real Estate Financials Financials Energy and Power Energy and Power Consumer Staples Government and Agencies Government and Agencies Financials

321.2 154.2 151.8 90.7

06/28/10 06/30/10 07/08/10 07/15/10

MYR MYR IDR MYR

AmInvestment Bank Bhd AmInvestment Bank Bhd; Maybank Investment Bank Bhd PT Mandiri Sekuritas; PT BAHANA SECURITIES; PT CIMB Securities Indonesia CIMB Investment Bank Bhd; AmInvestment Bank Bhd

Financials Media and Entertainment Financials Financials

54.1 54.1

07/13/10 07/13/10

PHP PHP

First Metro Investment Corp First Metro Investment Corp

Telecommunications Telecommunications

1,061.0 729.1 361.1 356.6 167.5 72.8 72.2

07/19/10 07/22/10 06/28/10 06/29/10 07/07/10 07/15/10 07/06/10

GBP SGD SGD SGD CHF SGD SGD

Deutsche Bank AG; HSBC Holdings PLC; RBS; UBS Investment Bank DBS Bank Ltd; Standard Chartered Bank (SG) Deutsche Bank (Singapore) ANZ Singapore; DBS Bank Ltd; Oversea-Chinese Banking; United Overseas Bank Ltd BNP Paribas (Suisse) SA; RBS DBS Bank Ltd; Oversea-Chinese Banking Oversea-Chinese Banking; Standard Chartered Bank (SG) Deutsche Bank (Singapore); HSBC Holdings PLC; ING Bank NV; Bank of America Merrill Lynch; UBS AG; Woori Invest & Sec Co Ltd BNP Paribas SA; Standard Chartered Bank PLC Credit Agricole CIB; Citi; ING; Morgan Stanley; RBS Barclays Capital Japan; Merrill Lynch Securities Co; Mitsubishi UFJ Morgan Stanley; Mizuho Securities Co Ltd; Morgan Stanley MUFG

Financials Financials Government and Agencies Industrials Energy and Power Retail Industrials

Financials Financials Financials Financials Financials Financials Financials Financials Financials Financials Financials High Technology Financials Financials Financials Materials Financials Financials Energy and Power Financials Financials Financials Financials Financials Financials Financials Industrials Financials Consumer Staples Industrials Energy and Power Financials Financials Financials Industrials Industrials Industrials Financials

Woori Bank

596.1

07/13/10

USD

Korea Housing Finance Corp NongHyup

499.4 498.0

07/08/10 07/21/10

USD USD

Industrial Bank of Korea

351.9

07/13/10

JPY

South Korea Woori Bank Woori Bank Hana Financial Group Inc Woori Bank Kookmin Bank Woori Bank Woori Bank Kookmin Bank Kookmin Bank Kookmin Bank ER the 1st Securitization SK C&C Co Ltd Woori Bank Shinhan Bank Kookmin Bank SKC Co Ltd Kookmin Bank Woori Bank Pyeongtaek Energy Service Co Hyundai Capital Services Inc Woori Bank Kookmin Bank New Challenge Kodit 2010 Shinhan Bank Dreamline 3rd Asset Sec Shinhan Bank Doosan Mecatec Co Ltd Kookmin Bank Hyosung Corp Hyundai Mobis Co Ltd Posco Power Corp Korea Securities Finance Corp KDB Capital Corp Woori Financial Co Ltd Hanjin Transportation Co Ltd Doosan Capital Co Ltd Korea Express Co Ltd KT Capital Corp

307.8 284.9 250.2 204.5 192.1 191.4 190.7 184.0 183.0 179.3 166.2 166.2 148.3 141.3 133.0 131.0 130.9 124.7 122.7 109.4 99.9 91.9 91.2 83.2 83.1 83.1 83.1 82.9 82.8 82.2 80.0 74.9 74.5 65.9 58.2 58.2 58.2 57.7

07/15/10 07/02/10 07/23/10 07/06/10 07/09/10 07/16/10 07/20/10 07/21/10 07/15/10 07/01/10 06/29/10 07/22/10 07/19/10 07/22/10 07/22/10 07/08/10 07/05/10 07/12/10 07/05/10 07/23/10 07/22/10 07/09/10 06/30/10 07/16/10 06/28/10 07/22/10 07/23/10 07/20/10 07/12/10 06/30/10 07/02/10 07/15/10 07/08/10 07/19/10 07/15/10 07/12/10 07/22/10 07/19/10

KRW KRW KRW KRW KRW KRW KRW JPY KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW KRW MYR MYR KRW KRW KRW KRW KRW KRW KRW KRW KRW USD KRW KRW KRW KRW KRW KRW KRW

Financials Financials Financials Financials

Industrial Bank of Korea

57.5

07/13/10

JPY

SK Shipping Co Ltd(SK Group) Aju Capital Co Ltd Shinhan Bank Korea Finance Corp Lotte Card Co Ltd Dongbu Steel Co Ltd Taiwan Taipower Cheng Shin Rubber Industry Co Nan Ya Plastics Corp E Sun Bank Thailand PTTEP AIF Thoresen Thai Agencies PLC Quality Houses PCL CH Karnchang PCL Berli Jucker PCL

57.3 53.4 50.1 50.0 50.0 49.9

07/06/10 06/30/10 07/08/10 07/19/10 07/20/10 07/14/10

KRW KRW SGD USD USD KRW

Hana Daetoo Securities Co Ltd Hana Daetoo Securities Co Ltd SK Securities Co Ltd Hana Daetoo Securities Co Ltd Bookook Securities Co Ltd Hana Daetoo Securities Co Ltd Hana Daetoo Securities Co Ltd Mitsubishi UFJ Morgan Stanley; Mizuho Securities Co Ltd; RBS Securities Japan Ltd; UBS Securities Japan Ltd E Trade Korea Co Ltd E Trade Korea Co Ltd Korea Development Bank Woori Invest & Sec Co Ltd; Shinhan Investment Corp Leading Invest & Securities Co Woori Invest & Sec Co Ltd Shinyoung Securities Co, Ltd Shinhan Investment Corp Hana Daetoo Securities Co Ltd KB Invest & Sec Daewoo Securities Co Ltd; Korea Development Bank Standard Chartered Bk Malaysia RHB Investment Bank Bhd; AmInvestment Bank Bhd Shinyoung Securities Co, Ltd Samsung Securities; Shinhan Investment Corp; Hanwha Securities Co; Daishin Securities Co Ltd Hana Daetoo Securities Co Ltd Korea Development Bank KTB Securities Co Ltd Korea Development Bank; Korea Investment & Securities Shinyoung Securities Co, Ltd Tong Yang Securities; Samsung Securities; KTB Securities Co Ltd KB Invest & Sec KB Invest & Sec Korea Investment & Securities Kyobo Securities Co Ltd Korea Investment & Securities Korea Investment & Securities; KB Invest & Sec Hyundai Securities Co Ltd Daewoo Securities Co Ltd Dongbu Securities Barclays Capital Japan; Merrill Lynch Securities Co; Mitsubishi UFJ Morgan Stanley; Mizuho Securities Co Ltd; Morgan Stanley MUFG Shinhan Investment Corp KB Invest & Sec Standard Chartered Bank PLC Credit Suisse Korea Investment & Securities Tong Yang Securities; Korea Development Bank

464.9 124.3 124.2 77.7

07/09/10 07/21/10 07/05/10 07/05/10

TWD TWD TWD TWD

KGI Securities (Taiwan) Capital Securities Corp Fubon Securities Co Ltd Yuanta Securities Co Ltd

Energy and Power Industrials Materials Financials

500.0 123.2 77.0 61.6 58.7

07/14/10 07/07/10 07/07/10 07/07/10 07/12/10

USD THB THB THB THB

RBS Securities Inc; Credit Suisse Securities (USA) Siam Commercial Bank PLC Siam Commercial Bank PLC Siam Commercial Bank PLC Siam Commercial Bank PLC

Energy and Power Industrials Real Estate Industrials Consumer Products and Services

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Financials Industrials Financials Financials Financials Financials Materials

57

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In-house Head of Investigations (10+ yrs pqe) Singapore A world leading bank is seeking a senior compliance professional to organize and oversee the investigation of serious cases globally. You should have excellent investigative skills gained at a regulator and/or international financial institution. Forensic accounting, international exposure, management skills and team-building experience required. You should ideally be a qualified lawyer in any jurisdiction. Ref: 9160/ALB

Regional Counsel (10+ yrs pqe) Singapore A European MNC is seeking

a senior counsel to support its regional and global expansion strategies.

This will cover areas including legal, tax, IP, compliance and security. This role requires one to have leadership experience managing a senior team and working closely with several business leaders, and a strong familiarity with laws across the region is needed. Ref: 9127/ALB

Regional Compliance Officer (8-12 yrs pqe) Singapore/Bangkok

Help oversee the compliance program for this dynamic business within the gas and engineering industry as they increase their operations in Asia-Pacific. You must have substantial experience in compliance work in the region and be legally trained with strong FCPA knowledge and experience in supporting global projects. Training business units and some travel required. Ref: 8889/ALB

Senior Legal Counsel (8+ yrs pqe) Singapore This London

headquartered financial institution offers custodian services and fund and trust administration to their clients. To be successful in this lead role, you must have proven experience in managing the legal and regulatory aspects of a trustee services business, particularly pro-forma agreements, client custody and sub-custody agreements, network legal documentation, nondisclosure agreements and outsourcing agreements. Ref: 9072/ALB

Legal Counsel (5+ yrs pqe) Singapore Do you have good

experience in standard and non-standard banking transactions?

Our client, a top banking cooperative, is seeking a Legal Counsel to support various business units by covering transactions, form agreements and assisting the Head of Legal. Experience in trade finance or commercial banking is preferred. Ref: 9118/ALB

Commercial Advisor (3-5 yrs pqe) Singapore Provide contractual support across borders at this recognized energy conglomerate.

This role advises on a range of contract matters and requires strong corporate and transactional experience. Those with commercial, trading and/or energy experience will have an advantage. Ref: 9081/ALB

Private Practice M&A Associate (3+ yrs pqe) Singapore Do you have experience at a top-tier law firm and want to get cross-border experience at one of the most prestigious international firms in the world? Our client is seeking a talented M&A associate to take on international clients and deals. Fluent English is required. Ref: 9087/ALB Finance Associate (3+ yrs pqe) Singapore Our client, a world renowned international law firm, is seeking a new associate to join their strong finance team. Experience in project finance legal matters is essential. Ref: 9062/ALB

Senior Legal Counsel (6-8 yrs pqe) Malaysia Take a lead role on a top IT company’s Malaysian legal team. This mandate covers corporate and contract matters across the country, and those with experience in litigation, oil and gas, HR and customer contracts are encouraged to apply. Previous IT experience would be advantageous. Ref: 9123/ALB

Shipping Lawyer (2+ yrs pqe) Singapore Great opportunity to help drive the expansion of a top-tier international law firm in Singapore. If you have substantial shipping experience, you may be the right fit for this position with excellent prospects for advancement. Ref: 9059/ALB

Oil & Gas Legal Counsel (6-7 years pqe) New Delhi Be responsible for

Corporate Associate (1-5 yrs pqe) Singapore This leading

an array of legal issues from litigation, corporate matters, compliance and contract matters. The ideal candidate has at least 4 years of experience at a top law firm and additional in-house experience. A commercially sound lawyer who has a curious nature, go-getter attitude and sound knowledge of the oil and gas industry is desired. Good career progression is attainable at this global oil and gas conglomerate. Ref: 8726/ALB

AML Compliance Manager (5-8 yrs pqe) Singapore This prominent global bank is seeking an anti-money laundering specialist to lead their AML compliance team in Singapore. This post manages the transaction monitoring team, analyzing financial accounts and ensuring suspicious activity is investigated. At least five years experience in compliance at a financial institution and hands-on AML compliance/transaction monitoring experience is a must. Ref: 9116/ALB

international law firm with a strong presence in Asia is now seeking a Corporate Associate to join its Singapore team. You should have corporate experience and excellent academic records. Ref: 9055/ALB

Capital Markets Associate (1-4 yrs pqe) Singapore Help develop your career by becoming a part of this full service international law firm. This position covers mainly capital markets work and requires US or UK qualification. Training or past experience at top-tier law firms is a must. Ref: 9084/ALB Energy Associate (1-3 yrs pqe) Singapore Join the rapidly growing energy practice at this international law firm’s Singapore office. This role works with regional and multinational clients who are actively expanding in the region. You should have experience in M&A, commercial contracts and project financing in the oil and gas industry. Ref: 9086/ALB

HONG KONG Tel: (852) 2520 1168 Fax: (852) 2865 0925 Email: hughes@hughes-castell.com.hk SINGAPORE Tel: (65) 6220 2722 Fax: (65) 6220 7112 Email: hughes@hughes-castell.com.sg BEIJING Tel: (86) 10 6581 1781 Fax: (86) 10 6581 1773 Email: beijing@hughes-castell.com.hk

a Randstad company

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IBA 2nd Asia Pacific Forum Regional Conference: Asia after the GFC – Leading the Global Recovery

A conFErEncE prESEnTEd by ThE IbA ASIA pAcIFIc rEgIonAL ForUm 17–19 November 2010

Tokyo International Forum, Japan

This conference brings together experts from throughout the Asia Pacific region and beyond to discuss the current opportunities, issues, risks and practical considerations for investors and others doing business in the emerging and developed markets of the Asia Pacific region in the aftermath of the global financial crisis.

Topics include: • post gFc: global regulatory reform and its impact on trade, investment and finance in the Asia pacific region • Acquisitions, mergers and investments: evolving transaction structures and new legal and regulatory issues for foreign investors throughout the Asia region • Antitrust: new competition regimes and regulatory developments in Asia’s emerging markets • Intellectual property: lessons on protection of Ip rights in Asia • Arbitration and dispute resolution: new dispute resolution paradigms and issues in Asia • corporate counsel: best practices regarding corporate governance and anti-corruption compliance in Asia • Asian multinational companies and state-owned enterprises on the prowl: what are they buying, what are their agendas, how are they affecting trade and investment in the region and globally?

• Law firm management: the response by and opportunities for growth for law firms in the aftermath of the global financial crisis • young lawyers: roundtable to discuss the impact of the financial crisis on the practices of young lawyers Who should attend?

Those who are interested in international legal practice in or involving the Asia pacific region, whether in private practice or in-house counsel, and whether located in the Asia pacific region or other markets around the world.

International Bar Association 10th Floor, 1 Stephen Street, London W1T 1AT, United Kingdom Tel: +44 (0)20 7691 6868

Fax: +44 (0)20 7691 6544

E-mail: confs@int-bar.org Website: http://www.int-bar.org/conferences/conf302/

Access a world of legal experience Pinsent Masons is now in Joint Law Venture with MPillay Experience the seamless combination of the highest quality Singapore law expertise and the global coverage and depth of a leading international law firm.

Pinsent Masons, one of the world’s foremost construction law firms with over 1000 lawyers in the UK, the Middle East and Asia, and a strong network of connections across Continental and Eastern Europe.

MPillay, a highly regarded Singapore law practice, ranked as one of ALB’s top Singapore Arbitration and Dispute Resolution Law Firms for the second year running.

If you are interested in exciting career opportunities with Pinsent Masons MPillay LLP, please contact our Joint Heads of Office: Mohan Pillay - mohan.pillay@pinsentmasons.com Jon Howes - jon.howes@pinsentmasons.com

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