CLB November 2012

Lo s i n g Lu s t r e : Lu x u ry b r a n d s fac e s lo w d o w n

光鲜不再：奢侈品牌增长减缓

november2012 WWW.LEGALBUSINESSONLINE.COM

亚洲法律杂志 - 中国版 CHINA

Biotech Boom

West China

Employment law

Investors reap rewards 生物技术：收获的季节

Opportunities abound 中国西部：机遇遍地

Law firms’ HR woes 劳动法：律所HR之烦恼

INSIDE n THE BIG STORY

PAGE 14

PAGE 22

PAGE 30

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n Deals SPOTLIGHT

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n LAW FIRM LEAGUE TABLES

08

n SUNDRIES

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A D E C A D E O F C E L E B R AT I N G L E G A L E X C E L L E N C E

CONTENTS

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“It is one of the struggles of foreign firms. Some of our talents may end up going to a local firm after picking up the skills they need (with us), because the tax structure for partners at domestic firms is so much more favourable.”

Philip Cheng, Hogan Lovells

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34

COVER STORY China’s top 15 women lawyers 中国十五佳女律师

38

A poll surveying hundreds of law firm clients has helped us crown the top 15 female legal practitioners in China.

NEWS

通过对数百位律所客户的问卷调查，我们找出了中国最出类拔萃的十五位女性法律工作者。

FEATURES China’s biotech boom 生物技术在中国

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Developments in China’s biotech industry are finally paying off, as it is attracting a steady flow of foreign investment.

Despite persisting regulatory challenges and lengthy approval processes, Western multinationals and corporate funds are coming forward to invest. Raghavendra Verma reports

up their organisation and mentality, and waiting for larger deal opportunities to come. Liu Zhen has the story. 中国正对欠发达的西部地区实施大开发战略，那里 的法律行业同样面临改革。全国性律所进入这一区 也正在升级自身的组织架构和思维方式，为将来更 大的机遇做好准备。刘蓁报道

中国在生物技术行业的投入终于有所回报，稳定的 海外投资正在流入。虽然监管的障碍和漫长的审批 过程始终未变，但是挡不住西方跨国公司和投资基 金前来投资的步伐。Raghavendra Verma报道。

Into the West 西行记 China’s underdeveloped west is seeing massive economic development, as well as a reform in legal business. With the competition and examples national firms have brought in, local firms are levelling

22

Businesses in China are increasingly facing a serious challenge in finding and retaining quality talent. It is a human resources issue that goes beyond just the corporate world and into the legal realm, as law firms face the same struggles as the companies that they advise. Phil Taylor reports

04

Deals

07

League Tables

08

Appointments

10

Index

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Sponsored Updates

域带来了竞争的同时也树立了榜样，而西部的律所

A few good men 求贤若渴

Briefs

30

— International Tax Azure Tax — Shanghai

Victory Legal Group — Singapore

Loo & Partners

52 53 53

Sponsored Profiles — Yongheng Partners

09

— Joinway Law Firm

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— King & Wood Mallesons

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找到和留住高素质人才在中国变得越来越难。这一 人力资源的困境并不局限于企业界，就连法律界也 不能幸免。律师事务所和自己所服务的公司一样， 为了人才辗转难眠。Phil Taylor报道。

SUNDRIES

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ASIAN LEGAL BUSINESS november 2012

2 ON THE COVER

MANAGING DIRECTOR Andrew Smart andrew.smart@thomsonreuters.com NORTH ASIA REGIONAL EDITOR Candice Mak candice.mak@thomsonreuters.com SOUTHEAST ASIA REGIONAL EDITOR Ranajit Dam ranajit.dam@thomsonreuters.com MIDDLE EAST REGIONAL EDITOR Shaheen Pasha shaheen.pasha@thomsonreuters.com JOURNALISTS Seher Hussain seher.hussain@thomsonreuters.com Zhen Liu zhen.liu@thomsonreuters.com Kathryn Crossley kathryn.crossley@thomsonreuters.com Kanishk Verghese kanishk.verghese@thomsonreuters.com copy editor Vasundhara Chatterjee associate copy editor Sanchita Ghosh HEAD OF SALES Regina Keung regina.keung@thomsonreuters.com

THOMSON REUTERS TRUST PRINCIPLES 01

That Thomson Reuters shall at no time pass into the hands of any one interest, group or faction;

DIRECTOR, EVENTS Lucinda Maguire lucinda.maguire@thomsonreuters.com ACCOUNT MANAGERS May Wong (Business Development Director) may.wong@thomsonreuters.com Jessie Cheung (Senior Sales Director, North Asia) jessie.cheung@thomsonreuters.com Yvonne Cheung (Account Director, China) yvonne.cheung@thomsonreuters.com

02 That the integrity, independence and freedom from bias of Thomson Reuters shall at all times be fully preserved;

DESIGNERS John Agra Yvette Chiu

03

TRAFFIC MANAGERs Rozidah Jambari Ivy Tsang

That Thomson Reuters shall supply unbiased and reliable news services to newspapers, news agencies, broadcasters and other media subscribers and to businesses governments, institutions, individuals and others with whom Thomson Reuters has or may have contracts;

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Please contact Andrew Smart with any questions. andrew.smart@thomsonreuters.com

errata 更正启示 2012年10月号第56页，“中银律师事务所”的中文名被误写为 “中伦律师事 务所”。我们为这个错误向各位致以诚恳的歉意。 On Page 56 of the October 2012 issue, Zhong Yin Law firm’s name in Chinese was incorrectly written as中伦律师事务所; it should have been中银律师事务 所. Any inconvenience caused by this error is sincerely regretted.

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EDITORIAL

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Cheering China’s Top 15 致敬中国十五佳女律师 Women Lawyers It is with great pleasure that we unveil the best of the best among female legal practitioners in China this month. It was not an easy choice, given the breadth of talent and expertise amongst the attorneys practising in the country. But after polling hundreds of law firm clients through several surveys conducted by ALB and ALB China, our top 15 finally emerged. The winners couldn’t be more deserving. Each of our chosen female trailblazers have demonstrated that a combination of personal and professional fortitude and intellect are the ingredients necessary for a successful career in China’s challenging legal market. Congratulations to our top 15!

On a personal note, I am very pleased to join the ALB China family for the next few issues while my colleague Candice is enjoying motherhood. As the current Middle East editor, China has long been on my radar, given the growing East-East ties we are seeing between the Gulf and China. As a result, I am very excited to be taking on the role of acting North Asia editor for ALB in Candice’s stead. I am looking forward to delving into the stories that impact you in China, and receiving your feedback. So please 1don’t hesitate ALB_186x119.5mm_bleed5mm.pdf 2011-8-13 17:12:41 to get in touch.

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本月我们非常高兴地为您揭晓中国优秀的女性法律工作者中尤为出色的一 群。鉴于这个国家地域的辽阔和律师业务范围的广泛，在这样大的一群杰 出人才当中要作出取舍相当不易。但是通过ALB和中国版反复数次对上百 位律所客户的调查，我们的前十五名终于出炉。她们是当之无愧的全国顶 尖。每一位入选的女性不但勇于开拓进取，更展现出了将个人生活和职业 生涯协调平衡的毅力和智慧，这些是在中国这个充满挑战的法律市场中成 功的必备要素。向这十五位杰出女性表示祝贺！ 从个人来说，从今开始的几个月里，我的同事Candice因为产假暂别，我非 常高兴能够有机会加入ALB中国版团队。此前我的身份是中东主编，但中 国一直也在我的关注范围，特别是看到中国与海湾地区日益频繁和密切的 经贸往来，所以能够暂代Candice成为北亚执行主编令我格外激动。我期待 着为大家带来有价值的深度中国报道，也期待着收到各位读者的反馈。欢 迎大家随时和我联系。

Shaheen Pasha Acting North Asia Regional Editor, Middle East Regional Editor, Asian Legal Business Thomson Reuters

04

BRIEFS

11.2012

T

the big story

he luxury brand market in general has continued to defy the global economic downturn, posting sustained growth especially in the East, with China continuing to grow at a much faster rate than the traditionally established markets of Japan, Italy, Europe and the U.S. However, China’s recent slowdown has affected the luxury industry, with a recent report by Bain citing that global luxury goods sales are expected to grow by 5 percent this year, compared with 13 percent last year. Despite that, the might of the Chinese consumer has vaulted the country into the top echelon, with the country becoming the world’s second-largest luxury market this year, topped only by the U.S. However, as the Chinese buyer grows increasingly more sophisticated, international brands face an evolving set of obstacles.

Luxury companies also continue to eye India; as one of the world’s fastest growing economies with an increasing number of high net worth individuals, it is well placed to capture a significant market share. Will the newly released FDI regulations give this sector the much needed boost it has been waiting for?

BURBERRY, BULGARI AND BENTLEY: AS LUXURY BRANDS EXPERIENCE A SLOWDOWN IN ASIA, SEHER HUSSAIN INVESTIGATES WHAT OBSTACLES, REGULATORY AND LEGAL, LIE AHEAD FOR THE CHINESE AND INDIAN MARKETS.

GUCCI AND GIVENCHY: GRAPPLING WITH CHINA According to the Bain report, Chinese luxury goods sales are set to rise by 8 percent at constant currencies and 20 percent at current currencies, while last year they climbed to 30 percent on both measures. Burberry, Hermes and other brands have reported slowing revenue growth in Asia over the past year; however they have still performed well, with LVMH up 本月要闻

奢侈生活

博柏利(Burberr y)、宝格丽(Bulgari)、宾利 (Bentley)，这些奢侈品牌在亚洲的销售正遭 遇寒流。Seher Hussain通过本文对奢侈品 在中国和印度市场上面临的障碍以及所遇到 的监管和法律问题一探究竟。

REUTERS/Jason Lee

总

**The Chinese translation of this story was prepared by Synmax Translation**

** 鑫马翻译提供中文译文 **

体来说，奢侈品市场在目前全球经济低迷的情 况下依然逆势而上，在亚洲更是呈现出持续增 长的态势。中国市场的增速继续远超日本、意 大利、欧洲及美国等传统成熟市场。不过，近期中国经济放缓 对奢侈品产业造成了一定的影响，最近来自贝恩的一份报告指 出，今年全球奢侈品销量预期增幅为5%，而去年则有13%的增 长。尽管如此，中国消费者的购买力已使中国跻身第一梯队， 并于今年成为仅次于美国的世界第二大奢侈品市场。但是，中 国买家日渐变得聪明的同时，国际品牌也不断面临着更严峻的 挑战。 奢侈品公司继续将目光投向印度，作为世界上发展最快的 经 济体之一，印度的高资产人群与日俱增，该国正 从容攫取 奢侈品行业的重要市场份额。该国新近发布的外商直接投资 (FDI)法规是否也将给这一产业注入一支期待已久的强心剂？

BRIEFS

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CHINA’S LUXURY MARKET 4.1 percent, Burberry up 17 percent China’s domestic luxury consumption forecasts Most desired luxury brands in China 2011 and Hermes up 9.4 percent. Now, % of global luxury mrkt Brand Stores Luxury consumption % of mentions in luxury survey Chinese buyers make up half of 100 20 Bln euros Louis Vuitton 38 all the luxury purchases in all of Asia. So what challenges do these Chanel 7 80 16 international brands face?

Gucci 45 “It’s not about the new brands Dior 30 per se; it’s not about entering 60 12 Armani 104 China anymore,” says Helena Huang, partner at King & Wood Hermes 19 40 8 Mallesons. “Now, it’s about exRolex N.A. pansion within the country. Luxury Cartier 37 brands are expanding from the 20 4 Prada 18 first tier cities into the second, and even the third.” As these Burberry 56 0 0 companies expand, Huang points '10 '11 '12 '13 '14 '15 '16 '17 '18 '19 '20 0 10 20 30 40 50 out several challenges that arise, Note: Most desired brands according to Bain Survey of Luxury Goods Consumers in Mainland China (n=1,959). Cartier store data namely nailing down the correct excludes watch counters. legal structure for the brand.

Sources: CLSA, 2011 Bain China Luxury Market Study.

“Once you have regional headReuters graphic/Christine Chan 24/09/12 quarters in China, how many stores or subsidiaries are you things don’t work out.”

Hogan Lovells, elaborates that: “In China, the going to set up there? You have to get this Inevitably, data protection issues also extra difficulties are how you are going to do structure right from the very beginning beraise an ugly head. Alongside fake shops your business in that market; are you going cause coordinating between different cities and counterfeit products, market sources to choose a distributor? You have to be very and different provinces can be very difficult,” also point out that in their eagerness to enter careful and make sure that they have the right she says.

China, many luxury brands do not ensure that legal contract to protect your position. Are Part of that legal structure and strategy they possess the best portfolio in terms of you going to trust and license a local party is choosing your distributor and joint venthe protection that they need in the market. and enter into a joint venture? Brands need ture partner; another process that can be Kennedy says that: “Very few brands actually to have their exit strategy in advance, in case problematic. Gabriela Kennedy, partner at

古驰(Gucci)和纪梵希(Givenchy)；中国突围 根据贝恩报告，奢侈品在中国市场的销售 目标在不计汇率波动影响下实现8%的增长， 在考虑汇率波动影响下实现20%的增长，而 去年两者增幅均高达3 0%。据统计，去年博 伯利(Burberry)、爱马仕(Hermes)及其他奢 侈品牌的亚洲市场销售收入增长有所放缓， 但仍表现良 好。其中路易酩轩(LV M H)的销 售增长了4.1%，博伯利(Burberry) 与爱马仕 (Hermes)的销售增幅分别为17%和9.4%。如 今，中国消费者占据了亚洲奢侈品销售的半壁 江山。那么这些国际品牌究竟面临着怎样的 挑战呢？ “这些挑战无关新品牌本身，也无关进一 步打入中国市场，而在于如何在中国市场进 行扩张”，金杜万盛律师事务所合伙人黄春光 （Helena Huang）律师称，“奢侈品牌正从一 线城市进入二线甚至三线城市”。她指出，随 着这些公司的扩张，几大挑战浮现，即如何为 品牌架设正确的法律框架。“一旦这些公司在 中国建立区域性总部，那么公司计划在中国设 立几家门店，几家子公司呢？由于在不同城市

和省份之间进行协调相当困难，奢侈品公司必 须从一开始便制定正确的法律框架”，黄律师 称。 选择经销商和合作方是制定法律框架和战 略的一部分，也是另一个可能会遇到问题的步 骤。霍金路伟合伙人甘碧娜(Gabriela Kennedy)解释道：“在中国，奢侈品牌还将遭遇其 它困难。如何在中国市场开展业务？是否要选 择经销商？公司必须非常谨慎，并确保能恰 当利用合同来保护自身市场地位。此外，还应 考虑是否应信赖、许可本地合作方使用品牌， 并与之建立合资实体。这些品牌还需要提前 制定退出战略，以防业务发展不顺”。 数据保护也不可避免地成为棘手问题。有 市场人士指出，除假货商店和冒牌产品之外， 许多奢侈品牌由于急于进入中国，未曾采取措 施确保拥有在中国市场经营所必需的自我保 护组合方案。甘碧娜称：“实际考虑中文品牌 问题的奢侈品公司少之又少，这些品牌进入中 国市场时使用的都是外文名称，但你应该首先 教会中国消费者品牌的正确发音。事实上，中 国消费者对此多半意兴阑珊，而会自行为这些

**The Chinese translation of this story was prepared by Synmax Translation**

** 鑫马翻译提供中文译文 **

国际品牌选择一个中文称呼。如果稍不留意， 这些名字可能并非如你所愿”。 芬迪(Fendi)与法拉利(Ferrari)；开拓印度 市场 尽管外界对印度经济及其日益壮大的中产 阶级队伍颇为关注，奢侈品牌从未在印度市场 成功站稳脚跟。在印度，国际奢侈品产值仅约 13亿美元，占全球奢侈品市场份额的1-2%。 导致增长乏力这一现象的原因从商铺位置稀 缺到进口关税畸高等等，不一而足。但业内专 家指出，FDI新规构成最主要障碍之一。 印度先前的FDI法规将零售业外商持股比 例限制在51%，但在今年早些时候公布的一项 具有重大影响的决策中，印度政府正式宣布 取消零售业外商投资的股比限制，即允许诸 如路易酩轩(LVMH)、博伯利(Burberry)和古 驰(Gucci)等在内的国际奢侈品牌全资并购其 各自在印度的业务实体。Luthra & Luthra律 师事务所合伙人Aparna Mittal律师称：“新规 颁布后，市场反响热烈，大家都在期待市场真 正开放。但仔细研究后却发现，新规草案仍存

6

BRIEFS

ASIAN LEGAL BUSINESS november 2012

“NOW IT’S ABOUT EXPANSION WITHIN CHINA. LUXURY BRANDS ARE EXPANDING FROM THE FIRST TIER CITIES INTO THE SECOND, AND EVEN THE THIRD.” HELENA HUANG, King & Wood Mallesons

consider thinking about their Chinese brands; they come in with a foreign name, but you have to educate your consumers on how that is pronounced. The reality is that most of the Chinese people will approximate, give up, and choose a Chinese name or brand for you.

If you’re not careful, it may not be the brand that you want.”

FENDI AND FERRARIS: FINDING A FOOTHOLD IN INDIA Despite the flurry of attention devoted to India’s economy and its growing middle class, luxury brands have failed to find a firm footing here, with the international luxury goods sector worth only about $1.3 billion, accounting for 1 to 2 percent of the global luxury market.

Myriad reasons underline this lack of growth, from scarcity of retail locations to incredibly high import duties. But industry experts point to foreign direct investment regulations as one of the primary obstacles.

Previously, India’s FDI laws capped foreign ownership of retail operations at 51 percent, but in a high-profile decision earlier this year, the government officially lifted restrictions on foreign investment in the retail sector, which would allow international luxury brands like LVMH, Burberry and Gucci to acquire 100 percent ownership of their India operations.

Aparna Mittal, partner at Luthra & Luthra says: “When the new policy was announced, 在不少模糊之处”。 新规的一项主要规定是，外商若要全资持 有外资企业，企业30%的生产就必须在印度 完成。Mittal还称，由于奢侈品牌通常有特定 品质要求，有时甚至与产地相关（例如泰国丝 绸或瑞士手表），因此在印度完成生产的要求 可能会令公司面临重大商业挑战。许多品牌无 法更改其“法国制造”或“意大利制造”的特色定 位，因此这些奢侈品牌在印度新的生产地规定 下将没有回旋余地。 除 了 F D I 改 革，其 他 挑 战 亦 不 容 忽 视。Gibson, Dunn & Crutcher律师事务所合 伙人Jai Pathak律师认为：“根据新规规定，外 商向多品牌零售企业投资的金额不得少于一 亿美元，并且50%的外商投资金额必须在三年 内投入到后台基础设施建设中去。因此外国 投资者考虑在印度投资多品牌零售业时，需将

there was palpable excitement in the market, anticipating that the market would really open up. However upon closer examination, there remain some ambiguities in the way that this policy has been drafted.”

The main requirement is that foreign companies intending to invest on the 100 percent route are required to source 30 percent of their production from India. Mittal continues that, as luxury brands are associated with a particular quality and sometimes even geographic associations, (such as Thai silk, or Swiss watches) sourcing from India may entail some significant commercial challenges. Many brands will be unable to alter their “Made in France” or “Made in Italy” specifications, leaving them no wiggle room in the new sourcing requirements.

FDI reforms aside, several other challenges remain. Jai Pathak, partner at Gibson, Dunn & Crutcher, recounts that, “In the new policy, at least $100 million must be invested in the relevant multi-brand retail company, and 50 percent of the foreign investment proceeds must be invested over 3 years, in back-end infrastructure. The foreign investor needs to factor that in to his financial model as he thinks about investment in multi-brand retail in India.”

Distribution is also a sticking point, says Rahul Sharma, managing director of retail consultancy firm Neev Capital. Sharma com这一因素纳入其财务模型中去。” 零售咨询公司Neev Capital的董事总经理 Rahul Sharma认为，分销模式是另一症结。 据他称：“截至目前，奢侈品公司在印度的惯常 做法是在五星级酒店开设商铺，这一经营方式 非常零散。当地消费者进到旗舰店后更像是 进入了一个陈列室，他们因此更愿意在欧洲或 美国旅游时购买奢侈品。这种销售模式几乎 与广告宣传无异，却与认真试图售卖产品相去 甚远”。 前景辉煌 很明显，奢侈品牌在进入次大陆市场时仍 然面临一定的障碍，即使有了最近的改革，问 题仍远未得到解决。但从长远来看，Pathak认 为：“税收协定和应纳税交易的不确定性导致 了近期经济的低迷，因此政府正大刀阔斧地前

**The Chinese translation of this story was prepared by Synmax Translation**

** 鑫马翻译提供中文译文 **

ments, saying: “Up till now, the route has been to go to a five star hotel and set up shops there; the approach has been very piecemeal.

The local customer comes to the flagship, but it’s a showcase; he will actually purchase the goods when he travels to Europe or the U.S. It’s almost like an advertisement as opposed to a serious approach of making the product available.”

A DIAMOND-BRIGHT FUTURE It is evident that luxury brands still face hurdles when it comes to entering the subcontinent and the problem is far from resolved, even given the recent reforms. However, taking a long term view, Pathak says that “the government is moving very aggressively and clearly intends to push through economic reforms and attract foreign investment given the recent slump due to the uncertainty over tax treaties and taxable transactions.”

Sharma agrees, relating that the demand for and awareness of luxury goods is prevalent in the Indian consumer, and global brands need to start taking India more seriously as a potential market.

Hopping across to China, a similar outlook emerges. The number of rich Asians exceeded that in the U.S. for the first time this year as reported by Capgemini and RBC Wealth Management. Home to now 3.37 million high net worth individuals, 17 percent of Asia’s wealthy are based in China, and their appetite for luxury goods may be insatiable. Huang sums up by saying: “There may be some adjustment in growth due to the slowdown, but Chinese wealth is still at a very early stage.

This market has not matured yet, and has great potential.” 进，其推进经济改革和吸引外资的意愿也很明 确”。 Sharma同意这一说法，他也认为印度消费 者对奢侈品认知程度很高，需求也很旺，国际 品牌也需开始将印度作为重要的潜在市场而 认真对待起来。 回头看中国，中国市场的前景与印度类似。 根据凯捷咨询公司（Capgemini）及皇家加拿 大银行财富管理部门的报道，今年，亚洲富豪 的数量已首度超越美国。中国现有337万高资 产人士，亚洲17%的富人居住在中国，他们对 奢侈品旺盛的需求难以得到满足。黄律师总结 道：“由于经济危机，奢侈品牌的业务发展可能 会进行调整，但中国的财富仍处在积累初期， 这一市场远未成熟，因此潜力巨大”。

DEALS

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7

n your month at a glance Deal name

$1.93 billion

Jurisdiction

Value (US $ mln)

Deal type

China, Botswana

857 (A$830 million)

M&A

China, Australia

1,930

M&A

Hong Kong, China

512 (HK$ 3.97 billion)

IPO

Hong Kong, China

N/A

Debt

2,140

M&A

N/A

M&A

166.6 (128.6 million Euros)

M&A

400

Debt

King & Wood Mallesons

M&A CNOOC’s BUY OF BG GROUP’S LNG ASSETS • CNOOC has bought a 25 percent stake in British energy producer BG Group’s Queensland Curtis liquefied natural gas project under construction in Gladstone, Australia.

• Fully-termed transaction agreements are expected to be executed in the first half of 2013.

• Under the sale agreement, BG will supply CNOOC with 5 MTPA of LNG for 20 years starting 2015.

Firm

Cathay Fortune offering to buy Botswana copper producer

DLA Piper GRT Lawyers SNR Denton

CNOOC’s acquisition of LNG assets from BG Group

King & Wood Mallesons

Herbert Smith Freehills

Morrison Foerster

$2.14 billion M&A PACIFIC CENTURY GROUP’S (PCG) ACQUISITION OF ING’S ASIA ASSETS • Deal amount is equivalent to 1.9 times the estimated 2012 book value of the purchased assets.

• Richard Li Tzar-kai, second son of Asia’s richest man Li Ka-shing, acquired ING Groep’s assets in Hong Kong, Macau and Thailand.

• The deal is subject to regulatory approvals but is expected to close in the first quarter of 2013.

Herbert Smith Freehills Fosun Pharma’s IPO Chen & Co Grandall Paul Hastings Franshion Properties bond issuance

Tian Yuan

PCG’s purchase of ING’s Asia assets

SUNAC CHINA HOLDINGS’DEBUT BOND OFFERING • The bond issuance saw more than $2 billion worth of orders in another sign that the high-yield rally in the debt markets continues.

• Proceeds from the offering will be used to finance new land acquisitions and for general corporate purposes.

• The issuance is Sunac’s second attempt to access the U.S. dollar market after it cancelled its first proposed offering in March 2011.

Freshfields Bruckhaus Deringer

Hong Kong

Allen & Overy

$400 million Debt

Latham & Watkins

Shenhua Group’s acquisition of Musselroe wind farm from Hydro Tasmania

King & Wood Mallesons China, Australia Herbert Smith Freehills Vinson & Elkins

Sinopec Kantons’ buying Vesta Terminals shares

De Brauw Blackstone Westbroek

China, Netherland

Clifford Chance

Sunac’s bond offering

Norton Rose

Hong Kong, Singapore

LEAGUE TABLES

8

ASIAN LEGAL BUSINESS november 2012

CHINA Announced M&A Legal Rankings

CHINA Announced M&A financial rankings

Goldman Sachs & Co

Paul, Weiss

27,028.4 DEALS: 7

RANK

32,953.5

VALUE ($mln)

MARKET SHARE: 15.4

LEGAL ADVISeR

DEALS: 17

VALUE ($ MLN)

DEALS

MARKET SHARE

RANK

VALUE ($mln)

MARKET SHARE: 18.8

financial ADVISeR

VALUE ($ MLN)

DEALS

MARKET SHARE

2

Freshfields Bruckhaus Deringer

27,021.1

15

15.4

2

UBS

29,636.2

14

16.9

3

Sullivan & Cromwell

24,767.3

6

14.1

3

Citi

27,745.6

19

15.8

4

Davis Polk & Wardwell

20,625.6

6

11.8

4

China International Capital Co

23,118.7

18

13.2

5

Cleary Gottlieb Steen & Hamilton

19,181.5

8

10.9

5

Credit Suisse

20,475.7

10

11.7

6

Stikeman Elliott

17,911.8

2

10.2

6

RBC Capital Markets

17,853.1

2

10.2

7*

Burnet Duckworth & Palmer

17,665.6

1

10.1

7

BMO Capital Markets

17,665.6

1

10.1

7*

Richard A. Shaw Professional Corp

17,665.6

1

10.1

8

HSBC Holdings

11,845.9

10

6.8

7*

Blake, Cassels and Graydon

17,665.6

1

10.1

9

JP Morgan

11,631.9

9

6.6

7*

Osler Hoskin & Harcourt

17,665.6

1

10.1

10

Deutsche Bank

11,055.6

9

6.3

(*tie) Based on Rank Value including Net Debt of announced M&A deals (excluding withdrawn M&A)

(*tie) Based on Rank Value including Net Debt of announced M&A deals (excluding withdrawn M&A)

CHINA Announced M&A Legal Rankings

HONG KONG Announced M&A Legal Rankings

Freshfields Bruckhaus Deringer

Davis Polk & Wardwell

760.1 DEALS: 9

RANK

6,989.8

VALUE ($mln)

MARKET SHARE: 1.6

LEGAL ADVISeR

VALUE ($ MLN)

DEALS: 8

DEALS

MARKET SHARE

RANK

VALUE ($mln)

MARKET SHARE: 13.2

financial ADVISeR

VALUE ($ MLN)

DEALS

MARKET SHARE 10.0

2

Mayer Brown JSM

522.5

4

1.1

2

Clifford Chance

5,272.5

19

3

King and Wood

494.8

10

1.0

3

Sullivan & Cromwell

4,091.8

5

7.7

4

Mallesons Stephen Jaques

453.2

6

1.0

4

Allen & Overy

3,928.4

9

7.4

5

Fangda Partners

426.3

11

0.9

5

Baker & McKenzie

2,932.4

8

5.5

6

Shearman & Sterling

388.2

8

0.8

6

Linklaters

2,662.7

9

5.0

7

Allen & Overy

387.6

8

0.8

7

Jones Day

2,400.7

4

4.5

8

Paul, Weiss

368.6

4

0.8

8

Skadden

1,791.7

5

3.4

9

Freshfields Bruckhaus Deringer

345.1

5

0.7

9

Debevoise & Plimpton

1,718.8

1

3.3

10

O’Melveny & Myers

341.9

4

0.7

10

Zhong Lun Law Firm

1,481.4

3

2.8

(*tie) Based on Rank Value including Net Debt of announced M&A deals (excluding withdrawn M&A)

(*tie) Based on Rank Value including Net Debt of announced M&A deals (excluding withdrawn M&A)

ANY CHINESE INVOLVEMENT ANNOUNCED M&A ACTIVITY - QUARTERLY TREND 80

Rank Value US$ billion

70

No. of Deals

60

46.4

50 40 30 20

15.7

12.4

17.0

83.6

1,200 72.1

39.9 27.5

23.4 21.5 22.6 22.4

42.5

36.5

47.7

47.1 42.5 42.6 45.7

54.9 45.1 41.9

1,000

59.7

800

49.6 40.5

600 400

16.7 4.9

10

200

No. of Transactions

Rank Value US$ Billion

90

0

0 1Q 06

3Q 06

1Q 07

3Q 07

1Q 08

3Q 08

1Q 09

3Q 09

1Q 10

3Q 10

1Q 11

3Q 11

1Q 12

3Q 12

NOTES: League tables, quarterly trend, and deal list are based on the nation of either the target, acquiror, target ultimate parent, or acquiror ultimate parent at the time of the transaction. Announced M&A transactions excludes withdrawn deals. Deals with undisclosed dollar values are rank eligible but with no corresponding Rank Value. Non-US dollar denominated transactions are converted to the US dollar equivalent at the time of announcement of terms. Data accurate as of November 13, 2012

Sponsored PROFILE

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9

yongheng partners

冯川, 国际业务部主任 电邮：fengchuan@ yhpartners.com

中国企业海外并购的风险防范 随 着中国企业的壮大，跨国并购正在成为中国

企业的现状并研究未来双方在经营战略上的互补性，避

企业对外投资的重要方式。但是由于国际并

免因图便宜而盲目“抄底”；第三，熟悉并遵守并购目标公

购本身存在的风险，以及中国企业国际并购经验的缺

司所在国家的公司、劳动、环保、税收、反垄断等方面的

乏，过去十年间中国企业70%的海外并购以失败告终（ 即并购后未能实现股东价值的增长）。究其原因，抛开 朱红兰, 合伙人 电邮：zhuhonglan@

yhpartners.com

东道国政治因素不谈，主要有三方面：一是对并购对象、 并购时机的选择决策上的失误（如平安收购富通）；二 是对目标公司所在国的法律，特别是劳工保护方面的法 律不熟悉而导致交易后的整合困难（如上汽收购韩国 双龙）；三是缺乏国际化的管理人才和经验，并购后的 整合控制能力欠缺，未能发挥企业的协同效应、实现共 同的利润增长（如TCL并购法国汤姆森）。

永衡昭辉律师事务所 地址：南京市珠江路222号长

发科技大厦13层 210018 电话：+86 25 8319 3322 传真：+86 25 8319 1022 电邮：zhoufeng@yhpartners.com 网址 : www.yhpartners.com

法律规定，设计合理的交易架构，并对依东道国法律规 定有可能产生的费用或债务的负担有预先的估计和约 定；第四、培养国际化的人才队伍，熟悉当地的政治、 法律、市场、文化等，提高并购后的整合控制水平；最 后，需善于借助富有国际并购经验的金融投资机构、律 师、会计师等中介机构的力量，提升国际并购的绩效。 永衡昭辉，作为国际并购业务的法律服务提供者，正 在为多家有志于“走出去”的中国客户到海外收购资产提

这些失败的并购案例提醒中国企业在进行海外并购

供专业法律服务。随着中国企业的进一步壮大及中国政

时，需做好充足的功课：首先，制定正确的海外并购战

府对企业“走出去”战略的政策支持，预计中国企业的海

略规划，选准合适的并购对象；其次，充分了解并购目标

外并购将会进入新一轮的高潮。

FDI pours into Indonesia despite Bumi saga

I

ndonesia attracted a record $5.9 billion in foreign direct investment (FDI) in the third quarter, signaling that Southeast Asia’s biggest economy remains a hot favourite despite a bleak global outlook and worries about corruption and corporate governance most recently exemplified by the ongoing Bumi saga.

In rupiah terms, total FDI in July to September rose 22.00 percent year-on-year to 56.6 trillion rupiah ($5.9 billion), after 30.2 percent annual growth in the second quarter. The third quarter number is a record for any quarter, signalling that Indonesia’s spotty reputation in protecting foreign investors and other worries are being seen as acceptable risks.

Earlier this month, British-born financier Nat Rothschild resigned from the board of Bumi Plc, one of the world’s biggest coal exporters formed with Indonesian shareholders two years ago in a $3 billion deal. He had earlier pressed for investigations into financial irregularities at the company’s Indonesian subsidiaries. “The vast majority of Indonesian business people are shocked by the appalling impression Bumi PLC has given to potential foreign investors in Indonesia,” he wrote in his resignation letter.

However, Indonesia’s vast mineral wealth and growing domestic market appear to be outweighing worries arising from Bumi’s troubles.

BUMI PLC TIMELINE Financier Nat Rothschild resigns from the board of Bumi Plc, as it looks at a $1.38 billion proposal from the Bakrie family, to exit their stake and take back the firm's operating assets 1200

Share price - GBp Rothschild ups stake in Bumi

1000 800 600 400

CLSA downgrades Bumi to "underperform" Bumi halts buy of PT Bumi Resources stake

Rothschild calls for clean-up at PT Bumi

Bumi Plc shareholders attempt to oust Rothschild Samin Tan’s Borneo Lumbung to buy 23.8% of Bumi Plc for $1 bln Bumi shakes up board, brings in Tan Bumi posts Truce declared H1 net loss in row over on forex control of and derivatives PT Bumi

200 Bumi Plc launches investigation into potential financial irregularities

0 2011

2012

Source: Reuters Reuters graphic/Catherine Trevethan

16/10/12

Rothschild resigns from the board of Bumi Plc

10

APPOINTMENTS

ASIAN LEGAL BUSINESS november 2012

Lateral hires NAME

Leaving

GOING TO

PRACTICE

LOCATION

Michael Gu

Zhong Lun

AnJie

Antitrust

Beijing

He Yu

Mingtai

AnJie

Antitrust

Beijing

Chris Swift

Allen & Overy

Jones Day

M&A, Corporate

Hong Kong

Zhan Hao

Grandall

AnJie

Antitrust, Insurance

Beijing

NAME

FIRM

Promotion

Practice

Location

Kate Axup

Allens

Partner

Energy and resources, Regulatory

Beijing

Corporate, Investment

Hong Kong

Promotions

Mark Shipman

Clifford Chance

Head of Asia-Pacific corporate practice

Paul Tan

Baker & McKenzie

Managing Partner of Hong Kong, China and Vietnam

Corporate, Employment

Hong Kong

Alexander W. Woody

White & Case

Partner

Energy; Financing

Tokyo

Counsel; Head of China energy and natural resources practice

Corporate

Beijing

Counsel

M&A, PE, Corporate

Shanghai

Freshfields Bruckhaus Deringer

Gang Yuan

Christian Zeppezauer

Freshfields Bruckhaus Deringer

relocations NAME

FIRM

practice

from

to

Daniel French

Freshfields Bruckhaus Deringer

Finance

London

Hong Kong

Asia Asia ex-Japan ex-Japan Legal Legal & & Compliance Compliance Best Best Headhunti Headhunting ng Executi Executive: ve: Rank Rank 1 1 Asia Asia ex-Japan ex-Japan Legal Legal & & Compliance Compliance Best Best Conti Contingency ngency Firm: Firm: Rank Rank 2 2 Asia Asia ex-Japan ex-Japan Legal Legal & & Compliance Compliance Best Best Retained Retained Firm: Firm: Rank Rank 3 3

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11

IN CASE YOU MISSED IT

THIS MONTH’S TOP HEADLINES FROM WWW.LEGALBUSINESSONLINE.COM

x

REUTERS/Todd Korol

REUTERS/Rebecca Cook

U.S. victory against China in WTO steel case

Zhonghao joins forces with ONC

REUTERS/David Gray

REUTERS/Sheng Li

The World Trade Organization has barred China from imposing duties on certain U.S. steel exports, siding with U.S. President Barack Obama in a dispute with Beijing over a type of steel manufactured in two election battleground states.

China dairy firm hires banks for up to $1 bln HK IPO Chinese dairy company Liaoning Huishan Holdings, backed by the Hong Kong billionaire whose family controls jewellery firm Chow Tai Fook, has hired three banks as sponsors of an up to $1 billion Hong Kong IPO in 2013, sources told Reuters.

Chongqing-based Zhonghao Law Firm and Hong Kong’s ONC Lawyer recently signed a memorandum in Hong Kong, in which the two firms reached a consensus to construct a closely associated operation, and an agreement of intent on a possible merger in the future.

China says industry recovery trend not yet stable

China’s industrial sector is still not on a stable recover track, particularly in export markets, the country’s Ministry of Industry and Information Technology said in late October.

Canada extends review of CNOOC-Nexen deal to Dec. 10

Canada said it has extended its review of a $15.1 billion bid by China’s CNOOC Ltd for Canadian energy producer Nexen Inc by a month to Dec. 10. Ottawa is conducting the review to determine whether the takeover will have a “net benefit” for Canada.

REUTERS/Bazuki Muhammad

Canada blocks $5.2 bln Petronas bid for Progress Energy

Canada has blocked Malaysian state oil firm Petronas’ C$5.17 billion ($5.2 billion) bid for gas producer Progress Energy Resources in a surprise move that could signal problems for a much larger Chinese deal in the country’s energy sector.

12

BRIEFS

ASIAN LEGAL BUSINESS november 2012

GC INTERVIEW

‘Always hire the best lawyers’

ROHIT KUMAR Position: General Counsel Company: United Phosphorus Ltd Location: Mumbai, India Firms currently used: Linklaters, Herbert Smith, Mishcon de Reya, Solicitors, Field Fisher Waterhouse, Holland & Knight, TozziniFreire Advogados

REUTERS/Fayaz Kabli

ALB: How is being an in-house lawyer in your industry different from other industries?

RK: Globally, the agrochemical industry is a highly regulated sector, as it is part of the food supply chain process. The role of a GC is to ensure that the interest of the company gets protected, and act like an ombudsman rather than an enabler. United Phosphorus Ltd (UPL) has businesses in more than 125 countries, and being present in so many geographies has its own challenges. It sometimes means that I may end up having calls at odd hours of the day. It may sometimes also mean that one may have to get involved in solving a complicated legal problem in a country which is totally unfamiliar to you. It may also mean that sometimes you may be held responsible for something on which you have no control, and is in an unfamiliar jurisdiction.

ALB: What are some of the major trends in your industry?

RK: The two broad trends which I am witnessing are: Consolidation in the industry, and the growing importance of IPR. UPL has always been very active in the M&A space. We have probably made the highest number of overseas acquisitions by any Indian company. I joined the company in July 2010, and within 12 to 15 months, we

made seven overseas acquisitions. I think this trend is going to continue for some time unless the industry reaches some level of consolidation.

The other area where I have started spending a lot more time is in IPR disputes. A few years back, IPR disputes were rare and far in between.

This has changed recently.

ALB: How many lawyers does your team consist of, and how does the structure work as a whole?

RK: We have a lean team. The total number of lawyers in our company would be around 10 to 12, of which most would be at our headquarters.

Besides the headquarters, we also have lawyers in Brazil and France.

The role and responsibility of the legal team is well defined. We have a separate team that takes care of litigation in India. There is no direct reporting structure between the company’s lawyers located outside India to the headquarters. They report to the local business heads.

ALB: What are your criteria for selecting external counsel?

RK: One underlying philosophy that we use is: No matter which jurisdiction we go to, we always hire the best lawyers.

We follow a three-fold strategy.

We share close relationships with some of the large international

law firms and whenever we need lawyers in say U.S., UK or any other established jurisdiction, we go with them. When we need lawyers in unfamiliar jurisdictions, we typically approach two big international law firms with whom we share a close relationship and ask them to recommend lawyers. Sometimes the recommendations are the same, but if we get different recommendations from the two firms, we factor costs and gut feeling, and pick one of them.

Several large international law firms have affiliate offices in jurisdictions where they don’t have direct presence. My experience is that it is better to go with large, established local firms than to go with the affiliate offices of such large international law firms.

ALB: What is the best advice you have ever received?

RK: The best advice I have received is from Charlie Munger, Warren Buffett’s partner at Berkshire Hathaway.

Charlie himself was a lawyer, and he famously said that you should only sell something if you would be willing to buy it if it were on the other side of the table. It is a remarkably simple theory, but so difficult to follow.

Obviously, this is not only applicable to lawyers. I try living up to it.

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joinway law firm 中建中汇律师事务所

国际商事仲裁是否适用中国司法解释 Whether Judicial Interpretations are applicable in International Commercial Arbitration 杜爱武律师, 合伙人 Aivin Du, Managing partner

刘慧律师 Hui Liu, Lawyer

在以中国法为适用法律的国际商事仲裁中，当事人在很多 情况下是依据中国最高人民法院的司法解释（而非成文法）， 提出仲裁请求或答辩意见。因而，在国际商事仲裁中，是否应 适用司法解释，是仲裁庭无法回避的常见问题。 When Chinese law is chosen as the governing law in international commercial arbitration, it is quite common that the parties raise claims or defenses based on judicial interpretations issued by the Supreme People’s Court of China( hereinafter referred to as “Judicial Interpretations”)1, rather than based on statutes. Therefore, whether Judicial Interpretation is applicable in international commercial arbitration is an inevitable question faced by the tribunal. 从理论上讲，这个问题不难回答。司法解释1 是最高人民法 院在不违背成文法的前提下，对成文法文意、或适用作出的解 释，对各级审判机关（即各级法院）具有约束力。由于仲裁独 立于司法体系，最高人民法院对各级法院作出的司法解释对 仲裁庭欠缺约束力，从理论上讲仲裁庭无需适用司法解释审 理案件。但是，在实践中，仲裁庭通常难以摆脱司法解释的限 制，司法解释总在以有形或无形的方式，影响仲裁庭的裁决。 究其原因，主要有以下三点： Theoretically, it is not a difficult question. Judicial Interpretations are the interpretations of laws established by the Supreme People’s Court under the preconditions of obeying the statutes, with the purposes of explaining law. The Judicial Interpretations instruct the application of law to the lower courts, so that they are also binding2 to the lower courts. However, distinct from litigation, arbitration is an independent system. The Judicial Interpretations issued by the Supreme People’s Court to the lower courts are not legally bindingly to tribunals. Thus, the tribunal does not necessarily apply the Judicial Interpretations in the cases it deals with. Nevertheless, in general practice, the tribunals are always constrained by the Judicial Interpretations, in either obvious or subtle ways. The main reasons are as follows: 1. 由于立法的概括性和滞后性，实践操作中出现的具体 争议和新争议，无法在法律规定中找到指引，而一些司法解释 的出现，填补了部分立法空白。比如，最高人民法院关于时效 的规定、关于违约金数额过高的认定、关于情势变更原则的 适用等。在法律对某种争议无明确规定而司法解释中有规定 时，仲裁庭在客观上具有适用司法解释的现实需要。

地址：中国上海市静安区康定 路977号 邮编：200042 总机：+86-21-2211-6000 传真：+86-21-2211-6111 邮件：shanghai@

joinwaylawfirm.com

A: No. 977 Kangding Road,

Jing’an District, Shanghai, China P.C.: 200042 T: +86-21-2211-6000 F: +86-21-2211-6111 E: shanghai@joinwaylawfirm. com

Due to the generality and lagging of legislation, the statutes are always not comprehensive enough to stipulate especially those detailed and latest situations, which are, however, concluded and regulated in Judicial Interpretations later, such as the regulations on prescriptions, the standard of “too high liquidated damages”, and the “changed circumstances principle”, etc. Therefore, when the tribunal could not find instructions from statutes, the Judicial Interpretation is a MUST alternative for it to make its order.

2. 根据法律规定，仲裁裁决在某些情况下可撤销及不予 执行。仲裁庭为确保作出裁决不被撤销或不予执行，通常会 确保裁决与司法解释的规定保持一致。需要说明的是，此处 仲裁庭考虑的通常是关于实体法的司法解释，对于程序法的 司法解释，对仲裁庭仅有参考的意义。仲裁庭可根据案件适 用的仲裁规则，决定程序事宜。 According to the laws, under certain circumstances, the arbitral award could be rescinded, or would not be executed.

To ensure the validity of the arbitral awards, the tribunal tends to follow the rules set forth in Judicial Interpretations. It should be noted that, the tribunals put more weight on the Judicial Interpretations explaining substantial issues than procedural issues, which could be referred to, but not binding to the tribunal. For the procedural issues, the tribunal will follow the applicable arbitral rules.

3. 由于组成仲裁庭的仲裁员、或向仲裁庭出具法律意见 的专家多为律师、法官、法学家等法律共同体内的成员，其对 我国法律各项制度的理解本身就是建立在司法解释基础之上 的。鉴于司法解释在事实上已经成为中国的一项法律渊源，对 成文法规定的各项法律规则进行细化和补充，仲裁员、专家在 作出决定或提供意见时，很难将其与成文法割裂开，仅取成文 法而弃用司法解释。 Most of the arbitrators, or the experts providing legal opinions to the tribunal, are lawyers, judges, or jurists. As they are members of the same legal community, their understanding to Chinese laws is based on the Judicial Interpretations, which is in fact a legal source in China, detailing and supplementing the legal rules stipulated by the statutes. As a result, it would be difficult for the arbitrators, or the experts to separate the Judicial Interpretations from statutes, and make their decisions on the basis of statues only. 综上，在国际商事仲裁中，是否适用中国的司法解释处于 一种“非应然”而“实然”状态。而境外公司由于不熟悉中国的 法律制度，在选定中国法作为仲裁的实体法时，容易忽略这 一点。我们在此提醒相关人士对其适度关注。 In conclusion, when Chinese law is chosen as the governing law, Judicial Interpretations are “not necessarily” but “actually’ applicable to the international commercial arbitration cases.

This is, however, likely to be ignored and neglected by the foreign companies which are not familiar with Chinese laws and legal system. We hereby remind the relevant parties to pay proper attention to this issue.

由于本文仅探讨在国际商事仲裁项下的司法解释适用问题，文中所指的司法解释仅为最高人民法院作出的司法解释，不包括最高人民检察院作出的

司法解释。下同。 Since the main issue in this paper is to discuss the application of judicial interpretations in international commercial arbitration, the judicial

interpretations here of only refer to the interpretations issued by the Supreme People’s Court, excluding the interpretations issued by the Supreme

People’s Procuratorate. The same below.

1.

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ASIAN LEGAL BUSINESS NOVEMBER 2012

CHINA’S 中 国 生 物 技 术 现 热 潮

BIOTECH BOOM China’s sustained efforts to develop its biotech industry are finally paying off as it is attracting a steady flow of foreign investment.

Despite persisting regulatory challenges and lengthy approval processes, Western multinationals and corporate funds are coming forward to invest. Raghavendra Verma reports 中国持续发展生物技术产业的努力终于获得回报，正吸引源源不断的外国 投资。尽管监管方面的挑战和漫长的审批程序仍然存在，但不妨碍西方跨 国公司和企业资金前来投资。Raghavendra Verma报道。

I

**The Chinese translation of this story was prepared by CLS Communication**

REUTERS/Jason Lee

n September, U.S. medical technology company Medtronic announced a $755 million merger with Chinese orthopaedic devices manufacturer KangHui. In a press release, Medtronic’s executive vice president Chris O’Connell described China as “one of the fastest growing medical device markets with significant scale opportunities.”

The Medtronic merger follows a series of other M&As in the Chinese biotech sector.

According to the Centre for Asia Private Equity Research, in the first half of the current year, private equity investments in the Chinese healthcare sector amounted to $489 million; double that of last year. The centre attributed this sudden rise to the increased spending by the Chinese government, and its reforms measures.

Significantly, in its 12th Five Year Plan from 2011 to 2015, Beijing has allocated $3 billion on innovative medicine, the cultivation of new varieties of genetically modified organisms, and the prevention and control of infectious diseases. The government’s efforts to promote the industry also include legal and regulatory reform measures. For example, in 2011, it relaxed certain restrictions in respect of foreign investment in hospitals and diagnostic centres.

The Chinese government is also setting up biotech zones across the country to sup** 此文中文翻译由CLS Communication提供 **

BIOTECH & SCIENCE

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“IN THE NEAR FUTURE, NOVEL VACCINE PRODUCTS ARE EXPECTED TO CONTRIBUTE TO THE GREATEST GROWTH OF THE CHINESE BIOTECH SECTOR, MORE SO BECAUSE THE CHINESE GOVERNMENT HAS LISTED THE NOVEL VACCINE INDUSTRY AS A SECTOR WHERE FOREIGN INVESTMENT IS ENCOURAGED.”

port for new drug innovation, which until now has been a weakness of the Chinese biotech industry. According to Richard Bird, counsel at Freshfields Bruckhaus Deringer, China has been relatively slow in this area, and there are currently not many promising products and technologies in the pipeline, he says.

The foreign pharmaceutical companies too have made investments mostly in their own R&D and biomedical centres. In November 2009, the U.S. pharmaceutical giant Novartis announced an investment of $1 billion over a period of five years. This money is going into its Chinese research facility, and also the expansion of the Novartis Institute for BioMedical Research in Shanghai.

MANY OPPORTUNITIES Tony Wang, a Shanghai-based partner at Weil, Gotshal & Manges, notes that foreign investment in the biotech, pharmaceutical and healthcare industries remain attractive to multinational companies and private equity investors. According to him, many companies making investments in China’s biotech sector see the potential of lowering R&D costs in China in connection with the development of new products. In addition, companies have also used joint ventures and other strategic partnerships to distribute their products in the Chinese market.

Demographics are also playing a vital role in the growth of this sector. The Chinese population, while getting richer, is also becoming older, thus making it a huge consumer market for biotech products.

The large population also makes China a good source for collecting clinical trial data, and already the vaccine market and supply chain in China are relatively mature, says Bird.

“In the near future, novel vaccine products are expected to contribute to the greatest growth of the Chinese biotech sector,” he says, “more so because the Chinese government has listed the novel vaccine industry as a sector where foreign investment is encouraged.”

CHALLENGES REMAIN However, investing in the Chinese biotech sector is by no means a simple task as the sector poses several challenges related to regulatory and transparency issues. According to Wang, for many companies, these relate to legal and regulatory compliance issues, corporate governance, intellectual property rights and financial and accounting due diligence issues. In

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RICHARD BIRD, Freshfields Bruckhaus Deringer

“在不久的将来，新疫苗产品预计将成为中国生物技术领域 增长最大的板块…尤其是中国政府已经将新型疫苗产业列 为鼓励外商投资的行业。” — Richard Bird, 富而德

今

年9月，美国医疗技术企业美敦 力公司宣布了与中国骨科设备制 造商康辉的7.55亿美元的并购 项目。在一份新闻发布中，美敦力执行副总裁 Chris O’Connell将中国形容为“有显著规模机 会的增长最快的医疗器械市场之一。” 在美敦力的并购之前，中国的生物技术产业 已经有一系列的其他并购。据亚洲私人股本研 究中心的数据，本年度上半年中国医疗保健行 业的私募股权投资总额达到4.89亿美元，是去 年的两倍。该中心将这突然的增长归因于中国 政府投入的增加及其改革措施。 很重要的一点是，在2011年到2015年第12个 五年计划期间，北京已经拨款30亿美元于创新 药物、转基因生物新品种的培育以及预防和控 制传染病。官方促进产业的努力还包括法律和 监管措施的改革。例如，在2011年，政府就外商 投资医院和诊断中心一定程度上放宽了限制。 中国政府还在全国范围内设立了生物技术开 发区，支持新药物的研制，这个领域长期以来一 直是中国生物技术产业的弱点。据富而德律师 事务所的律师Richard Bird说，在这方面，中国 发展一直相对缓慢，目前尚未形成太多有前途 的产品和技术渠道。 外国制药公司也大多是在自己的研发和生物 医学中心的投资。 2009年11月，美国制药巨头 诺华公司宣布了一个为期五年的10亿美元投资。 这笔钱会投入其中国研究机构，即诺华上海生 物医学研究院的扩充。 机会颇多 威嘉律师事务所合伙人Tony Wang指出，在

**The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

生物技术、制药和保健行业的投资对于跨国公 司和私募股权投资者仍具吸引力。据他介绍， 很多在中国生物技术产业进行投资的企业看 到了在中国研发新产品有降低成本的潜力。此 外，这些公司采用合资和其他战略合作方式在 中国市场分销其产品。 人口结构对这个行业的增长也发挥了至关重 要的作用。中国在越来越富裕的同时，人口也越 来越老龄化，这令其成为一个巨大的生物技术 产品消费市场。 庞大的人口基数也使中国成为一个很好的 收集临床实验数据的来源，同时中国的疫苗市 场和供应链都比较成熟，Bird说：“在不久的将 来，新疫苗产品预计将成为中国生物技术领域增 长最大的板块…尤其是中国政府已经将新型疫 苗产业列为鼓励外商投资的行业。” 挑战犹存 然而，在中国生物技术领域的投资绝不是一 个简单的任务，因为该行业相关的监管和透明度 问题提出了一些挑战。据Tony Wang介绍，对于 许多公司来说，这些问题涉及到合规事务、公司 治理、知识产权、尽职调查和财务会计等方面。 在这个问题上，他建议他的客户要耐心，并做好 准备学会应付突然的变化。 中国的监管的迷宫被认为是生物技术并购 交易中最具挑战性的部分，因为监管涉及不同 的层次的多个政府部门。 “除了一般的外商投 资和企业注册审核，交易可能还需要由国家食 品药品监督管理局（SFDA）这样的行业主管 和生物制药产品的监管部门的批准，”Bird说。 如果并购交易涉及一个生物制药公司正在

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BIOTECH & SCIENCE

ASIAN LEGAL BUSINESS NOVEMBER 2012

“THE FIRST QUESTION THAT WOULD COME TO ANY WESTERN INVESTOR IS HOW THE TARGET COMPANY ACTUALLY GETS ITS BUSINESS,” SAYS JIANG. “WE OFTEN DISCOVER THAT A LOCAL COMPANY IN CHINA MAY HAVE MATERIAL NON-COMPLIANCE ISSUES, PARTICULARLY AS IT RELATES TO FCPA.” HELEN JIANG, Weil, Gotshal & Manges

“西方投资者面临的第一个问题是，如何从目标公司那里实际获得业务这 些目标公司究竟是怎样获得它们的业务的。我们经常发现，中国当地的公 司可能有重大的违规问题，特别是涉及到《反海外腐败法》时…”

— Helen Jiang, 威嘉

this regard, he advises his clients to be patient, and also to prepare for a steep learning curve.

The Chinese regulatory maze is considered to be the most challenging part of a biotech M&A transaction as the regulators involve multiple government departments at different levels. “In addition to the general approvals of foreign investment and corporate registration, the transaction may also need to be approved by an industrial regulator like the State Food and Drug Administration (SFDA) and the regulator of biopharma products,” says Bird.

For an M&A transaction involving a biopharma company with a new product in pipeline, the SFDA’s approval for clinical trials may take about a year to obtain, with the permission to market it taking another, says Bird. It is important to consider these timelines in terms of deal structure and payment milestones, he adds.

One option for buyers trying to get around the problem is to have a R&D collaboration during the clinical trial phase, before finally buying out the partner’s share once the product is approved, says Bird.

The ownership of the intellectual property, and the products manufactured using the same, remain the most critical part of any biotech related deal, and take the longest time to negotiate in a joint venture. “Generally, the IP infrastructure in China does infuse enough confidence, and the government has made great efforts to improve it further,” says Bird, while adding that “taking action against IP infringement remains a big concern for foreign investors in China.” For this reason, he strongly advises the inclusion of robust risk mitigation measures in the deal structure and the trans-

研发流程中的新产品，国家食品药品监督管理 局批准进行临床实验可能需要大约一年时间， 向市场推出则还要再多一段日子，Bird说，在设 定交易结构和支付时间点时，必须充分考虑这 些时限问题。 对于买家来说，一种做法可以绕开这个问 题，即先在临床试验阶段建立研发合作关系， 一旦产品获得批准，再最终买断合作伙伴的 股份。 知识产权的所有权以及使用该知识产权制造 出的产品仍然是生物技术相关交易中最关键的 部分，在合资谈判中耗时最长。 “一般情况下，中国的知识产权基础设施可以

**The Chinese translation of this story was prepared by CLS Communication**

给人足够的信心，政府也作出了巨大努力进一步 改善，” Bird同时补充说：“然而如何采取行动打 击侵犯知识产权的行为仍然是在华外国投资 者关注一个大问题。”因此，他强烈建议在交易 结构和交易文件中列入稳健的风险缓解措施。 事实上，保护知识产权是由外国投资者在中 国的首要谈判问题。在当前正在进行的一桩合 资协议谈判中，由威嘉律师事务所上海办事处 资深律师Helen Jiang所代表的一家外国战略 投资方就提出了非常强的知识产权保护条款。 万一发生知识产权纠纷，外国公司可以依 据相关条款行使终止权、买断权和其他补救措 施。Helen Jiang说，“这样一来，如果当地企业

REUTERS/Claro Cortes

** 此文中文翻译由CLS Communication提供 **

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SPONSORED PROFILE

17

King & Wood Mallesons

Recent Trends in China’s Pharmaceutical Industry

T

Huang Jianwen* Partner King & Wood Mallesons’ FDI Group T: +86 10 5878 5165 E: huangjianwen@ cn.kwm.com

he Chinese pharmaceutical industry has been developing at a rapid pace since 2010 in terms of both the regulatory landscape and landmark M&A deals. China’s pharmaceutical regulations have shifted to reflect the government’s desire to consolidate and strengthen China’s domestic pharmaceutical enterprises.

The last two years have seen Chinese pharmaceutical leaders actively acquiring and merging with other Chinese pharmaceuticals and pursuing IPOs in an effort to strengthen and broaden their market share. Indeed, the changing regulatory environment and M&A activity will not only affect Chinese enterprises but foreign pharmaceuticals as well.

Gradual move towards M&A Since the opening-up in the 1980s, the most common investment vehicles for foreign pharmaceutical enterprises to enter into China were either joint ventures or representative offices. Traditionally foreign pharmaceuticals have been cautious towards investing through M&A due to the lack of proper regulations and reluctance to acquire questionable Chinese enterprises.

This held view is fast falling away as there have been an increasing number of foreign pharmaceuticals accessing the Chinese market through M&A. Regulations recently promulgated have stipulated that in the next few years, the Chinese pharmaceutical industry will focus on consolidation and attracting foreign investments through M&A, as this is believed to be the quickest and most efficient way.

Focus on research and development In the past, most Chinese pharmaceuticals focused on manufacturing which allowed for little technical content and access to higher profits. By 2010 however, with China beginning to promote a number of strategies to develop emerging industries, coupled with healthcare reforms and the establishment of the basic pharmaceutical system, Chinese pharmaceuticals began to gain access to the more profitable R&D side of the biopharmaceutical industry. A game changer was Charles River Laboratories International’s $1.6 billion dollar acquisition of WuXi AppTec Co., Ltd. The acquisition gave the US pharmaceutical R&D company an exclusive R&D team at their disposal to conduct R&D for them in China. This has since become a model for other Chinese enterprises to access the R&D market.

A: 40th Floor, Tower A, Fortune Plaza 7 Dongsanhuan Zhonglu, Chaoyang Beijing, 100020, P. R. China T: +86 10 5878 5165 F: +86 10 5878 5599 E: huangjianwen@cn.kwm. com W: www.kwm.com

Lower R&D cost is no longer the only reason to consider establishing R&D centers in China. The number of preferential Chinese government policies, the increasing number of talented pharmaceutical researchers, and the improvement of R&D center capacity is not lost on the increasing numbers of multinational pharmaceuticals (Roche, AstraZeneca, GSK, Lilly, and Bayer) who have opted to establish R&D centers in China.

Shifting from manufacturing to distribution In recent years, foreign pharmaceuticals have stopped clinging to just manufacturing, and have set their sights on moving up the food chain; first by gradually engaging in the distribution sector and then to all segments of the industry chain (e.g. the acquisition of Zuellig Pharma by CardinalHealth, one the first foreign pharmaceuticals entering the Chinese market). Currently, there are more than 13,000 pharmaceutical wholesale enterprises and nearly 3,700 pharmacy chains in China, but the total turnover of the three biggest pharmaceutical distribution enterprises only contributes to 20% of the entire pharmaceutical market. It is apparent that the potential for M&A development in the Chinese pharmaceutical distribution market is huge.

Standardization of pharmaceutical laws and regulations China has enacted and modified several pharmaceutical laws and regulations to improve the safety and administration of drugs. It is anticipated that the administration system will be further implemented following the new GMP taking effect. Several pharmaceutical regulations are seeking public comments, which is a step closer to becoming part of the Chinese pharmaceutical regulation system.

China has also published several policies, plans and directives that have been encouraging for the development of the industry. Per the “Twelfth Five-year Plan on National Pharmaceutical Safety” (“Plan”), by 2015 the manufacturing of drugs and medical devices must be in 100% compliance with all relevant GMPs and quality control standards.

Strengthening Governmental Supervision China has been building a technical support system focusing on drug registration reviews, standard formulations, inspections and adverse reaction monitoring. Under the Plan, the Chinese government will strictly supervise all aspects of pharmaceutical R&D, manufacturing, and distribution. The government also indicated that it will enhance the administration of pharmaceutical quality standards, from building of the pharmaceutical supervision infrastructures, to providing appropriate legal personnel and equipment.

In summary, mergers and reorganization of domestic pharmaceuticals will be the main focus in China’s pharmaceutical industry. The Chinese government has indicated its support of cooperation between multinational and domestic enterprises, and the fostering of pharmaceutical R&D and encouragement of foreign pharmaceuticals entering the distribution sector. It has also made it a priority to establish a sound legal system and strengthen supervision efforts.

*Huang Jianwen is a partner in King & Wood Mallesons’ FDI Group specializing in pharmaceutical life sciences. Her clients include a number of Global 500 pharmaceuticals. She also serves as general counsel to a number of her clients, advising them on their day-to-day business operations.

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BIOTECH & SCIENCE

action documents.

Indeed, protection of IP rights is the primary issue negotiated by foreign investors in China.

In a joint venture deal currently under negotiation between a Chinese and a foreign party, very strong IP protection clauses have been proposed by a strategic foreign party that is represented by Helen Jiang, senior counsel at Weil’s Shanghai office.

In case of any IP dispute the foreign company will have recourse to termination rights, buyout rights and other remedial provisions.

“This way, the core IP will be transferred to our client if the local party breaches the joint venture contract,” says Jiang. In addition, the foreign party has retained certain core IP rights that are essential to the joint venture to provide additional leverage against the local party.

Serious IP-related regulatory issues also arise when the IP is owned by the Chinese party.

For example, according to Chinese patent law, if the inventors of the product are employees of the company owning the patent, they will also receive royalties from the commercial exploitation of the patent. If there is no agreement between the employer and employee over the sharing of financial benefits, then the statutory provisions come into play and the employee can claim a certain percentage of the royalty or commercial benefit arising from the invention.

Taking into account the latest developments in the biotech industry, the Chinese government is in the process of updating and reviewing other laws in the biotech sector.

They include the IP law, the patent law, the copyright law, and the trademark draft.

DUE DILIGENCE With a long list of potentially hazardous issues facing any biotech deal, the importance of legal, operational, and financial due diligence cannot be overstated. In fact, according to Jiang, “in comparison to other industries, the biotech industry carries higher risks. In many failed transactions, the company’s financial books and records may not have been accurate or even falsified, and in some other cases, the company does not hold the required licences or FDA approval,” she says.

Furthermore, according to Jiang, “particularly for U.S. investors, the compliance with the Foreign Corrupt Practices Act is another major issue to deal with.” As most hospitals and other healthcare providers in China are state controlled, the government invariably becomes the biggest client of any biotech company, and this can raise serious proprietary issues. “The

ASIAN LEGAL BUSINESS NOVEMBER 2012

违反合资合同，知识产权的核心部分将转移到 我们的客户那里。”此外，在合资企业中，外方保 留一定的核心知识产权非常必要，它们是平衡与 中方关系的一道额外杠杆。 如果知识产权由中方拥有，还可能出现知识 产权监管方面的严重问题。 例如，根据中国专利法，如果产品的发明者 是拥有专利的公司的员工，他们也将从专利的 商业开发中获得专利费。如果雇主和雇员之间 没有事先的经济利益共享协议，那么根据法律 规定，雇员可以对发明的专利费及其产生的商 业利益提出一定比例的要求。 对于最新的生物技术产业的发展，中国政府 在生物技术领域正在更新和审查其他与生物技 术行业有关的法律，包括知识产权法、专利法、 版权法和商标法草案。 尽职调查 在生物技术交易面临的长长的潜在危险的问 题清单中，法律、运营和财务尽职调查的重要性 怎么强调也不过分。事实上，据Jiang说，“与其 他行业相比，生物技术行业带有更高的风险。 已经在许多失败的交易中，公司的账簿和财务 记录可能不准确或者甚至是伪造的，而在另一 些情况下，公司未持有必要的许可证或美国食 品和药物管理局（FDA）的批准。” 此外，她说，“特别对于美国投资者，遵守《 反海外腐败法》是交易中的另一个重大问题。” 由于在中国大多数的医院和其他医疗服务提供 者由国家控制，政府总是成为生物技术公司最 大的客户，这可能会引起严重的所有权属问题。 “西方投资者面临的第一个问题是，这些目标公 司究竟是怎样获得它们的业务的，”Jiang说，“ 我们经常发现，中国当地的公司可能有重大的违 规问题，特别是涉及到《反海外腐败法》时…”

Bird指出，一家公司的市场地位、获准产品 和获准专利的相关信息是向公众开放的。但对 于正在进行的诉讼和政府程序，中国还没有建 立一个相应数据库，这方面的尽职调查主要是 依据目标提供的信息。 此外，研发过程的记录不足是律师经常面临 的一个挑战。Bird说，适当的陈述和担保应始 终被包含在交易文件中，以弥补不正确的信息 造成的潜在的损失或第三方主张。 Jiang表示，严格的合规政策是至关重要的， 才能确保双方是在同一层面上计划公司的未来 业务模式，因此，这些政策应加以详细讨论。 “ 最近，一宗交易告吹，因为中方公司不愿意接受 外方严格的合规标准，”她说。 “不过，我们也看 到所有合规标准正在提高。” 公司架构 在中国设立研发机构的跨国生物技术公司 为了排除知识产权保护问题，总是偏向于全资 拥有这些机构。正是这样，在2011年3月，辉瑞 公司将其抗菌产品的研发中心从美国整体转 到了上海。

**The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

然而，Bird认为，外国生物技术和制药公司 还没有完全将它们的核心研发活动带来，在中 国创建上游的知识产权。 “这是出于对中国技 术出口管制和总体的知识产权保护环境的顾 虑，”他说。 这说明，当投资者需要一个新的生产许可 时，与当地的一家公司建立合作关系是很明智 的，Jiang说：“而获得FDA的许可证，需要好​​几 个月的时间。” 在大多数合资企业，中方和外方承担的角色 是可预见的。Bird说：“由于外国投资者非常关 注产品质量与合规性问题，特别是那些有关反 贿赂的法律，他们通常会提名自己的候选人来 领导这些部门，而中方合伙人则负责控制销售 和市场方面的管理。” 例如最近MedImmune公司和药明康德之间 合资进行生物制药产品的研发，Bird说，中方在 那笔交易中提供当地的监管、生产和临床实验 支持，而外方投资者贡献核心知识产权及正确

BIOTECH & SCIENCE

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REUTERS/David Gray

Chinese workers pack vaccines at Sinovac Biotech Co. Ltd. in Beijing. REUTERS/Claro Cortes

REUTERS/China Daily China Daily Information Corp - CDIC

first question that would come to any Western investor is how the target company actually gets its business,” says Jiang. “We often discover that a local company in China may have material non-compliance issues, particularly as it relates to FCPA.” According to Bird, information related to a company’s market standing, approved products and approved patents are publicly accessible. However, as China has not established a database for ongoing law suits and government proceedings, the due diligence in this regard is largely based on the information provided by the target.

Furthermore, insufficient records of R&D processes are a challenge that lawyers often face. Bird says proper representations and warranties should always be included in transaction documents to cover potential losses or third-party claims arising from improper

information.

Jiang advises that the rigorous compliance policies are critical for ensuring that both the party are on the same page regarding a company’s future business model and therefore these policies should be discussed in detail.

“Recently, a deal fell through because the Chinese company was unwilling to accept the foreign party’s strict compliance standards,” she says. “However, we do see that all compliance standards are improving.”

CORPORATE STRUCTURES While setting up R&D facilities in China, multinational biotech companies always prefer fully owning them in order to rule out IP protection issues. Indeed, in March 2011, Pfizer transferred the whole of its antibacterial R&D centre from the U.S. to Shanghai.

However, Bird notes that foreign biotech

**The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

的风险缓解措施。 对于外国投资者采用的公司结构，Bird认 为，外国投资者通常根据税务制度，设立离岸 公司或将总部设在香港。 律师的角色 对律师事务所来说，生物技术领域的繁荣 也意味着机会和挑战，许多律师事务已经建立 了专门的团队以服务于该行业。贝克麦坚时驻 香港合伙人屈爱青律师介绍，在她所在团队从 事药品和医疗相关业务的律师中，有一些拥有 科技背景，也曾在制药公司工作。 “如今，客户 希望他们的律师了解行业的运作以及典型的问 题是什么，”她说。 贝克麦坚时的知识产权律师刘芳君认为，更 重要的是，在为生命科学行业进行知识产权尽 职调查时，还有一些技术任务也是律师事务所 可能要承担的。例如，“在进行一个完整的专利 清查时，我们做专利检索，并提供对目标技术在

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BIOTECH & SCIENCE

and pharmaceutical companies have yet to fully bring over their core R&D activities, and create upstream intellectual property in China.

“This is due to the technology export control regulations and the general IP protection environment in China,” he says.

That said, a partnership with a local company makes good sense when the investor requires a new manufacturing licence, says Jiang. “To acquire such a licence from FDA it takes several months,” she says.

In most joint ventures the Chinese and foreign parties take on predictable roles.

“As the foreign investors are very concerned with product quality and compliance issues, especially, those relating to anti-bribery laws, they usually nominate their own candidates to head these departments,” says Bird, “while the Chinese partners control the management of sales and marketing.”

Citing a recent example of a joint venture between MedImmune and WuXi AppTec for the R&D of a biopharma product, Bird says that the Chinese partners in that deal provided local regulatory, manufacturing, and clinical trial support while foreign investors contributed the core IP with proper risk mitigation measures.

Regarding corporate structures adopted by the foreign investors, Bird says that, depending on tax arrangements, foreign investors generally use an offshore vehicle or one based in Hong Kong.

ASIAN LEGAL BUSINESS NOVEMBER 2012

permits and licences needed to get through the clinical trials.”

For this reason, she says, lawyers with the relevant industry training and background can better help their clients to identify any underlying issues found during the due diligence exercise and to discuss them timely with the clients’ in-house teams.

According to Wang, biotech lawyers must also understand compliance procedures for approval of drugs, devices, licensing requirements, foreign ownership requirements, the monopoly law, and antitrust concerns.

THE ROLE OF LAWYERS The boom in the biotech sector also presents several opportunities and challenges to the law firms, many of whom have established dedicated teams to serve the industry According to Hong Kong-based partner Tracy Wut, Baker & McKenzie’s pharmaceutical and healthcare practice comprises of lawyers who have a background in science and also those who have previously worked in pharmaceutical companies. “Nowadays, clients expect their lawyer to have some understanding of how the industry works, and what are the typical issues,” she says.

More importantly, while conducting IP due diligence for the life science sector, there are several technical tasks that a law firm may undertake, says Isabella Liu, IP partner at Baker & McKenzie. For example, “for a full patent clearance exercise, we do patent searches and provide ‘freedom to operate’ analysis for the target technology in particular jurisdictions of key commercial interest,” she says. “We can also support our clients in addressing threshold regulatory issues affecting this highly regulated industry, such as the **The Chinese translation of this story was prepared by CLS Communication**

特定的司法管辖区关键商业利益中的‘自由运作 权’分析，”她说：“我们还可以为我们的客户提供 解决准入门槛监管问题的支持，如临床实验所 需要的许可证和执照，在这个高度管制的行业 这些问题有很大影响。” 出于这个原因，她说，有相关行业的训练和 背景的律师，可以更好地帮助客户识别尽职调 查过程中发现的潜在问题，并及时与客户的法 务团队讨论这些问题。 Tony Wang认为，生物技术律师还必须了 解制药、医疗器械、许可要件、外资所有权要 件、反垄断法、反托拉斯问题等审批环节的合 规程序。

REUTERS/Claro Cortes

** 此文中文翻译由CLS Communication提供 **

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West China

ASIAN LEGAL BUSINESS november 2012

China’s underdeveloped west is seeing massive economic development, as well as a reform in legal business. With the competition and examples national firms have brought in, local firms are levelling up their organisation and mentality, and waiting for larger deal opportunities to come. Liu Zhen reports

中国欠发达的西部地区正在展 现巨量的经济发展潜力，法律 业务的改革也势在必行。全国 性律所的进入带来了的竞争和 示范，本地律所也厉兵秣马，等 待更大的机会来临。Liu Zhen 报道

Intothe T

he term “west China”, as officially referred to by the country’s strategic “great western development” (GWD) programme, occupies some 70 percent of the Chinese territory with six provinces, one municipality, and five autonomous regions.

However, it only contains a quarter of the population producing less than 20 percent of the national economic output.

Yet, with overwhelmingly huge resource reserves and remarkable economic growth in recent years, the west has turned out to be an alluring land for lawyers.

Positive correlation During the past decades of growth, China prioritised export-oriented manufacturing industries, which are geographically concentrated along the eastern coast with abundant talent and technology reserves, and easy transportation. Foreign investment has been concentrated in the eastern provinces. But the western part of China, left out of such opportunities, lagged behind severely.

Like the underdeveloped economy, the local legal business in west China is still small, limited, and somehow primitive.

As of 2011, the number of admitted lawyers in the region is 43,685, about a quarter of the national sum. The geographic distribution also resembles the concentration at the national level to Beijing and Shanghai, as more than a third of the western lawyers are based in Chengdu and Chongqing.

In Sichuan and Chongqing, there are some 16,400 lawyers, while Tibet only has 262 resident practitioners.

It is not surprising. More than half of the GDP of the western provinces was produced in a small area near the two southwest cities, where the output was 40 percent higher than the total of the poorest five provinces – Yunnan, Guizhou, Tibet, Qinghai, and Gansu. Xi’an, capital of Shaanxi province, is the centre of the northwest. “The legal business has to be built on a certain industrialisation level, and a prosperous tertiary sector,” says Han Deyun, managing partner of Chongqing-based Solton & Partners.

Essentially, the revenue of a law firm is determined by the economic **The Chinese translation of this story was prepared by CLS Communication**

“中

国西部”即国家“西部大开发” 战略计划中官方所指的西部， 涵盖6个省、1个直辖市和5个 自治区，占中国领土面积约70％。但人口仅占四 分之一，国民经济总产值不到20％。 然而，因其压倒性的巨大的资源储量和最近 几年显着的经济增长，西部地区已经变成了律 师们眼里一块沃土。

正相关关系 在过去的几十年的发展里，中国优先考虑的 是出口导向的制造业，地理上集中于人才和技 术储备雄厚、运输方便的东部沿海。因此外商 投资主要集中在东部省份。而西部由于远离这 样的机会，发展严重滞后。 和西部经济的欠发达一样，当地的法律产业 仍然是小规模的、受局限的，某种程度上也可 以说是落后的。 截至2011年，该地区的注册律师的数量为 43,685人，约占全国总数的四分之一。 地理 分布上，类似于全国性级别的律所聚集于北京 和上海，超过三分之一的西部律师集中在成都 和重庆。 四川和重庆约有16,400名律师，而西藏只有 262名常驻律师。 这并不奇怪。西部省份一半以上的GDP由 这两个西南部城市及其邻近地区创造，其产值 比最贫穷的五个省份——云南、贵州、西藏、 青海和甘肃的总和还要高 40％。陕西省省会 西安则是西北各省区的中心。 “法律产业必须 建立在一定的工业化水平和繁荣的第三产业的 基础之上，”重庆索通律师事务所管理合伙人 韩德云说。

** 此文中文翻译由CLS Communication提供 **

West China

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23

走 进西 部

West

REUTERS/Bobby Yip **The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

24

West China

ASIAN LEGAL BUSINESS november 2012

“It is much less economic for us to open in the western region… But strategically, we should have the foresight to cultivate the land of great prospect in advance.”

Zhang Liguo, Grandway Law Offices

“在西部地区开分所不如东部那么经济...但战略上我们应该有先 见之明，提前耕耘这块前景巨大的土地。” — 张利国，国枫凯文律师事务所管理合伙人

development. The economic vitality is related to the amount of legal cases, and the general level sets a limit to the rate of lawyer’s fee.

As the GDP per capita is catching up to that in the east, firms in Chengdu and Chongqing are able to charge a similar price in many cases, except the hourly consulting fee and some special cases, show the stats.“ Legal services positively correlate to the level of economic development,” says Zhang Liguo, managing partner of Beijing-headquartered Grandway Law Offices that has significant stake in the west market with its offices in all those three cities. “The more mature the market grows, the more the legal advisory is needed,” he tells ALB. The unexploited resources and tourism-centred tertiary industries in most western provinces are unable to support an active legal business, suggests Yuan Xiaobin, managing partner of Chongqing-based Zhonghao Law Firm. Insufficient infrastructure worsens the situation.

“Legal business is related to the local economy, but not in a fixed coefficient. Sometimes a big deal charges the same as a tiny one. Nevertheless, more commercial activity means more chances for us. This is for sure,” says Yuan. Other than the price, as discussed by the lawyers, the lagging of the west legal market roots deeper.

Mindset Unlike the political and social justice elements, the market aspect of the legal service industry is less mature in the west provinces, Han suggests. “The role of lawyers, widely regarded by society, is representing parties in lawsuits on court. We are not called upon by clients except for litigation,” he says.

The level of lawyers’ participation in commercial transactions is still low in China, and particularly lower in west China. “The local clients do not always keep us lawyers involved in their business,” says Cheng Shoutai, managing partner of Tahota Law Firm based in Chengdu.

He cites the instance that local clients often go straight to meet their investors without taking a lawyer along, a habit being carefully avoided by the eastern business people. “A concept has not been accepted and established by local clients that lawyers’ involvement is necessary for a successful deal,” adds Han. Zhang believes that people’s awareness and understanding of the legal business also depends on the development level of market economy.

“Clients from the east want a larger variety of services, and behave more internationally,” he says.

On the contrary, as long as they are given the green light from the **The Chinese translation of this story was prepared by CLS Communication**

从本质上讲，律师事务所的收入取决于经 济发展的情况。法律案件的总量与经济活跃 程度密切相关，而律师的费率受普遍的经济水 平制约。 由于成都和重庆的人均GPD已经接近了东 部，除了计时收费的咨询服务和某些特殊案件， 两地律所的收费标准与东部相差已不太大。“法 律服务与经济发展水平正相关，”总部在北京的 国枫凯文律师事务所管理合伙人张利国说，他 的律所押宝于西部市场，在那三个城市均设立 了办事处。“市场越走向成熟，对法律顾问的需 求越多，”张利国对ALB记者说。 重庆中豪律师事务所的管理合伙人袁小彬认 为，西部的多数省份由于资源尚未开发、第三产 业以旅游业为主，法律业务不会活跃。而基础设 施的落后更是雪上加霜。 “法律业务与当地的 经济密切相关，但并没有一个固定系数。有时， 一个大宗业务的收费和很小的一宗差不多。不 过，更活跃的商业会给我们带来更多的机会， 这是无疑的，”袁小彬说。正如上述律师们谈到 的那样，问题不在于价格，西部地区法律服务 市场的滞后有其更深的根源。 观念 韩德云认为，在西部省份，法律服务行业的 市场观念还不太成熟。他说，“社会上广泛认为 律师的作用是在诉讼案件中代理当事人出庭。 诉讼之外，客户不会来找我们。” 在中国，律师在商业交易中的参与程度仍然 很低，西部地区就更低了。成都泰和泰律师事 务所管理合伙人程守太说，“本地客户并不经常 让律师介入他们的商务活动。”他举例说，本地 客户经常在不携律师同往的情况下直接和投资 者会谈，而这种习惯在东部商务人士那里是要小 心避免的。“律师的参与对于一宗成功的交易是 必需的，但本地客户还没有建立起这个观念，” 韩德云补充道。 张利国认为，人们对法律业务的认识和了解 也依赖于市场经济的发展水平。 他说，“东部

** 此文中文翻译由CLS Communication提供 **

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government, local clients would probably pay less attention to legal affairs than investors from the more developed provinces or other countries who would seriously evaluate legal risks and concerns about compliance issues, according to Cheng.

Local clients consist of the major part of the cases occurring in the region, amongst which a larger proportion of companies are stateowned, and rather big. Small and medium private enterprises (SMEs), the key players of the economy in more developed regions, are much fewer and weaker here. Such a client base requires legal professionals to provide longer-term, more customised and cheaper services, says Zhang. “Underdeveloped enterprises are more cost sensitive.” Yuan agrees. “Some private SMEs without any in-house counsel know very little of legal consulting. They blindly follow friends’ recommendations or pick the cheapest quote without thinking.” Patience is what is needed badly here, he says.

Another indicator of the underdevelopment of legal business in west China is lawyers serving as “regular legal counsel” of companies rather than advising on a case-by-case basis. This can be detrimental as under the former circumstances, the lawyer’s job is too general and inclusive to allow him to go deep to specialise in any particular practice.

In comparison, modern companies have full-time in-house counsel to

的客户要求更多样化的服务，行为方式也更国际化一些。” 据程守太的观察，本地客户则相反，只要政府给他们开了绿灯，可能 就不太会注意法律要求，不象较发达的省份或其他国家的投资者那样认 真评估法律风险和合规问题。 本地客户中较大比例是规模相当大的国有企业。在较发达地区，中小 民营企业在经济中扮演关键角色，但这里数量少得多，实力也弱得多。张 利国说，这一类客户需要法律专业人士提供更长期、更个性化、更便宜的 服务。因为“成长中的企业对成本更为敏感。”袁小彬对此表示赞同：“一些 没有内部法律顾问的中小民营企业对法律咨询了解甚少。他们盲目听从推 荐或不假思索地选择最便宜的报价。”对此只能抱以极大的耐心，他说。 西部法律业务欠发达的另一个迹象是，律师为企业提供“常年法律顾 问”服务，而不是基于具体情况针对性地提出建议。其不利之处在于，律师 的工作过于笼统和庞杂，无法对任何具体的业务深入专攻。 相比较而言，现代企业有全职的的内部法务来处理日常的内部法律问 题，每当出现专业问题则求助于某些特定的外部法律专家。“在最发达的 国家和地区，没有‘常年法律顾问’这样的头衔，因之阻碍律师的专业精湛 化。”韩德云说。 此外，韩德云认为，律师自身的观念需要改变的甚至更多。在西部，许 多律所没有清晰的自我定位，而律师服务的方式就像是万金油。。他们大 部分时间仍然花在个人客户身上，这类案子往往便宜、简单、随机，且不能 产生长期的收益。 韩德云强调，企业客户更有价值，如果一个 律所真正想做到既提高专业水准又提高收入， 就应该将目标对准它们。“很少有人离了婚再反 复离婚，但几乎所有的公司都至少有成打的回 头业务，”他说。

REUTERS/Issei Kato

**The Chinese translation of this story was prepared by CLS Communication**

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** 此文中文翻译由CLS Communication提供 **

像一个企业那样运作 张利国认为还有一个指标是律所的内部结构 和运行机制。按目前的模式，律师只是名义上在 律所挂牌，实质就像一个缴纳了许可费的承包 人，这在西部尤其普遍。而所谓的律所合并不 过就是改下门牌而已。 通过这类松散的联盟，律所可以在短期内实 现快速扩张。但是，这种增长是不负责任和不 可持续的。“如果一个律所只把它的律师当作赚 钱的工具，没有把它当成一个职业，没有当成培 养人的事业，这肯定会严重损害律所和律师的专 业，最终影响到为客户服务的质量。” 更糟糕的是，过分依赖少数的核心律师经常 会导致律所分崩离析的局面，一旦有人离开、退 休或发生意见分歧，后果可能致命。 “法律服 务行业采取的那个模式就像农村20世纪80年 代广泛采用‘家庭联产承包责任制’，现在看来已 经非常过时。”他说。 如今，位于东部一线城市的全国性领先律所 为了可持续发展已经有效地摆脱这种过时的模 式。袁小彬认为“旧模式代表一种落后的生产方 式，必须代之以一种更规模化、集约化和专业 化的组织类型，就像国际化律所已经应用了几 十年的那样。”。 袁小彬指出，新的类型就是一种“公司化管理” 体系，一些基本要素包括：律所支付所有律师适 当的薪金，为他们提供培训和自我发展的机会， 根据他们的专业特长分配任务及定期评估其表 现。袁小彬相信，可预见的薪酬增长和明确的

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handle daily internal problems, and turn to certain specific external legal experts each time. “In the most developed countries and regions, there isn’t such a title of ‘regular counsel’, which hinders lawyers from being more professional,” says Han. In addition, lawyers themselves need even more to make changes to their mindset, Han says. Many firms in west China do not have a clear self-positioning, and lawyers act like they are panacea for all diseases.

They are still spending the majority of time on individual clients, whose cases are cheap, simple and random, and could not produce any long-term benefit.

Han emphasises that corporate clients are much more valuable and they need to be targeted if a firm really wants to improve either professionalism or the profit. “Few Chinese people divorce multiple times, but almost all companies have at least dozens of returning businesses,” he says.

Move like a company One more indicator, according to Zhang, is the internal structure and operational system. The current mode, in which a lawyer only nominally affiliates to a firm by submitting royalty fees like a subcontractor, is pervasive particularly in west China.

And firms merge simply by altering doorplate.

Under these loose affiliations, a firm could achieve quick expansion in the short term. But such growth is irresponsible and unsustainable.

“When a firm only treats its lawyers as instruments for money, there is no sense of professionalism, or care for humanity development. It would surely cause serious damage to both the firm and its lawyers, and ultimately the service to the clients,” says Yuan.

Even worse, excessive reliance on a handful of key lawyers often ends up in the dismantling of the firm as soon as the particular persons leave, retire, or diverge. “That mode in the legal service business is like the ‘household contract system’ in agriculture, which was widely used in the 1980s, but now has been come terribly outdated,” he says.

Nowadays, leading national firms located in the top tier eastern cities have all effectively rid the outdated system off for sustainable development. “Representing a means of backward productivity, it must to be replaced by a more scaled, intensified, and professionalised organising type, like what has been applied in the international firms for decades,” says Yuan.

The new type, suggests Yuan, is the “corporatisation management” system, with some basic elements including the firm paying all its lawyers proper salaries, providing them opportunities of training and selfdevelopment, allocating work based on their professional specialties, and evaluating their performance regularly. Yuan believes a predictable salary increase and a clear career path can retain the best talent; and having stable personnel enables experience accumulation and constant **The Chinese translation of this story was prepared by CLS Communication**

职业发展路径，可以保留最优秀的人才；有了 稳定的人员队伍，才会有经验的积累和不断的 培训，并最终转化为高品质的业务和有效的团 队合作。 中豪律师事务所于2002年就引进了这个体 系，是西部最早的之一他们成功证明了这个体 系的吸引力。“我们想方设法维持一个稳定的团 队，在过去的10年里我们没有一个合伙人转投 他所，”袁小彬补充说，随着全国范围内的竞争 的加剧，律师事务所的公司化是不可避免的。“ 如果不采用专业化、规范化的和定量化的方 式，我们的服务不会赢得跨地区客户的满意。” 在韩德云看来，索通的资料及案件管理系 统就是一个业务专业化和规范化的范例，律师 们通过它记录、保存和分享客户信息、以及各 自的的操作方法和培训内容。 “这是确保服务 质量的最重要的手段，”韩德云说。 “它大大提 高了本所的质量规范，旧式松散的管理方法不 可能做到这一点。” “一个律所如果不完成这个转型，你就完了，” 袁小彬说。 好的管理体系能让一个律所扎实自然地发 展。西部律所正在向其东部对手学习。 平衡状态 但是东部的律所不会坐等西部滞后的同行。 它们携高端业务之优势已经走向西部，如跨境

** 此文中文翻译由CLS Communication提供 **

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training, which could eventually turn into a high-quality practice and effective teamwork.

The attractiveness of such a system has been proven by the success of Zhonghao, which introduced the system in 2002, one of the earliest firms in west China. “We managed to maintain a stable team where never has a single partner of mine moved to another firm in the past 10 years,” Yuan says, adding that the corporatisation of law firms is inevitable as the competition on a larger scale intensifies.“The clients with trans-regional needs wouldn’t be happy with our service unless we do it in a professional, normalised, and quantitative way.”

An example of such professional and normalised practice, according to Han, is Solton’s data and case management system, through which the lawyers record, save, and share the client information, and own operation as well as training. “It is the most important measure to ensure the service quality,” says Han. “It improves the firm so much, the old loose method of management could never do.”

“Any firm (that) refuses to make the transition is finished,” says Yuan.

A good system could develop a firm solidly and naturally. And the west firms are learning from its eastern rivals.

Status of balance But firms originating from the east do not just wait for their lagging

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交易和融资等。“他们带来了新的理念和先进的做法，并兼并整合了一些 本地律所，这是好事，对我们是一种驱动和激励，”程守太说： “但另一面 是，他们撷取了最赚钱的高端业务，只将压力和障碍留给了本地律所。” 除了证券、并购、外商直接投资、反垄断和知识产权等高端业务，竞争 也延伸到了中低端市场。张利国——这家成功进入西部的全国性律所的 主任认为，服务质量才是根本。 “我们提供的服务必须是非常专业的，有 利于客户的业务并满足他们的需求，”他说：“我们的高质量、及时和全方位 的服务，为我们赢得了来自政府部门和企业客户的信赖和认可。” 有一个全国性的网络是全国性律所的优势，张利国补充说。与中央政 府部门和外来投资者的关系是全国性律所的独特卖点，如当涉及到需要 政府批准的情况时；客户偏好使用家乡的事务所和律师，这也给起源于 东部的全国性律所一种优势，得以随强大的企业走遍全国各地，甚至国 外。请记住，投资者主要来自富裕地区，”韩德云说，“大投资者将其聘自 东部的法律顾问带到了西部。” 品牌也很重要，因为本地的客户开始关注律所的信誉和管理。“虽然 能够战胜大部分本地对手，但与北京或外国的律所相比，我们仍然处于 劣势，”袁小彬说。 随着全国化的竞争的加剧，本地律师们正在期待全国性律所主导的 一系列并购。“但几年之后可能发生另外一次洗牌，”程守太说。“当他们 的新鲜劲过了，而本地律所的壮大起来时，我们将达到一个平衡状态。”

“When a firm only treats its lawyers as money-making instruments, there is no sense of professionalism, or care for humanity development. It would surely cause serious damage to both the firm and its lawyers, and ultimately the service to the clients.”

Yuan Xiaobin, Zhonghao Law Firm

“如果一个律所只把它的律师当作赚钱的工具，没有把它当成一个职业， 没有当成培养人的事业，这肯定会严重损害律所和律师的专业，最终影响 到为客户服务的质量。” — 袁小彬，中豪律师事务所管理合伙人

colleagues. They have been heading towards the west, taking along their edge in high-end practices, such as cross border transactions and financing. “They brought in new concepts and advanced practices, and took over some local firms, which are welcomed acts, activating and inspiring,” says Cheng. “But the flip side is they take away the most profitable high-end businesses, leaving only pressure and hurdles in the way of the local firms.”

Apart from the premium cases of securities, M&A, FDI, antitrust and IP, the competition has extended to the low-end market too. Zhang, the head of a national firm that successfully entered the west, says that the fundamental thing is the quality of service. “The services we offer have to be very professional, beneficial to the client’s business, and satisfying their own demands,” he says. “Our services, being high-quality, timely **The Chinese translation of this story was prepared by CLS Communication**

价格 对于本地律所来说，差异化战略是可行的，既然它们与本地司法和立 法机构的联系更密切，也更了解本地政府的政策。 “毕竟，本地客户带来 的案件构成了当地法律业务的大多数。律师应当了解这些客户的需求并 培育好市场，”韩德元说。更重要的是，到目前为止本地律所在人员数量 上能够超过任何全国性律所的西部分所，这个因素在一些需要大量人手 的大宗案件中也是举足轻重的，袁小彬强调。 差异化战略也包括选择一种明智的业务组合。由于大宗商务案件越来 越多地涌入全国性律所，小的个人案件则留给了本地律所。两极分化将会 增加，一些律所将合并，以加强其在高端业务的竞争力；另一些所则会精 简，专注于普通的业务。 “小型和本地化的律所仍将分得大部分的刑事 诉讼、离婚、遗产分割、事故赔偿等业务，这也是一个利润丰厚的市场份

** 此文中文翻译由CLS Communication提供 **

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and thorough, has won us the trust and recognition from both government and industrial clients.”

A national network is the advantage of the national firms, adds Zhang.

The connection with central government departments and foreign investors is national firms’ unique selling point when it comes to a case that needs government approval. Experience in clients’ preference of firms and lawyers from their native places gives the national firms an advantage of following their strong enterprises across the country, and even abroad. “Remember, the investors are largely from richer regions,” says Han. “The big investors have brought in their east-originated legal advisers to the west.”

The branding also matters, as the local clients start paying attention to firms’ reputation and management. “Being able to defeat most regional rivals, we are still the underdog when comparing with Beijing or foreign firms,” says Yuan.

Local lawyers are expecting a series of M&As with the national brands taking the lead, as the pressure from nationalised competition increases.

“But another reshuffle could happen a few years later,” says Cheng.

“When their freshness expires, and the local firms grow stronger, we will reach a status of balance.”

Price tag For the local firms, a differentiation strategy is feasible, given their closer connection with the judicial and legislative bodies, and the knowledge of the government policies. “After all, cases of local clients make up the majority of local legal business. Lawyers should understand their needs, and nurture the market,” says Han. More importantly, local firms can outnumber any of the national firm branches by far, a factor which weighs a lot in some big cases, stresses Yuan.

Differentiating approaches also include a wise selection of practice portfolios. As the big commercial cases increasingly flood to national firms, smaller issues of individuals are left for local firms. The divide will increase, with some firms merging to strengthen their competitiveness at the high-end, and some downsizing to focus on more general, common practices. “Small and localised firms will still have major share in criminal litigation, divorce, estate partition, accident compensation and so forth, which is also a lucrative part of market,” say Han. Price is the tricky issue in west China, Zhang claims. A number of price-sensitive clients mean a massive challenge. “To maintain a quality service and run a team, we have to set a necessary rate, whilst some local firms charge very low. It is great pressure,” he explains. “We try our best to reduce the cost of the clients – by locating as many lawyers on the spot as possible instead of sending off Beijing or Shanghai-based staff.”

Ironically, local firms are doing whatever possible to raise their charging rate. To gradually narrow the gap, necessary efforts include training lawyers to improve professional skills, updating their managing and service modes, or more straightforwardly, engaging in a merger with national leaders, according to Han. “But I don’t think the distance would become any closer in the near future,” he says.

China’s Los Angeles and San Francisco Over the past few years, the total size of qualified lawyers underwent a quick rise in China, and in the western provinces, even faster than the national average. However, Han warns that such a seeming upsizing is not necessarily good news, as it can be a result of the expansion of law school recruits, and the lowering of the bar examination standard.

“The quality of lawyers is declining as the number growing fast,” says Han. “Considering the current legal environment and the demand of **The Chinese translation of this story was prepared by CLS Communication**

“There are growingly more and more both in-bound and outbound investments in Shaanxi…(We have), since last year felt increasing demand for legal services from foreign investors coming here, and Shaanxi companies buying offshore.”

Yang Haifeng, Silkroad Law Firm

“在陕西，无论是外来投资还是对外投资都在 越来越多日益增长…从去年起就能感觉到，来 到本地的外国投资者对于法律服务的需求迅 速增强，而陕西的企业也在开展海外收购。” — 杨海峰，锦路律师事务所合伙人

** 此文中文翻译由CLS Communication提供 **

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额，”韩德云说。 张利国称价格在中国西部是个很棘手的问 题。对价格敏感的客户大量存在意味着一个巨 大的挑战。“为了保持优质的服务和团队的运 行，我们必须设置必要的费率，然而一些本地 律所收费很低。这是很大的压力，”他说： “我们 尽我们所能来降低客户的费用，比如尽可能多 地使用本地律师，而不是从北京或上海派遣。” 有趣的是，本地律所却在尽全力提高费率。 韩德云认为，要想逐步缩小差距，必要的努力 包括：培训律师以提高专业技能；更新管理和 服务模式；或者更直截了当地，与全国性领先 律所合并。他说，“但我认为差距不会在很短的 时间里拉近。”

The Yangtze River cable car runs against a background of high-rise condominiums in Chongqing, southwestern China. REUTERS/Issei Kato

the market, we have an excess of lawyers. Licence and qualification are not enough; this profession requires practical experiences. The boom of inexperienced and untrained lawyers has lowered the standard,” he says.

In fact, in spite of the crowd, very few top legal talents are available.

“To be frank, the western lawyers generally are not the best practitioners in terms of service standard, in contrast to Beijing and Shanghai,” says Zhang. “Top talents are less likely to choose to work in the west due to poorer living standards and lower incomes.”

So far, lawyers practising in the western provinces are largely native graduates from law schools in Chongqing, Chengdu and Xi’an, although some top firms are trying to recruit students from the top schools in Beijing and Shanghai, and relocate some veteran lawyers to their native provinces in the west.

But the solid education and technological research and development capacity in these cities reassure the firm managers of the region’s potential of growth, not to mention the rich natural resources and favourable policies and projects offered by the GWD programme.

Grandway is set to open an office in Xinjiang soon, in the far west region that is rich in resources despite tense ethnic unrest. Tahota is considering Lhasa and Kunming. “It is much less economic for us to open in the western region. And the offices have yet to contribute much revenue to the firm’s overall turnout,” says Zhang, “But strategically, we should have the foresight to cultivate the market of great prospect in advance.”

Cheng adds that the west-based firms are going out together with enterprises. Tahota has already set foot in Africa, Southeast Asia plus Australia. “We’ve reserved talent for more overseas transactions now,” he says. “Chengdu and Chongqing would become the future Los Angeles and San Francisco, the centres of the west where law firms also rank among the highest in the country.” **The Chinese translation of this story was prepared by CLS Communication**

中国的洛杉矶和旧金山 在过去几年里，中国的合格律师总数量经 历了快速增长，西部省份的速度甚至超过了全 国平均水平。不过，韩德云警告说，这种表面上 的上升不一定是好消息，因为它可能是法律院 校扩招和律师资格考试标准降低的结果。“律 师数量迅速增长的同时，质量也在下降，”韩德 云说：“考虑到目前的法律环境和市场的需求， 律师的数量偏多。光看执照和资格证书是不够 的，这个职业需要实践经验，缺乏经验和未受 过训练的律师数量暴增，降低了行业的水准。” 事实上，尽管众人之中也有少数的顶级法律 人才。“坦率地说，对比北京和上海，西部律师 就其服务水准而言，普遍算不上最顶级，”张利 国说：“由于生活水平较差，收入较低，顶尖人 才不太可能选择在西部工作。” 到目前为止，在西部省份执业的律师主要是 重庆、成都和西安的法律院校的本地毕业生， 虽然一些顶尖律所正试图从北京和上海的顶 尖院校录用学生，并聘请一些资深律师回西部 家乡省份执业。 但由于这些西部城市有雄厚的教育基础和 科技研究开发能力，律所的管理者们并不担心 本地的发展潜力，更何况还有丰富的自然资源、 优惠的政策和西部大开发计划带来的项目。 国枫凯文不久将在西北少数民族聚居的新 疆开设办事处，这里矿产资源和农业资源都 非常丰富。泰和泰则还正在考虑西南民族地区 的拉萨和昆明。 “在西部地区开分所不如东部 那么经济。现有这些办事处对我们的总营业收 入还没有特别多的贡献，”张利国说：“但战略 上我们应该有先见之明，提前耕耘这块前景巨 大的土地。” 程守太补充说，西部律所正在与企业一起走 出去。 泰和泰已经登陆了非洲、东南亚和澳大 利亚。“我们已经为更多的海外交易储备了人才，” 他说：“成都和重庆将成为未来的洛杉矶和旧金 山、成为国家西部的中心，这里的律所同样也将 跻身全国前列。”

** 此文中文翻译由CLS Communication提供 **

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A few

Tackling the resource challenge

good men 求贤若渴

— — 如 何 应 对人 力资 源 挑 战

如何找到并留住优秀人才是中国企业日益面临的严峻挑战。人力 资源问题不仅仅局限在企业，给企业提供法律服务的律师事务所 也面临着同样的困境。Phil Taylor报道。

**The Chinese translation of this story was prepared by Synmax Translation**

** 鑫马翻译提供中文译文 **

REUTERS/Toby Melville

Businesses in China are increasingly facing a serious challenge in finding and retaining quality talent. It is a human resources issue that goes beyond just the corporate world and into the legal realm, as law firms face the same struggles as the companies that they advise. Phil Taylor reports

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company is only as good as the people it keeps,” according to U.S. businesswoman Mary Kay Ash. For companies and law firms operating in China, the reality of this statement is beginning to hit home, as more and more encounter serious staffing challenges.

More than half of the respondents to a survey conducted in May 2012 by the China-Britain Business Council (CBBC) said that they were expecting to increase or significantly increase employment in the coming year.

But those companies are also facing big hurdles in persuading people to join them. And those that do bring talent on board are struggling to retain them. According to the survey, 45 percent of respondents reported “experiencing issues in attracting skilled workers,” with 43 percent “having difficulty in retaining them.”

Lawyers working in China report seeing trends among their clients which support the results of the survey, but point out that the situations vary considerably depending on the industry or sector. In traditional lowcost manufacturing, much of which is found in Southern China, many companies are shutting down factories and laying off employees (leading

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国女企业家Mary Kay Ash认为：“ 员工的素质决定了企业的质量”。 对于在中国开展业务的公司和律 所而言，这真是一语中的。越来越多的企业和律 所都在用人问题上面临挑战。 在2012年5月由英中贸易协会(CBBC)组织 的调查中，半数以上的受访者称，他们正计划来 年增加甚至大幅度增加用工人数。但这些公司 在劝服人才加盟公司时也面临巨大障碍，而那 些的确延揽到人才的公司又在想方设法留住人 才。这次调查结果显示，45%的受访者称“正经 受如何吸引专业人才这一问题的困扰”，而43% 的受访者表示：“在留住人才方面遇到困难”。 在中国执业的一些律师也反映称，他们看到 的趋势是客户的实际情况与该项调查结果吻合， 但他们也指出各行业的情况存在很大差异。在 传统低成本制造业集中的华南地区，很多公司

“The general culture has changed a lot – people would rather stay home jobless than work for a lower-paid job. The mindset in Shenzhen in the 1990s was ‘today I am a labourer, but tomorrow I might be a manager’. Today, people have an entirely different mindset.”

Chris Lin, DLA Piper

“人们的普遍观念已发生很大变化——大家宁愿不工作宅在家里也不愿 从事低价劳动。上世纪90年代在深圳流行着一种观念，‘今天我是打工 仔，明天我就可能当上老板’ 。时至今日，人们的观念完全不同了。” — 林晓云，欧华 to plenty of work for labour and employment lawyers). Meanwhile, there is very high demand and growth potential – and consequentially, a hunt for talent – in areas including professional services, pharmaceuticals, hi-tech, media, and even theme parks.

There are several possible reasons for these developments, lawyers say.

“The way I see it is we’re seeing the effects of some large demographic trends and macroeconomic policies,” says Shanghai-based Baker & McKenzie partner Joseph Deng.

It has been about 30 years since China’s one-child policy took effect, and the country is beginning to see the effects. There are fewer working age people available to fill roles and, although competition for jobs is **The Chinese translation of this story was prepared by Synmax Translation**

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正在关闭工厂 ，解雇工人（导致劳动法律师业务 充沛）。同时，专业服务领域及制药、高科技、 媒体甚至主题公园等领域的用人需求旺盛并且 还在攀升，随之是人才招募之争也愈演愈烈。 律师们认为，上述变化可能由以下几个原 因导致： 贝克•麦坚时律师事务所上海办事处合伙人 邓桥律师认为：“在我看来，大规模的人口结构 变化和宏观经济政策所导致的结果正在显现”。 中国实行计划生育政策至今约30年了，其效 果正在中国国内显现。尽管就业竞争日趋激烈， 但适龄劳动力却正在减少，民众对中国的教育

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getting fiercer, there are lingering doubts about the quality of China’s education system. Available human resources have not kept up with the rapid development of many sectors of the economy.

“What foreign companies require in China is very specific, whereas the talent pool for these kinds of people has remained pretty much constant over the past years,” says Chris Lin, of counsel at DLA Piper’s Beijing office.

In relation to macroeconomic issues, China specialists point to the aims laid out in the PRC legislature’s 12th Five Year Plan (and other policy documents released around it) which include “creating an entirely new industrial base, focused on seven strategic industries,” according to an analysis by Harris & Moure lawyer Steve Dickinson on the China Law Blog.

“The government has consciously targeted, and is developing hi-tech, media and consumer goods, and is consciously allowing low-end manufacturing to go away. China doesn’t want to be the low-wage factory of the world anymore,” says Deng.

There also appears to be a changing mindset among the working population in China, and this is influencing the availability of workers.

“The general culture has changed a lot – people would rather stay home jobless than work for a lower-paid job,” Lin says. “The mindset in Shenzhen in the 1990s was ‘today I am a labourer, but tomorrow I might be a manager’. Today people have an entirely different mindset.”

More awareness The passage of the 2008 Employment Contract Law (ECL) is thought to have had a profound impact on the way Chinese workers think, perhaps even more than it has changed the legal system. The drafting process involved input from various segments of the population and many public debates. This resulted in a high level of general awareness of what a normal employer-employee relationship should look like.

“The impression most employees took away was that the workforce in China has been unjustly exploited, deserves better pay and better treatment, and has more rights in courts and labour arbitration,” says Lin. The ECL also increased the burden on employers, in part, by making it harder to hire and fire people. It affects retention by making it easy for an employee to leave, but does not allow for effective penalties against employees who do not meet the obligation to give at least onemonth notice. In addition, a recent draft interpretation issued by the PRC Supreme Court on the application of the ECL to labour disputes indicates that employers found to be non-compliant with the law will face increased costs.

These factors offset one of the main benefits which have attracted many companies to China: Low basic salaries. And, according to lawyers, there are other indirect costs that are now higher in the PRC than in other comparable jurisdictions. For example, employee representation in larger companies is strong, and has been considerably bolstered by regulations on the democratic management of enterprises which came into force at the beginning of 2012. Among other things, the regulations require companies to implement “democratic management systems” including an employee representative congress, and to promote the opening of enterprise affairs, support employees’ participation in enterprise management, build harmonious labour relations, and make sure that there is a system to facilitate dialogue between management and other employees.

“Employees are getting more protected; the general trend is that an employee will have a better say and better representation, and in case of a dispute or grievance, they can look to the employee congress for assistance,” says Allen & Overy consultant Susana Ng. **The Chinese translation of this story was prepared by Synmax Translation**

质量也质疑不断。现有人力资源无法跟上众多 经济产业部门的快速发展。 欧华律师事务所北京办事处资深法律顾问 林晓云律师认为：“外企在中国的人才需求有其 独特性，而在过去的数年中，这些人才的储备 量却几乎毫无变化”。 Harris & Moure 律师事务所的律师Steve Dickinson 在China Law Blog上发表的分析说 道，就宏观经济而言，中国问题专家们指出，中 国的“十二五”规划（及围绕这一规划颁布的其 他相关政策文件）制定的目标包括“建立全新 的产业基础，着重发展七大战略性新兴产业”。 邓律师认为：“中国政府已有意识地将目标 瞄准高科技、媒体及消费品的开发，并着力发 展这些产业，政府同时也已有意识地让低端 制造业淡出市场，希望能摆脱低成本世界工厂 的地位”。 中国的就业人群似乎也正在发生思维模式 上的转变，这也对劳动力的供给产生了影响。 “人们的普遍观念已发生很大变化——大家 宁愿不工作宅在家里也不愿从事低价劳动”，林 律师称，“上世纪90年代在深圳流行着一种观 念，‘今天我是打工仔，明天我就可能当上老板’” 。时至今日，人们的观念完全不同了。

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“Employees are getting more protected. The general trend is that an employee will have a better say and better representation. And in case of a dispute or grievance, they can look to the employee congress for assistance.”

Susana Ng, Allen & Overy

“劳动者权利得到了更大程度的保护。现在的总体趋 势是，劳动者有了更大的话语权，权益更为彰显。如 果发生劳动纠纷或权益受损，劳动者可向职工代表 大会求助。” — 吴丽珊，安理

REUTERS/Jason Lee

In addition, foreign companies are now competing with some very successful Chinese private companies, as well as with large state-owned enterprises, and the government sector. Many of those competitors are able to offer attractive financial incentives to their employees, and this has led to higher expectations from much of the working middle-class population.

“Financial reward is a major thing that lures people away. A top choice for graduates now is becoming a civil servant – there’s a nice pension and a lot of hidden income in the form of perks you wouldn’t find at global companies,” says Lin. Firms feeling the pressure A closer look at the figures behind the CBBC survey (where professional services firms made up about two-thirds of the respondents) shows these trends are having an impact on law firms as well as their clients. Lawyers contacted by ALB agree, reporting a tight market for good people at every level, from secretaries, paralegals and junior associates, to mid- to senior-level associates, and even junior partners. Foreign companies – and perhaps law firms in particular – often have specific requirements for their staff, including good communication skills in both English and Chinese. This can make recruitment particularly tough.

“Nowadays, it is really difficult to recruit and retain competent lawyers,” says Xu Xiaodan, a Beijing-based partner of King & Wood Mallesons.

“It is one of the struggles of foreign firms,” adds Hogan Lovells partner **The Chinese translation of this story was prepared by Synmax Translation**

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意识觉醒 2008年通过的《劳动合同法》对中国劳动 者的思维方式影响深远，就这方面而言，该法 的影响力甚至可能超越其对法律制度本身的 影响作用。在《劳动合同法》的整个起草过程 中，各界人士都有所参与，还举办了多次公开讨 论。因此公众对何为正常的劳资关系也有了高 度的认知。 “大多数劳动者都认为中国的劳动力存在被 不合理剥削的问题，劳动者的工资和待遇都应 得到提高，也应在诉讼和劳动仲裁中争取到更 多的权利”，林律师如是说。 《劳动合同法》也加重了用人单位的负担， 部分原因是该法进一步规范了聘用劳动者及 解除劳动合同关系等方面的要求。 《劳动合同 法》通过放宽对劳动者离职的限制从而对人员 留用产生影响，但该法禁止用人单位对未至少 提前一个月提出离职请求的劳动者进行实质性 处罚。另外，根据中华人民共和国最高人民法院 近年颁布的《关于审理劳动争议案件适用法律 若干问题的解释（征求意见稿）》，不遵守相关 法律规定的用人单位将承担更高的违法成本。 上述因素抵消了吸引众多外企来华投资的 一个主要益处，即低廉的基本工资。同时，律师

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“It is one of the struggles of foreign firms.

Some of our talents may end up going to a local firm after picking up the skills they need (with us), because the tax structure for partners at domestic firms is so much more favourable.”

Philip Cheng, Hogan Lovells

“这是外所面临的困境之一。有些律师在接受了我们的业务培训后去了 本土律所，因为本土律所合伙人的税务成本远低于外所的税务成本。” — 郑浩晖，霍金路伟

Philip Cheng. “Some of our talent may end up going to a local firm after picking up the skills they need (with us), because the tax structure for partners at domestic firms is so much more favourable.”

Because PRC firms are able to structure themselves as legal partnerships, they are able to take advantage of tax provisions under which partners are taxed at no more than 35 percent as individual sole traders.

Meanwhile, foreign law firms, which are set up as representative offices in China, will generally pay corporate tax at a rate of 25 percent with their employees paying progressive income tax of up to 45 percent.

This makes it easier and cheaper for a domestic firm to lure a bright associate away from an international firm’s Beijing or Shanghai office with the promise of a very attractive financial package.

“They could just give them the title of ‘partner’ – it’s really worthless within the Chinese system – but they would be entitled to the (lower) tax limit,” comments Lin. In the face of this kind of financial competition, some foreign firms may wonder how they can hope to hold on to their talent. Employment specialists respond by saying it may be possible to take advantage of the change in the mindset of Chinese employees by offering compensation packages which focus more on elements other than cash. Both Lin and Ng urge employers to be innovative, suggesting that the younger generation may care more about quality of life and the meaning of their work than just income.

There are several options which might help encourage employees to stick around, including deferred bonus schemes, the more creative use of paid and unpaid leave, additional contractual maternity leave, or even helping employees from elsewhere in China to obtain the coveted Shanghai or Beijing residence permits, known as hukou.

Foreign companies, including law firms, can also take advantage of their international networks by offering a rotation programme where employees are sent overseas to corporate HQ for a year, and then brought back to China.

“This is giving them the exposure that a lot of PRC nationals are look**The Chinese translation of this story was prepared by Synmax Translation**

们认为，与其他类似地区相比，中国的间接用人 成本也提高了。例如，大公司内职工代表制度盛 行，而2012年年初生效的《企业民主管理规定》 也在很大程度上推动了该制度的发展。该规定 要求企业实行包括设立职工代表大会在内的“ 民主管理制度”，实现厂务公开，支持职工参与 企业管理活动，建立和谐的劳动关系并确保企 业管理层与其他职工之间有一个对话制度。 安理国际律师事务所顾问吴丽珊律师认 为：“劳动者权利得到了更大程度的保护。现在 的总体趋势是，劳动者有了更大的话语权，权 益更为彰显。如果发生劳动纠纷或权益受损， 劳动者可向职工代表大会求助”。 另外，现在与外企竞争的还有一些非常成 功的中国民营企业、大型国企以及政府部门。 这些竞争对手能给劳动者开出更具吸引力的 薪酬待遇，这也提高了许多工薪阶层对薪酬待 遇的预期。 林律师称：“经济回报是促使劳动者跳槽的 主要原因；对毕业生而言，现在的最佳出路是 当公务员——公务员不仅养老金丰厚，隐性收 入也颇高，而这些在跨国企业中是没有的”。 感受压力的律所 仔细分析CBBC调查（其中三分之二左右的 受访者为专业服务机构）的数据可以看出，以上 这些趋势不但对律所客户同时也对律所本身产 生了一定影响。ALB采访的律师称，从秘书、律 师助理、初级律师到中高级律师，甚至初级合伙 人，律所对各个层次的优秀人才都求贤若渴。外 企——或许尤其是律师事务所——通常对其员 工都有明确的要求，即具备上佳的中英文沟通能

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ing for when they go work for multinational companies,” says Cheng.

Use the law Others point out the importance of getting to know, and making the most of relevant areas of Chinese law and regulation in order to provide more attractive packages and a better working environment. For example, one lawyer highlights new rules issued by the foreign exchange regulator which specifically open up equity incentive schemes to employees of representative offices of foreign companies.

Trade unions and employee consultation also play a big part in corporate life in China. For example, there is a compulsory consultation process triggered whenever a company introduces a new policy which affects the interests of employees. Foreign companies may see this as a burden or even a threat, but Ng suggests this thinking may be mistaken.

“In China, the union is not trying to bargain and fight every time they have an issue – the thinking is to try to be smooth, and try to avoid social unrest,” she says. “It’s always advisable to have a good relationship with trade unions rather than seeing them as an enemy.”

Other parts of Chinese employment law can also be used as tools to contribute to a better working environment. For example, lawyers say that the staff handbook – a legal document under PRC law – can be used to codify clear rules of conduct which both employees and the company must follow, providing the clarity and certainty that many employees value.

“A well-written staff handbook shows employees that the company

**The Chinese translation of this story was prepared by Synmax Translation**

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力。这就使招募人才变得更为困难。 “现在要找到并留住好的律师确实十分困 难”，金杜律师事务所北京办公室合伙人徐晓 丹称。 “这是外所面临的困境之一”，霍金路伟国 际律师事务所合伙人郑浩晖律师补充道，“有 些律师在接受了我们的业务培训后去了本土律 所，因为本土律所合伙人的税务成本远低于外 所的税务成本”。 由于中资所以合伙企业为其组织形式，故可 以适用相关税务规定，其合伙人作为个体经营 者，税负不超过35%。而外所在中国设立的是 代表处，通常需缴纳25%的企业所得税，其劳动 者则需缴纳最高为45%的累进制个人所得税。 因此中资所能通过非常诱人的薪酬，较为容 易地以较低的成本将优秀的业务律师从外所的 北京或上海办公室吸引过来。 “本土律所只要给这些律师一个‘合伙人’的 头衔即可— —这在中资所的体制下其实毫无 价值——但这些律师就可以享受到[更低]的课 税”，林律师这样评价道。 面对这种薪酬竞争，一些外所可能会思考如 何留住人才。对此，劳动专家认为，利用中国雇 员观念的转变或许可行，即向他们提供包含更 多福利的薪酬而非仅是简单的现金。林律师和 吴律师都主张雇主发挥创新精神。他们认为， 新生代群体注重生活质量以及工作意义更甚 于收入本身。 企业可通过多种方式鼓励员工留下，包括推 迟发放奖金计划、更灵活运用带薪及不带薪 假期，准予延长协定产假，甚至帮助来自中国 其他地区的雇员取得人人向往的上海或北京 户口等。 包括外国律师事务所在内的外资企业还可 利用自身的国际网络资源，制定轮岗计划，将 雇员委派到海外总部一年后再回到中国工作。

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“In some big state-owned enterprises, you don’t have a high level of professionalism. There’s much less transparency, and the rules of (the) game are not clear enough. You can get scared … The prevailing practice is one you might find unacceptable if you worked for a foreign company.”

China-based employee at an international law firm

“在某些大型国企，劳动者无需拥有很强的专 业能力，企业的透明度也低得多，游戏规则也 不够明了……你会胆战心惊的……（那些国企 的）通行做法如果放到你所供职的外企，你会 发现可能无法被接受。” — 某外所中国雇员

takes employment relations seriously, and allows a company to punish staff that breach rules – thereby motivating staff that do follow those rules,” says Maarten Roos, founder and managing director of R&P China Lawyers.

Meanwhile, Xu stresses the importance of designing “a clear and sophisticated mechanism for performance evaluation and promotion” to prevent employees becoming “confused about their future career track or even (losing) confidence in the company.”

In some circumstances, it may also be worth reminding employees that the grass may not always be greener on the other side of the fence.

“In some big state-owned enterprises, you don’t have a high level of professionalism. There’s much less transparency, and the rules of (the) game are not clear enough,” says one China-based employee of an international firm. “You can get scared … The prevailing practice is one you might find unacceptable if you worked for a foreign company.”

Make the most of your strengths The continued rise of China and the evolution of its domestic markets are providing more opportunities for law firms to expand and profit.

Employment lawyers are seeing an increased demand for their services as their clients seek to react to local and global economic changes by adjusting staff numbers or amending terms and conditions.

But the same factors that are affecting clients are having an impact on law firms themselves. The market for high-quality human resources is challenging, and firms must be prepared to think creatively. Foreign firms are facing the added element of stiffer competition from domestic peers.

For them, the key may be to make the most of their inherent advantages, such as the ability to offer overseas experience, in order to find the best people, and make the most of the people they keep. **The Chinese translation of this story was prepared by Synmax Translation**

“这是许多国人去跨国公司工作时都想争取 的机会，”郑律师称。 对法律的运用 其他还有人指出，了解并最大程度运用好相 关领域的中国法律法规非常重要，这样可以为 雇员提供更具吸引力的薪酬和更好的工作环 境。例如，有一位律师强调，外管局发布的新规 则特别放开了对外企代表处劳动者股权激励 计划的限制。 工会和职工意见征求也在中国的企业生活中 占据重要地位。例如，企业发布影响职工利益的 新政策时必须启动强制性的意见征求程序。外 企可能会将此看成一项负担甚至威胁，但吴律 师认为这也许是误解。 她认为：“在中国，工会的意义不在于每当问 题出现时就与雇主进行谈判和对抗— —设立 工会的真正目的在于使企业保持稳定，并尽量 避免社会动乱。我们总是建议外企同工会建立 良好的关系，而不是与工会敌对”。 中国劳动法的其他规定也可用来为雇员创造 更好的工作环境。例如，律师认为作为中国法下 法律文件之一的员工手册可以用来规定雇员和 企业都必须遵守的行为准则，此举可使企业制 度更加明确具体，这也是很多雇员所看重的。 “精心编制的员工手册可以向雇员展示出企 业非常重视劳资关系，成为企业处罚违规雇员 的依据，从而鼓励雇员遵守相关规定”，上海 方旭律师事务所创始及管理合伙人Maarten Roos称。 与此同时，徐律师还强调了设计“明确精密 的绩效考核和晋升机制”具有重要意义，可以消 除雇员“对其未来职业发展的疑虑甚至对企业 发展的顾虑” 。 在某些情形下，企业还应提醒雇员别总是这 山望着那山高。 “在某些大型国企，劳动者无需拥有很强的 专业能力，企业的透明度也低得多，游戏规则 也不够明了”，一位外所的中国雇员称，“你会胆 战心惊的…（那些国企）通行做法如果放到你 所供职的外企，你会发现可能无法被接受”。 最大限度利用自身优势 中国的持续崛起及国内市场的不断发展为律 所的扩张和创收提供了越来越多的机会。当律 所客户通过调整其人员数量或修改其劳动合同 条款来试图应对本地及全球的经济变化时，劳 动法律师正在发现自己的业务量也与日俱增。 但影响着客户的种种因素同样也影响着律所 本身。高级人才市场充满挑战，律所必须以创新 思维做好迎接挑战的准备。外所同时还面临着 中国同行带来的激烈竞争，对这些外所而言， 关键在于最大限度地利用自身一贯的优势，例 如提供海外工作机会等，以此来吸引最优异的 人才并最大限度为其所用。

** 鑫马翻译提供中文译文 **

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Top 15 women lawyers

**The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

ASIAN LEGAL BUSINESS november 2012

Top 15 women lawyers

WWW.LEGALBUSINESSONLINE.COM : @ALB_Magazine : Connect with Asian Legal Business

39

01 Audry Li, Partner, Zhong Lun Law Firm

After polling hundreds of law firm clients for several surveys by ALB and ALB China, a list of China’s top 15 female legal practitioners emerged.

The women profiled here have succeeded in every way imaginable, both professionally and personally, and are trailblazers for the next generation of female lawyers. Zhao Xiaoyue shares their insights and advice.

As a leading individual in the corporate and M&A work, Audry Li acts in the distinguished role as “trusted adviser” to multinational companies, including Koch Industries and Tetra Pak. She has maintained diligence, mindfulness, and innovation during her 20 years of experience in providing international legal services.

However complex a case or difficult the negotiations are, she can always find practical solutions for her clients, providing highquality legal service and creating real value.

Li’s female identity has basically had a positive impact on her practising career. Her excellent comprehension of foreign languages and diverse cultures has helped her to communicate freely with clients from different countries. Moreover, with female-specific patience and tolerance, she exhibits the qualities of modesty and pragmatic problem solving. Despite displaying these “softer skills”, Li is not especially aware of her gender status in her business. As she says: “I retain clients because of my work performance and steady persistent cooperation, not my gender.” To aspiring and junior female lawyers, she also suggests developing a healthy personality and being “open-minded, curious, and sensitive to the world.”

李红，中伦律师事务所 合伙人

经过 ALB 和 ALB 中国多次问卷调查，数以 百计的律师事务所客户投票选出了中国排

作为在公司法和并购业务领域的佼佼者，李红的杰出表现赢得了包括科

名前15位的女律师。在列的这些妇女无论

问”。 在她20多年跨国法律服务的经历中，她一直保持着勤奋、专注和

是在职业领域还是在个人生活都取得了全 面成功，堪称下一代女律师的引路人。赵 晓悦在这里一起分享她们的见解和建议。

氏工业集团和利乐集团在内的多家跨国公司的赞誉——“值得信赖的顾 创新的精神。无论多么复杂的案件，多么艰难的谈判，她总能找到切实 可行的解决方案，为客户提供优质的法律服务并创造实际的价值。 在执业生涯中，女性身份对她的影响基本上是积极的。她出色的外语水 平和对不同文化的理解，使她与来自不同国家的客户能够自由沟通。此 外，女性特有的耐心和宽容，也使她展示出谦虚和务实的品质。尽管有 这些“软技能”，但她并不特别在意自己的性别身份。正如她说，“我能够 留住客户，是因为我的工作表现和稳定持久的合作，而不是我的性别。” 对那些有抱负的年轻女律师，她建议要发展健康的人格，做到“思想活 跃，敏于求知”。

**The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

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Top 15 women lawyers

ASIAN LEGAL BUSINESS november 2012

02

03

Michelle Ma, Managing Partner, Liu, Shen & Associates

Liu Honghuan, Partner, Jun He Law Offices

In 1993, Michelle Ma joined Liu, Shen & Associates, China’s first private foreign-related patent and trademark agency, and became a partner in 1995. As one of the core leaders of Liu, Shen & Associates, she has successfully developed the firm from having only a dozen members to one of the largest and most respected intellectual property law firms in China.

Recognised by the industry, lawyer Liu Honghuan is rated in the top tier of leading industry rankings for dispute resolution in Mainland China. She is experienced in representing multinational companies in complex business litigations and arbitrations. Because of her outstanding achievement, the China University of Political Science and Law (CUPL) has ranked her as a Distinguished alumni.

Adhering to the principle of “providing high-quality service”, she and her partners lead Liu, Shen & Associates’ professional team, who devote themselves to the endless service of patent applications in the mainland. In return, the firm has earned a high trust and recognition from domestic and overseas enterprises, especially numerous well-known foreign companies.

From Ma’s perspective, the legal profession is a career-based occupation, which requires her to cope with the challenge of balancing her job and managing the household. She tries her very best not to let her work affect her family life, but she also has to make a lot of sacrifices. In addition, she believes that female lawyers could benefit from being able to coordinate in dealing with multifaceted work, communication with clients, as well as strong language skills when acting for foreign businesses.

According to Liu, a legal career greatly depends on an individual’s ability. There are plenty of opportunities for individuals to show their capacity if they possess it. She says: “There is rarely a distinction due to gender differences, either for promotion or in firms’ policies.” Her analytical intelligence, talent for expression, and macro ability in dispute resolution has enabled her to scale the ranks of several top law firms dominated by male partners, and the whole process has steadily been on autopilot ever since.

Liu, In her family life, practises what she preaches in order to cultivate her children’s core values of humanity, freedom, and equality. She also says that being a lawyer is exciting and challenging, as well as being hard work. And her advice for young females who are determined to pursue a legal occupation is to form a family and have children as early as possible.

马涛，柳沈律师事务所管理合伙人

刘虹环，君合律师事务所 合伙人

1993年，马涛加入了柳沈律师事务所——中国第一家私营涉外专利和商

刘虹环律师是业内公认的中国内地争议解决领域的顶尖律师。她在代

标代理机构，并于1995年成为合伙人。作为柳沈律师事务所的核心领导

理跨国公司进行复杂的商业诉讼和仲裁方面有着丰富的经验。由于她的

者，她成功地将一个仅有12个成员的小所发展为中国规模最大、最受尊

突出成就，中国政法大学将她列为杰出校友。

敬的知识产权事务所之一。 在刘虹环看来，律师生涯很大程度上取决于个人的能力，而且个人也有 秉承“提供高品质的服务”的原则，她带领柳沈的专业团队，专注于在内

充分的机会展示自己的能力。她说：“无论对于职位晋升还是在律所的政

地数不胜数的专利申请代理服务。作为回报，马涛和她的团队赢得了国

策中，性别差异基本上都不会造成区别对待。”她的分析能力、语言天赋

内外企业尤其是众多知名外国公司很高的信赖和认可。

和争议解决中的宏观能力使她在几个顶级律师事务所均能跻身于男性 占主导地位的合伙人行列，并在整个过程中一直稳步地独当一面。

马涛认为，法律职业是一种以事业为主的行当，需要尽力处理好工作和 家庭之间的平衡。她尝试以最大的努力不让工作影响家庭生活，但仍然

在家庭生活中，刘虹环以身作则，培养孩子的仁爱、自由和平等等核心

作出了很多牺牲。此外，她认为，应付多样化工作的协调能力、与客户的

价值。她还表示，律师是一个令人兴奋的、富有挑战性的同时也是艰辛

沟通能力以及较强的语言能力，对于女律师从事涉外业务非常重要。

的工作，她希望更多的年轻女性考虑进入法律职业。

**The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

Top 15 women lawyers

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04

05

Nancy Zhang, Senior Partner, Jincheng, Tongda & Neal

Wang Jihong, Partner, V&T Law Firm

Lawyer Nancy Zhang has substantial experience in M&A, corporate restructuring, foreign investment in China, real estate, and relevant regulatory matters. In the course of her career, Nancy has established long-term stable relationships with her clients, including offshore investment banks, funds, and multinational companies. Their trust makes her proud and motivates her.

Although there are more female figures in the Chinese legal space, Zhang argues that female lawyers are required to be outstanding in all aspects if they hope to stand out from their male counterparts. It is her virtues of judgment, selection and decision making when facing complex problems that has made Zhang a leader at Jincheng, Tongda & Neal, as well as a top lawyer in M&A and corporate restructuring transactions in China.

She further suggests that young female partners need to be rational, employ big-picture thinking, and know how to fight for their rights. When choosing between the household and a career, she advocates “doing the right thing at the right time”, and adds that “marriage and children can turn a new page in a woman’s life, making her more mature and responsible.” And she emphasises that responsibility is the first factor that contributes to a female lawyer’s success.

张莉萍，金 诚同达律师事务所高级合伙人 张莉萍律师在并购、公司重组、外商在华投资、房地产等业务领域及相 关的监管事务中具有丰富的经验。在职业生涯中，她与客户建立了长期 稳定的关系，包括境外投资银行、基金和跨国公司。它们的信任给她带

41

Lawyer Wang Jihong is one of China’s most outstanding architecture lawyers. She was deeply involved in a number of landmark architectural and Olympic-related projects, and operated a series of real estate development and merger projects. Her remarkable performance has earned her the profound respect of her clients.

In Wang’s view, outstanding lawyers share some universal qualities, regardless of gender, such as diligence, conscientiousness, and professionalism. According to her, “a lawyer’s professional career is one of continuous learning; when you stop learning or are not able to learn, it is time to leave the stage.” Leaders of law firms could simply rely on their strengths; when confronted with obstacles, sincerity is the best way to overcome them and impress others.

Wang says that “balancing a career with the household needs superb artistry and effort. I did not do a good job; I owe my family a lot.” She really regrets not spending more time with her young daughter. Luckily, the girl has become independent and adaptable to different environments as a result of her free-range upbringing.

Lastly, Wang suggests that young females should be fully prepared psychologically when choosing to be lawyers and select the right platform, which refers to the team. “A good partner who is willing and able to guide and inspire you is far more important than the ranking of the law firm,” she says.

王霁虹，万商天勤律师事务所 合伙人 王霁虹律师是中国最优秀的建筑律师之一。她深度参与了许多具有里程 碑意义的建筑项目和奥运相关项目，并操作了一系列房地产开发和并购 项目。她出色的表现为她赢得了客户深深的敬意。

来了自豪和激励。

王霁虹认为优秀的律师不分性别都具备一些共通的品质，如勤奋、责任

虽然中国的法律行业中女性人数更多，但张莉萍认为，女律师如果希望

停止学习或不能学习，就是离开这个舞台的时候了”。律师事务所的领导

心和敬业精神。她说，“律师的职业生涯是一个不间断的学习过程，当你

从男性同行中脱颖而出，必须各方面都表现优秀。张莉萍的优势在于处 理复杂问题时的判断、选择和决策能力，这使她成为金诚同达律师事务 所的领导者，并跻身于中国并购和公司重组业务的顶级律师之列。 她还建议，年轻的女性合伙人需要理性、有大局观，并懂得如何争取自 己的权利。对于家庭和事业之间的选择，她主张“在正确的时间做正确的 事”，并补充说：“婚姻和子女为一个女人的生活翻开新的一页，使她更加 成熟和更负责任”。她强调，责任感是帮助女律师走向成功的首要因素。

**The Chinese translation of this story was prepared by CLS Communication**

人可以仅凭实力解决问题，但遇到障碍时，真诚才是克服困难、打动他人 的最佳途径。 王霁虹回顾说：“平衡事业与家庭需要高超的技巧并付诸行动。我做得不 好，欠家人许多”。她很后悔没有花更多的时间陪伴小女儿。幸运的是，她 的自由放养式的抚养让女孩成长为一个独立性和适应性很强的人。 最后，王建议年轻女性选择律师这个职业时应该做好充分的心理准备， 并要挑选合适的平台——即工作团队。“一个优秀的、有意愿并且能够指 导和激励你的合作伙伴，其重要性远远超过律师事务所的排名”，她说。

** 此文中文翻译由CLS Communication提供 **

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Top 15 women lawyers

ASIAN LEGAL BUSINESS november 2012

06

07

Ariel Ye, Partner, King & Wood Mallesons

Isabelle Wan, Partner, TransAsia Lawyers

As the head of KWM’s cross border dispute resolution practice and a recognised expert on PRC-related dispute resolution in the Asia-Pacific region, Ariel Ye has more than 20 years of experience as a seasoned litigator. Apart from her profound understanding of both PRC and international disputes, her rich knowledge of domestic and international laws, strong team spirit, and high level of efficiency are greatly praised by her peers.

As a distinguished female lawyer, Ye does not consider her gender to be a disadvantage in her career. She believes that in China, female lawyers are equally respected by clients, and have become an important force in the legal community because of their diligence and sense of responsibility. According to her, female lawyers tend to be more patient and considerate. They are usually more willing to listen to clients and address their needs. Ye believes that the key to her success is hard work, and constantly learning from outstanding peers. Gender is not an important factor for her.

Ye also tries to give equal status to her career and family, but frankly says that it is not easy to find a balance. However, her super-high working efficiency helps her to squeeze in more time to spend with her family, and she is also very good at structuring different aspects of her life.

叶渌，金杜律师事务所 合伙人 作为金杜跨境争端解决业务的主任，和亚太地区中国相关争端解决的公 认专家，叶渌律师是一名拥有超过20年的诉讼经验的行家里手。除了对 中国和国际争端有着深刻理解，她丰富的国内法和国际法知识、强烈的 团队精神和高水准的工作效率都得到了同行极大的赞许。 作为一位杰出的女律师，叶渌并不视自己的性别为职业生涯的不利之 处。她认为在中国，女律师因其勤劳和责任感同样受客户尊重，并已成

Isabelle Wan is a pioneer of Chinese employment law. As one of the most experienced and respected advisers in this area, Wan together with her team members strive to help clients to strike a balance between global policies and local compliance; and sustainable business operations and harmonious relationships with employees.

One aspect of Wan’s work that has moved her most has been the dedication and sincerity of many employees towards their jobs, especially migrant workers. She comments: “(In one case), although we were representing the employer, the workers appreciated that we advised the company to comply with the law and therefore felt respected, which resulted in them being willing to resolve the dispute with the company amicably.”

Recalling upon her 20 years’ experience, Wan says that: “I have always felt that I am skating on thin ice, in that the more I know, the more I realise I need to work even harder to keep up. My biggest worry is to always ensure that I am not left behind by new developments in either the law or the industry.”

Because of the rustic, dense and technical nature of Chinese employment law, it is not a popular field for young lawyers. Wan devotes a great deal of effort to public speaking on the area in order to foster interest in the next generation of labour lawyer, advising students to “stay hungry, stay foolish.” For her, an employment adviser must have a sincere heart, a deep love of people, and a strong desire to make a difference in society.

Wan regards today’s honour as bearing witness to and acknowledging the work of all female lawyers. In this connection, she deeply appreciates the outstanding work and significant support of her partners Helen Li and Nina Wang. As for family life, she believes in being a devoted wife and a caring mother.

为法律界的一支重要力量。据她的看法，女律师往往更耐心和细致。她 们通常更愿意聆听客户并满足他们的需求。叶渌认为自己成功的关键是 努力工作和不断学习优秀的同行。对她来说性别不是一个重要因素。 同样，叶渌试图做到事业与家庭并重，但也坦承找到一个平衡点并不容 易。不过，她的超高工作效率帮助她挤出了更多的时间陪伴家人，生活 方方面面的建设，她都是一把好手。

**The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

Top 15 women lawyers

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43

08 Wang Ling, Managing Partner, King & Wood Mallesons

万以娴，权亚律师事务所 合伙人 万以娴博士是中国劳动法界的先驱。作为这一领域最有经验和最受尊 敬的律师，万博士和她的团队致力于协助客户，在全球政策和本土规则 之间寻求平衡，一方面建立和谐劳资环境，一方面亦保障经营稳定。 万博士工作所遇，最令她感触深刻的是很多雇员、以农民工为尤，对自 己的工作极尽奉献和真诚。她评价道，“（在一个案件中）虽然我们代表 用人单位，民工有感于我们指导企业守法并尊重他们，因此愿意和企业 友好协商解决争议。” 回首二十年的从业经历，万博士说道，“一路上如临深渊、如履薄冰；知 道的愈多，愈发意识到要更加努力以保持向上的步伐。我最大的担心， 是确保自己没有被法律和行业的新发展抛在身后。” 由于中国劳动法的繁琐和粗放，这个领域并不受年轻律师的追捧。为 培养下一代劳动法律师，万博士倾注了极大的心力。她教导学生们，“求 知若渴，虚怀若愚”。对她而言，一个劳动法从业者必须葆有一颗关怀周 遭普罗大众的真挚之心，怀抱对社会有所作为的坚定信念。 万博士将今天的荣誉视作对女性同仁辛勤工作的见证和认同。她深深

Wang Ling is the China managing partner of King & Wood Mallesons, and the head of the finance practice. She specialises in banking, international finance, project finance, aircraft and equipment lease financing, acquisition finance, and real estate finance.

She has successfully assisted a number of Chinese companies and banks to raise international and domestic funds.

Like many other female lawyers, Wang plays totally different, but equally important, roles in her career and family. According to her, the female gender is not a negative factor in her role as a lawyer.

An increasing number of female lawyers have become senior managers in Chinese law firms, which reflects the fact that female lawyers are more and more trusted and respected by the society.

Also, the nature of women helps them to build better communication skills. As for the family roles of wife, daughter, and mother, Wang finds it challenging to play them well. She says that she was unable to spend much time with her family because of the nature of her job as a lawyer. She had to work extra hours quite often, and go on lots of business trips. Therefore, the love and support of her family was very important to her success.

感激团队成员李宏律师和王颖娜律师的出色工作和鼎力支持。在家庭 生活中，做个忠诚奉献的好妻子和充满关爱的好母亲，是为她的信仰。

王玲，金杜律师事务所 合伙人 王玲是金杜律师事务所中国管理合伙人和金融业务负责人。她专长于 银行、国际金融、项目融资、 飞机和设备租赁融资、并购融资以及房地 产融资等业务。她成功地帮助一些中国公司和银行提高国际和国内的 资金。 和许多其他女律师一样，王玲事业和家庭中分别扮演着截然不同的但 同等重要的角色。在她看来，女性性别不是她承担律师角色的消极因 素。中国的律师事务所有越来越多的女律师成为高级管理人员，表明女 律师得到了社会越来越多的信任和尊重。此外，女性特质有助于她们 建立更好的沟通技巧。至于如何扮演好家庭中的妻子、女儿和母亲的 角色，王玲认为是一个挑战。她说，因为律师的工作性质，她无法花很 多时间与家人在一起。她不得不经常加班和出差，因此，家人的关爱和 支持对她的成功非常重要。

**The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

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Top 15 women lawyers

ASIAN LEGAL BUSINESS november 2012

09

10

Jane Chen, Director, Sunshine Law Firm

Yan Yu, Partner, Jia Yuan Law Offices

Since founding Sunshine Law Firm in 1995, Jane Chen has unremittingly struggled for China’s legal protection of energy and the environment. Among a number of energy and environmental projects, Chen feels most proud of the legal service of the Sanmen Nuclear Power. Sunshine Law Firm’s total process of decision making enabled the client to successfully evaluate the legal risks so that the project could be conducted smoothly.

In addition to being a leading attorney in the areas of Chinese capital markets, M&A and FDI, Yan Yu is also the key founding partner of Jia Yuan Law Firm and she takes the leading role among more than 20 partners, most of them male, in the firm.

As a female director of a law firm, Chen acknowledges that she needed to have a higher mental state, broader mind, and more decisive decision making than her male colleagues in order to convince them of her wisdom and strength. She believes that wisdom can be cultivated by persistent self learning. “It is better to arm ourselves with knowledge. Carry on reading, and keep confident. More essentially, female lawyers should maintain their feminine goodness when they find themselves in choppy waters,” she counsels.

Chen’s husband and child really understand the importance of Sunshine Law Firm to her. They are in favour of her hard work. It is a united family in which they are all willing to support each other’s career and studies. She suggests that her female counterparts should not professionalise their personality, and should try to avoid confrontational thinking in the family.

陈臻，阳光时代律师事务所主任 从1995年阳光时代律师事务所成立起，陈臻坚持不懈地致力于中国的 能源和环境的法律保护。在为众多的能源和环境项目的法律服务中，陈 臻最引以为傲的是三门核电。阳光时代律师事务所对决策全程参与，使

According to Yan, women receive relatively equal treatment compared with men although they are under higher pressure and need to put much more efforts in order to achieve same results compared with male lawyers in the private practice. On the other hand, female lawyers also have certain advantages over male lawyers.

Female lawyers are more detail oriented, very responsible and have good communication skills. Yan is very proud that Jia Yuan Law Firm values the spirit of “fighting as one big team”, while elitism and individualistic heroisms are commonly reflected in most law firms. She believes in the beauty of humanity and encourages her colleagues to work closely with each other in order to shoulder the responsibility and share the benefits.

Yan admits that it is very hard to find a real balance between career and family for a woman, and you have to sacrifice one for another in a certain stage. Luckily, her husband and son fully understand and support her career, sacrificing a lot for her career.

As advice to young female lawyers, she says: “To overcome the physical and psychological constrains as a woman and to be more confident, objective, and sober; to understand and appreciate others; and having good communication skills and team work spirits are crucial for a young woman to become a successful female lawyer one day.”

客户得以成功地评估法律风险，从而该项目可以顺利进行。 陈臻承认，作为一家律师事务所的女性主任，她需要有比男性同事更高 昂的精神状态、更加开阔的思路和更果断的决策能力，才能以自己的智 慧和力量取得他们的信服。她相信，通过持续的自我学习，智慧是可以 培养的。“无非就是用知识武装自己。大量阅读，并保持信心。更根本的 是，在激流暗涌之中，女律师应该保持女性的善良，”她告诫道。 陈臻的丈夫和孩子完全理解阳光时代律师事务所对于她的重要性。他们 都支持她的辛勤工作。这是一个团结的家庭，彼此都愿意支持对方的事 业和研究。她建议女性同行不要将自己的个性带入职业行为，在家庭中 则应尽量避免对抗性思维。 **The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

Top 15 women lawyers

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11 颜羽，北京市嘉源律师事务所 合伙人

Yang Xiaolei, Partner, King & Wood Mallesons

颜羽律师不仅是证券发行、并购和外商直接投资领域的领先律师，还是

In her 27 years of legal practice, Yang Xiaolei has widely participated in the legal service of China’s capital markets, representing companies and financial institutions to accomplish the whole process of domestic and foreign IPOs. Yang’s clients come from a variety of industries. She has witnessed how famous companies have entered the capital markets, and made progress in corporate governance and management. She says: “It is my good fortune to have become one of the promoters and practitioners of China’s economic lift-off, as well as a participant in the practice of China’s financial reform.”

嘉源律师事务所最核心的创始人和主要领导者，而律师的20位合伙人大 部分为男性。 在颜律师看来，在执业律师这个压力非常的行业中，女性需要负担比男 性更大的压力，付出比男性取得同等成绩更多的努力，不过女性基本上 能得到与男性同等的重视及关注。另外，女性相比男性也具备自身的优 势：更细致、负责以及良好的沟通能力。当精英文化和个人个人英雄主 义在大部分律所盛行时，颜律师为嘉源律所秉承“以一支队伍去战斗”的 精神而骄傲。她相信人性的美好，鼓励她的同仁们彼此紧密地工作，有 福同享有责同当。 颜律师承认，对女性来说，在职业生涯和家庭管理之间寻求真正的平衡 十分困难，从某种程度上说，你不得不牺牲掉对一方的关注。幸运的是， 她的丈夫和儿子完全理解和支持她的事业，并为此做出牺牲。 她向年轻女律师提出建议：“克服女性在生理和心理上的束缚，更加自 信、客观、冷静，懂得欣赏及理解别人。良好的沟通能力和团队合作的精 神对一位年轻女性成长为成功的女律师至关重要。”

Yang believes that “everyone has a distinctive role in society and the family, and each role is a personal choice.” She has never deliberately struck a balance between her professional career and family management. Based on her experience, a female lawyer needs to create an appropriate pattern between them, and the success or failure of each role depends on her problem-solving ability and moral standards. Yang advocates that young female lawyers should be resolute, determined, and moderate. As she says to her young colleagues: “If individuals do just one thing diligently in their lifetime, they will succeed, regardless of their intelligence; not to mention that you all are extremely smart!”

杨小蕾，金杜律师事务所 合伙人 在27年的法律执业中，杨小蕾广泛介入中国的资本市场的法律业务，全 程代理企业和金融机构完成在国内和国外的上市。杨小蕾的客户来自多 种行业。她见证了著名企业如何进入资本市场，并在企业管治及管理取 得进展。她说：“成为中国经济腾飞的推动者和实践者以及中国的金融改 革实践的参与者中的一员，是我的幸运。” 杨小蕾认为，“每个人都有一个独特的社会和家庭角色，而每个角色都 是个人的选择”。她从来没有刻意地在职业生涯和家庭管理之间打造出 一个平衡。根据她的经验，一名女律师需要它们之间建立一个合理的模 式，每个角色的成败取决于她解决问题的能力和道德标准。杨小蕾主 张，年轻的女律师，应该做到坚定、果断和稳健。正如她对年轻的同事 所说的那样：“如果一个人一生中只勤奋地做一件事，她就会成功，不管 她智力如何，更何况，你们都是非常聪明的！”

**The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

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Top 15 women lawyers

ASIAN LEGAL BUSINESS november 2012

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13

Wang Li, Global Partner, DeHeng Law Offices

Doris Tang, Partner, Fangda Partners

Wang Li has earned a great reputation for her distinguished work of founding and operating DeHeng Law Offices, one of the largest full-service law firms in China. Admitted to practise law in China in 1993, Wang has represented multinational companies, foreign embassies, and non-governmental organisations. She has served as the general legal counsel for some major Chinese organisations, one of which is China Three Gorges Corporation (CTGPC).

As a distinguished lawyer of Fangda Partners, Doris Tang has rich experience in fund raising, including private equity fund raising, initial public stock offerings, as well as M&A. She has provided legal assistance to international and domestic banks, and companies. And her clients include Morgan Stanley, Alibaba, and Focus Media.

Wang actively pursued the establishment of a global law firm with a Chinese brand to be an important provider of worldwide legal services. Early in 1999, DeHeng set up a branch office in the Hague, which was the first overseas branch of the Chinese legal profession. In 2010, DeHeng again acted as a pioneer to merge with a local law firm in The Netherlands.

From Tang’s perspective, it is difficult to specifically define whether or not female and male lawyers are treated equally because the Chinese legal community is massive. However, she stresses that from her own observations, there is no big gender difference in salaries and other work-related aspects. She says that female lawyers tend to display more endurance in their work, which benefits their career in turn. As for herself, the reason for her success is persistence.

Almost half the lawyers in DeHeng Law Offices are female. Wang appreciates the independent and professional dedication of her female colleagues. She believes that, although women’s physical strength is inferior to that of males, female lawyers have some natural advantages, such as caution, perseverance, and tenacity.

Although females need to make more effort to achieve their career ambition, she encourages them to persist in pursuing their ideals.

Tang believes that being a female professional offer more options for women. She is extremely passionate about her job as a lawyer, so she enjoys the time she spends doing it. She proposes that there is no fixed way to achieve a work-life balance; the support and understanding of family is always crucial.

唐奇儿，方达律师事务所 合伙人

王丽，德恒律师事务所 全球合伙人 王丽以其创立和经营德恒律师事务所的杰出工作赢得了巨大的声誉，德 恒是中国最大的提供全方位服务的律所之一。王丽1993年获得中国律 师执业资格，代理多家跨国公司、外国驻华使馆和非政府组织。她曾为 一些主要的中国企业担任总法律顾问，其中之一是中国长江三峡工程开 发总公司 王丽积极推动建立一个全球性的中国品牌律师事务所，向全世界提供法 律服务。早在1999年，德恒在海牙设立了分所，这是中国法律界的第一 家海外分支机构。 2010年，德恒与荷兰当地一家律师事务所合并，再次 充当了先驱。 德恒律师事务所的律师几乎一半是女性。王丽对她的女同事的独立和敬 业精神表示赞赏。她认为，尽管妇女的体力不如男性，女律师有一些天 然的优势，如谨慎、毅力和韧性。她鼓励她们坚持追求自己的理想，虽 然女性需要付出更多的努力来实现自己的职业志向。

**The Chinese translation of this story was prepared by CLS Communication**

作为一位杰出的方达律师事务所的律师，唐奇儿在融资方面有丰富的经 验，包括私募股权投资基金，首次公开发行股票，以及并购。她为多家国 际和国内银行及公司提供法律帮助，客户包括摩根士丹利、阿里巴巴和 分众传媒。 在唐奇儿看来，中国的律师界是一个非常庞大的群体，很难具体界定男 性和女性是否得到平等待遇。不过她强调，从她自己的观察，在薪酬和 其他与工作有关的方面并有没有大的性别差异。她说，女律师在工作中 往往胜在耐力。至于她自己，成功的原因在于坚持不懈。 唐奇儿认为，做职业女性，意味着一个女人有更多的选择。她对自己的 律师工作富于激情，所以她很享受花费在工作上的时间。她建议不要以 刻意的方式寻求生活和工作的平衡，家庭的支持和理解始终是至关重 要的。

** 此文中文翻译由CLS Communication提供 **

Top 15 women lawyers

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15

Yao Feng, Partner, Broad & Bright

Clare Lu, Partner, Llinks Law Offices

As one of the founding members of Broad & Bright, Yao Feng is known for her excellent work in the practice of International Trade, FDI and antitrust laws of the PRC.

Clare Lu has been specialising in and focusing on taxation advisory and related regulatory services since 1997. With her remarkable accomplishment in the legal, accounting and taxation fields, she was the only local attorney who was awarded a top ranking in the field of tax law by widely-respected industry guides.

In her professional career, which spans more than 15 years, Yao has worked for both government departments and private firms, which is very helpful for her role as a legal service provider for different organisations. Her rich international educational and work experience makes her an outstanding lawyer of projects related to foreign parties. They have enabled her to handle international anti-dumping disputes and FDI issues, and successfully participate in trade treaty negotiations and the drafting of the trade law before she entered private firms. With Feng and her colleague’s efforts, Broad & Bright has become a team with a great reputation for these practices.

Under Lu’s leadership, the tax team at Llinks is composed of professionals graduating from prestigious law schools and having worked in “Big 4” accounting firms, and equipped with legal, tax and accounting knowledge, as well as considerable taxation professional services experience. Being distinct, Llinks taxation team adopts an integrated approach to solve tax-related problems with the aim of offering the solutions to optimise clients’ business models, taking into account relevant regulatory requirements, financial impacts, customs administration, foreign exchange controls, and operational needs.

As a founding partner of the firm, Feng is always dedicated to creating an equal working environment for her female colleagues.

She believes that more and more female lawyers will begin to show excellent working competence in this field.

冯瑶，世泽律师事务所 合伙人

陆易，通力律师事务所 合伙人

冯瑶是世泽律师事务所创始人之一，以其在国际贸易、外商直接投资和 中国反垄断法等实务领域的优异表现闻名于业界。

自1997年以来，陆易一直专注于税务咨询及相关法律服务。在法律、会 计及税务方面都取得了显著成就。

她的职业生涯跨越超过15年，其间在政府部门和私营律所均工作过，这 非常有利于她服务于不同的组织的角色变化。她丰富的国际教育和工作 经验使她成为涉外项目的优秀律师，并有能力处理国际反倾销争端和外 商直接投资事务，以及在进入私营律所之前成功地参与贸易条约的谈判 和贸易法的起草工作。在冯瑶及其同事的努力下，世泽律师事务所在这 些领域成为了一个享有巨大声誉的团队。

在陆易的领导下，通力律师事务所的税务团队由来自毕业于著名大学法 学院并在“四大”会计师事务所工作过的专业人员，不仅拥有法律、税务 和会计知识，还有可观的税务专业服务经验。不同凡响的是，通力的税 务团队采用一种综合的方法来解决与税务有关的问题，目的是提供解决 方案以优化客户的业务模式，将相关的监管要求、金融的影响、海关和 外汇管制及运营需求都纳入考虑。

作为公司的创始合伙人，冯女士一直致力于为她的女同事创造一个平等 的工作环境，。她相信越来越多的女性律师将这一领域表现出优异的工 作能力。

Lu is a great adviser for foreign-invested enterprises and PRClisted companies on a retainer basis with respect to tax, regulatory, foreign exchange control, customs administration, and business operation issues. She assists foreign investors in company structure study, business models planning, projects negotiation, documents drafting, and reviewing in foreign direct investments.

陆易是一个杰出的顾问，为外商投资企业和中国上市公司提供常年税 务、法律、外汇管制、海关管理及公司运作等方面咨询服务，协助外国投 资者进行公司结构的研究、商业模式规划、项目谈判，文件起草和审查 的外国直接投资。

**The Chinese translation of this story was prepared by CLS Communication**

** 此文中文翻译由CLS Communication提供 **

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HONG KONG LAW AWARDS 2012

ASIAN LEGAL BUSINESS NOVEMBER 2012

WINNERS ANNOUNCED Award

Winner

Award

Winner

Award

Winner

Synmax Translation Award Wealth Management Law Firm of the Year

Withers

Withers Award PRC Firm, Hong Kong Office of the Year

Jun He

Alibaba Group - Tim Steinert

Dispute Resolution Law Firm of the Year

Herbert Smith

Korea Deal Firm of the Year

Kim & Chang

The Macallan Fine Oak Single Malt Scotch Whisky Award Hong Kong In-House Lawyer of the Year

Insolvency & Restructuring Law Firm of the Year

Mayer Brown JSM

Korea Deal of the Year

IPP Wealth Advisers Ltd Award Hong Kong Dealmaker of the Year

Freshfields Bruckhaus Deringer Robert Ashworth

BDO Limited Award Matrimonial Law Firm of the Year

Withers

Lone Start Funds-KEB Holdings Sale of Stake in Korea Exchange Bank to Hana Financial Group

Debt Market Deal of the Year

The PRC Government (Ministry of Finance) Bonds Issuance

Managing Partner of the Year

King & Wood Mallesons - Stuart Fuller

Insurance Law Firm of the Year

Clyde & Co

HKT Trust Spin-off on the Hong Kong Stock Exchange

Bird & Bird

Investment Funds Law Firm of the Year

Clifford Chance

Synmax Translation Award M&A Deal of the Year

AIG Strategic Sell-down of Its Shareholding in AIA

The Macallan Highland Single Malt Scotch Whisky Award Hong Kong Law Firm of the Year

Linklaters

Intellectual Property Law Firm of the Year

China Legal Career Award Equity Market Deal of the Year

IT/Telecoms Law Firm of the Year

Baker & McKenzie

Pinsent Masons Award Construction In-House Team of the Year

Leighton; MTR Corporation

Real Estate Law Firm of the Year

Mayer Brown JSM

Citigroup Global Markets

Shipping Law Firm of the Year

Holman Fenwick Willan

Samsonite Award Banking & Financial Services In-House Team of the Year

Mayer Brown JSM; Pinsent Masons

Insurance In-House Team of the Year

AIA

Construction Law Firm of the Year

Charltons

Lewis Sanders Award Investment Bank In-House Team of the Year

Morgan Stanley

Boutique/Specialist Law Firm of the Year Criminal Law Firm of the Year

Haldanes

Paul, Weiss Award IT/ Telecoms In-House Team of the Year

Alibaba Group

AzureTax Award Tax Law Firm of the Year

Baker & McKenzie

PCCW/HKT

Employment Law Firm of the Year

Mayer Brown JSM

Paul, Weiss Award Media & Entertainment In-House Team of the Year

COSCO Pacific

Offshore Law Firm of the Year

Maples and Calder

Holman Fenwick Willan Award Shipping In-House Team of the Year

Clifford Chance

Real Estate In-House Team of the Year

Hongkong Land

Corporate Citizen/CSR Law Firm of the Year

Lee and Li

Hong Kong Corporate Counsel Association Award Innovative InHouse Team of the Year

Morgan Stanley

Taiwan Deal Firm of the Year

I

t was a jubilant night for Linklaters and Mayer Brown JSM at The Macallan ALB Hong Kong Law Awards 2012 which drew a number of high-profile legal luminaries, including the Guest of Honour, Gordon Jones, HKSI Honorary Fellow, the former Registrar of Companies. Linklaters took home the coveted The Macallan Highland Single Malt Scotch Whisky Award Hong Kong Law Firm of the Year award, while Mayer Brown JSM won a slew of trophies that saluted four of its market-leading practices.

For this year’s awards nominations process, we were pleased to introduce a new set of criteria that offered clarity, transparency and efficiency for the judges. There was a value threshold for deals, team size minimums, new categories and other criteria that would ensure the best firms and deals alone made the shortlist.

In addition to bagging the top prize of

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the night, Linklaters was recognised for its work on three winning deals: the Korea Deal of the Year (Lonestar Funds-KEB Holdings Sale of Stake in Korea Exchange Bank to Hana Financial Group), the Debt Market Deal of the Year (the PRC Government [Ministry of Finance] Bonds Issuance) and the Synmax Translation Award M&A Deal of the Year (AIG’s Strategic Sell-down of Its Shareholding in AIA). Linklaters Hong Kong partner, Teresa Ma, said: “We are absolutely delighted to be named The Macallan Highland Single Malt Scotch Whisky Award ALB Hong Kong Law Firm of the Year. It is such an honour to have the work of our team recognised by clients and fellow professionals. This will spur us to be even better - more astute, more efficient and always with an eye on contributing value to our clients’ strategic priorities.”

Mayer Brown JSM was awarded for its insolvency and restructuring, real estate, construction, and employment practices.

“We are delighted to have received the awards from ALB,” said Elaine Lo, senior partner and Asia chair of Mayer Brown JSM. “They are indeed testaments to the skills and the outstanding quality of legal services our lawyers have provided to our clients. We remain committed to developing our capabilities, and to continue delivering excellence going forward.”

The event also singled out Hong Kong’s leading individual talents. On the in-house side, Tim Steinert of the Alibaba Group was named The Macallan Fine Oak Single Malt Scotch Whisky Award Hong Kong In-House Lawyer of the Year.

HONG KONG LAW AWARDS 2012

Stuart Fuller, the global managing partner of King & Wood Mallesons, scored a big win by taking home the Managing Partner of the Year prize. “I’m delighted to have received the award for MP of the Year in Hong Kong. King & Wood Mallesons is in a unique market position in Hong Kong following the full merger of our two firms. I’d like to acknowledge that leading our Hong Kong firm is the product of teamwork,” he told ALB. “This includes the terrific contributions made by David Bateson and Simon Yung to lead the practice, the partners for their focus on the client and market opportunities, and all of our people in responding so well to the big changes that we have made to the firm since March 1.”

IPP Wealth Advisers Ltd Award The Hong Kong Dealmaker of the Year award went to Robert Ashworth of Freshfields Bruckhaus Deringer, who won the Managing Partner of the Year last year. He was delighted to be acknowledged by the legal community, and said: “ALB Law Awards is a great platform to showcase and recognise outstanding practitioners and firms, as well as exciting developments in the Asia legal market. In a year that has seen plenty of activity, particularly in cross border M&A and private equity across Asia, I am very honoured to be named the Dealmaker of the Year for 2012,” he said.

In a first for any offshore law firm in the history of ALB, Maples and Calder managed a multijurisdictional sweep for its wins of the Offshore Law Firm of the Year in 2012 at all of ALB’s awards, namely China, Japan, Singapore and Hong Kong.

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HONG KONG LAW AWARDS 2012 E V ENT PARTNER

ASIAN LEGAL BUSINESS NOVEMBER 2012

AWARD SP ONSORS AZURETAX LTD AzureTax is exclusively dedicated to high-level global tax planning and wealth protection and spearheads a transparent, strategic and ethical approach to tax advice. Answering the increasing need for tax planning to be a discipline in its own right, AzureTax provides independent, innovative and rigorous solutions which deliver both results and long term accountability. Our professionals bring clarity to the often complex and ever changing world of tax.

We are committed to each client and their individual needs. This gives AzureTax its distinct edge.

Contact details Tel: +852 2123 9370 Fax: +852 2122 9209 Website: www.azuretax.com

THE MACALLAN The Macallan is one of the world’s most awarded and admired Single Malts.

This peerless reputation has been built by the commitment of The Masters of Spirit and Wood, those craftsmen at the heart of The Macallan for almost two centuries. Their obsessive pursuit of perfection has ensured the consistent quality that has characterized The Macallan since it was legally licensed in 1824.

The Macallan Fine Oak The Macallan Fine Oak is Triple Cask Matured in a unique, complex combination of Exceptional Oak Casks; Spanish oak seasoned with sherry, American oak seasoned with sherry, and American oak seasoned with bourbon. This Triple Cask combination delivers an extraordinarily smooth, delicate yet complex Single Malt.

American oak casks, which have previously held bourbon or sherry, impart a subtle, delicate colour with hints of apple, floral, vanilla and sweet citrus aromas and flavours. European oak casks, which have previously held sherry, impart a deep, rich colour with aromas and flavours of dried fruit, spice and chocolate orange.

The Macallan Sherry Oak Over many years, The Macallan became synonymous with a sherry oak style. Its character is driven by oak sherry casks from Spain. The long journey from acorn to glass begins in the forests of northern Spain. In these ancient forests grow the mighty European oaks that will become the predominant casks to mature The Macallan Sherry Oak. From this rich timber are the casks hand fashioned in Cadiz, Spain, where traditional toasting changes the chemistry of the wood and adds yet another vital ingredient to the maturing process.

The casks will then be filled with aged sherries and left to season for up to two years in Jerez, before they are deemed ready to begin the 2,000 mile journey to The Macallan distillery in Speyside in Scotland. Here they will receive The Macallan ‘new make’ spirit that will slowly mature into the satisfying complex Single Malt.

Website: www.themacallan.com

SUPP ORTING ORG ANISATIONS

BDO LIMITED BDO Limited is the Hong Kong member firm of BDO International Limited, a global accountancy network with over 1,100 offices in more than 130 countries and over 48,000 people providing advisory services throughout the world.

BDO Limited is served by 50 directors and a staff of over 1,000. Since our establishment in 1981, we have committed ourselves to facilitating the growth of businesses by advising the people behind them. Our professional services include assurance, taxation, business recovery, forensic accounting, litigation support, matrimonial advisory, risk advisory and business services. We possess comprehensive knowledge of accounting standards, tax and investment regulations prevailing in Hong Kong, China and other major countries, and conduct ourselves with the highest professional standards.

Contact details Tel: +852 2218 8288 Fax: +852 2815 2239 E-mail: info@bdo.com.hk Website: www.bdo.com.hk CHINA LEGAL CAREER CLC is a leading legal executive search firm with offices in Beijing, Shanghai and Hong Kong to cover the whole Greater China legal market. We work with top US and UK law firms for their partner and associate placements, and with multinational corporations for their senior legal talent placements. We differentiate ourselves by our depth and width of our local connection, specialization in legal search and focusing on the high echelon of the market. Our recruiting consultants all come from international and legal background who adhere to the highest ethical standards and conduct searches in strict compliance with professional codes.

Contact details Beijing: +86 10 6510 2236 Shanghai: +86 21 6360 7270 Hong Kong: +852 2545 5907 Email: clc@chinalegalcareer.com Website: www.chinalegalcareer.com

HOLMAN FENWICK WILLAN Holman Fenwick Willan is an international law firm advising businesses engaged in all aspects of international commerce.

With offices in Asia-Pacific, the Middle East, Europe and South America, the firm has a built a reputation worldwide for excellence and innovation and has focused the development of its capabilities in the following core sectors: Aviation; Construction, Engineering & Infrastructure; Commodities; Energy; Financial Institutions; Insurance & Reinsurance; Logistics; Mining; Ports & Terminals; Real Estate: Shipping; Space; Superyachts and Travel, Cruse and Leisure. We have over 125 years experience of working with other law firms in jurisdictions throughout the world. Established in 1978, our Hong Kong office has been serving international and domestic clients in China and the Asia region for 34 years.

Contact details Paul Hatzer, Partner Tel: +852 3983 7788 Email: paul.hatzer@hfw.com

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HONG KONG LAW AWARDS 2012

IPP WEALTH ADVISERS LTD Founded in 1983, IPP originates from Singapore where it is the oldest and most established financial advisory, with client Assets Under Advice of around $2 Billion, making us one of the largest in Asia.

SAMSONITE ASIA LIMITED Samsonite, created in 1910 by entrepreneurial Colorado native Jesse Shwayder, is the world’s leading luggage brand. Inspiring travel world-wide, Samsonite helps global travellers to cover miles and create memories with revolutionary travel solutions. Preserving the brands longstanding history of breakthroughs in research and development, Samsonite has embedded its place at the forefront of the travel world with a number of industry firsts. Samsonite maintains a worldwide vision that continues to enable the traveller to travel further, with always lighter, stronger and innovative products at his side.

Already with an office in Kowloon, this year IPP has expanded with a new office in Central, offering dedicated expat and international financial advice. With a subsidiary registered with PIBA and another approved by the SFC (Type 1 and Type 4), IPP is uniquely placed to offer our clients a full range of services.

Contact details Tel: +852 3713 7188 Email: expat@ippfa.com.hk Website: www.ippfa.com/eag or www.ippfa.com.hk Contact person: Ian Pryor

LEWIS SANDERS LEGAL RECRUITMENT Lewis Sanders is a specialist legal recruitment consultancy offering a full range of recruitment solutions. Using our extensive market knowledge, and expertise we place lawyers at all levels with international law firms, global financial institutions and multi-national companies across Asia. We provide detailed market-specific knowledge and up to date information on job opportunities, salaries and market trends. Lewis Sanders has built its reputation on its core values of integrity, trust and professionalism. This approach has enabled us to establish and maintain long standing relationships with candidates and clients and has positioned us as one of Hong Kong’s leading legal recruiters.

Contact details Lindsey Sanders, Managing Director +852 2537 7409 lsanders@lewissanders.com Emily Lewis, Managing Director +852 2537 7408 elewis@lewissanders.com Tel: +852 2537 7410 Fax: +852 2537 7412 Email: recruit@lewissanders.com

PAUL, WEISS Paul, Weiss is an international law firm with one of the world’s leading Communications and Technology practices. In Asia, our team consistently wins Asia’s top “IT/Telecommunications Law Firm of the Year” awards in recognition of our M&A, private equity and regulatory efforts in the telecommunications and IT sectors. The firm represents a wide variety of providers and users of communication goods and services, as well as other entities with interests in communications and technology businesses and regulatory decision making.

Contact details Jeanette K. Chan, Partner Tel: +852 2846 0300 Email: jchan@paulweiss.com

PINSENT MASONS Pinsent Masons is a full service global law firm with over 1500 lawyers worldwide. It provides a full range of legal services to major international corporations, institutions and public bodies. The firm specialises in providing legal advice to the Infrastructure, Energy & Natural Resources, Advanced Manufacturing & Technology Services, and Financial Services Sectors.

Pinsent Masons has been active in Asia for 30 years and has offices in Hong Kong, Shanghai, Beijing, Singapore, Doha, Dubai, Munich and throughout the UK. Contact details Tel: +852 2521 5621 Vincent Connor, Head of Hong Kong Office: vincent.connor@pinsentmasons.com Brian Scott, Business Development Executive: brian.scott@pinsentmasons.com

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Contact details Customer hotline: +852 3753 6711

SYNMAX TRANSLATION Founded in 2007, Synmax Translation has since been fully committed to providing high-quality legal translation services to international and domestic law firms, investment banks, PE/VC funds and MNCs. Most of our translation professionals have legal education in U.S./U.K. as well as in China and boast years of working experience in translating legal documents in the area of capital markets, PE/VC investments and cross-border M&A transactions. Synmax Translation seeks to be your reliable business partner and most preferred go-to service provider in addressing your needs for legal translation.

Contact details Kevin Lu, Director Toll: 400 888 1072 Direct: +86 21 3823 0421 Mobile: +86 134 8204 1399 Email: kevinlu@synmaxtrans.com Website: www.synmaxtrans.com

THOMSON REUTERS Thomson Reuters is the world’s leading source of intelligent information for businesses and professionals. We combine industry expertise with innovative technology to deliver critical information to leading decision makers in the legal, tax and accounting, financial, science and media markets powered by the world’s most trusted news organization. Thomson Reuters employs more than 55,000 people in over 100 countries worldwide.

SWEET & MAXWELL Sweet & Maxwell, a proud part of Thomson Reuters, has more than 200 years of heritage in legal publishing and content development. Sweet & Maxwell delivers detailed and specialist knowledge, understanding and commentary across a wide range of essential subjects reflecting the very latest issues in Hong Kong law and business in traditional an innovative formats. From trusted print works such as the Hong Kong White Book and Archbold Hong Kong to the leading, online legal research tool, Westlaw HK, we are committed to developing comprehensive and substantive local content for lawyers and related professionals in Hong Kong.

Contact details Eric Vogt, Senior Regional Marketing Manager Tel: +852 3762 3200 Email: eric.vogt@thomsonreuters.com

WITHERS Withers is the world’s only international law firm dedicated to providing fully integrated local and cross-border advice in relation to the business and personal interests of successful people. With 107 partners and over 270 other lawyers, we have unparalleled expertise in tax law, trusts, estate planning, family law and other legal issues facing individuals and their families. Withers now has a top ranking for Private Client/Wealth Management in Chambers Asia and won the Asian Legal Business Matrimonial Law Firm of the Year award in 2011. Today, the firm has ten offices in Asia, US and Europe.

Contact details Marcus Dearle Tel: +852 3711 1600 Email: Marcus.dearle@withersworldwide.com

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REUTERS

international tax

US panel urges tougher scrutiny of China investment

2012 South African Tax Statistics: Less is more The South African Revenue Service (SARS) recently released the 2012 Tax Statistics bulletin. The bulletin provides an overview of South African tax revenue collections and tax return information for the 2008 to 2012 fiscal years. The report contains some impressive figures.

By Doug Palmer

AzureTax Ltd

The U.S. Congress should consider tougher screening laws for investments made by China’s huge state-owned enterprises (SOEs) because of the threat they pose to U.S. companies, an advisory committee said in its annual report, released this month.

The U.S.-China Economic and Security Review Commission, which typically takes a tough view of relations with China, said Beijing lavishes special favors on its state-owned companies that could give them an unfair advantage even if they build facilities in the United States.

“Once invested in the United States, Chinese SOEs may continue to benefit from Chinese government subsidies that would allow the Chinese to sell their products at less than the cost of production.

Once their U.S. competitors are driven out of business, Chinese SOEs might dominate the market and even raise prices,” the panel said in its annual report.

The commission’s 32 recommendations also called on Congress to carry out an in-depth assessment of Chinese cyber-spying and to weigh tougher penalties on companies found to cash in on industrial espionage. A separate study released earlier this month by the commission forecast Chinese investment to rise rapidly in coming years.

The study noted private economists put Chinese direct investment in the United States at $30 billion through the end of 2011, compared to official government estimates of just $5.8 billion through 2010.

In its report earlier in November, the U.S.-China commission urged Congress to require mandatory screenings of all investments by Chinese state-owned or state-controlled companies where they would gain an controlling interest in a U.S. operation.

The Committee on Foreign Investment in the United States, made up of executive branch agencies, should also be required to consider the net economic impact of a foreign investment on the United States in addition to its current focus on any potential threat to national security, the commission said.

The U.S.-China panel also recommended the U.S. Securities and Exchange Commission be directed to look more closely at stateowned and -affiliated companies seeking to be listed on U.S. stock exchanges “to assure U.S. investors have sufficient information to make investment decisions.”

The report follows Fortune magazine’s latest list of the world’s 500 biggest companies, which showed the United States still in the lead with 132, down one from 2011. China passed Japan to move into second place on Fortune’s list. It now has 73 of the world’s biggest firms, up from 61 in 2011 and just 16 in 2005.

Many of the big Chinese firms are owned or controlled by the state, the U.S.-China commission said. They generally receive more favorable treatment in China than foreign firms, and because of those favors and subsidies have become formidable competitors in both the United States and other markets around the world, the panel said.

Congress should require the U.S. Commerce Department to annually track Chinese investment in the United States, with a particular focus on state-owned enterprises, the panel said.

According to the report over the last 18 years SARS has made tremendous progress in raising the levels of tax compliance and in broadening the tax base. The number of registered individual taxpayers increased from 1.7 million in 1994 to more than 6 million in 2009/10. This number increased to 13.7 million individuals by 31 March 2012 due to a policy change that registered all individuals in the country who are formally employed.

Revenue growth in the country has increased progressively over successive fiscal years from R113.8 billion in 1994/95 to R742.65 billion 2011/12. This represents total growth of almost 550% since 1994, at an average rate of 11.6% per year.

According to a Business Day report SARS believes that the statistics showed the effects of the country’s progressive tax system, which ensured that lowerincome earners paid less tax than high earners.

In 2011, the top 9.7% of assessed taxpayers were liable for 57% of personal income tax, whereas 42.4% of assessed taxpayers earning less than R120 000 only contributed 3.3% of the assessed tax. 221 corporate taxpayers with taxable income in excess of R200 million were liable for 50% of the company tax assessed in South Africa. However, only a third of assessed companies declared taxable income, the rest reported losses or zero taxable income.

Suite 1010 10/F 89 Queensway Lippo Centre Hong Kong

金鐘道89號力寶中心2座10樓1010室

In contrast to these impressive figures the latest International Finance Corporation (IFC)-World Bank ‘Doing Business’ report, saw South Africa fall to 39th place out of 185 economies. The report is now in its 10th edition and measures business regulations especially for SME’s across 185 economies. One of the main findings of the report was that, unsurprisingly “Smarter business regulation supports economic growth. Simpler business registration promotes greater entrepreneurship and productivity, while lower-cost registration improves formal employment opportunities. An effective regulatory environment boosts trade performance.”

South Africa’s 39th position is a decline compared to the 2011 position. The overall ranking is a composition of various subcategories and includes: starting a business (53th), dealing with construction permits (39th), getting electricity (150th), registering property (79th), getting credit (110th), protecting investors (10th), paying taxes (32th), trading across borders (115th), enforcing contracts (82th) and resolving insolvency (84th).

It is characteristic of high income countries to have simple and inexpensive regulatory processes combined with strong legal institutions.

Tower Two

From these statistics it is evident that the South African economy is horribly skewed. A small number of people pay most of the taxes. It is these same people that are the industrious part of the population yet they are also subject to complex and expensive regulations.

The figure that is most interesting is that South Africa only boast 2,263 persons who earn more than R5m a year. This represents less than 0.005 percent of the population.

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TH ANNIVERSARY 12-12-12 Debbie Annells, CTA (Fellow) Managing Director A: AzureTax Ltd – Suite 1010, 10/F Lippo Centre, Tower Two, 89 Queensway, Hong Kong T: +852 2123 9339 (direct line), +852 2123 9370 (main line) F: +852 2122 9209 W: www.azuretax.com, a member of AzureTax Group

Supervised by the UK Chartered Institute of Taxation for purposes of anti money laundering legislation.

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新交所拟修改IPO公开募股机制

涉及外商投资企业股权出资相关规定简介

SINGAPORE

SHANGHAI

现今，越来越多的外国投资者来华投资，中国的投资 环境亦日趋完善。商务部今年颁布《商务部关于涉及外 商投资企业股权出资的暂行规定》（以下称规定）并于 2012年10月22日正式实施，旨在鼓励外商来华投资，同 时进一步规范涉及外商投资企业股权出资的行为。本文 将该规定的重点、要点做扼要介绍，希望对广大投资企 业有所裨益。

1. 对涉及外商投资企业股权出资的几点限制

1.1 根据规定，涉及外商投资企业的股权出资是指， 境内外投资者以其持有的中国境内企业的股权作为出 资，以新设公司、增资形式设立及变更外商投资企业 的行为。因此，以股权出资设立或变更外商投资企业仅 限于投资者所持有的中国境内企业的股权，对境外的股 权则不适用；

现上市手册对主板市场的股权分布进行了具体 规定，对于市值低于三亿新币的上市公司，要求其至 少25% 的股权在市场上流通，且股东不得少于500 名；若市值越高，则流通的股权比例相应减少。该 规定确保公开上市公司之股份在市场有一定的流通 性，但是该规定的股东包括公众股东及私募股东， 并未对是否含有公众股东作出具体要求。 新交所认为维持一定数量的公众股东在IPO股权 分布中具有重要的作用。一定比例的公众股东及其 持股数，有利于提高公众对资本市场的参与，培养资 本市场投资者的多样化，提升公众投资者的积极性， 并加强二级市场的流动性。鉴于此，新交所于2012 年10月1日发布公众咨询(consultation paper)， 拟修改IPO (首次 公开发行上市)公众募股机制。 在该公众咨询中，新交所拟议引入下列公开募股机制：

(i) (ii) (iii) (iv)

(v)

(vi)

所有在新交所主板上市的公司，至少须将其全部发行 股份的5%由公众股东来认购； 若公众股东超额认购15至50倍，则分配给公众股东的 最低认购份额应提高至全部发行股份的10%； 若公众股东超额认购50倍以上的，则分配给公众股东 的最低认购份额应提高至全部发行股份的20%； 为达到上述公众股东认购的最低股份比例，股份可通 过回拨机制(claw-back mechanism)，可将私募股份 (placement tranche)转为公开募股股份(public subscription tranche)； 若分配的公众认购股份未能被全部认购，则该些股份 可通过反向回拨机制(reverse claw-back mechanism) 转为私募股份，不过须符合上市手册关于 股权分布的规定； 若上市公司授予承销商超额配股权(over-allotment option)，承销商可自行决定该超额配股权在私募股份和 公开募股股份的比例分配。

吳艷娟, 企業事務部资深法律顧問 T: +65 6322 2232 F: +65 6534 0833 E: wuyanjuan@loopartners.com.sg

2.1 根据规定，审批机关为中华人民共和国商务部或地方商务主 管部门； 2.2 在提交审批前，用作出资的股权应当经依法设立的境内 评估机构评估。但同时，股权出资人与被投资企业的股 东或其他投资者可在股权评估的基础上协商确定股权作 价、出资金额；

2.3 向审批机关提出申请，并提交相关文件，包括：股权出资 申请及股权出资协议；股权合法证明；股权所在企业的《 企业法人营业执照》; 股权企业为外商投资企业的,应提 交《外商投资企业批准证书》及复印件,通过外商投资企 业联合年检的相关证明; 评估机构的股权评估报告; 律师事 务所及其委派的律师就出资股权的合法性等内容出具的法 律意见书; 审批机关要求提交的其他文件。

外国投资者以境内企业的股权作为对价换取其他投资者持有的境内 企业股权,除了参照本规定关于股权出资条件、股权评估等有关规定,还 应当遵守《外商投资企业投资者股权变更的若干规定》《关于外国投 资者并购境内企业的规定》等规定。 陶丽, 主任合伙人 T: +86 21 6211 2390, +86 21 6211 2357 F: +86 21 6211 2387 E: li.tao@victorylegalgroup.com

陈姝, 企業事務部资深法律顧問 T: +65 6322 2230 F: +65 6534 0833 E: chenshu@loopartners.com.sg A: 俊昭法律事務所 16 Gemmill Lane, Singapore 069254 W: www.loopartners.com.sg

1.2 股权出资后，被投资企业和股权企业及其直接或持股企 业应符合《外商投资方向规定》、 《外商投资产业指导目 录》以及其他外商投资相关规定；不符合规定的，应在申 报股权出资前剥离相关资产、业务或转让股权。同时，被 投资企业总体的股权出资金额和其他非货币财产作价出 资金额之和不得高于其注册资本的70%；

1.3 用作出资的股权应当权属清晰、权能完整且依法可以转 让。根据规定，股权不得出资的情形包括：股权所在企业 的注册资本未缴足的；股权被质押的；股权被依法冻结 的；公司章程明确约定不得转让的；未按规定参加或通 过上一年度外商投资企业联合年检的外商投资企业的股 权；房地产企业、外商投资性公司、外商投资创业（股 权）投资企业的股权；法律、行政法规或者国务院决定规 定不得转让的其他情形。

2. 审批部门及审批流程

新交所在其公众咨询中对上述拟议的认购股份比例进行了说明， 新交所对2007年至2011年间在新交所主板挂牌上市公司的IPO认 购情况进行了调查分析，并发现在这四年间，约76%的主板上市公 司，其公众认购比例低于5%，而仅有一例其公众认购股份超过20% ，公众认购股份的比例平均为4.5%。 在这期间，约有98%的主板 IPO均被超额认购，且约有73%的IPO其超额认购比例超过10%。 新交所将根据公众对该拟议机制的反馈情况，进行必要修改或 改进，届时将对上市手册内容进行相应修改，以将其正式施行。关 于该公众咨询的具体内容，可登陆新交所网站(www.sgx.com)进行 了解。

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蒋黎, 律师 T: +86 21 6211 2390 F: +86 21 6211 2387 E: jenny.jiang@victorylegalgroup.com

A: VICTORY LEGAL GROUP 双胜律师事务所 Unit J, 14 Floor, Huamin Empire Plaza, No. 726, Yan An West Road, Shanghai, 200050 PRC W: www.victorylegalgroup.com

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Country / Regional editors

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

China

Malaysia

Paul, Weiss, Rifkind, Wharton & Garrison LLP is a globally oriented, full-service law firm employing over 700 lawyers worldwide. Paul, Weiss is headquartered in New York and has offices in Tokyo, Washington, D.C., Wilmington, Beijing, Hong Kong, Toronto and London.

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.

The Philippines

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Established in 1945, SyCipLaw is the largest law firm in the Philippines, with its principal office in Makati City, the country’s financial and business center, and branches in Cebu, Davao and Subic Bay. SyCipLaw combines its tradition of professional integrity and excellence with a time-tested ability to break new ground. The broad range of the firm’s expertise is reflected in its client base, which includes top corporations, international organizations and governments.

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.

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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.

Victory Legal is a boutique legal practice in Shanghai, focusing on general corporate, corporate finance and capital markets matters. Its clients include governmental authorities, State-linked enterprises, banking and financial institutions, MNCs, SMEs and foreign law firms. The firm has extensive network across the region. It serves clients’ domestic and regional needs.

fUJIAN Sphere Logic Partners is a mid-sized business law firm known for its offering of value, sophisticated legal solutions in a leaner approach across a range of practice areas, critical to the success of clients. We maintain an established global network with numerous law firms and relevant service providers. Our seasoned and cultureready professionals assist clients in cross-border investment, M&A and financing, governance and daily operations, identification of business opportunities and solving of complex legal disputes.

PRACTICE AREA AND INDUSTRY EDITORS

tHE iNDUSTRY uPDATES section of ALB is sponsored by the following firms:

Emerging Markets Kelvin Chia Partnership is a commercial law firm headquartered in Singapore with strong regional capabilities. With offices in Hanoi, Ho Chi Minh City, Yangon, Bangkok and Phnom Penh, and extensive experience all throughout Asia, we provide localized legal solutions consistent with international standards in emerging markets in Asia.

Intellectual property / Energy & Resources / Employment 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.

International tax 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, U.S., Hong Kong and PRC tax advisors and complete tax filings for UK, U.S. and Hong Kong tax returns.

Alliances

ALB enjoys alliances with the following organisations:

ACCJ

CCCJ

Established in 1948 by representatives of 40 American firms, the ACCJ, a fully independent chamber of commerce, has grown into one of the most influential business organizations in Japan, with more than 2,700 members representing more than forty countries and 1,000 companies.

Promoting the development of commerce between Canada and Japan since 1975, the Canadian Chamber of Commerce in Japan (CCCJ) is a private sector, not-for-profit business organization serving its members through communications, networking and advocacy. Representing some 33 business sectors, the CCCJ is a member-driven, member-focused organization and is the longest serving Canadian Chamber in Asia with over 300 members.

JICN

HKCCA

The Japan In-house Counsel Network (JICN) is a professional association for in-house counsel working in, or having other affiliations with, Japan. JICN offers a forum for communication between members, social and networking opportunities, legal seminars, roundtable member discussions and other activities, as well as events with other lawyer and in-house groups. Visit www.jicn.jp for more details.

The Hong Kong Corporate Counsel Association is the pioneer association run for in-house counsel by in-house counsel in Hong Kong. It provides an efficient and effective range of benefits and services for its members’ professional development, including continuing legal education, a platform for networking and the exchange of ideas, information and experiences that are unique to the in-house role.

ssca The Singapore Corporate Counsel Association or SCCA was set up in 2002. It is the pioneer association representing in-house lawyers in Singapore. http://www.scca.org.sg

Corporate SCCA Singapore Counsel Association

IPBA 2012 New Delhi - India

INDEX

55

R&P China Lawyers Reed Smith Richard A. Shaw Professional Group Ryan Lawyers Shearman & Sterling Silkroad Law Firm Skadden, Arps, Slate, Meagher & Flom SNR Denton Soltan & Partners Squire Sanders Stikeman Elliot Sullivan & Cromwell Sunshine Law Firm Tahota Law Firm Tian Yuan TransAsia Lawyers V&T Law Firm Vinson & Elkins Weil Gotshal & Manges White & Case Yongheng Partners Zhonghao Law Firm Zhong Lun Law Firm

30-36 56 8 56 8 22-29 8 7 22-29 56 8 8 44 22-29 7 42 41 7 14-20 10 9 22-29 8, 39

WWW.LEGALBUSINESSONLINE.COM : @ALB_Magazine : Connect with Asian Legal Business

OUR FIRM AND ITS PRACTICE AREAS

Principal contact:

Loo & Partners was founded in 1985 as a niche practice, handling mainly banking, corporate, securities and commercial work. Within these broad categories, the firm provides the entire spectrum of legal advice and services.

Loo Choon Chiaw ccloo@loopartners.com.sg 65 6322 2288

Whilst the firm does not maintain any office outside Singapore, it has, over the years, developed good relationships with leading law firms located in the major financial and trading centres.

The support of a comprehensive network of correspondent law firms throughout the Asean countries, Hong Kong, China (PRC) and Taiwan (ROC) puts the firm in a strategic and unique position to serve its clients in their regional needs.

A-H Allens 10 Allen & Overy 7, 8, 30-36 AnJie 10 Baker & McKenzie 8, 10, 30-36 Bedell Cristin 56 Blake Caseels & Graydon 8 Broad & Bright 47 Burnet Duckworth & Palmer 7 Chen & Co 7 Cleary Gottlieb Steen & Hamilton 8 Clifford Chance 7, 10 Davis Polk & Broadwell 8 De Brauw Blackstone Westbroek 7, 56 Deheng Law Firm 46 DLA Piper 7, 30-36 Fangda Partners 8, 46 Freshfields Bruckhaus Deringer 7, 8, 10, 14-20, 48-49, 56 Gibson, Dunn & Crutcher 4-6 Grandall Law Firm 7 Grandway Law Offices 22-29 GRT Lawyers 7 Herbert Smith Freehills 7

Hogan Lovells

4-6, 30-36

I-P Jia Yuan Law Offices Jincheng Tongda & Neal Joinway Law Firm Jones Day Jun He Law Offices King & Wood Mallesons

44 41 13 8, 10 40

4-6, 7, 8, 17, 30-36, 42-45, 48-49 Latham & Watkins 7 Linklaters 8, 48-49 Liu, Shen & Associates 40 Llinks Law Offices 47 Luthra & Luthra 4-6 Maples and Calder 48-49, 56 Mayer Brown JSM 8, 48-49 Morrison & Foerster 7, 56 Norton Rose 7 O’Melveny & Myers 8 Osler Hoskin & Harcourt 8 Paul Hastings 7 Paul, Weiss, Rifkind, Wharton & Garrison 8

Advocates & Solicitors Commissioners for Oaths & Notaries Public Agents for Trade Marks 16 Gemmill Lane Singapore 069254 Tel: 65.6534 3288 Fax:65.6534 0833 mail@loopartners.com.sg

Q-Z

SUNDRIES

56

ASIAN LEGAL BUSINESS november 2012 Compiled by RANAJIT DAM

LAW STUDENT SPARKS MORAL PANIC WITH

SEX BLOG Think law students spend all their time studying law? Not National University of Singapore (NUS) student Alvin Tan who, with his girlfriend Vivian Lee, hit the headlines last month for their "Sumptuous Erotica" blog, which featured photos and videos recording their intimate moments. After becoming a major talking point in Singapore, and in the couple’s native Malaysia, Tan apologised to NUS. But they were initially unrepentant. "What do we have to apologize for?” asked Tan in an earlier YouTube clip. “Hurting your soft, sensitive feelings?" We don’t know if the couple violated obscenity laws or merely ruffled the feathers of the moral police, but it certainly beats pictures of them hitting their books and cramming for exams.

SINGAPORE SUMMER Law firms that have announced office openings and reopenings in Singapore in the past six months MONTH

LAW FIRM

October

Morrison & Foerster

October

Reed Smith

September

Freshfields

September

Maples and Calder

August

Ryan Lawyers

July

Bedell Cristin

May

De Brauw Blackstone Westbroek

April

Squire Sanders

BATA, TATA SUE OVER BOLLYWOOD SONG Some of India’s most powerful corporate names recently kicked off legal proceedings to try and stop the release of a song in a new Bollywood political thriller that blames them for exploiting the poor.

“Chakravyuh", a film about Maoist rebels in eastern India, includes a musical number that has the lyric "Be it Birla or Tata, Ambani or Bata, everyone has exploited the country to protect their own interests/ It is with our blood that their engines run smoothly," and it’s no surprise the companies are riled up. Tata Sons, the main holding company of the sprawling Tata conglomerate, joined the Birla and Bata groups in launching legal proceedings in the Delhi High Court to remove the references to them which they consider defamatory, said AFP. Too bad no one wants to sue Bollywood producers for poor quality cinema; that would give the industry the reality check it sorely needs.

S$16 MILLION — AMOUNT ALLEGEDLY MISAPPROPRIATED FROM FIVE HEWLETTPACKARD-LINKED COMPANIES BY SINGAPOREAN ACCOUNTANT EWE PANG KOOI, ACCORDING TO CRIMINAL PROCEEDINGS GOING ON AGAINST HIM.

QUOTE OF THE MONTH

“BASICALLY WHAT THE LAW IS SAYING (IS THAT) ANYBODY WHO USES COMPUTERS SHOULD BE PUNISHED MORE. BUT WHY?” Philippine Senator Teofisto "TG" Guingona III on a libel provision in the country’s cybercrime law that could make retweeting a comment on Twitter or clicking a Facebook "like" button punishable

REUTERS/Tim Chong

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