CLB Sept 2012

CFLD Q&A: ‘We should always appear constructive and helpful’ 华夏幸福基业法务：“建设性和服务性”

september2012 WWW.LEGALBUSINESSONLINE.COM

亚洲法律杂志 - 中国版 CHINA

Client choice

客户最青睐的20位中国顶级律师

Boutique firms Niche market success? 专业律所：定位的胜利？

PAGE 14

China-Canada energy Open for business 中加能源合作：商机初现

PAGE 25

Tianjin spotlight

INSIDE

PE growing pains 天津特别报道：PE成长的 烦恼

n Deals SPOTLIGHT

PAGE 40

04

n THE BIG STORY

05

n LAW FIRM LEAGUE TABLES

08

n SUNDRIES

68

TV

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CONTENTS

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NEWS

COVER STORY Client choice top 20 lawyers 客户之选top20

The results of an online survey enabled us to identify the top 20 private practice lawyers in China as chosen by their very own clients.

56

通过本刊的读者在线问卷调查，广大法务客户推选出了他们心目中全中国范围内最受认可的20位 执业律师。

FEATURES Boutique firms on the rise 专业律所的崛起

14

19

Lawyers around the country have voiced their opinions on the draft revision of the Securities Investment Funds Law, and Xiaoyue Zhao speaks to several to find out their views.

25

Canada is on a mission to increase economic ties with China, now its secondlargest single nation trading partner. It boasts open foreign investment policies, quality assets, and a proactive government that is working hard to reach out across the Pacific. Candice Mak reports

Not only is the offshore trust business booming in China, but there is also a marked increase in trust companies on the Mainland. Jing Jing Fu explores the difference in trust concepts between the East and the West, and how China’s rich are driving up business for law firms

33

目前不仅离岸信托业务在中国蓬勃发展，国内的 信托公司也有了显著的增长。本刊为您探讨东西方 信托公司的不同的理念，以及中国的富裕阶层是 如何推动了这一新兴法律服务领域。Jing Jing Fu 报道。

Briefs

05

League Tables

08

Appointments

10

Index

67

64

— Fujian Sphere Logic Partners — International Tax Azure Tax — Shanghai

Victory Legal Group — Singapore

Loo & Partners

64 65 65

— Shanghai Kai Rong Law Firm — Guantao Law Firm

44

09 11

— Tiantong & Partners

17

— Beijing Rainmaker Law Firm

27

— King & Wood Mallesons

29

— Winners Law Firm

43

SUNDRIES

68

40

华夏幸福基业法务总监李宜坤统率着一支13人的 专业法律团队，本期专访中她与记者分享了团队管 理，未来战略和如何在快速发展的地产企业中做好 风险把关人的心得。Liu Zhen报道

More money, more trusts 更多资金，更多信托

加拿大现阶段将发展与中国的经济关系视为任 务，因为中国已经成为加拿大的第二大贸易伙 伴。凭借开放的外商投资政策，优质资产和积极 的政府行为，加拿大正努力吸引太平洋彼岸的关 注。Candice Mak报道。

ALB presents its Asia-Pacific, China and Hong Kong rankings after months of in-depth research utilising submission reviews, and hundreds of interviews with private practice partners and their clients.

In-house perspective: China Fortune Land Development 法务专访：华夏幸福基业

04

Sponsored Profiles

Heading up a legal department of 13, Chief Legal Officer of China Fortune Land Development, Li Yikun, speaks to Liu Zhen about managing expectations, future strategies, and being a risk “goalkeeper” for a fast-growing real estate company.

中国各地的律师针对新修订的《证劵投资基金法》 草案对本刊发表了他们的看法。 Xiaoyue Zhao 报道。

ALB 2012 Corporate M&A rankings ALB 2012公司兼并并购排名

40

作为在中国率先发展私募基金的地区之一，天津正 努力成为中国新兴而快速成长的PE行业的中心城 市，但是同样也正经历着一些成长的烦恼。Song Yingwen报道。

功的大型竞争对手。 Jenny Fan报道。

Deals

Sponsored Updates

An early starter in China’s private equity industry, Tianjin’s bid to become the centre of China’s young but rapidly developing PE scene is experiencing some growing pains, finds Song Yingwen

在律所快速扩张的普遍潮流中，那些在特定的少数 领域拥有高超技能、能够提供高质量专业服务的律 所仍然有许多机会，哪怕他们在规模上小于那些成

Courting the Chinese 吸引中资

经过数月的深度调查、评审和对数百名律师和客 户的访谈，ALB得出了亚太、中国和香港的M&A 排名。

Tianjin 2012: Growth and pains 天津2012：增长和烦恼

Bucking the trend of rapid expansion, plenty of opportunities still exist for law firms that are highly-skilled, and that offer high-quality professional services in a niche field - even though they are smaller in size than their big and successful peers.

Jenny Fan reports

Controversy: PE funds law revision 众口难调：《基金法》修订

1

52

ASIAN LEGAL BUSINESS september 2012

2 ON THE COVER

Client choice

MANAGING DIRECTOR Andrew Goldner andrew.goldner@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

客户最青睐的20位中国顶级律师

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 director OF SALES Andrew Smart andrew.smart@thomsonreuters.com

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EDITORIAL

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

Winning client confidence We are very excited to bring you our client choice top 20 feature this month – a celebration of 20 private practitioners in China who have won the confidence of their clients. This is the first survey ALB China has completed asking in-house counsel and business professionals to personally nominate their favourite lawyers. Many votes were cast and it was clear that the clients valued honesty, integrity, experience, flexibility, creativity and commerciality in their legal service providers.

The lawyers featured – and many others who were lauded by clients in the survey – ought to be very proud. Cultivating and maintaining excellent relationships with clients is not easy, and the fact that the relationship is strong enough to compel a client to independently nominate the lawyer without prodding is very telling. These private practitioners have won their clients’ admiration, devotion and confidence. Congratulations to the top 20!

Apart from the client choice, this issue is our heftiest since I began my tenure as editor. We have eight insightful articles including a Q&A with China Fortune Land Development’s chief legal officer, an exploration of boutique firms’ strategies, a report on Tianjin and M&A rankings. I trust you will find this issue informative and helpful, and as always, if you have any comments or feedback, please don’t hesitate to get in touch with the editorial team.

ALB_186x119.5mm_bleed5mm.pdf 1 2011-8-13 17:12:41

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M

Y

CM

MY

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CMY

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3

赢得客户信心 本期我们非常高兴为读者朋友们带来本刊“客户之选Top20”问卷调查的结 果——恭喜这20位优秀的中国律师赢得了客户的信任。这也是ALB中国版 首次完全由企业法务顾问和商务人士自行提名评选出他们最推荐的律师。 从众多投票中我们可以清楚的看到，客户们最看重的是法律服务工作者的 诚实、正直、经验、灵活性、创造性和商业能力等品质。 这些当选的律师——以及很多在此次问卷调查中同样得到客户赞誉的其他 律师——应该为此感到骄傲。建立和维持良好的客户关系并非易事，而客 户们在没有候选名单的情况下自主向本刊提名了这些律师，更能说明这种 关系有多么牢固。这些律师们赢得了客户的尊重、喜爱和信任。向他们表 示祝贺！ 除开“客户之选”之外，本期也是自从我担任编辑以来内容最为丰富的一期。 我们有多达八篇的深度文章，包括华夏幸福基业的法务总监的专访，对走 专精尖路线律所战略的考察，天津地区报道，兼并并购（M&A）排名等 等。我相信您会发现本期杂志内容越发充实、有益。最后，和往常一样， 如果您有任何的意见、建议和反馈，欢迎随时和我们的编辑记者联系。

CANDICE MAK North Asia Regional Editor, Asian Legal Business Thomson Reuters

DEALS

4

ASIAN LEGAL BUSINESS september 2012 n your month at a glance Firm Pinsent Masons

$3.5+ billion M&A Shanghai Oriental DreamWorks projects by DreamWorks and China Media Capital • The joint venture consists of film and television producing firm Oriental DreamWorks, and a $3.2 billion cultural and entertainment complex named “The Dream Centre” in Shanghai.

• As part of the plan, the $330 million-worth Oriental DreamWorks represents one of the largest international investment projects in China.

Ogier Clifford Chance Freshfields Bruckhaus Deringer Sullivan & Cromwell

Value ($ mln)

Jurisdiction

Deal name

Deal type

UK/China

China Chaintek’s AIM IPO

7.7 (7.5 million Equity pounds)

Hong Kong

China Development Bank’s dim sum bond

390 (2.5 billion yuan)

Debt

China/Hong Kong

China Telecom’s acquisition of 3G network from parent

13,300

M&A

China/U.S.

DreamWorks and China Media Capital’s Shanghai joint venture

3,530

M&A

China/U.S.

Focus Media’s privatisation

3,500 M&A

Singapore/ China

GIC’s investment in China Pacific Insurance Co

700

M&A

China/Hong Kong

Tencent’s bond offering

600

Debt

Jingtian & Gongcheng Cravath, Swaine & Moore Morrison & Foerster Paul, Weiss, Rifkind, Wharton & Garrison Paul Hastings Fried, Frank, Harris, Shriver & Jacobson

$3.5 billion Privatisation Management buyout of Focus Media Holdings • A consortium consisting of Carlyle Group, CITIC Capital partnership, CDH Investments, China Everbright Ltd, FountainVest and Jiang Nanchun, the chairman of the display advertising company Focus Media, offered $27 in cash per share.

• If successful, the deal will be the biggest privatisation of a U.S.listed Chinese company.

Simpson Thacher & Bartlett Skadden, Arps, Slate, Meagher & Flom Sullivan & Cromwell Zhong Lun Conyers Dill & Pearman Clifford Chance King & Wood Mallesons Freshfields Bruckhaus Deringer Jun He Law Offices Freshfields Bruckhaus Deringer Simpson Thacher & Bartlett Jun He Law Offices Conyers Dill & Pearman Orrick, Herrington & Sutcliffe Simpson Thacher & Bartlett

China/U.S.

Vancelnfo - hiSoft merger

875 M&A

Paul Hastings King & Wood Mallesons Freshfields Bruckhaus Deringer Gleiss Lutz

China/ Germany

Weichai Power’s acquisition of Kion Group

945 (738 million Euros)

M&A

BRIEFS

09.2012

05

REUTERS/Carlos Barria

the big story

A no-resolution dispute

By Liu Zhen

P

arties wanting to arbitrate their business disputes in China have been left in confusion since the feud between China International Economic and Trade Arbitration Commission (CIETAC) and its Shanghai and South China sub-commissions turned white-hot.

CIETAC, China’s most commonly used arbitration body for investors and companies, released an announcement on Aug.1, declaring that it had suspended its authorisation to the sub-commissions, and urged the parties who had agreed to resolve their cases by CIETAC Shanghai and CIETAC South China to submit their applications to the CIETAC Secretariat in Beijing.

The decision was made because, according to CIETAC, the two sub-commissions located in Shanghai and Shenzhen refused to comply with its 2012 new rules, and refused to remain under the leadership of CIETAC in respect of case administration.

Three days later, the two branches published a joint statement, declaring their independence from Beijing, denying the existence of any central authority, and insisting that no other organisation has the right to take up the cases agreed to be handled by them.

To date, this altercation has yet to reach

any resolution.

“This leaves a lot of uncertainty for companies and entities who have arbitration clauses that make reference to Shanghai,” Ashley Howlett, a partner at Jones Day in Beijing, told Reuters.

This conflict first broke out in April, when CIETAC issued its 2012 Amendment of Rules, effective from May 1. The 2012 Rules were considered to be more closely following international standards, but it also set Beijing as the default location of all arbitrations unless the parties expressed otherwise - instead of allocating cases by regional connections as in the past.

The disagreement also focused on provisions such as raising the arbitration fee and increasing the threshold for the summary procedure. These changes were accused by CIETAC Shanghai as being created out of “impure motives” to maximise profits.

CIETAC South China, though not a participant in Shanghai’s debate earlier, launched its own Shenzhen International Arbitration Institution in June in resistance of the 2012 Rules, and explicitly joined the battle by making the Aug. 4 announcement together with CIETAC Shanghai.

As long as clients are having disputes, it is

a “disconcerting” situation that affects their selection of an arbitration venue, according to Matthew Townsend, an associate of Fulbright & Jaworski in Beijing.

“I think the likelihood is that legal advisers will encourage their clients while this uncertainty continues to select alternative commissions to CIETAC, certainly so far as Shanghai and Shenzhen are concerned,” says Jim James, a partner of Norton Rose in Hong Kong.

According to the latest statement, Shenzhen would temporarily continue using the 2005 CIETAC Rules and Shanghai has issued its own rules.

“Care should, therefore, be taken to avoid nominating, for example, a Shanghai-seated arbitration under the CIETAC rules, which may run the risk of being void,” cautions Townsend.

Established in 1956, CIETAC is China’s semi-governmental arbitration organisation headquartered in Beijing with four sub-commissions in Shanghai, Shenzhen, Tianjin and Chongqing. Among its 1,435 domestic and foreign-related arbitrations cases, 668 were administered in Beijing, 523 in Shanghai, and 218 in Shenzhen, according to its stats.

06

BRIEFS

09.2012

REUTERS/Carlos Barria

本月要闻

贸仲僵局 刘蓁

中

国国际经济贸易仲裁委 员会（CIETAC）及其 上海、华南两个分会的 争端至今尚未解决，这 令计划在中国提交仲裁争议的当事人陷入 了困惑和不确定。 作为投资者和企业在中国使用最多的仲 裁机构，CIETAC于8月1日的发布公告， 宣布中止对上海和华南两家分会的授权， 并敦促已约定由上述两分会仲裁争议的当 事人重新向位于北京的CIETAC秘书局提 交申请。 CIETAC表示，做出上述决定是由于 这两家分会拒绝遵守2012版CIETAC新规 则，并拒绝继续就案件管理事务接受CIETAC的领导。 三天之后，两家分会发表了一份联合 声明，强调各自的独立性质，否认与CIETAC存在任何形式的授权关系，并坚持 其他任何机构均无权受理约定由两家仲裁 的案件。 到目前为止，这一争议尚未达成解决办

法。 “这给参照上海仲裁条款的公司和实体 带来了大量的不确定性，”路透援引众达 律师事务所驻北京合伙人Ashley Howlett 说。 此次冲突最早爆发于4月份，当时CIETAC发布了2012仲裁规则修订版，预定 于5月1日生效。2012版贸仲规则被认为 更接近国际通行惯例，但是里面也将凡是 当事人没有做出明确其他约定的所有案件 的仲裁受理机构默认为北京。而在过去的 规则中，则更多考虑案件的地域关联。 双方分歧还集中在新规则关于增加仲裁 费，和提高简易程序门槛等规定上。这些 修改被上海贸仲批评为“动机不纯”，只为 追求经济利益最大化。 华南贸仲一开始并未直接介入双方的争 论，但同样并不接受2012版仲裁规则。深 圳方面于6月份成立了深圳国际仲裁院， 并于8月4日与上海贸仲联合发表声明，进 一步明确了在此次纷争中的立场。 富布莱特•贾沃斯基律师事务所北京顾

问Matthew Townsend认为，对于有争议 需要仲裁的客户来说，这种情况“令人不 安”，可能会影响到他们对于仲裁地的选 择。 “我认为可能的情况是，如果当前的不 确定性继续下去，若是与上海和深圳相 关，法律顾问会鼓励客户寻求CIETAC之 外的替代仲裁机构。”诺顿罗氏律师事务 所香港的合伙人Jim James说。 在最近的声明中，贸仲华南将暂时继续 使用2005版CIETAC规则，而贸仲上海则 已经发布了自己的规则。 “应该注意的是不要在例如上海的案件 中采用新的CIETAC规则，否则会有裁决 无效的风险。”Townsend说。 CIETAC成立于1956年，是中国的半官 方的仲裁机构，总部位于北京，在上海， 深圳，天津和重庆设置分会。根据其网 站的统计数据，去年CIETAC共受理了国 内外仲裁案件1,435件，其中668件在北 京，523件在上海，218件在深圳。

BRIEFS

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

7

GC INTERVIEW

‘I find balance to be of fundamental importance’

Steven Yeo Position: Senior Vice President and Chief Legal and Compliance officer, Asia Company: Manulife

ALB: How would you say your role is different from that of other in-house counsel?

SY: Most in-house counsels’ roles are probably similar, but one distinguishing factor may be the scope of coverage as I am aware that a number of general counsel do not have responsibility for compliance. In my previous position, I had five different portfolios but, while I advised on compliance and regulatory matters, I did not manage compliance. In my current role, in addition to my role as general counsel, I also have responsibility for compliance and corporate governance.

ALB: What kind of work keeps you busy on a daily basis?

SY: It will be difficult to generalise, but it is perhaps unsurprising that the work can be a little unpredictable when one covers legal, compliance, and corporate governance (as well as, to a certain extent, government relations) for a major multinational corporation over 11 jurisdictions. A typical day could range from dealing with changes or proposed changes in regulations in one or more of the jurisdictions to handling HR issues.

Luckily, I have a great team that supports me in helping the business to function effectively and efficiently, while also allowing me to deal with new developments and projects as well as strategic matters.

ALB: How would you describe your strategy for the legal team?

SY: EASY. Excellence: As professionals, I believe it is important that we should strive for excellence in our field of expertise, be it in advisory or execution. Even in areas where we are doing well, I would seek feedback to know if we can do it better or more expeditiously and efficiently.

Availability: To maximise value for our clients, our legal services and advice should be readily available, accessible, and also timely. We

should also not forget that the legal profession is a vocation, and hence I also encourage my team to make themselves available as advocates for worthy causes for the industry or the community.

Strategic: It is important not to miss the woods for the trees. Lawyers (I suppose like all professionals) are generally quite good at our role as technical specialists, but the impact of such expertise is often exponential when applied strategically. Being strategic also helps with availability, such as when it helps us prepare for anticipated developments as well as appropriate selection of areas of focus; particularly fundamental given limited time and resources.

Yin-Yang: I find balance to be of fundamental importance especially, for multifarious reasons, in in-house positions. It also serves as a fine counterpoint for those inclined to take my exaltation to excellence, availability, and strategy a little too far!

ALB: The financial services industry is a highly competitive one in Asia. In what ways have you seen this affect the role that you are performing?

SY: The financial services industry, globally, has always been competitive. But over the last 10 years, and especially since the global financial crisis, there is now a much more acute awareness of the potential consequences of lax legal and regulatory controls. In Asia, probably the only region in the world that is still experiencing growth of significance, this has exacerbated the demand for professional in-house resources, particularly in compliance, as well as the need for greater expertise and specialisation in selected areas.

When I first arrived in Asia in 1996, compliance was almost an afterthought. Not that people didn’t take it seriously, but it wasn’t as developed or systematic as it is today.

So I think when I arrived in Asia, it was

not uncommon for the compliance person to have come from a nonprofessional background. These days, the bulk of compliance staff is much more likely to be compliance specialists or professionals. Quite often they are lawyers, accountants or audit specialists. That has been a growing trend. However, the financial crisis I think, because of what has transpired, has made people much more aware of potential downside of not being compliant.

As a result of my past GC role at a very large financial services institution, where I had dealings with many other financial institutions, I have noticed that many are often rather shortstaffed in legal and/or compliance. In many companies – and not only the smaller companies – they may only have one counsel, and some of them may even have their senior and /or lead Asia counsel based outside Asia.

They may have an Asia team, but the person responsible for Asia is actually sitting somewhere else. I have already seen signs that will change because Asia is growing so fast, and it is getting more and more complex.

ALB: What are your team’s priorities for 2013? Any challenges or opportunities ahead?

SY: Competition for talent is a challenge. Even those companies that already have established teams may be bulking up or upgrading those teams. We are all competing more or less in a much more limited pool (than North America or Western Europe). In Asia, particularly because of the trajectory of Asian growth, some of these jurisdictions will have to leapfrog to get ahead. If they are serious on being compliant, then they will have to start bulking up and/or upgrade their staff.

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

SY: Find a job you enjoy doing, and you will never have to work a day in your life.

LEAGUE TABLES

8

ASIAN LEGAL BUSINESS september 2012

CHINA Announced M&A Legal Rankings

CHINA Announced M&A financial rankings

Goldman Sachs & Co

Freshfields Bruckhaus Deringer

26,603.6 DEALS: 10

RANK

32,540.8

VALUE ($mln)

DEALS: 13

MARKET SHARE: 17.3

LEGAL ADVISeR

VALUE ($ MLN)

DEALS

MARKET SHARE

RANK

VALUE ($mln)

MARKET SHARE: 21.1

financial ADVISeR

VALUE ($ MLN)

DEALS

MARKET SHARE

2

Sullivan & Cromwell

24,363.4

5

15.8

2

UBS

28,569.7

12

18.5

3

Davis Polk & Wardwell

20,758.8

6

13.5

3

Citi

25,888.1

16

16.8

4

Paul, Weiss

19,605.9

4

12.7

4

China International Capital Co

22,115.3

16

14.3

5

Cleary Gottlieb Steen & Hamilton

18,724.6

7

12.1

5

Credit Suisse

20,348.6

9

13.2

6

Stikeman Elliott

17,911.8

2

11.6

6

RBC Capital Markets

17,853.1

2

11.6

7*

Burnet Duckworth & Palmer

17,665.6

1

11.5

7

BMO Capital Markets

17,665.6

1

11.5

7*

Richard A Shaw Professional Corp

17,665.6

1

11.5

8

HSBC Holdings

11,845.9

10

7.7

7*

Blake Cassels & Graydon

17,665.6

1

11.5

9

Deutsche Bank

11,055.6

9

7.2

7*

Osler Hoskin & Harcourt

17,665.6

1

11.5

10

JP Morgan

10,608.8

6

6.9

(*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

Davis Polk & Wardwell

760.1 DEALS: 9

RANK

Freshfields Bruckhaus Deringer

4,849.8

VALUE ($mln)

MARKET SHARE: 1.6

LEGAL ADVISeR

VALUE ($ MLN)

DEALS: 5

DEALS

MARKET SHARE

RANK

VALUE ($mln)

MARKET SHARE: 11

financial ADVISeR

VALUE ($ MLN)

DEALS

MARKET SHARE

2

Mayer Brown JSM

522.5

4

1.1

2

Clifford Chance

4,047.9

14

9.2

3

King and Wood

494.8

10

1.0

3

Sullivan & Cromwell

3,854.7

3

8.8

4

Mallesons Stephen Jaques

453.2

6

1.0

4

Allen & Overy

3,781.7

7

8.6

5

Fangda Partners

426.3

11

0.9

5

Baker & McKenzie

3,641.6

7

8.3

6

Shearman & Sterling

388.2

8

0.8

6

Linklaters

2,662.7

8

6.1

7

Allen & Overy

387.6

8

0.8

7

Jones Day

2,400.7

2

5.5

8

Paul, Weiss

368.6

4

0.8

8

Zhong Lun Law Firm

2,190.6

3

5.0

9

Freshfields Bruckhaus Deringer

345.1

5

0.7

9

WongPartnership

1,354.1

8

3.1

10

O’Melveny & Myers

341.9

4

0.7

10

Allen & Gledhill

1,247.1

5

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

83.6

46.4

50 40 30 20 10

8.3 9.4

16.6

10.6

15.7

12.4

17.0

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

1,000 54.9 45.1 41.9

800 600 400

16.7

200

No. of Transactions

Rank Value US$ Billion

90

0

0 1Q 05

3Q 05

1Q 06

3Q 06

1Q 07

3Q 07

1Q 08

3Q 08

1Q 09

3Q 09

1Q 10

3Q 10

1Q 11

3Q 11

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 September 18, 2012

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

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9

Shanghai Kai Rong Law Firm

Who can actually bring a claim against an air-carrier?

Yu-Lai Jin Managing Partner

Brief of the Case In December 2008, a Shanghai aviation company as the buyer signed a Helicopter Sales Agreement with an international manufacturer to buy one Offshore Utility Helicopter. Both parties agreed the buyer’s agent is a Chinese import & export company.

Although the consignee as shown in the Air Waybill may be the agent of the insured, there is no any evidence proving that the consignee has disclosed to the carrier that it is only the agent of the insured or that the carrier actually knows the insured is the final buyer or the actual owner of the involved cargo helicopter.

In August 2009, the Helicopter was covered in a Cargo Transportation Insurance by an insurance company Shenzhen Branch (hereinafter as “Insurer”), and the insured was the Shanghai aviation company.

There is no any evidence proving that the consignee agrees to transfer its right to claim against the carrier to the insured or the insurer.

In September 2009, the agent of a Taiwan airlines issued an Air Waybill as the first carrier carried the Helicopter into 6 pieces main from JFK Airport transited in Taipei to Shanghai Pudong Airport. In such Air Waybill, the shipper is an aircraft company and the consignee is an international holding company. The freight was prepaid.

In the next day the consignee --- the international holding company applied to the Customs for declaring the imported Helicopter. In such Application Form the operating party is the international holding company.

On 22 September 2009 the Helicopter was carried by the Taiwan airlines to the destination Shanghai Pudong Airport and was found that there were damages occurred of the Helicopter.

After fixing the Helicopter, the Shanghai aviation company claimed to the insurer for compensation. On 14 July 2010, the insurer paid the surveyor fees and on 15 July 2010 the insurer paid the insurance indemnity to the Shanghai aviation company. The insurer then received the letter of subrogation from the Shanghai aviation company.

The insurer then filed a case in Shanghai Pudong People’s Court against the Taiwan airlines and the Shanghai logistics company based on the alleged subrogation rights from the Shanghai aviation company, for recovering insurance indemnity, interests and court fees.

Shanghai Kai-Rong Law Firm was instructed by the Taiwan airlines to defend this case and later also defended the Taiwan airlines during the insurer’s appealing to Shanghai No. 1 Intermediate Court of PRC. Court Opinions and Rules Shanghai Pudong People’s Court held that:

Shanghai Kai-Rong Law Firm A: Suite 2206-07, Golden Magnolia Plaza, No. 1 Da Pu Road, Shanghai 200023 T: +86 21 5396 1065 F: +86 21 5396 1204 W: www.skrlf.com

The insurer confirms that the cause of action in this case is breach of contract, which is the contract of carriage of goods by air. However, the main parties in relation to such contract are the shipper, the consignee and the carrier in the Air Waybill issued by the carrier. Considering the involved cargo helicopter has been delivered to the consignee, it shall be the consignee --- the international holding company as shown in the Air Waybill that is entitled to bring a claim against the carrier the Taiwan airlines in this case.

The court thus decided the insured is not the qualified / proper claimant against the carrier the Taiwan airlines in this case. Considering the Plaintiff the insurer receives the subrogation right from the insured, the insurer is not the qualified / proper claimant against the carrier --- the Taiwan airlines in this case, either. Therefore, this case is dismissed.

When the case was appealed to the Shanghai No. 1 Intermediate Court, the latter held that: The party who is entitled to bring a claim against the carrier shall be the consignee as shown in the Air Waybill in this case.

There is no any evidence proving that the consignee as shown in the Air Waybill agrees to transfer its right to claim against the carrier to the insured, who is the actual owner / final buyer of the involved cargo helicopter.

The insurer receives the subrogation right from the insured, who is not entitled to bring a claim against the carrier.

Therefore, the insurer is not the qualified / proper claimant against the carrier --- the Taiwan airlines in this case.

By this, the Shanghai No. 1 Intermediate Court maintained the original judgment and dismissed the appeal.

Who can bring a claim against the air-carrier?

From the final judgment made by the Shanghai No. 1 Intermediate Court, the court paid more attention to the principle of “Contract Relativity”, and held that only the contractual party can bring a claim against the other one in a breach of contract claim.

In carriage of goods by air, the Air Waybill issued by the carrier normally will be treated as the contract of carriage of goods by air. In this regard, the contractual parties in the carriage of goods by air shall be limited to the shipper, the consignee and the carrier. In case there is any damage to the goods, it shall be the shipper / the consignee that is entitled to bring a claim against the carrier.

If there is insurer involved, the insurer shall make sure from whom it receives the subrogation rights before formally bringing a claim against the carrier, or otherwise, it may not be the qualified / proper claimant against the carrier and its claim may be dismissed.

10

APPOINTMENTS

ASIAN LEGAL BUSINESS september 2012

Lateral hires NAME

Leaving

GOING TO

PRACTICE

LOCATION

David Allison

Laracy & Co

CWL Partners

Intellectual property

Hong Kong

Simon Kai-Tse Cheong

Zhong Lun

Sheppard Mullin Richter & Hampton

M&A and finance

Beijing

Ivan Chiang

K&L Gates

Reed Smith

Corporate, Securities

Shanghai

Dominic Gregory

Skadden, Arps, Slate, Meagher & Flom

Ashurst

Banking and finance

Hong Kong

Vanisha Harjani

Ogier

Harneys

Banking and finance

Hong Kong

Tim Haynes

Hong Kong Bar

Walkers

Insolvency and litigation

Hong Kong

Ji Xueqing (Linda)

Foley & Lardner

Nixon Peabody

Corporate

Boston

M&A

Shanghai

Corporate, IP and tax

Shanghai

Simon Meng

Herbert Smith

King & Wood Mallesons

Emmanuel Meril

TransAsia Lawyers

Lefèvre Pelletier & associés, Avocats

Maria Tan Pedersen

K&L Gates

Jones Day

Kelly Wong

Kennedys

CWL Partners

Insurance

Hong Kong

Ropes & Gray

Litigation

Shanghai

McDermott Will & Emery

Corporate

Shanghai

Mimi Yang

Winston Zhao

Morrison & Foerster

Jones Day

Banking and finance

Hong Kong

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11

GUANTAO law Firm

New NDRC Circular opens the door of Hong Kong RMB Debt Market for Domestic Entities projects and is in line with the macro-economic policy; industry policy; foreign investment policy and overseas investment policy and fixed assets investment and management regulations; (5) all the outstanding corporate bonds and other bonds issued by the applicant are not in default and no deferral of the payment of principal and/or interest. (6) the applicant has no material violation of any laws and regulations within the past three years.

The National Development and Reform Commission (“NDRC”) issued the “Circular on the Matters relating to the Issuance of RMB Bonds in Hong Kong by Domestic Non-financial Institutions” (the Circular”) on May 2, 2012. It means following the steps of the financial institutions, non-financial institutions are also allowed to issue RMB bond in Hong Kong subject to approval.

Grace Pengpeng Yan, Partner

Guantao Law Firm A: Suite1604—06, ICBC Tower,

3 Garden Road, Hong Kong T: +852 2878 1130

+8610 6657 8066 E: yan@guantao.com

Prior to this Circular, some domestic entities have issued RMB bond in Hong Kong, including Baosteel Group Corporation; China Minmetals; Guangdong Nuclear Power; Huaneng Power and Datang Power. However, they were all approved on a case by case basis. The Circular for the first time set out clear requirements and approval procedures for such RMB bond issuance.

It is worth mentioning that there is no requirement for repatriate the fund back to Mainland as it is required for RMB bond issued by financial institutions. So it opens the door to use the fund for overseas investment which is in line with the RMB internationalization initiatives.

The Circular applies to the issuance of bond denominated in RMB with a tenor of no less than one year by non-financial institutions incorporated in Mainland China.

The fund raised from the issuance is classified as foreign debt. So the applicant need follow all the relevant rules such as registration with State Administration of Foreign Exchange (“ SAFE”).

Enterprises supervised by central government need submit the issuance application directly to NDRC. For enterprises supervised by local government the application will be submitted to local branch of NDRC first before approved by NDRC.

The NDRC will issue the decision within 60 working days after accepting the application. The applicant is required to kick off the bond issuance within 60 working days after getting the approval and complete the issuance within one year.

The applicant must meet the following requirements : (1) have sound corporate governance system; (2) have good credibility; (3) have relatively strong profitability; (4) the fund raised from the issuance will be mainly invested in fixed assets investment

Hong Kong is one of the most liberal debt market in the world.

The Circular will no doubt further the development of the offshore RMB debt market in Hong Kong and enhance the RMB internationalization.

A boozy year ASIA PACIFIC BEER MARKET 8

Market sizes forecast growth - 2011-16 CAGR%

Top 10 Asia Pacific brands 2011 - mkt share % China Resources Enterprise

7

Tsingtao Brewery

6

Anheuser-Busch InBev

5

Beijing Yanjing Brewery

4

Asahi Breweries

3

Kirin Holdings

World 2.7%

2

Henan Jinxing Brewery

1

San Miguel Brewery

0

Suntory Holdings

-1 -2

Carlsberg Latin ME / America Africa

Eastern Asia North Western Europe Pacific America Europe

Austral -asia

0

5

10

15

Note: Forecast regional/global values are the aggregation of local currency country data at constant latest year prices converted into the common currency using fixed exchange rate for the latest year.

Source: Euromonitor from trade sources/national statistics: Alcoholic drinks Reuters graphic/Catherine Trevethan

23/07/12

20

25

30

35

It has been an eventful year for the beer market in Asia, with several landmark deals taking place. First up is Tsingtao Brewery’s move to consolidate its market position by joining hands with Japanese beverage firm, Suntory Holdings, in producing and distributing beer in Shanghai and the Jiangsu province.

China is the largest beer market in the world, consuming 45 million kilolitres per year, almost twice that of the United States, and is expected to grow at 5 percent. It is predicted that more Japanese firms will look to China to see growth as their home market continues to shrink.

Over in Southeast Asia, headlines are taken up by the tussle between Thai Beverage and Dutch brewer, Heineken, over the latter’s S$5.1 billion bid to buy Asia Pacific Breweries (APB), producer of Tiger Beer, from Singapore’s Fraser and Neave. At the time of print, Thai Beverage had raised its stake in Fraser and Neave to just below the level that would trigger a mandatory offer for the whole company, a direct challenge to Heineken.

Shareholders of APB also include Japan’s Kirin Holdings, who control 15 percent of the company.

12

Sponsored Profile

ASIAN LEGAL BUSINESS september 2012

joinway law firm

Joining forces to make the way

E

Zhu Liting, Partner 朱黎庭律师, 合伙人

Du Aiwu (Aivin), Partner 杜爱武律师, 合伙人

stablished in 1995, the Shanghai-headquartered Joinway Law Firm has grown into a reputed comprehensive firm with more than 30 partners and 100 lawyers after the milestone merger in 2010. Starting from serving the real estate sector, Joinway has accumulated abundant experience in a wide range of industries, including engineering and construction, dispute resolution, foreign direct investment, finance, insurance, corporate governance, intellectual property, and so on, whilst strengthening its original advantages in the real estate-related legal services, it also continuously expands nationally by opening a new office in Chongqing later this year, following the existing branches in Beijing, Nanjing and Wuhan. The motto of “professional, efficient and creative” has been inspiring Joinway to stride bravely into a brand new era of development.

One plus one is larger than two Since the respective kicking off of the two component firms, Zhongjian and Joinway, in the middle 1990s, the real estaterelated services have been where the greatest advantage or the most distinct feature lies. A number of Shanghai’s most remarkable landmark architectures and development projects over the past two decades were advised by the lawyers from the later Joinway, including the Wenxin United Press Building, Citigroup Tower, the Hongqiao Business District, and the Chongming Eco Elderly Home.

The merger was a natural match, which not only teamed up two leading real estate firms but perfectly combined their complementary expertise. The new Joinway, as the name shows, produced the capability to provide service to every phase of the entire the real estate development, and therefore reinforced the leading edge in the legal service market.

“A large comprehensive firm like us is able to cover the entire industrial chain of real estate business. On each and every stage of the development we can deploy a separate group of specialists to provide the most specific advices to the client,” says Executive Managing Parnter Zhu Liting, speaking of the advantage of the merger.

The new Joinway has set an eye on new markets derived from the conventional businesses. The infrastructure construction, like power plants, highway, and port projects, are regarded as prospective market as the legal procedure of these constructions is very similar to the real estate development except a few specific regulations. Joinway also has discovered the affiliated businesses within the real estate industry itself, including the entertainment business management, hotel management and intellectual property rights, as a result of the present trend of comprehensive development.

“With our strength in the real estate sector, Joinway has the spare capacity to build new team to explore the new services and products, which again demonstrates our advantage in this field,” says Zhu.

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

Blaze the less travelled trail Another signature specialty, Joinway’s international dispute resolution practice dated back to as early as 1998. The hundreds of cases over the years made up the firm’s precious experience that gives them the lead over most of domestic rivals in this particular territory.

“As the inbound foreign investment in China and the outbound investment by Chinese companies grow, the disputes in both China-related trade and investment at the same time increase.

We observantly see this market,” says Du Aiwu (Aivin), deputy Managing Partner.

Despite the sporadic lawyers specialized in dispute resolution and arbitration, there are few law firm intentionally take it

as a key practice on current legal market. But thanks to the unique vision, Joinway has long been spending great effort and resources in this area, and produced a strong and experienced team that captured the gap in the market.

Among the dispute resolution team, there are many lawyers who have practiced more than 20 years with both a background of Chinese court and working experience overseas, which enable them to put together local resources and international expertise. They are equipped with solid law knowledge and deep practical understandings. In comparison to the foreign lawyers, they know the Chinese language and culture better in communication; in contrast to domestic colleagues, they know the international laws and treaties better. They are more experienced in dealing with the arbitration agencies; they are more familiar with the arbitration entities and their interpretation of rules; and they are more aware of complicated situations when a decision awarded by a foreign arbitration agency is to be enforced in China. These are all exclusive weapons of Joinway.

Currently Joinway mainly handles the cases processed at the arbitration organizations in China, and sometimes even at the Hong Kong and Singapore, with a large part of clients being foreign companies. It has partnered with many firms in the U.S., U.K. Hong Kong, Canada, Australia, Japan and Singapore. Du also says that Joinway will do further promotion in Europe.

“Our goal is to get involved in more and more China-related business dispute resolution using the international standard, as it is the main trend in the future,” says Du. Strategic expansion A new era has raised its curtain to Joinway following the successful integration of the former two firms after the merger.

In the new strategy, size expansion is an obvious part. The Chongqing office, expected to open later this year, would become the firm’s fourth office as more negotiations are on the way. Wider and closer international cooperation is planned, and overseas branch in Hong Kong or Singapore is also on the agenda when the timing comes.

“We are planning to upgrade the size of the firm,” says Du. “We will provide the most localized service to the clients when the offices are in place. After consolidating our business on the home soil we will move on to abroad.”

In terms of practice areas, among the current land acquisition, property development, real estate M&A, real estate financing, leasing and sale of commercial housing, engineering and construction, infrastructure development, IPO and enterprise restructuring, merger and acquisition, cross-border investment, financing and overseas listing, banking, insurance, trusts, funding, franchising, intellectual property and e-commerce, the finance practice will be emphasized by Joinway as a new strategic growth point.

“On the financial service side, in addition to direct financing, trust, debt and equity capital market are natural extension of our current key practices, which also are going to be our new focus,” says Zhu. By polishing professional skills, stabilizing workforce, improving the united and integrated management system internally, and keeping close interaction with law schools, academics, government, the legislative, and other professional agencies, Joinway would continue improving and elevating itself whilst constantly fulfilling its commitment of providing professional, efficient and creative legal service to Chinese and foreign clients.

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中建中汇律师事务所

中建中汇：实力开创未来

创

立于1995年，总部设在上海的中建中汇律师事务所，在 2010年合并之后，通过近两年的整合，已经发展到三十 多名合伙人，百余名执业律师的规模，成为一家有着丰富经验 和鲜明特色，广受业界认可和客户赞誉的大型综合性事务所。 作为从房地产业法律服务起家的事务所，中建中汇在强化原 有的优势之外，已经广泛涉足于建设工程、争议解决、外商 投资、金融保险、公司事务、知识产权等众多法律服务领域。 而北京、南京、武汉分所和年内即将开业的重庆分所，更标 志着中建中汇迈开了走向全国的重要步伐。 本着“专业、高 效、富有创造力”的理念，中建中汇正全力开拓新的战略版图。

强强联手、打造地产服务链条 自从90年代中期中建所和中汇所先后成立，房地产相关法律 服务就一直是最大的特色和优势所在。从90年代浦西第一高 楼文新报业集团大厦，到新世纪浦东陆家嘴的花旗集团大厦， 从目前火热开发中的大虹桥商务区，到新近刚刚启动的崇明岛 生态养老社区，近二十年来上海城市建设发展众多标志性里 程碑，背后都包含着中建中汇律师的贡献。 两所2010年的合并正是众望所归，既是强强联手，更将各 自优势完美互补，形成了针对房地产整个开发过程的全方位 法律服务产业链，从而强化了市场上不可动摇的领先地位。 “我们作为一个大型综合型的律师事务所，可以将房地产开发 所有过程覆盖在内，在每一个阶段都有不同的团队可以为客户 提供最专业的服务，”在谈到合并后的新优势时，执行主任、创 始合伙人之一的朱黎庭律师说。 与此同时，在当前常规房地产业法律服务竞争越来越激烈， 服务同质化越来越明显的背景下，整合后的中建中汇将目光 扩大到了新的衍生市场，例如电厂、公路、港口等基础设施的 建设，除了少数特定需求之外，涉及的法律业务与房地产工 程非常相似，这正是大有可为的市场空间。另外，对房地产 行业本身，中建中汇也发掘出了在多样化综合开发趋势下辐 射形成的各种附属产业链，包括复合商业地产综合体的文化 娱乐经营、酒店管理、知识产权等。 “有了在房地产业的综合实力，中建中汇可以游刃有余的组织 新团队去开发这些新的项目和服务内容。这也是我们竞争优 势的一个体现。”朱律师说。 眼光独到、领跑涉外争议解决 作为房地产之外的另一个专长和特色，中建中汇的涉外争议 解决业务早在1998年就开始发展起来，通过多年的几百起 各类仲裁案件的积累，在业内已经超越不少综合性大所，成 为该方向的领头羊。 “随着外商到中国投资以及中国到境外投资越来越多，涉华商 事领域在贸易和资本方面的争议也日益增长，我们敏锐的看到 了这个市场。”副主任杜爱武律师说。 在当前的法律业务市场上，虽然零星从事争议仲裁的律师不 少，但是将其作为重点的律所还不多，而中建中汇则凭借独到

的眼光，有意识的在此领域强化投入，努力钻研，因而打造出 自己的强有力的专业团队，率先抢占了制高点。 中建中汇在这个市场上的专业性，体现在人员和经验。中建 中汇争议解决团队成员很多是执业20多年的资深律师，有丰 富的海外工作经历，也有国内法院背景，可以将本地的资源 和海外经验很好结合。在涉外案件中，他们既有扎实深厚的 法律功底，又对现实情况了如指掌。相比外国律所，他们能够 更好的语言沟通。相比国内同行，他们有更丰富的经验，对法 律公约和仲裁机构的解读更准确。同时，对国内仲裁机构的透 彻了解和仲裁规则的熟悉运用，以及对境外仲裁机构裁决境 内执行面临的复杂情况的分析把握，也是中建中汇的特色。 中建中汇眼下主要代理在国内仲裁机构裁决的案件，同时也 有香港和新加坡等地仲裁中心的涉华案件。客户则以外国企 业为多。在仲裁业务中，中建中汇也与美国、英国、香港、加 拿大、澳大利亚、日本、新加坡等地的众多律所结成了合作关 系。杜律师强调，今后中建中汇还要加强在境外如欧洲等地的 推广，将涉及中国的仲裁展示给更多的潜在客户。 “我们以后的发展方向还是用国际化的标准更多的介入涉华的 商事解决，因为这是以后的主流。”杜律师说。 整合完成、规模业务同步扩张 随着两所合并的整合告一段落，中建中汇也进入了新的历史 时期。 在新阶段的发展战略中，首先是继续扩大规模。年内即将开 业的重庆分所将会成为第四家分所，更多的加盟与合并的谈 判也正在进行中。中建中汇也计划进一步扩展海外业务，更 加密切与国际同行的合作。待条件成熟时，在香港新加坡等 地开始开设海外分所。 “我们计划进一步提升事务所的规模，”杜律师说。“我们把各 地的点铺好之后提供最本地化的律师给客户。把境内做强之 后再去境外开拓。” 在业务方面，在现有的土地使用权取得、房地产开发、房地 产项目并购、房地产融资、商品房租售、建设工程、基础设施 建设、公司上市与企业改制、并购、跨境投资、境外融资与上 市、银行、保险、信托、基金、商业连锁、知识产权、电子商务 等方向的基础上，中建中汇将特别强化金融服务的比重，将 其作为一个新的战略增长点。 “金融业务方面，除了传统的银行直接融资外，我们在包括信 托、债务工具融资和股权资本市场等领域的法律服务品种和 数量上均呈现健康的上升趋势。这些领域同时成为我们业务 发展的新重点。”朱律师说。 中建中汇立足于强化专业、稳定团队、坚持和完善全所联动 的服务管理机制，与高校、法学界、政府、立法机关和会计审 计税务等专业中介机构保持密切联系，努力实践为国内外客 户提供专业、高效、富有创造力的法律服务的承诺。

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Specialist law firms

ASIAN LEGAL BUSINESS september 2012

Boutique The fast growth of legal services in China might not be so rampant anymore as the country begins to experience a slowdown in its economy. However, plenty of opportunities still exist for law firms that are highly-skilled, and that offer high-quality professional services in a niche field - even though they are smaller in size than their big and successful peers. Jenny Fan reports on the rise of boutique law firms in China, their futures and concerns, and how they are sharpening their edges to survive fierce competition.

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firms

Specialist law firms

on the rise

REUTERS/David Gray

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mall is beautiful, and, it could be even better. While big, general practice law firms on the Mainland thrive by taking advantage of the business of scale, mid-sized and small firms are developing expertise in certain fields, turning themselves into boutique firms over recent years.

Boutique firms are always those offering top quality legal services specially catering to the needs of clients in a niche area, such as taxation, labour, energy, and litigation among others. They are “small” in most of the cases with less than 50 employees, but some larger firms also identify themselves as “boutique” as long as they dominate the niche area with high skills and competitive services.

Statistics show that there are 215,000 lawyers and 18,000 law firms in 2011 in China, a notch up from the recorded 200,000 lawyers and 17,500 firms of 2000. The year-on-year growth is mild and optimistic, but somewhat humble compared to the startling surge of lawyers from only 212 in 1979 to 156,700 in 2008.

Among existing law firms, 97 percent are mid and small-sized with employee numbers totaling less than 50, and 50 percent of these have hired less than 10 people. With the saturation of the legal services market, as indicated by the slowing growth rate of the number of lawyers and firms in recent years, the smaller firms have to hone their service skills in a certain field to survive fiercer competition.

Going “boutique” became the choice of many mid and small firms in the last 10 years and even earlier. Some have turned out to be very successful after years of hard work, such as Hwuason in tax service, Baohua and Laowei in employment, and Sunshine in energy services. As being “boutique” is not a trademark of solely small firms, some larger ones such as Jun He Law Offices are often praised for their boutique services in

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certain fields too.

Apart from competition with large firms offering full-scale services, “small” and “boutique” firms have emerged as a result of the more complicated law system and more diversified legal services market in China, according to partners of these firms interviewed by ALB. Sunshine is a law firm that established itself as a specialist firm offering legal services to the energy industry as early as the 1990s.

Chen Zhen, the founding partner of Sunshine, says that the firm benefited a lot from booming infrastructure construction in the last 20 years. The expansion of power plants, the use of nuclear power, and the adoption of new energy technologies became popular when the country experienced fast growth, and made itself into a world manufacturing centre.

New laws and ordinances, and the frequent revision of laws over time has also increased the demand for legal services. The Labour Contract Law enacted in 2008, for example, roused many disputes among employees and workers, and led to a sharp increase in labour law services.

Like boutique shops in the fashion world, law firms have to build their own brand names to be qualified as “boutique”, a chic word reminding people of unique, exquisite and high-end services. They adopt similar strategies to achieving this goal despite their different service fields. They bring more training to young lawyers, enforce the team work of lawyers, streamline service processes, and enhance knowledge management and quality controls.

Tiantong & Partners is such a widely recognised “boutique” firm that introduced a modern corporate management system into its business operation. It set up a strategy department that is responsible for marketing and client development, research and development, and brand building.

It even invented a system to evaluate the difficulty of each case based on a quantitative analysis of more than 20 indicators involving legislative environment, case facts, legal issues, required procedures, and so on. The system helps the lawyers to understand their cases well, and enables the firm to charge clients on a reasonable and transparent basis. Tiantong & Partners, which focuses on high-end commercial litigation, has doubled its revenue each year from 2009 to 2011 after improving its management.

These “boutique” firms are getting more and more influential, not only in the legal services industry, but also in legislation and policymaking. Their lawyers are often invited as experts to attend seminars or asked to offer comments and suggestions on the implementation or amendment of laws and regulations in related fields. They are happy to see the result, of course, as one of the partners of Hwuason has put it: “It indicates that boutique law firms have become a significant

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Specialist law firms power in legal services in China.”

Taxation Hwuason Law Firm was the first professional taxation law firm to be established in China. It offers a wide range of legal services centred on tax law. “We differentiated ourselves from the Big Four (leading accounting firms) or company listing (initial public offering) lawyers with our profound understanding of China’s tax law,” says Liu Tianyong, a senior director of Hwuason.

Liu attributes his firm’s success to the high threshold of tax law services and the consistently rising demand. “Tax laws and regulations in China are very complicated. Only the China Tax Bureau has delivered more than a thousand documents on taxation,” says Liu. “And a specialist lawyer must have adequate knowledge on accounting and its practice too.

On initial public offering (IPO) consulting services, for example, Hwuason always works with IPO lawyers for a common client. While the latter offers general legal advice relating to the listing, Hwuason focuses on the impact of existing tax and security laws on the revenue or loss of the company.

The tax consulting service matters a lot to a pre-IPO company especially when it has carried out an M&A, according to Liu. Under

ASIAN LEGAL BUSINESS september 2012

as it is harder to make profit. The firm has also signed up quite a number of large companies, including state-owned and private ones, to help them prevent tax inspections launched by the authorities, and reduce tax law risks.

A specialist lawyer in tax law, Liu serves as a member to the Tax Law Committee of the All China Lawyers Association (ACLA), and advises on related legislations from time to time. “The emergence of professional and powerful tax lawyers in China will better safeguard the property rights of the citizens and legal entities,” says Liu.

Employment Legal services in the field of employment and labour disputes are widely pursued by employers and employees as well. With the boom in the private sector and fiercer competition between companies, the war for talent has driven employers to seek legal advice on their employment policies.

Therefore, legal services in employment are becoming as sophisticated as those in the Western world now. Dong Runqing, a partner of Baohua Law Firm, says his firm deals with everything related to employment, including contract drafting, labour dispatching and outsourcing, benefits and compensations, work injury, and all sorts of labour disputes - in particular, in foreign-invested companies. Under contract drafting, they sometimes handle special agreements, such as non-competition agreements, confidentiality agreements, and IP protection agreements.

A “boutique” firm in employment law services, Baohua enjoys steady growth despite competition from larger and comprehensive firms, foreign firms, and other specialist firms. “The market is large enough for employment services law firms at all levels,” says Dong.

While Baohua dedicates itself to mid and high-end company clients, Laowei Law Firm in Shenzhen takes a very different path from almost all other specialist firms in employment services. It is the first, and so far the only, law “We work very closely with firm specialising in safeguarding labour rights. our clients, and each player Founded in 2005, Laowei recorded more than involved is considered a RMB 400,000 losses in total over seven years, but stakeholder to the project that its founder Duan Yi has never stopped in his pursuit of the establishment of “collective bargaining” in won’t be neglected.”

China, and commits himself to free legal services to Chen Zhen, Sunshine Law Firm poor workers.

The so-called migrant workers are at the bottom of the society nowadays, according to Duan. They are never part of the leading class as their peer workers were before China the revised law on enterprise income tax adopted a free market economy. At that time, workers, peasants, and (EIT), corporate reorganisation is divided into soldiers were jointly named as the leading powers of China, and now two categories, the general and the special migrant workers are deprived, despised, and discriminated by all of ones. Each has different tax rates and levy society, he says. “There is huge demand for legal services in labour requirements, and the difference could be rights protection, but the supply is rare because migrant workers are significant. Therefore, a tax lawyer must have too poor to pay the consideration,” says Duan. a deep understanding of tax law, M&A and Duan had been a practising lawyer for almost 30 years before he accounting practices, and related laws and founded Laowei, his law firm that offers help to labour movements regulations, such as company law, contract and disputes on the side of the workers. To support the daily operation, law and securities law, says Liu. Duan has had to use his accumulated wealth, in addition to sponsorThere is a vast space for tax law services ships from some charity organisations. “Labour relations in China as corporations are becoming more aware are very tense, and there is a lack of adjustment in the system. If the of their rights, and they want to protect their workers are not empowered and treated equally, labour conflicts property under the legal framework. For cannot be resolved easily.” instance, more businessmen have called in A system adjustment, in his point of view, would include the into Hwuason to enquire about potential tax troduction of collective bargaining, which allows the workers to form preferences during the economic slowdown

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北京市天同律师事务所

《民事诉讼法》修改对民事再审制度的影响

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012年8月31日，十一届全国人大常委会第二十 八次会议表决通过了人大常委会关于修改《民 事诉讼法》的决定。值得关注的是，新民诉法关于再 审程序的修改是继2008年最高法院《关于适用〈中 华人民共和国民事诉讼法〉审判监督程序若干问题 的解释》之后，对民事再审制度的又一次深度调整。

三、“管辖错误”不再是当事人申请再审理由 作为正常审级制度之外的司法救济途径，我国民事 诉讼历来对进入再审程序的条件严格限制。2007年民 诉法修改时将再审条件细化为四类十六种情形。本次 修改对于本部分规定更为明确，最大改动即 “违反法律 规定，管辖错误” 不再作为申请再审的理由。

北京市天同律师事务所多年来始终专注中国高端 民商事争议解决，在中国最高法院和高级法院二审和 再审代理领域经验丰富，对民事再审程序的制度发 展保持着高度关注，对中国再审制度有着深入独到 的研究。天同合伙人彭卿律师认为，本次修法对于民 事再审制度的修改涉及面较广，不但有对既有制度的 调整，更有新规则的引入，必将对当事人的再审权利 及诉讼律师再审业务产生一定的影响。

管辖制度主要涉及各级法院之间的职权分工，对当 事人实体权利的影响不大。且民诉法已为当事人提供 了管辖权异议等专门的救济制度，因此在进入再审之 前，当事人已有足够机会就管辖错误问题提出主张。 将“管辖错误”排除出当事人申请再审理由值得商榷， 案件管辖的便利原则直接影响到当事人的诉讼成本 负担，及是否有利于纠纷妥善解决，包括能否调解结 案，这直接涉及当事人的实体权益，不仅仅是是否影 响到认定事实及适用法律错误的问题。

一、调解书成为法院决定再审或检察院抗诉的对象 本次民诉法修改将调解书纳入法院与检察院可依 职权启动再审的范围之内，凡符合法定条件的，法院 可就确有错误、需要再审的调解书决定再审，检察院 发现调解书损害国家利益、社会公共利益的则应当提 起抗诉。 民诉法此前仅规定当事人得以调解违反自愿原则 或调解协议内容违法为由就调解书申请再审，本次修 法能更全面地保护当事人的利益不因他人欺诈、胁迫 而受损害，亦能防止当事人以恶意串通等手段，通过 调解方式损害国家利益、社会公共利益、他人合法权 益。但藉由将调解书纳入法院与检察院依职权启动再 审的范围，法院与检察院对当事人调解结果进行实质 影响与评价的能力也大大扩张，一点值得我们关注。 二、当事人人数众多及公民之间的案件可以向原审 法院申请再审 考虑到实践中两级法院可能的互相推诿，以及当事 人对于原审法院的普遍不信任，2007年民诉法将当事 人可自由选择向原审法院或上一级法院申请再审修改 为仅可以向上一级人民法院申请再审。本次民诉法修 改对于当事人一方人数众多或双方都是公民的案件， 允许当事人向原审法院申请再审。 这一修改充分体现了我国立法的人性化考量，此类 案件在原审法院申请更利于查清事实、在当地解决纠 纷，提高再审效率，降低当事人的诉讼成本。但当事 人需要注意的是，原则上就生效裁判只享有一次申请 再审的权利，一旦选择原审法院，就意味着丧失了向 上级法院申请再审的机会。另外，规定“可以向原审法 院申请再审”是否为立法倾向，并进而导致当事人向上 一级法院申请再审路径受阻，仍须日后司法解释与司 法实践予以明确。

四、申请再审期间发生重大变更 本次修改将原一般情形下的两年申请再审期间缩 短为六个月，并将原特定情形下的三个月明确为对于 存在有新证据足以推翻原裁判等特定情形的，应当自 知道或应当知道之日起六个月内提出。 天同代理大量再审案件经验显示，裁判生效后案 涉财产即处于可执行的状态，如果当事人已执行完毕 甚至进行了处分，即使再审能够纠正原审错误，申请 人也不得不承受损失，因此当事人应尽早提起再审申 请、促成执行中止以避免权益受损。另外，缩短申请 再审期间也有利于促使生效裁判尽早产生真正的既 判力与确定性，亦符合被申请人的利益。而特定情形 下申请再审期间的延长，能为当事人的再审权利提供 更为周到的保护。 五、向法院申请再审是向检察机关申请抗诉的前置 程序 近年来理论界与实务界持续呼吁扩大民事司法活 动中检察监督的职权范围，以纠察和对抗司法不端行 为，本次修法对此进行了深入回应。具体到再审程序 中，新民诉法将向检察机关申请再审检察建议或抗诉 的案件规定为三种情形。其共同特点在于，当事人已 向法院提交再审申请，但法院未依法处理或当事人对 处理结果不服。 北京市天同律师事务所徐洋认为，实践中存在大 量当事人在向法院申请再审的同时申请检察机关进 行再审抗诉，或者不待法院审查期间经过就向检察机 关申请抗诉的情形，这会造成重复审查与司法资源的 浪费，而且可能引起法院与检察机关工作程序冲突， 本规定使得当事人申请抗诉有章可循。

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Specialist law firms

“The market is large enough for employment services law firms at all levels.”

Dong Runqing, Baohua Law Firm

an organisation which truly represents their own interests. Once this materialises, then the specialist labour rights lawyer can sit and provide counsel. “Collective bargaining is the premise for the development of labour lawyers, otherwise they would die out,” he says.

Energy The economic boom in China cannot work without energy, thus, resulting in the opportunity for the growth of law services in the energy industry. But few people foresaw this 20 years ago. Even the very first specialist law firm in energy and environment, Sunshine, entered this area “by coincidence”.

Its founder Chen Zhen was, in 1995, an inhouse lawyer of a provincial power company, Zhejiang Electric Power Corporation, when she was asked to found a law firm as a legal services provider to the company solely. She did and succeeded. The firm now hires 70 people, and its client base reaches far beyond the power industry.

In 1999, Sunshine began to work for clients

ASIAN LEGAL BUSINESS september 2012

from the natural gas and coal industry. In 2000, it started to serve nuclear power plants. In 2005, as climate change became a hot issue worldwide, environment protection compliance of energy companies was added into the business scope of Sunshine.

To Chen, Sunshine exactly follows the footprint of China’s expansion of infrastructure construction, and she prefers to be called a “projects lawyer” than a “non-litigation lawyer”. “We work very closely with our clients, and each player involved is considered a stakeholder to the project that won’t be neglected,” says Chen.

As the firm expanded, Chen began to upgrade its management and strategies towards the goal of building a boutique firm. As early as in 1997, she introduced the concept of a quick response and teamwork into daily business to foster a corporate culture that improves client services.

Facing competition from firms at home and abroad under economic globalisation, Sunshine is taking more steps forward to keep its edge sharp in the energy and environment fields. The firm set up a knowledge management department, a quality control director to oversee the working process, and it has a client-assessed quality report on each team, including that of the partners.

Strategic management and perspective analysis are also included in the firm’s priorities. A research centre has been set up on energy and environment for the firm to keep up with the newest technologies and potential policy changes. According to Chen, the energy sector is a highly regulated and capital intensive industry that is very sensitive to technology innovations. “When a new technology proves efficient, capital will follow in, and then there is a call for regulations and legislation,” she says. A “boutique” firm shall always get itself prepared for the latest and subtle changes of a trend, she notes.

What about the future of legal services in energy? Not a problem, even in a slowing economy, remarks Chen. She says she never worries about the issue as Sunshine has already earned a brand name in this industry. Above all, energy is always a sunrise industry in a world constrained by energy and resources.

Sunshine Law Firm

Hwuason Law Firm

Founded in 1995, Sunshine Law Firm is a leading law firm in China with expertise in energy and environment. Over the last two decades, Sunshine has provided comprehensive legal services related to the investment, financing, construction, and operation of energy and environment projects. It is headquartered in Hangzhou, and has offices in Beijing, Shanghai, and Shenyang.

Hwuason Law Firm is the first specialist firm in China that provides tax law services, including tax consulting, tax plan, and disputes resolution. Clients of Hwuason range from companies in the high-tech, real estate, finance, and petrochemical industry to those in the creative industries and education. With its professional services, Hwuason has successfully helped clients in limiting tax risks, cutting costs, and raising competitiveness.

Baohua Law Firm

Laowei Law Firm

Baohua Law Firm was established in May 2010, and it now has offices in Shanghai and Suzhou. It is headed by famous labour law expert Dong Baohua, a professor of East China University of Political Science and Law. Baohua aims to provide high-quality and efficient legal service for clients in the labour law area.

Guangdong Laowei Law Firm was at first created according to a decision of the local lawyers’ association to build up specialist law firms to protect labour rights and settle labour disputes. It splintered from the local trade union after failed efforts to work together, and now it offers free legal services to migrant workers for labour disputes and protection.

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Private Equity

Controversy

19

PE funds law revision The “protracted war” of private equity fund legislation continues. The Law of The People’s Republic of China on Securities Investment Fund (draft revision) recently completed its first round of opinion collection, which has reignited the debate on the regulation of equity investment. Lawyers around the country have voiced their opinions on the draft revision of the Securities Investment Funds Law, and Xiaoyue Zhao speaks to several to find out their views.

《基金法》修订:

争 议 之法 私募股权基金立法的“持久战”仍在继续。 《证券投资 基金法》修订草案完成第一轮意见收集，再次点燃 对股权投资监管问题的争论。律师们就此次基金法 修订发出了自己的意见。

20

Private Equity

ASIAN LEGAL BUSINESS september 2012

T

his June, the Law of The People’s Republic of China on Securities Investment Fund (draft revision) formally entered its first reading procedure by the Standing Committee of the National People’s Congress. The first round of opinion collection closed on Aug. 5. Compared with the draft released in early 2011, this draft revision has something different in the private equity (PE) investment fund regulatory section. The original draft deleted the inclusion of equity investment under “investment securities”, but the other terms and subsidiary instructions still made a provision for the regulation of PE funds.

The controversy on the legislation of PE investment has been ongoing for more than a decade, while the revision of the Securities Investment Funds Law has lasted for four and a half years. Of great concern to PE lawyers in China are whether PE funds should be included in the regulation of the Securities Investment Funds Law, and which authorities would regulate the funds. Besides, the revision process has also reflected the role of lawyers in legislation. The various potential impacts on law firms has also been discussed by lawyers.

Debate on regulation The debate on PE legislation has been in existence for a long time.

When the Securities Investment Funds Law was drafted in 2000, there

was buzz on establishing the “Great Funds Law” or the “Small Funds Law”. The Great Funds Law would stipulate venture capital funds, industry investment funds, and securities investment funds, recalls Guo Qiang, a partner of Fangda Partners and Wang Yong, a partner of Han Kun Law Offices. Opinions were greatly divided, and the PE industry was still undeveloped at that time, thus only the “Small Funds Law” - now the Securities Investment Funds Law - was constructed to regulate the secondary market for securities investment.

As the market evolved, PE legislation was put back on the agenda.

The Securities Investment Funds Law draft revision was released in early 2011. Its General Provisions 2 redefined “securities investment”, bringing in equity investments including PE and venture capital into the legislation.

When the latest version of the draft revision was published in June, it was found that the above definition was deleted entirely. Eliminating those of equity investment in the definition has something to do with the regulatory history in China: The National Development and Reform Commission (NDRC) has formed a set of relatively complete rules to regulate the PE fundraising and administration procedures. There has been increasing speculation in the industry that the changes in the draft revision are a reflection of the battle between ministries for regulatory power.

“China needs to strengthen the fair remedies of the courts in private equity funds and investment areas, to make sure the rules of this field could work well.”

Liu Xinhui, Zhong Lun Law Firm

“在私募基金及投资领域，中国需要加强法院的公正救济，确保这一领 域的规则能够运行。” — 刘新辉，中伦律师事务所，合伙人

今

年6月，《证券投资基金法》修订草案正式进入全国人 大常委会初审程序（业内称为“一读”），8月5日结束了 第一轮公开意见收集。与2011年初公布的征求意见 稿相比，这份修订草案在私募股权投资基金监管方面 发生变化。原稿中将股权投资纳入“证券投资”的定义被删除，但其它条 款及附属说明仍对私募基金的监管做出了规定。 关于私募股权投资立法的争议已超过十年，此轮基金法的修订也持续 了四年半。但PE基金是否应该被纳入《证券投资基金法》监管、由哪个主 管部门来监管、怎样监管，仍旧是悬而未决的议题，备受PE从业律师的关 注。此外，修订过程也折射出律师在立法中扮演的角色。对于基金法修订 可能对律所业务造成的影响，律师们亦有讨论。 监管之辩 PE立法之争为时良久。2000年《基金法》起草时，就掀起了一场创立“ 大基金法”还是“小基金法”的热议。大基金法规制创业投资基金、产业投资

基金和证券投资基金，方达律师事务所合伙人郭强律师和汉坤律师事务 所合伙人王勇律师均回忆道，当时的分歧很大，且那时PE行业还没发展 起来，所以最后只能创立一部“小基金法”，即现在的《证券投资基金法》， 用以规范二级市场证券投资。 随着市场的演进，PE立法被重新提上日程。根据公开消息，2008年 1月，卸任中国人民银行副行长一职的吴晓灵，当选十一届全国人大代表 后，成为基金法修订草案的牵头人。 2011年年初公布的《基金法》修订草案征求意见稿，在总则第二条 对“证券投资”重新进行定义，把包括PE、VC在内的股权投资纳入了立 法范畴。 当6月新版修订草案公布时，人们却发现，上述定义被全部删除。从定 义上剔除股权投资的内容，与中国的监管历史有关：发改委方面已经形成 了一套相对完整的监管体系，对PE募资和管理环节进行了规范。业内纷纷 猜测，修订草案变动的背后，是部委之间对监管权的争夺战。 实际上，修订草案还是在条款中隐晦地保留了对PE的监管内容。比如

Private Equity

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In fact, the draft revision implicitly retained the regulations on PE in its terms. For example, Provision 107 defined the securities investment boundaries of the non-public fund properties “including the purchasing, selling or holding stocks, bonds, or other securities and derivatives” specified by the securities regulatory authorities of the State Council.

Guo Qiang believes that the draft revision did not elaborate on the two key terms: “Securities” and “securities investment”. Liu Xinhui, a partner of Zhong Lun Law Firm, notes that it still remains to be clear whether “buying stocks of non-public limited liability companies” and “buying non-public offering stocks of listed companies” are securities investments. Deliberations remain on whether certain types of PE in practice should be included in the supervision of Securities Investment Funds Law, with only one or two investments of these types.

In addition, Provision 171 in the draft revision states that “this shall apply to companies or partnership enterprises”. According to public sources, some lawyers note that this part has been regulated by China’s Company Law and Partnership Enterprise Law. “If one thing is regulated by too many laws, discord may appear,” says one lawyer.

According to statistics, about 70 percent of the PE firms registered are partnerships, and nearly 30 percent of these registered are corporations. Another small fraction comprises trust funds. Several

21

lawyers worry that “the draft revision of the Securities Investment Funds Law fails to fully respect the established practices and rules in the PE fund market, and it still follows the idea of regulation to some extent”.

Liu Xinhui believes that “there are many institutions engaged in PE investments in China, and the regulation will result in a huge workload in the government departments in charge. While the manpower and energies of the government departments in charge are limited, it may lead to a substantial decline on economic efficiency. China needs to strengthen the fair remedies of the courts in PE funds and investment areas to make sure the rules of this field could work well, so that good ones could get remedies, while the bad are punished”.

Lawyers’ absence in legislation According to public sources, Wu Xiaoling, the former deputy governor of The People’s

“The atmosphere of falsification in our society exists not only in the PE industry, so it cannot be changed overnight. moral sanction is too weak, and we need the clear force of the law to take effect.”

Wang Yong, Han Kun Law Offices

“社会的作假风气不仅限于PE行业，改正起来非一时之功。在道 德约束力太弱的情况下，法律的明确约束力是能起到作用的。” — 王勇，汉坤律师事务所，基金组建与管理部主管

第107条界定了非公开募集基金财产的证券投资范围，“包括买卖或持有股 票、债券，或者国务院证券监督管理机构规定的其他证券及其衍生品种”。 郭强认为，修订草案对“证券”和“证券投资”两个关键术语语焉不详。 中伦律师事务所合伙人刘新辉指出，“购买非上市股份有限公司股票”和“ 购买上市公司非公开发行股票”等形式是否属于证券投资，有待明确；实 践中不少PE也从事此类投资，仅因一两次投资就被纳入《基金法》的监 管，还有待斟酌。 此外，草案第171条规定“公司或者合伙企业参考适用本法”。根据公开 信息，有律师指出，这部分已由《公司法》和《合伙企业法》进行规范，“如 果太多法律同时监管同一事物，可能会带来不协调的地方”。 根据统计，中国大约70%的PE注册为合伙制，近30%注册为公司制， 另有少量信托制。多位律师忧虑地表示，“基金法修订草案未能充分尊 重PE基金市场已成型的惯例和游戏规则，某种程度上依然沿袭了一个 监管的思路”。 刘新辉认为，“目前，中国从事私募投资的机构数量较多，监管将给主管

部门带来巨大工作量，政府主管部门人员与精力 有限，其后果可能是实质性地拖延经济效率；中 国需要加强是在私募基金及投资领域法院的公 正救济，确保这一领域的规则能够运行，好人能 够得到救济、坏人能够得到处罚。” 律师缺位的立法 2009年，修法调研小组在人大财经委的牵头 下成立，吴晓灵担任组长。修法调研小组一共30 余人，来自“一行三会”（央行、证监会、保监会、 银监会）、法制办、发改委、社保基金理事会。 这套未全部公开的修法班底中，仅有上海睿信 投资管理有限公司董事长李振宁一人来自PE业 内。据消息人士透露，可能有一两位律师参与修 法小组，甚至包括一名国际律师事务所的律师，

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Private Equity

ASIAN LEGAL BUSINESS september 2012

Bank of China, was elected National People’s Congress (NPC) member of the 11th NPC in January 2008. After, she became the lead person driving the revision of the Securities Investment Funds Law draft. With her efforts, theorists were able to do some research that year.

The Securities Investment Funds Law revision research panel was founded under the lead of the NPC Financial and Economic Commission in 2009, with Wu heading the panel. The research panel had a total of 30 people, from the “one bank and three commissions” (the Central Bank, the China Securities Regulatory Commission, the China Insurance Regulatory Commission, and the China Banking Regulatory Commission), Legislative Affairs Office, NDRC, and National Council for Social Security Fund. Among the partially disclosed panel members, only Li Zhenning, the chairman of Shanghai Rising Investment Management Limited, was directly involved in the PE industry. According to sources, there may have been one or two lawyers on the panel, even including one from an international law firm - but none from the PE field.

One lawyer reflects on Provision 48 in the draft to infer the absence of the lawyers in the PE industry. The provision came up with two forms of organisations for public funds and private funds, respectively “council type” and “unlimited liability type”. “The presentation of the two concepts were very abrupt, unheard of in the industry, and it offered no help in solving practical problems,” the lawyer says. “The emergence of these unprofessional and unserious concepts shows that there are no opportunities offered to PE lawyers to voice their opinions.”

Then how will the opinions of the lawyers be communicated to the legislature? Liu Xinhui notes that after the 27th session of the 11th Standing Committee of the NPC, during which the Funds Law draft got its first reading, public feedback was canvassed on the official website.

“On seeing this, we think it’s our responsibility as professionals to give our opinions. If not offered, they wouldn’t take the trouble to ask for practitioners’ opinions,” he says.

In the three-page modification proposal, the Financing Policy Research Group of the Committee of Investment in China Council for International Investment Promotion, which Liu works for, listed six detailed suggestions for revision, regarding the investment field, regulatory institutions, names of the funds, and such sections of non-public funds. However, Liu is not optimistic about the proposal’s effect. “In fact, in the legislative environment of China, lawyers have been a neglected group,” he laments. Another lawyer holds a similar view: “To a certain extent, the current laws in China are made by economists, not jurists.”

Participating in professional associations is an indirect way for lawyers to play a professional role. For example, Fangda Partners

“Except for the government-run associations, it’s difficult for self-initiated professional associations to find the so-called ‘Attached Institutions’, which results in an awkward position.”

Guo Qiang, Fangda Partners

“除了官办协会，真正自发设立的行业协会很难找到所谓 的‘挂靠单位’，因而身份尴尬。” — 郭强，方达律师事务所，合伙人

但没有见到PE从业律师的身影。 一位律师列举了修订草案第48条的内容，向 记者推论了PE从业律师的缺席。这一条款中提 出了“理事会型”和“无限责任型”两种分别针对公 募基金和私募基金的组织形式。“这两个概念的 提出十分唐突，在业内闻所未闻，无助于解决任 何实际问题”，这位律师说道，“这种不专业、不 严肃提法的出现，说明没有给PE从业律师没有 发出自己声音的机会。” 那么，律师的意见将如何传达给立法机关？ 刘新辉说，十一届全国人大常委会第二十七 次会议初审了《基金法》草案后，在官方网站上 向全社会公开征集意见。“我们看到以后，觉得 作为专业人士有责任向他们提供意见。如果不

主动提供，他们也不会专门去征求从业机构的意见。” 在一份长达三页的修改建议书中，刘新辉所在的中国国际投资促进会 投融资工作委员会政策研究组一共列出了六条具体修改意见，涉及非公开 募集基金的投资领域、监管机构、基金名称等板块。然而，刘新辉对这份 建议书能够起到的作用并不乐观。“事实上，律师在中国的立法环境中一 直是一个被忽略的群体”，刘新辉说。而一位持相似观点的律师表示，“ 当下中国的法律很大程度上依然是经济学家立法，而非法学家立法。 ” 对律师们来说，参与行业协会是一条发挥专业作用的间接途径。比如 郭强律师担任了中华股权投资协会（CVCA）政策委员会的特别法律顾 问；王勇所在的汉坤律师事务所担任中国股权投资基金协会（CAPE） 行业自律委员会顾问；金诺律师事务所高级合伙人郭卫锋则是股权投资 创业委员会《自律规则》起草小组的成员之一。 行业协会对PE立法能起多大的影响作用尚是一个未知数。郭强指出，“ 除了官办协会，真正自发设立的行业协会很难找到所谓的‘挂靠单位’，因而

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serves as special adviser for China Venture Capital and Private Equity Association; Han Kun Law Offices, where Wang Yong works, serves as special adviser for the Self-Discipline Committee initiated by China Association of Private Equity; Guo Weifeng, a China senior partner of Winners Law Firm, is a member of the Equity Investment Committee who co-drafted the Self-Discipline Rules.

It is still unclear that how much impact these industry associations can exert on the PE legislation. Guo Qiang notes that, “Except the government-run associations, it’s difficult for self-initiated professional associations to find the so-called ‘Attached Institutions’, ending in an awkward position. These are Chinese characteristics”.

Twenty five PE and VC industry associations, however, submitted a joint statement to the Standing Committee of the NPC on Aug. 13, suggesting that VC and PE not be mixed together in the revised law.

Instead, they should be legislated separately. This action gave rise to public opinion.

On Sept. 6, the Legislative Affairs Commission of the Standing Committee of the NPC convened at the Securities Investment Funds Law Amendment Forum. This is the first time that these professional associations received a positive response from the legislature.

Private Equity

23

To stay ahead, we actually draw the curve.

Law firm impact Though the Securities Investment Funds Law amendments are still pending, law firms need to take precautions beforehand.

Wang Yong believes that the law is very important in the terms of big picture. Many provisions from the Securities Investment Funds Law have created standards for funds service professionals and organisations. “The mechanism is great. The atmosphere of falsification in our society exists not only in the PE industry, so it cannot be changed overnight. Moral sanction is too weak, and we need the clear force of the law to take effect,” he says.

From the perspective of operation, once the filing requirements in

身份尴尬，这也算是中国特色”。 不过，25家PE/VC行业协会在8月13日联名向全国人大常委会“上书” ，建议不要将VC、PE混在一起纳入正在修订的《证券投资基金法》，而 是要求单独立法，形成一股舆论声势。 9月6日，全国人大常委会法工委等召开《证券投资基金法》修订座谈 会。这是联名上书的行业协会首次得到立法机关的正面回应。 对律所：利好或利空？ 尽管《基金法》修订案悬而未决，律所却需要对此未雨绸缪。 王勇律师认为，从大局上说，法律是相当重要的。目前《投资基金法》 里已有的很多规定，对从事基金服务的人员和机构的职责做出了规范。“ 机制是挺好的。社会的作假风气不仅限于PE行业，改正起来非一时之 功。在道德约束力太弱的情况下，法律的明确约束力是能起到作用的”。 从操作层面上看，一旦基金法中的备案落实，从短期内看，这将使律 所的业务量增加，因为律所代表的投资方或被投企业需要支付更多的律 师费用，以准备监管机关所要求的法律文件。 这也许并不是一件轻松的事。刘新辉律师即表示，不同监管部门要求 的备案，意味着律所将要准备更多的文件，对其进行核对后，提供法律 意见书。“很多麻烦也会随之产生”，被投资企业方则需要安排专人，奔波 于各级监管机关，来回处理此事。 “其中的经济成本政府机关是不管的。说实话，我们不愿意挣这个钱”， 一位律师表示，“甚至，我们将穷于应付”。 而且，对文件的核查可能给律所带来额外的风险。对于律师事务所、 会计师事务所等中介机构的义务与责任，《修订草案》第121条作出了如

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Private Equity

ASIAN LEGAL BUSINESS september 2012

“In fact, in the legislative environment of China, lawyers have been a neglected group.”

Liu Xinhui, Zhong Lun Law Firm

REUTERS/Jason Lee

the Funds Law are put into practice, the business of the law firms will increase in the short term, because the investors or the enterprises will have investments and require representation by law firms. The clients will need to pay higher attorney fees to prepare the legal documents required by regulatory authorities.

However, this may not be relaxing news. Liu Xinhui says the filings required by different regulatory sectors means that the law firms will have to prepare more files and provide legal opinion books after verifying the materials. “A lot of trouble will follow,” he says. ”The corporations need someone specially assigned to rush about handling the issues among the regulatory authorities at all levels.”

“The economic costs behind it are out the sight of the government sectors. Frankly speaking, we don’t want to earn the money,” says an anonymous lawyer. “If we get the work, we’ll be struggling to cope with it.”

Besides, the verification process could bring additional risks to law firms. Provision 121 of the Draft Revision says that “Law firms… should check and verify the authenticity, accuracy, and completeness of the documents they based upon. If the documents they made and

provided are found to be with false records, misleading statements or major omissions, and have caused damage to the property of others, they should bear joint and several liability along with their clients”.

Liu Xinhui believes that the provision in the first place went wrong on the nature of economic behaviours. “In principle, private equity funds are from institutional investors or individuals with risk identification capability, the number of investors is limited, and there is no need to have ‘collective punishment’. Making risk identification and judgment abilities the responsibility of the law firms’ verification is not entirely fair,” he says. “Secondly, the liability of a judicially ruled problem should not be defined by a law. If the court judged that the law firms are at fault, then the firms should bear the corresponding legal responsibility according to their faults. This is not the same behaviour as that of agents or fund managers, and law firms should not assume the same joint and several liabilities.”

Given the reasons above, “bearing joint and several liabilities” is unreasonable. Some commentators state that it means passing the buck to the lawyers: “It reflects a major problem in our administrative regulatory and legislative process: The administrative departments

“事实上，律师在中国的立法环境中一直是一个被忽略的群体。” — 刘新辉，中伦律师事务所，合伙人 下规定：“律所……对所依据的文件资料内容的真实性、准确性、完整性 进行核查和验证”，“其制作、出具的文件有虚假记载、误导性陈述或者重 大遗漏，给他人财产造成损失的，应当与委托人承担连带赔偿责任”。 刘新辉律师指出，这条规定首先在经济行为的定性上出现了偏差。“原 则上，私募资金来源于具有风险识别能力的机构或个人投资者，投资者 数量有限。没有必要实行‘连坐’，把它们的风险识别能力和判断能力建立 在律师事务所核查的基础上”。其次，“连坐”是一个司法判断的问题，不

应该由一部法律去约定个案的赔偿责任。律所和基金管理人并非同样 的行为主体，如果法院判断律所有过错，律所应该在过错范围内承担 对应的法律责任。 根据上述理由，“连带赔偿责任”不甚合理。有评论认为，这是将责任 推给了律师，“折射出我国行政监管和立法过程中的一大问题：行政部门 希望包揽权力，但又不愿承担太多责任”。

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China-Canada energy

25

Courting the Chinese REUTERS/Todd Korol

Canada is on a mission to increase economic ties with China, now its secondlargest single nation trading partner. It boasts open foreign investment policies, quality assets, and a proactive government that is working hard to reach out across the Pacific. China is particularly enticed by Canada’s vast energy resources, with potential target companies fully stocked with desirable technology and personnel. Candice Mak reports

C

NOOC’s $15.1 billion bid to acquire Canadian upstream oil and gas company Nexen has cast a spotlight onto the growing trade and investment links between China and Canada. The proposed blockbuster CNOOC-Nexen deal aside, the two nations have quietly been ramping up cooperation in recent years.

Quality energy assets have driven a steady flow of sizable Chinese investments, while a majority Canadian Conservative government –

led by Prime Minister Stephen Harper- has reached out to China more vigorously and purposefully.

In the past five years, there have been no less than six Chinese investments of considerable size (greater than $ 1 billion) into Canada that were successful and approved by the Canadian government.

These include Sinopec’s $2 billion merger with Tanganyika Oil in 2008, PetroChina’s $1.9 billion majority stake investment into Athabasca

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China-Canada energy

ASIAN LEGAL BUSINESS september 2012

“At the government level, Canada is working hard to compete for the attention of China in terms of capital investment, but I also think that the Canadian business community is now getting sensitised to the importance of looking at global markets, and not just looking to the U.S.” Dr. Neil Campbell, McMillan Oil Sands Corp in 2011 (in January 2012, the target exercised its option to sell its remaining 40 percent in the MacKay River oil sands project to PetroChina for $680 million), the $4.7 billion investment in Syncrude Canada

by Sinopec in 2010, and last year’s $2.9 billion merger between Sinopec and Daylight Energy. In a $12.35 billion multi AsianWestern partnership, Shell Canada, China’s CNPC, Japan’s Mitsubishi, and South Korea’s KOGAS confirmed on May 16 that they would jointly develop an LNG export facility in British Columbia, Canada.

In fact, industry sources told Reuters that Chinese oil firms have been pondering the takeover of more Toronto-listed oil companies with oil sands assets to secure reserves as well as operating experience. Possible targets touted by investment bankers have included Canadian Oil Sands Ltd and Talisman. “I expect the Canada-China relationship to develop at a significant, steady pace in both directions on investment and trade,” says Dr. Neil Campbell, a Toronto-based M&A partner at McMillan. “At the government level, Canada is working hard to compete for the attention of China in terms of capital investment, but I also think that the Canadian business community is now getting sensitised to the importance of looking at global markets, and not just looking to the U.S.”

China scopes out Canada Government friendliness The Harper government’s openness to trade and investment is a strong motivator for increasing ties between China and Canada.

“We’ve been leading missions with senior political and business figures to show an interest in developing relationships, in working with Chinese companies and the Chinese government,” says Campbell. Herbert Smith Hong Kong partner, Hilary Lau, also asserts that “government investment policies in Canada are a big selling point,” and calls Canada “one of friendliest Western nations” for foreign investors. “Canada has adopted a view that’s more heavily weighted towards globalisation,” says Christopher Nixon, a

Calgary partner of Stikeman Elliott. “This particular government has gone further than past governments, at least in my view, by making trips to China to assure it that Canada is open for investment. It remains a significant focus of this government. Certainly, this government has gone out of its way to assure Chinese interests that there is a strong bond sought between the two countries.”

Even when the Harper-led Conservatives were a minority in 2006, the party was generally viewed to be market oriented, and open to freer trade and investment. Campbell points out that the Liberal government that preceded the Conservatives was “for a long time, actually moving in those general directions”, and that the real turning point for Canada was when it signed the Canada-U.S. Free Trade Agreement in early 1988. “There was a psychological shift,” says Campbell. “Canada said, ‘we’re going to get out of the protected local branch plan protected economy, and become a trading economy that’s open’.” Since then, Canada has been steadily creeping onto the world stage to enhance its presence, and develop economic ties.

Attractive assets A core driver for more Chinese investment into Canada is the latter’s rich and vast energy, and natural resources supply. From oil and gas to minerals and more, China is definitely paying attention. “There are obviously very large resource opportunities in Canada,” says Nixon.

“These opportunities are attractive for long-term development and exploitation, and they have significant capital requirements which suit Chinese investments.” Ben Smith, a Hong Kong-based partner at Fulbright & Jaworski comments: “Sourcing capital in North America can be challenging. Meanwhile, China and the rest of Asia continue to be resource hungry, and they are eager to find opportunities to invest. The fit is excellent.”

Lawyers are quick to note that it is not simply that Canada boasts massive untapped energy reserves, but that its stable political environment, skilled labour force, technology and quality, reasonably-priced assets are hard to resist. “Canadian companies are generally very

REUTERS/Chris Wattie

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Sponsored Profile

27

北京市雨仁律师事务所 雨仁律师事务所简介

栾政明，首席合伙人

北京市雨仁律师事务所是以矿产能源为主的综合性律师事务 所。2006年设立以来，团队坚持“专业、执着、前瞻、共赢”的理念，恪 守“十秒心态”、“直言机制”，幸逢中国经济的腾飞，得益于各界朋友及师 长的支持与呵护，在人员、收入、办公场所、社会及行业影响方面取得了 飞跃的发展。许多案件在业内乃至国内外产生了较大影响，有些则以业 务创新著称。如：中金吉尔吉斯斯坦金矿收购案，紫金俄罗斯投资案， 浙江海纳重整案，香港某上市公司国内煤矿投资及产业园建设案，柬埔 寨煤矿收购案，华禾药业股份退出案，某钢铁公司与1500户村民的股 权转让纠纷案，江苏某副市长死刑辩护案，加拿大曼省金矿公司收购 案，加拿大北方黄金、银熊公司定向募集案……。雨仁律师通过千余 案例维护了客户的合法权益，锻造了一支专业、坚强、可以信赖的团队。 雨仁设有矿产资源、证券融资、破产重整、投资并购、私募基金、 知识产权、诉讼仲裁、东南亚、澳大利亚、中亚俄罗斯、北美业务、其 它国际业务等十二个部门和矿业并购研究中心、矿法修改研究中心、 俄罗斯法研究中心等机构，在扬州、天津设有分所，在多伦多和金边 设有办事处。这些部门及机构的设立能确保为客户提供专业、及时、 全方面的服务。 雨仁的矿产能源部又分成若干个业务技术部，包括矿权的取得与 流转、环保与绿色矿山、矿业收购、矿业上市(含借壳上市)、矿业基 金、地勘改制、矿山建设、日常运营、矿业用地、矿山安全、矿业用工、 国别矿业(俄罗斯、加拿大、澳大利亚、吉尔吉斯、柬埔寨等)、矿主移 民、地勘基金、外投审批、矿业犯罪预防与辩护等，力争为客户提供 更精准的服务。

雨仁在处理实务的同时，不忘理论研究和总结，发表了实务与理论 文章数百篇，同时出版了影响较大的专著，主要有：《经济合同法实用 问答》、 《中化人民共和国合同法理论与实务》、 《中国矿业并购的十 大命门》、 《中国矿业全程法律服务指南》、 《 矿业犯罪司法适用与判 例》。 《国际矿业并购的关键与技术》正在编写，在国土资源部、矿业联 合会制定法规、指南等工作中提供了大量的调研、整理和论证工作。 雨仁的创办人栾政明先生曾在工商局、银行工作，现任首席合伙人、 矿业并购研究中心主任，是北京市第八、第九届律师代表大会代表，同 时任北京市律师协会自然资源专业委员会主任，中华全国律师协会环境 资源委员会委员，中国矿业联合会理事，中国政法大学、对外经济贸易 大学、首都经济贸易大学、中国人民大学兼职教授。 雨仁以其宽广的胸怀欢迎并真诚与同行合作，与客户携手同行。 客户中既有民营企业，也有国企和央企；既有中小企业，也有上市公司 和大型企业集团；既有境内企业，也有国外发达国家和发展中国家的 企业。雨仁在境内外与专业的律师、会计师、咨询机构、政府部门建 立了良好的合作关系。 雨仁律师来自五湖四海，既有来自高校和研究机构的专家学者，也 有在政府机关、司法机构工作多年的公务员；既有成立时的创业者、年 青人，也有来自金杜、德恒等大型律所的资深律师；既有以诉讼见长的 律师，也有受人尊重的非诉顾问；既有国内各民族的律师，也有国际友 人。多种来源促进了文化与思想和技术的融合与交流，预示着雨仁顽强 的生命力、广阔的视野和更美好的未来！

思维文化的差异与能否融合是国际矿业并购成败的深层元素

北京市雨仁律师事务所 地址： 北京市西城区月坛北街 26号恒华国际商务中心A 座422室, 100045 电话：+86-10-5856 6980 直拨：+86-10-5856 5388 手机：+86-1391 1170 064 传真：+86-10-5856 8918 邮箱 : luanzhengming@ bjrainmaker.com

引子-----往事不能如烟：对于大多数国人及矿业并购参与者而 言，三年前两家央企并购加拿大的石油和有色金属项目功败垂成的情 景可谓历历在目。更多的原因被归结为对方政府基于安全和政治的考 虑而否定，大举借债、买后即卖这种我们看起来完全合理合法的言行 基本不能得到政府、股东、高管、雇员的认同这一根本原因被有意无 意地忽略了。在澳洲，另一央企并购矿业巨头的案例因并购关键时期 更换主要领导进入政府让对方噤若寒蝉，使支持和反对的力量瞬间 发生倾斜，并购最后也未成功，让许多有责任心的参与人和旁观者扼 腕叹息！事实上，许多中资企业在境外的并购都无意识地发生了对方 不能接受的言行，最终导致不能实现并购目的，甚至彻底失败！如何 找到原因并对症下药是每一个有责任心的参与者的基本使命。 中国境外矿业并购------多折戟沉沙却势不可挡：中国庞大的外汇 储备不仅是中国历史上绝无仅有，也是世界经济史上的奇观，消化外 汇储备最主要的方向就是对外投资，中国的产业和人力特质必然使更 多的投资集中于矿业(包括石油天然气等能源类矿业)。业者应为之欢 呼雀跃！故虽在此前多数并购并不理想(德勤的研究报告认为67%的 收购是失败的，我持赞同观点)，然而其如滚滚洪流、势不可挡！ 明察秋毫------思维与文化：差异是根本原因，能否融合是成败的 关键。并购的各个环节都体现文化思维的差异。笔者(刊登在2011年 中国矿业大会期间的中国矿业报上)曾写过国际矿业并购的十大关键， 其中第一关键就是认识并解决好思维文化的差异问题。几乎所有重要 问题的认识与解决之道无不渗透并体现着这种差别。从矿权的取得 与流转，到与土地、森林、草场、社区、土著人等关联所有人的协商;从 中介机构的重视、信任，到政府的力量评估;从储量报告的真假，到冶 金实验、基础设施的现状与解决;从法不责众的干了再说，到必须完全 按规定行事;从员工周末休息、度假、庞大的劳工工资与福利成本到对 于动植物几乎到了宠物待遇的环保意识;从荣宗耀祖、衣锦还乡的彰 显到数百亿真诚捐赠、贫富意识平等••••••所有这些与并购、经济、日 常生活的方方面面都会有意无意地渗透着这种差异•••大量的并购实 例毫无例外地证明了这一事实。 忠言未必逆耳-----思维文化认识与融合的十点建议：基于实践与 思考，学习和总结，认为思维与文化因素是国际投资贸易的最重要元 素，遗憾的是，很多人并未认识到这一点，甚至在国外工作生活十几年 的人有的也没有准确的认识到这一点。矿业国际并购因涉及面广、利 益冲突大、关联的主体和环节多，这一问题尤其突出。加拿大与其他 国家既有相同的地方，也有不同之处，现提出十点建议，以为初入者 或至今未认识到这一根本原因者借鉴，也为同行者交流，起抛砖引玉 之作用。如有谬误者，敬请不吝赐教、直言相陈。 1、认识差别。这是第一步，也是最重要、最容易做到、最容易忽略 的问题。许多企业家将国内成功的经验无意识地运用到国外，这是问 题产生的根本原因。可以说，一切皆源于此。后面所提到的问题就是

思维文化的具体不同表现，具体运行时做参考之用。 2、诚信之威。诚信已经深深地根植于整个民资之中，好坏、多少 均可当面相陈。相反，高兴不能表现，愤怒则以笑容所掩盖，不讲实 话称为津津乐道的技术和手段。这在交流中都会产生巨大的差异。虚 幻索要天价的忽悠新产品、名牌不仅不受追捧反而会受到鄙视就是 活生生的例子。 3、规则意识。是什么维持这一个国家如此有序的运转？是规则和 渗透到血液里的规则意识。这对于经常变通、朝令夕改的情形而言， 形同水火，相遇时冲突也就在所难免。 4、计划经济。无论是个人的生活，还是企业的运营，乃至国家的 预算，基本上是计划好了的，不喜欢、不打算轻易改变原有的计划，这 对于我们这个变动的、日新月异的、计划赶不上变化的世界而言，却 有泾渭之别。 5、中介力量。有人谈到加拿大或美国的律师费、审计费、投行费 太贵，其实不然。法治国家的中介费用仅仅是集权腐败国家里的腐败 成本的一小部分而已。法治国家的规则和法律是基石，而各种中介则 是维系社会运行的主导力量。许多总统出身于律师就是明显的例证。 6、尊重生命。对于同胞，对于员工，对于土著人，对于乞丐，甚至 对于罪犯，尊重其生存、生命的权利是深深的意识。草菅人命、强行 拆迁、违法剥夺人的生命与财产的现象基本不会发生。并购时也不能 寄希望于这样的手段。 7、敬畏自然。环境意识说到底是否真的尊重、依赖和敬畏自然。 环保是底线，与我们可以变通、先干后环评、有名无实的环保似有天 壤之别。 8、官力有限。在加拿大，政府受制于选民、社区、新闻、法律、司法 机构的层层制约，权力有限。即使其承诺大力支持，力度也极其有限。 决不能指望政府在法定职权、程序之外做任何事情。 9、合作共赢。几千年来的商业谋略、无奸不商的文化在这里可能 并不适用。多数情况下，必须与交易伙伴、员工、同行、竞争对手合 作共赢。 10、大礼小让。中资企业一直很注意对方的礼节，特别是注意对方 的态度与招待。甚至完全不能接受我们飘洋过海、忍受时差之苦与他 们数天谈判后不管一顿饭！！其实，在他们心目中，一个合理的、公平的 交易比表面客气、承诺，背后欺诈要重要的多，请你吃饭导致你不好意 思讨价还价是对你的伤害，也是对他们的侮辱(采用了不光彩的行贿手 段，吃饭、礼品、旅游都有行贿之嫌)。古人所言之“大礼不辞小让”在这 里体会的淋漓至尽。 以上虽然是对中加贸易与投资的一点感言，但针对其他发达国家 也基本适用。希望抛砖引玉，渴望为中加贸易与投资的健康发展推 波助澜！

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China-Canada energy

well managed, and have good staffing and technology,” says Lau. “Staffing and management are very important, which make these targets pretty attractive to the Chinese.”

Lau says, traditionally, the Chinese have been investing a lot in developing, emerging markets, but “now they realise it’s not so easy and they need to diversify”. He emphasises that Canada is very amenable to integration, and that the Chinese companies are looking to adopt a more western work culture within its ranks to boost its internationality.

“Chinese companies want everyone in their organisation to think like an international company, not simply speaking English well.

If it can merge with a western company, foreign management would be introduced, and the culture would influence the Chinese organisation in terms of moving it towards a more international or western feel,” he says.

“The culture point is quite important, because the Chinese want to take their companies to the next step.”

Technology strategy The acquisition of advanced technology is another key attraction for the Chinese. If CNOOC is successful in purchasing Nexen, the deal will make the Chinese state energy giant the operator of a major oil sands project for the first time, giving Beijing the expertise to be able to tap massive unconventional oil reserves at home with new oil sands technology.

China estimates the oilsoaked sands it sits on could hold as much as 14.5 billion barrels, which would be double the country’s proven oil reserves. It also estimates that it has huge reserves of heavy oil and shale oil – oil trapped in shale formations. But the world’s second-largest oil consumer has pumped little from domestic sands and shale so far. China will eventually need the oil at home to fuel its expanding economy and keep expensive imports in check, and the purchase of Nexen would give it new technology and operational experience to help extract its domestic oil.”The Chinese companies must learn both ends, technology and its operational application,” said Al Troner, president of Houston-based Asia Pacific Energy Consulting to Reuters. “It is definitely not something that Joe Schmoe comes into, and can do efficiently on their own.”

ASIAN LEGAL BUSINESS september 2012

Canada’s Prime Minister Stephen Harper shakes hands with Chinese Premier Wen Jiabao after a signing ceremony at the Great Hall of the People in Beijing on Feb 8, 2012, REUTERS/POOL New

Technology is costly. Nexen has the exclusive right to use an upgrading technology called OrCrude with Canadian oil sands company OPTI - bought by CNOOC for $2.1 billion last year with the help of Lau and his Herbert Smith team – within certain parts of one of its projects.

Nexen also has the right to use it elsewhere in Canada and most of the rest of the world, subject to certain rights for OPTI to participate.

“The real oil sands technology is about how you cut production costs and improve production efficiency - this is the core part of the technol-

“There are obviously very large resource opportunities in Canada. These opportunities are attractive for long-term development and exploitation, and they have significant capital requirements which suit Chinese investments.”

Christopher Nixon, Stikeman Elliott ogy that China needs as oil sands production is energy intensive and costly,” said an official with a major state-run Chinese oil company.

Canada: Entering the world stage Diversification Canada has historically been heavily intertwined with its Southern neighbour for trade and investment. The U.S. remains Canada’s largest economic partner – in 2010, according to official Canadian government data, 75 percent of Canada’s exports went to the U.S., and bilateral trade reached $645.7 billion, representing about $1.8 billion worth of goods and services crossing the border each day.

The Canadian government’s eyes, however, have been opened in recent years to its need to diversify its portfolio of trade partners, and

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China-Canada energy

29

King & Wood Mallesons

Foreign investments into the Oil and Gas Industry in China

T

Carolyn Dong Partner King & Wood Mallesons’ Corporate M&A Group, Beijing Office T: +86 10 5878 5062 E: carolyn.dong@cn.kwm. com

Yao Chi Associate King & Wood Mallesons’ Corporate M&A Group, Beijing Office T: +86 10 5878 5781 E: yaochi@cn.kwm.com

A: 40th Floor, Tower A, Fortune Plaza 7 Dongsanhuan Zhonglu, Chaoyang Beijing, 100020, P. R. China T: +86 10 5878 5062 F: +86 10 5878 5577 E: carolyn.dong@cn.kwm. com W: www.kwm.com

he oil and gas industry is strictly regulated in China.

However, China currently has not developed a comprehensive legal framework in this regard. Some of the Chinese laws are considered both simple and vague.

Foreign investors who would like to participate in this industry in China should be aware of the risks arising from the ambiguities in this area.

A. Regulation re traditional production sharing contracts (the “PSC”) Foreign participation in China’s oil and gas industry commenced in the early 1980s. In 1982, the State Council (China’s central government) promulgated the very early Regulations of the PRC on the Exploitation of Offshore Petroleum Resources in Cooperation with Foreign Parties (《中华人民共和国对外合作开采海洋石油资源条 例》) (“Offshore Regulation”) which provides the basic framework for traditional PSCs. The Offshore Regulation also contains mandatory requirements for transferring technology and know-how as well as giving priority to domestic manufacturers when purchasing equipment and raw materials, reflecting the policy objectives of the Chinese government at that time that focused heavily on bringing foreign capital, advanced technology and industrial experience into China. About 10 years later, the State Council promulgated the Regulations of the PRC on Sino-Foreign Cooperation in the Exploitation of Continental Petroleum Resources (《中华人民共和对外合作开采陆上 石油资源条例》) (“Onshore Regulation”) (collectively with the Offshore Regulation, the “Regulations”) which is substantially the same as the Offshore Regulation but only applicable for the onshore operations and also contains similar technology transfer requirements.

Both of the Regulations have subsequently been revised several times, and the current effective versions were last amended in 2011. Despite such various revisions, most of the major principles set out below have not been changed: • all petroleum resources in China are the

property of the state and any foreign

participation is managed by the

central level governmental authorities; • the blocks to be developed are limited to

blocks designated by the Ministry of Land and Resources (“MOLAR”) for foreign participation purposes; • the project structure is limited to traditional PSCs; • the parties to the PSCs shall be foreign

enterprises and major Chinese oil companies

designated according to the Regulations, and

the PSCs are all subject to approval by the

Ministry of Commerce (“MOFCOM”); and • the foreign investors generally assume more

risk and liabilities than the Chinese party and

will normally be responsible for the initial investment.

By now, PetroChina, which is one of the designated major Chinese oil companies and is the most active participant in onshore blocks, is performing around 40 PSCs. B. Any other approaches besides PSCs? Since 2007, as well as in the latest 2011 Foreign Investment Industry Guidance Catalogue (“2011 Catalogue”), investments in risk exploration, exploitation of oil and natural gas has been classified as an “encouraged” industry. However, the 2011 Catalogue requires such encouraged foreign participated oil and gas operations to be carried out through either an equity joint venture or a cooperative joint venture established with Chinese partner(s) (the “JV”).

However, such broadly “encouraged” foreign participation in this industry lacks compatible implementation rules.

Furthermore, there are conflicts/obstacles under the currently legal framework which creates risks for the potential investors, e.g.: • Under current Chinese laws, all the oil and

gas exploration/exploitation rights are owned

by state-owned oil majors, any other company

seeking to own such rights must first obtain

approval from the State Council. However,

there is no clear procedure for obtaining such

approval, and it is unclear whether/how the JVs

could obtain and own any of such oil and gas rights; • It is unclear whether the JVs may participate

in the development of all blocks or only the

special designated ones (also there is no

rule for such designation of blocks other than

those for traditional PSCs according to the Regulations); and • It is unclear how the JVs (being companies

registered in China), if they do not directly hold

exploration/exploitation rights, should

cooperate with state-owned oil companies,

e.g., whether can enter into PSCs or other

contractual arrangements.

Generally speaking, China is unlikely to halt its openingup process and will especially encourage foreign investments into the development of low-permeability reserves, development of new technologies on increasing the recovery rate, and development of unconventional oil and gas resources (such as shale gas, oil shale, oil sands, heavy oil, etc.). However, due to the fact that there is no single regulatory authority responsible for regulating this industry and the organizational overlapping on certain points, the development of implementation rules of such encouragement policies is unsatisfactory. Therefore, foreign investors shall be cautious of the risks arising from the ambiguities of PRC laws. *Carolyn Dong is a partner in King & Wood Mallesons’ Corporate M&A Group, Beijing Office. **Yao Chi is an associate in King & Wood Mallesons’ Corporate M&A Group, Beijing Office.

30

China-Canada energy

Net benefit to Canada test

U

nder the Investment Canada Act (ICA), a prospective investor must demonstrate that the proposed transaction would be of “net benefit” to Canada.

The key six factors assessed are: 1) The effect of the investment on the level, and the nature of economic activity in Canada; 2) The degree and participation

by Canadians; 3) The factors of productivity, efficiency, technological development, product innovation, and variety; 4) Competition in Canada; 5) The compatibility with national industrial, economic, and cultural policies; and 6) Canada’s ability to compete in world markets. As Canada’s government website states: “The ICA provides no specific weightings to the factors, nor is any single factor determinative. One balance, the positives must outweigh the negatives for an investment to be approved.”

The test is one almost exclusively of economic analysis. National security is not even a key consideration. It is a methodology used by the government to shore up or assure Canada and its people that the transaction will be beneficial to

Canada. “As part of establishing that the net benefit to Canada test has been met, the Canadian government commonly seeks undertakings from the acquirer with respect to various matters such as the maintenance of decision making in Canada, the maintenance of employment levels, the maintenance or increase of capital expenditure levels, the contribution of technology to the Canadian business, and the maintenance of participation in corporate social responsibility matters and other contributions locally,” says Stikeman Elliott Calgary partner Christopher Nixon. Ben Smith, a Hong Kong partner at Fulbright & Jaworski, points out that “on many of these factors, Chinese investments in Canada score very well”.

All the lawyers told ALB that regardless of the undertakings offered by the potential acquirer, the government needs to form the view that the deal would be of net benefit to Canada. The Industry Minister ultimately has the ability to make a final determination apart from any delineation of specific factors.

detach from its reliance on the U.S. “One of the big drivers [for developing relationships with China] is to try and diversify, and grow our Asia trade and investment linkages, to wean ourselves down from the shockingly high proportion of our trade and investment flows that are with the U.S.,” says Campbell. In 2011, China overtook Great Britain to become Canada’s second-largest trading partner. Canadian exports to China rose by 27 percent to $17 billion last year from 2010, and China’s exports to Canada inched up 8 percent to $48.6 billion. Trade figures now show that Canada’s reliance on the U.S. has declined, with its U.S. trade depressing to 68 percent.

On Aug. 15, Canada’s minister of international trade and minister for the Asia-Pacific gateway, Ed Fast, and China’s minister of commerce Chen Deming, announced the completion and release of a joint Canada-China Economic Complementarities Study. In it, the expansion and strong momentum of Canada-China trade and economic relations are highlighted. As quoted from the Foreign Affairs and International Trade Canada site: “China is identified as a priority market under the government of Canada’s Global Commerce Strategy, and advancing our bilateral trade and investment interests with China is key to the future prosperity of Canadians. The value and breadth of Canada’s trade and economic relationship with China already exceeds those with most other priority markets, including the other fast-growing BRIC economies combined (Brazil, Russia and India)”.

Open sectors and threshold raise As lawyers have pointed out, Canada is quite open to foreign investment. “Canada is pretty open to most sectors - there are just a few

ASIAN LEGAL BUSINESS september 2012

areas where we have some residual angst,” says Campbell. In particular, the telecoms and cultural industries remain protected and restricted, and parts of the transport sector (mainly airlines) and financial services industry are limited. But the rest welcome international participation. Over the years, Canada has been chipping away at investment limitations across the board. According to Campbell, historically, under the Investment Canada Act (ICA), the oil and gas sector had much lower thresholds and potential investors were much more carefully scrutinised.

But these were taken out a long time ago.

Additionally, amendments were made to the ICA a few years ago that removed sensitivities to other sectors, including transportation and uranium. Even now, the Canadian government is gradually moving towards liberalising the non-content portion of the telecoms sector. “We will eventually get ourselves in a position where we have reduced or eliminated restrictions on the telecoms sector,” says Campbell. The welcoming attitude of the Canadian government and the constant evolution to open up of areas of investment is a solid demonstration that Canada is ready, and willing to do business with the world.

Another significant sign that Canada is pro-investment is that the government is in the process of raising its review threshold to a substantially higher value. The current threshold for direct acquisitions of Canadian targets is if the business has assets greater than $330 million. Then, the “net benefit to Canada” test would be triggered (See boxout top left).

Earlier this year, the Canadian government recently proposed two major changes for WTO (World Trade Organization) investors: First, the threshold would be based on a new measure – enterprise value – rather than the book value of Canadian business’ assets; and second, the progressive raising of the threshold to $1 billion over four years once the new threshold comes into force.

For the first two years, the threshold will be $600 million, then rise to $800 million the following two years, and then finally jump to $1 billion. No date has been announced for the issuance of these revised regulations, but market watchers are confident that they will come into play soon. “This government is pro-investment, and it would not be doing major raises to investment thresholds if it had a general wariness about investment from China,” comments Campbell.

China-Canada FIPA One hallmark effort made between China and

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China-Canada energy

Canada continues to welcome foreign investment with Investment Canada Act changes Dr. Neil Campbell, McMillan

T

he Canadian Government continues to work towards implementing major increases in the reviews thresholds under the Investment Canada Act (ICA). It has also introduced three improvements to the process for reviewing foreign investments, two relating to transparency and one to compliance with undertakings.

Reviewable transactions The ICA requires that direct acquisitions of large Canadian businesses be reviewed under a “net benefit to Canada” test. The 2012 threshold for direct acquisitions (of assets or shares) of Canadian businesses is a book value of assets greater than C$330 million. (Smaller and indirect acquisitions may also be subject to review in the cultural industries or where the rare situations where the acquirer is not from a WTO-member country.)

In 2009, amendments were introduced to raise the thresholds to the review threshold will be raised to $600 million in enterprise value for two years, followed by an increase to $800 million for the next two years, reaching $1 billion after four years, and annually indexed to changes in GDP thereafter. These changes have been on hold pending the development of regulations to define enterprise value.

The draft regulations were released in May 2012 and the government is now reviewing stakeholder comments. While the timing for the threshold increase has not yet been finalised, Canada remains on course to significantly liberalise its foreign investment regime.

The rejection of BHP Billiton’s proposed acquisition of Potash Corporation of Saskatchewan (PCS) in 2010 prompted a media clamour that Canada might have turned hostile towards foreign investment and that the ICA was non-transparent.

However, BHP/PCS was only the third

rejected transaction since the ICA was enacted in 1985. The suggestion that the Conservative Government — which was re-elected with a large Parliamentary majority in May 2011 — does not welcome investment is simply wrong. In addition to the threshold increases, it has an extensive track record of approving ICA applications in a wide range of sectors (prior to and since BHP/PCS), and has also demonstrated proactive commitment to negotiation of agreements which will expand inbound and outbound investment and trade with numerous countries. This includes a foreign investment protection agreement with China that was signed in September 2012 and is awaiting ratification.

Transparency The issue of transparency is not clear-cut, because there is a trade-off between the benefits (chiefly information for interested stakeholders and accountability of public decision-making) and the important need to respect the confidentiality of sensitive transactional and commercial information. The recent amendments fine tune this balance by allowing the Minister to disclose information about transactions which have been approved and to provide reasons in the rare cases where an investment is determined not to be of net benefit. In the latter situation, the investor will receive an opportunity to make representations about confidentiality before the disclosure occurs. It will also have 30 days in which to address the reasons for the preliminary negative conclusion and seek to persuade the Minister that the net benefit test can be met (e.g. through negotiation of undertakings). These are positive changes.

Part of the transparency concern has included complaints that ICA decisions may be politically-influenced. It is important to recognize that the ICA was deliberately designed to place decision-making in the hands of an elected official (the Minister of Industry or, in cultural cases, the Minister of Heritage) in order to allow

the broad list of economic factors that can be considered under the “net benefit” test to be evaluated in a substantive rather than an administrative way. Investors and their advisors can address the relevant factors and the relevant decision-makers/ influencers in their regulatory clearance strategies. We expect that the government’s flexibility to make reasons public will gradually increase the understanding of how key factors are applied.

Compliance with undertakings Another case which has generated noise about Canada’s treatment of foreign investors is the Stelco compliance proceeding. The Canadian government took U.S. Steel to court and sought sizeable penalties for alleged failures to adhere to its undertakings from its 2007 acquisition of Stelco (at that time one of Canada’s largest steel producers). One compliance case in a quarter century hardly signals hostility to foreign investment; it merely indicates that investors should assume that the Canadian government will expect them to follow through on written undertakings provided as part of securing a “net benefit” approval. The court challenge was ultimately settled with revised future commitments by U.S. Steel.

The amendments contain one enhancement of the undertakings mechanism. The Minister may request security that can be used to provide assurance that undertakings will be honoured. In our view, security normally will not be necessary. We expect that the government will exercise this option in a reasonable manner and that it will not become a significant barrier to investors who want to implement transactions that are intended to meet the “net benefit” test.

In summary, the recent changes allow the foreign investment review process to operate more transparently and with stronger compliance incentives, but do not change Canada’s “open for business” policy. This will be reinforced by the substantial increase in the review thresholds.

31

32

China-Canada energy Canada recently was to solidify a trade pact. Earlier this year, on Feb. 8, China and Canada signed a series of agreements to boost modest levels of bilateral trade. During Prime Minister Harper’s visit to Beijing, he and Premier Wen Jiabao concluded negotiations of the CanadaChina Foreign Investment Promotion and Protection Agreement (FIPA), which had begun between the two countries 18 years ago.

Harper had arrived the previous day with a large trade delegation in a bid to ramp up exports and reduce Canada’s reliance on the huge U.S. market. In addition to the FIPA deal, a Declaration of Intent was signed by Ed Fast and Chen Deming. “The agreements being signed

“Canadian companies are generally very well managed, and have good staffing and technology.

Staffing and management are very important, which make these targets pretty attractive to the Chinese.”

Hilary Lau, Herbert Smith today, in such a wide range of areas, are further testimony that we are taking relations to the next level, and further strengthening our strategic partnership,” Harper had said in a statement.

Both nations will need to conduct a legal review of the deal, and then sign and ratify it before it can take effect. This may take some time. “I assume that there are still details and text to be finalised before it can be ratified,” says Campbell. “Sometimes it’s hard to have a perfect window on the timing.” Still, the signing of the FIPA highlights Canada and China’s efforts to expand bilateral trade and investment between the two countries.

The text of the agreement is not publicly available yet, but lawyers speculate that the FIPA will contain a basic set of protections for foreign investment that require host governments to treat foreign investments with fair standards of treatment, pay compensation for direct or indirect expropriation at a fair value, apply laws impartially and transparently, refrain from discrimination and protectionist conduct, and allow for repatriation of profits and transfer of capital. “The presence or absence of one of these treaties does make material difference to the risk level that an investor has when they’re thinking of making a large investment into a host country,” says Campbell.

The two nations also signed an extension of a memorandum of understanding on energy issues covering oil, gas and nuclear energy, and trade and investment as well. “This agreement will increase opportunities to attract capital investment, and improve access to markets for Canada’s energy resources, technology, and related services,” a Canadian statement said.

Trans-Pacific strategic economic partnership On June 19, Canada announced that it joined 10 other nations in Trans-Pacific Partnership (TPP) talks aimed at creating an Asia-Pacific free trade agreement. The desired free-trade zone would be among a combined population of 658 million people, and a gross domestic product of more than C$20 trillion ($19.65 trillion). In 2010, Canada had expressed interest in officially joining the TPP talks, but was reportedly blocked by member nations New Zealand and the U.S. over a disagreement related to Canadian dairy policy and intellectual

ASIAN LEGAL BUSINESS september 2012

property rights protection.

Canada’s push to be included in these talks now is part of its “get out there” strategy, notes Campbell.

“This is a further example of our determination to diversify our exports, and to create jobs, growth and long-term prosperity for Canadian families,” Harper told reporters in the Mexican beach resort of Los Cabos on the sidelines of a G20 summit.

Canada’s accession to the TPP will take a period of time as each member country must separately approve its bid to join the talks. An agreement among the countries currently in the group is not expected for at least another year. “Negotiations will likely extend well into 2013 before a deal is struck. It may even drift longer than that. But it is certainly do-able in the second half of 2013,” said Jeffrey Schott, a trade scholar at the Peterson Institute for International Economics, to Reuters.

Open for business Though there have been some media reports of “vague” or “unclear” Canadian investment rules, most lawyers dismiss the notion. The government has fine tuned the ICA (See box-out on p. 31), issued guidelines for state-owned enterprise investments, and concluded the FIPA with China, as part of proactive efforts to create more transparency and clarity for potential international investors. In the past 30 to 40 years, Canada has only turned down two or three deals out of thousands (including the infamous 2010 BHP Billiton-Potash Corp bid). “So none of this justifies any conclusion that Canada is closed or hostile to investment, nor is there any basis for concern that there is some insurmountable uncertainty in our regulatory processes,” says Campbell.

Canada has made great strides to signal to not only China – but the rest of the world – that it is open for business. “There’s no doubt that at both a political and policy level, Canada remains heavily open to foreign investment,” concludes Campbell. It has liberalised numerous sectors, raised investment thresholds, modernised its investment rules, pushed its participation in global party talks, and is working on various trade agreements, including ones with China, India, Japan and Europe. The outlook is bright for Canada, in particular with regards to energy investments from the Far East. “We are likely to see further investments from China into the upstream and midstream sectors in Canada and the U.S.” says Smith.

Corporate M&A rankings

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33

ALB 2012

Corporate rankings

By KANISHK VERGHESE and SEHER HUSSAIN Additional reporting by PAUL PIMENTEL

“T

he situation in Europe is threatening a slowdown in Asia,” says one practitioner, whose view is echoed unanimously by over 150 lawyers interviewed by ALB for the 2012 Corporate M&A Rankings. The past year has been a trying time for M&A lawyers, as the global economic downturn has undoubtedly resulted in a deceleration in activity, and ignited fierce competition for work. Asia-Pacific deal volumes fell 29.5 percent to $223 billion in the first half of 2012 compared to last year, while M&A targeting Asia-Pacific firms dropped 30 percent to $177 billion, reported Reuters. Companies are adopting a cautious approach towards expansion, and are monitoring euro zone activity,

China’s political changes, and the U.S. elections closely.

The graphic depicts China as the most active M&A market in Asia, grabbing 38 percent of the total. It is no secret that China has been at the forefront of outbound M&A in Asia, with practitioners noting a marked increase in activity at the public level. Many international law firms are working on a rising number of take-private transactions, after accusations of fraud and a tough economy have led many Chinese companies to de-list from stock exchanges in the U.S. Several of these companies are expected to eventually go public in China or on the Hong Kong Stock Exchange.

Also on the agenda for China is a leadership change which will

34

Corporate M&A rankings

ASIAN LEGAL BUSINESS september 2012

* Most targeted nations - Top 10 Value $ billionY

nYear to date percent change China Australia

.

S, Korea India Indonesia Hong Kong Malaysia Singapore Taiwan Philippines 01

02

03

04

05

06

07

08

0

-60- 50 -40- 30 -20- 10 01

02 03 04 0

Source: Reuters reuters graphic/Catherine Trevethan 21/06/12

take place during the country’s 18th National Congress later this year.

As with any leadership change, this has created some uncertainty in the market, but the mood remains confident that outbound deals will pick up once the handover is completed.

Much like China, both Japan and South Korea have witnessed an uptick in outbound transactions, spearheaded by cash-rich North Asian conglomerates seeking global ambitions. “Outbound deals are more numerous within Asia, but smaller in size compared to deals out of Asia,” adds a Japan-based M&A partner. However, the appreciation of the yen, coupled with the effects of last year’s tsunami, have slowed Japanese inbound work to a trickle.

In Taiwan, business remains steady. Lawyers observe that interaction between U.S. and Taiwanese companies has dipped, while transactions with Europe are on the rise. The second half of the year started strong, with Taiwanese chip designer Mediatek’s offer to buy 40 to 48 percent of rival MStar Semiconductor’s outstanding shares, in a deal worth about 115 billion New Taiwan dollars ($3.83 billion).

Southeast Asia was a bright spot in the region, partly offsetting sluggish deal flow elsewhere in Asia. Deals in Indonesia and Malaysia saw a huge pickup, with volumes rising 62 percent and 33 percent, respectively. “There’s definitively a high level of interest in Indonesia, perhaps greater now than there ever has been before,” confirms a Jakarta-based lawyer. “The market seems very healthy for deals, including all types of corporate transactions.” Buoyed by vigorous growth and strong balance sheets, Southeast Asian companies are aggressively chasing financial, energy, and retail firms globally.

Some of the region’s landmark deals include Singapore’s DBS Group Holdings’ $7.3 billion bid for Indonesia’s PT Bank Danamon, as well

as Malaysia’s Petroliam Nasional Bhd’s $5.3 billion acquisition of Canada’s Progress Energy Resources.

Hopping across to India, the outlook remains choppy, with one Delhi-based practitioner reporting that “in the last six to eight months, there has been some misgovernance in India which has affected M&A; deals are not getting closed in a tight timeline, and the urgency to complete has come down dramatically”. Evidenced by the striking fall in percent change of India-related deals in the graphic, there are still some bright spots, including the Tata Global Beverages Limited and the Starbucks Group $900 million joint venture to open up cafes in India. On the whole, lawyers report that they are still busy handling inbound work.

Taking a look at Vietnam also throws up some interesting trends; despite economic uncertainty, one Hanoi-based lawyer reports that “the Japanese community is keener than ever to expand and consolidate their investments into Vietnam, especially within the financial services, banking, and insurance sectors”. Predictably, energy projects have also remained popular with several coal-fired power plants in various stages of financing and development. This year also saw the largest private equity transaction to date in Vietnam occur, with Kohlberg Kravis Roberts’ (KKR) $159 million investment in Masan Consumer Corporation, a current market leader in fish, soya and chilli sauce.

In all, it has been an undeniably tumultuous 12 months, and it is safe to say that the rest of the year will see M&A lawyers in the region continue to remain busy with a diverse range of work. Stay tuned for more M&A coverage in upcoming issues.

Corporate M&A rankings

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1

Asia

tier

· · · · ·

Clifford Chance Freshfields Bruckhaus Deringer Linklaters Simpson Thacher & Bartlett Skadden, Arps, Slate, Meagher & Flom

2

tier

· · · · · · ·

Allen & Overy Baker & McKenzie Davis Polk & Wardwell Herbert Smith Hogan Lovells Latham & Watkins Paul Hastings

3

tier

· · · · · · · ·

Cleary Gottlieb Steen & Hamilton Morrison & Foerster Paul, Weiss, Rifkind, Wharton & Garrison Shearman & Sterling Sidley Austin Sullivan & Cromwell Weil, Gotshal & Manges White & Case

35

4

tier

· · · · · · · · · · · · · ·

Allen & Gledhill Amarchand & Mangaldas & Suresh A Shroff & Co Fangda Partners Kim & Chang King & Wood Mallesons Lee & Ko Mayer Brown JSM Milbank, Tweed, Hadley & McCloy Nagashima Ohno & Tsunematsu Norton Rose O’Melveny & Myers Slaughter and May Vinson & Elkins WongPartnership

5

tier

· · · · · · · · · · · · ·

AZB & Partners Jun He Law Offices Kadir Andri & Partners Lee and Li Mori Hamada & Matsumoto Nishimura & Asahi Rajah & Tann Reed Smith Ropes & Gray Shin & Kim Shook Lin & Bok Stephenson Harwood Yulchon

REUTERS/Toru Hanai

36

Corporate M&A rankings

ASIAN LEGAL BUSINESS september 2012

China Domestic

1

2

· · · · ·

3

tier

tier

· · · · ·

Fangda Partners Haiwen & Partners Jun He Law Offices King & Wood Mallesons Zhong Lun Law Firm

tier

· ·

Commerce & Finance Law Offices Global Law Office Guantao Law Firm Jia Yuan Law Offices Jingtian & Gongcheng

Grandall Law Firm Llinks Law Offices

China Foreign

1

2

Clifford Chance Freshfields Bruckhaus Deringer Linklaters Skadden, Arps, Slate, Meagher & Flom Weil, Gotshal & Manges

4

tier

· · ·

· · · · · · · · · · ·

tier

Allen & Overy Baker & McKenzie Cleary Gottlieb Steen & Hamilton Davis Polk & Wardwell Herbert Smith Hogan Lovells King & Wood Mallesons Latham & Watkins Paul Hastings Paul, Weiss, Rifkind, Wharton & Garrison Simpson Thacher & Bartlett

Ropes & Gray Salans Stephenson Harwood

· · · · · · · · · ·

Kirkland & Ellis Mayer Brown JSM Milbank, Tweed, Hadley & McCloy Norton Rose O’Melveny & Myers Reed Smith Shearman & Sterling Sidley Austin Sullivan & Cromwell Vinson & Elkins

China M&A Legal rankings Based on Value - Any Involvement Advisor Ranking Legal Advisor Full to Each Advisor

REUTERS/Guang Niu

· · · · ·

3

tier

tier

Ranking Value inc. Net Debt of Target ($ Mil)

Rank

Mkt. Share

Number of Deals

Skadden

17,492.4

1

7.7

25

Linklaters

16,489.2

2

7.2

23

Baker & McKenzie

13,695.6

3

6.0

26

Weil, Gotshal & Manges

13,471.6

4

5.9

7

Fangda Partners

12,844.7

5

5.6

17

King & Wood Mallesons

12,661.7

6

5.6

27

Freshfields Bruckhaus Deringer

10,563.6

7

4.6

15

Vinson & Elkins

10,059.7

8

4.4

3

White & Case

8,833.3

9

3.9

14

Clifford Chance

8,719.1

10

3.8

27

Subtotal with Legal Advisor

120,727.7

-

53.0

591

Subtotal without Legal Advisor

107,026.3

-

47.0

3,894

Industry Total

227,753.9

-

100.0

4,485

(*):tie Deals recorded from May 1, 2011 to July 1, 2012 League tables are based on the nation of either the target, acquirer, target ultimate parent, or acquirer 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.

Corporate M&A rankings

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37

Hong Kong

1

· · · ·

Clifford Chance Freshfields Bruckhaus Deringer Linklaters Skadden, Arps, Slate, Meagher & Flom

4

tier

· · ·

2

3

tier

tier

· · · · · · · · · · · ·

Ropes & Gray Stephenson Harwood Vivien Chan & Co

tier

Allen & Overy Baker & McKenzie Cleary Gottlieb Steen & Hamilton Davis Polk & Wardwell Herbert Smith Hogan Lovells Latham & Watkins Paul Hastings Paul, Weiss, Rifkind, Wharton & Garrison Simpson Thacher & Bartlett Slaughter and May Weil,Gotshal & Manges

· · · · · · · · · ·

King & Wood Mallesons Mayer Brown JSM Milbank, Tweed, Hadley & McCloy Norton Rose O’Melveny & Myers Reed Smith Richards Butler Shearman & Sterling Sidley Austin Sullivan & Cromwell Vinson & Elkins

hong kong M&A Legal rankings Based on Value - Any Involvement Advisor Ranking Legal Advisor Full to Each Advisor Freshfields Bruckhaus Deringer

Ranking Value inc. Net Debt of Target ($ Mil)

Rank

Mkt. Share

Number of Deals

14,403.8

1

16.5

14

Linklaters

11,982.1

2

13.8

17

Ashurst

8,744.0

3

10.0

4

Baker & McKenzie

7,828.5

4

9.0

15

Allen & Overy

7,340.0

5

8.4

15

Sullivan & Cromwell

6,947.8

6

8.0

4

Clifford Chance

5,228.0

7

6.0

23

Mayer Brown JSM

5,211.7

8

6.0

25

Freehills

4,218.5

9

4.8

9

Kirkland & Ellis

3,993.9

10

4.6

4

Subtotal with Legal Advisor

48,148.9

-

55.6

249

Subtotal without Legal Advisor

38,413.0

-

44.4

1,159

Industry Total

86,561.9

-

100.0

1,408

(*):tie Deals recorded from May 1, 2011 to July 1, 2012 League tables are based on the nation of either the target, acquirer, target ultimate parent, or acquirer 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.

REUTERS/Siu Chiu

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News

39

REUTERS

Analysis: Inventory mountain adds to pain for Chinese solar firms

By Swetha Gopinath and Thyagaraju Adinarayan, Reuters

In China’s Jiangsu province, near Shanghai, mountains of solar panels sitting around a factory owned by Trina Solar Ltd are fast losing their value.

Trina and other Chinese solar companies, including Suntech Power Holdings Co Ltd and Yingli Green Energy Holding Co Ltd, hold inventory of about 5 gigawatts (GW), analysts say, nearly one-sixth of annual global demand.

The stockpiles would be valued at about $4.5 billion based on the average selling price of 87 cents for a panel in the second quarter, but the glut means prices are falling fast.

The companies, which face a steep antidumping duty in the United States and possible tariffs in top market Europe, have few options but sell the existing excess cheaply in China.

“With the anti-dumping investigation starting in Europe, Chinese companies are avoiding shipping to the continent at the moment,” said analyst Stefan de Haan at business information provider IHS Inc. “This will further increase inventory over the next few weeks or so.”

Companies have already started slashing production but they have a long way to go.

Chinese makers have the capacity to produce 50 GW of solar panels a year -- well above global annual demand for 30 GW. Analysts have taken note and have pushed up their loss forecasts for Yingli, Suntech, Trina and JA Solar Holdings Co Ltd, Thomson Reuters StarMine data shows.

Panel prices are already the lowest in China and they are expected to fall further below 58 cents per watt, according to IHS. It says prices in the United States, Canada, and Mexico are expected to be 69 cents per watt.

EUROPEAN BLUES China sold about 21 billion euros ($27.42 billion) in solar panels and components to the European Union in 2011 -- some 60 percent of all Chinese solar exports.

But the regulatory problems have come on top of the global glut -- which formed after Chinese manufacturers ramped up production just as top European markets cut subsidies.

Stockpiles of solar panels at Chinese firms now average about 110 days of sales, three times the 42 days of inventory averaged globally, Thomson Reuters data shows.

European solar companies, led by Solarworld AG, allege that Chinese producers sell panels below market value, prompting a European regulatory investigation.

Chinese companies have denied the charges, but to minimize losses from any eventuality, some are looking to cut production. Suntech, the world’s largest solar panel maker, said on Monday it would slash its capacity to produce cells, used to make panels, by a quarter.

To get rid of excess inventory, Trina has also lowered production, raised sales in China and is looking at newer markets, said Thomas Young, a spokesman for the company.

DEEPER CUTS NEEDED GTM Research analyst Shyam Mehta said about 15 GW of Chinese capacity needs to be taken offline for supply and demand to come into a balance.

“Given the continuing price pressure in

the sector, with very little hope of the prices stabilizing at the current levels, it is still the best strategy to try to keep your inventories as low as possible, and sell your products,” said Thiemo Lang, senior portfolio manager at Zurich-based Sustainable Asset Management.

Lang, who manages a fund that has $900 million in cleantech assets under management, says solar panel and cell companies offer little value now because of the chronic oversupply and regulatory uncertainty.

The glut has already sent prices crashing, with solar panels, which cost as much as $4.20 a watt in 2008, diving 80 percent in the past four years.

Most of the Chinese companies wrote down the value of their inventory in the second quarter and their shares have lost about three-quarters of their value in the past year.

With doors to Europe and the United States closing, Chinese companies have to sell at home, but that market would have to expand massively to cater to their production.

China’s consumption of solar power products is expected to jump to about 3.5 GW in the second half of the year from 2 GW in the first, Mehta said.

The country last month raised its 2015 target for solar power capacity by 40 percent to about 21 GW, the third rise in just over a year -- but sales are needed now, in 2012.

“The Chinese companies (would be) more than willing to try to deploy their modules in their own country, but it seems that the overall Chinese market won’t be more than 4 GW this year, and that the pricing will be quite poor,” said Lang.

While most other companies have much lower inventories, two U.S. firms, SunPower Corp and First Solar Inc, had stocks just 15 days lower than their Chinese rivals, yet they were among the very few profitable solar companies in the June quarter.

40

Tianjin Report

ASIAN LEGAL BUSINESS september 2012

Tianjin

2012 Growth and pains An early starter in China’s private equity industry, Tianjin’s bid to become the centre of China’s young but rapidly developing PE scene is experiencing some growing pains. A number of Tianjin-registered domestic PE Funds were involved in fund raising scams.

A bid to curb illegal PE funds by the local government managed to cool the sizzling market, but delivered an unexpected blow to the ambitious Tianjin lawyers gearing up for a larger share of work. Song Yingwen reports

E

merging as China’s next economic powerhouse, Tianjin has continued its journey toward becoming the economic invigorator of the northeastern Bohai Rim region in the past year.

But Tianjin’s law firms stumbled a little as the big machine adjusted pace in the course of the year.

Government reports show that Tianjin’s economic performance was strong in 2011. According to the Tianjin Bureau of Statistics, foreign direct investment registered in the city was at $13 billion in 2011, an increase of 20.4 percent over the past year. Foreign direct investment in China for the same period rose 9.7 percent to a record $116 billion despite the fact that general global economic weakness had restrained both inward and outward investments in 2011. In Tianjin, more than 340 new major projects were launched in 2011, taking the number of major projects in progress in the city to 1,280. These factors pushed Tianjin’s GDP up 16.4 percent to 1.12 trillion yuan in 2011, topping the list of GDP per capita in China.

Contrary to this growth, Tianjin lawyers felt the pain of slowing down. Compared with the positive outlook in 2010, a year in which Tianjin law firms witnessed an increase of 16.5 percent in revenue that hit 890 million yuan, and foreseeable continuing growth in the coming year, only a small number of law firms reported revenue growth this year. Yang Zhongkai, managing partner of Join & High Law Office, one of the largest law firms in Tianjin, says the annual revenue of his law firm ranged between 40 to 50 million yuan in 2011, almost at the same level as that of the previous year. “Although he who does not advance loses ground, still I am glad that at least we made profit,” Yang says.

For smaller firms focusing on local business, there is great pressure to survive. “The past year was a difficult time for most law firms in Tianjin, especially the small ones,” says Qiu Mingzhou, managing partner of Mingzhou Law Firm, which employs 12 licensed lawyers and

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Tianjin Report

41

“The target of this overhaul is to eliminate illegal PE funds involved in fund raising scams. New funds might find it more challenging to set up in Tianjin, and small funds might find it difficult to meet the new capital requirements, But it won’t be a problem for large healthy funds. a healthy market will benefit all.”

Guo Weifeng, Winners Law Firm

has been operating in Tianjin since 1993. Describing the business as “steady” for Mingzhou Law Firm, Qiu says he had been slowing down, and learning to enjoy the fun of having a job-life balanced lifestyle in the past year.

But according to Li Haibo, managing partner of a leading private equity (PE) law firm, Winners Law Firm, Tianjin was not the only city to show a weak performance in the legal market last year. “Market performance is poor not only in Tianjin, but also in big cities like Beijing as well,” says Li, who has been spending most of his time exploring the Beijing market after Winners’ Beijing office opened in 2011. Winners recorded reduced revenue of 23 million yuan in 2011, down 9.5 percent from 2010. Li, also the vice chairman of the Tianjin Bar Association, estimated that a lot of law firms had suffered losses.

The total revenue of Tianjin law firms stood at 900 million yuan in 2011, according to Han Gang, president of the Tianjin Bar Association.

The total revenue for Tianjin law firms in 2010 was 890 million yuan.

Han says the law market performance was largely influenced by the weak capital markets. With the pressure from the slowing global and domestic economy, cooling stock and capital markets, and most important of all, a shift in government policies on Tianjin’s booming PE sector, Tianjin’s legal market was quiet last year.

Growing pains for the PE industry PE specialist Guo Weifeng of Winners noticed a significant drop in the number of his new RMB private equity clients after September 2011. “In 2011, we had around 50 new PE funds on our client list, only half the number for 2010,” says Guo. The downturn took place in September when a new regulation, The Administrative Measures for Tianjin Equity Investment Enterprise and Equity Investment Management Entities (Circular 675) issued by the Tianjin Municipal Development and Reform Commission, became effective. In the year after the regulation took effect, the number of Winners’ new PE clients dropped to 10. According to Guo, who was involved in drafting the regulation, only 20 to 30 new PE funds were registered in Tianjin after Sept. 1, 2011. Given that the city saw more than 1,000 PE funds set up within a year in its heyday in 2010 and early 2011, the expansion of Tianjin’s PE industry almost came to a halt after the new measures took effect.

The booming PE industry was a major profit engine for Tianjin law firms in 2010, feeding a large number of small firms with business to help PE funds register. The number of PE funds in Tianjian rose from 917 at the end of 2010 to 2,413 at the end of 2011, a large number of

which were registered between July, the time Circular 675 was issued, and Sept. 1, the day the Circular took effect. There has been very little fluctuation since then. “Circular 675 was a heavy blow to Tianjin’s PE sector,” says Qiu. Circular 675 significantly raised the threshold to set up a PE fund in Tinajin. It requires all PE firms with assets of between 100 million and 500 million yuan to register with the regulator first, and that the actual paid up capital for corporate funds and partnership funds must be at least 20 million yuan and 10 million yuan, respectively. For individual investors, the minimum investment is two million yuan, a significant increase from the previous one million yuan.

Circular 675 was only the beginning of a set of regulatory scrutiny measures that overhauled Tianjin’s PE industry. Later on, the Tianjin Port Free Trade Zone in the Binhai New Area further enhanced the threshold by raising the registered capital of a PE fund to 200 million yuan, with a minimum of paid up capital of 100 million yuan paid within 15 working days. After that, in March 2011, the Tianjin regulator issued a supplement to Circular 675 by stipulating that, for any existing PE funds which had raised 20 million yuan or more or had made investments, its limited partner must invest at least one million yuan in the fund, and provide their investment capacity to the Tianjin Administration of Industry and Commerce. PE funds that failed to meet the requirement would be deregistered.

The cost of setting up a PE fund in Tianjin was suddenly raised, and some limited partners were reluctant to provide investment capacity. Investors who were drawn to Tianjin by the preferential policies on registration duties and taxes were put at the crossroad to decide whether to stay or pull out, while new investors held their steps amid the fear of regulatory uncertainty. “The influences of these regulations are yet to be revealed,” says Yang of Join & High.

But Guo sees the positive side of the fact. “The target of this overhaul is to eliminate illegal PE funds involved in fund raising scams.

New funds might find it more challenging to set up in Tianjin, and small funds might find it difficult to meet the new capital requirements, but it won’t be a problem for large healthy funds. A healthy market will benefit all,” Guo says.

An early starter in China’s PE industry, Tianjin is experiencing growing pains. A number of Tianjin-registered domestic PE Funds were involved in fund raising scams. Investigations show that in some cases, the perpetrators reportedly marketed fake private equity interests in Tianjin-registered empty-shell funds through pyramid REUTERS/Vincent Du

42

Tianjin Report

ASIAN LEGAL BUSINESS september 2012

investment to $1.88 billion by the end of the year. This was more than six times the figure in 2010. China’s non-financial outbound direct investment rose 1.8 percent in 2011 to $60.1 billion, taking the outstanding value of China’s outbound investments to $322 billion by the end of the year.

Although criticised by some for the harsh measures introduced to curb illegal PE funds, Tianjin is continuing with its ambitious plan to become the financial centre of North China. The Tianjin government is now steadily paving the way to become China’s hub for hedge funds, according to Guo Weifeng, who sees in the area another opportunity for local lawyers. A service centre for hedge funds has been set up in the Binhai High-tech Industrial Development Area, and the hedge fund association is now taking shape in drafting an access system. “This is a lesson we learnt from the development of PE funds. One of the purposes of the association is to build a mechanism of self-discipline for hedge funds before the industry booms,” says Guo. A preliminary review of each fund “The overseas expansion of Chinese enterprises will be conducted before they set up in Tianjin, in the hope of closing out illegal hedge funds. and financial institutes has opened new Guo is among a group of professionals asopportunities for lawyers.” sisting the Tianjin government in outlining a Yang Zhongkai, Join & High Law Office regulation that will put hedge funds within the fold of a regulatory framework. With preferential tax policies and an efficient government-supported service chain, agree that temporary pains will benefit the industry in the long term.

Guo believes the advantages Tianjian has accumulated as a leading “Actually, the overhaul might also provide new opportunities for PE centre over the years, will help to attract competitive players in local lawyers,” says Guo. According to Circular 675, all PE funds in the hedge fund sector.

Tianjin were under an obligation to file applications with the regulaLi Haibo of Winners sees a bright future in the practice of environtor, and undergo preliminary reviews. “The preliminary review is mental law. The law firm now has a dozen regular clients in this area. a new business area brought about by the new regulations,” says With a cap-and-trade emission trading system to be designed and Guo. Changes in government policies also set higher demand for the implemented by the Tianjin Climate Exchange starting from 2013, professional services of lawyers. “This is a chance for local lawyers and Tianjin becoming one of seven regional pilot carbon markets to change their role from being agents for PE registrations to profesin China, Li thinks there is plenty of room for lawyers in this field. Li sionals preparing PE clients to understand, and meet government plans to expand his five-person team specialising in environmental requirements,” he says. law practice to a 10-person department in five years.

Li’s firm is also seeking to build a reputation in the practice of New areas sports law. Winners helped Chinese judo Olympic and world chamWhile most Tianjin law firms profit from traditional areas, such as real pion Tong Wen win her appeal at the Court of Arbitration for Sport estate, banking, finance and infrastructure-related practices, new against a two-year ban for a positive test for clenbuterol imposed by trends can still be noticed. the International Judo Federation in February 2011, the first victory of All law firms interviewed agreed that they had noticed an increase its kind for a Chinese athlete in China’s sports history. This case led Li in business related to overseas investment by their local clients. and his colleagues further into the legal practice in areas aligned with Qiu Mingzhou of the Mingzhou Law Firm recently returned from a sports, such as the settlement of retired athletes, and the commercial trip to Africa accompanying the China Council for the Promotion of utilisation of sports facilities.

International Trade (CCPIT) Tianjin Sub-council in August. Many Tianjin As wealth accumulates in private hands in China, Qiu Mingzhou trading companies have now cast their eyes on markets in West and believes there is room for family trusts to grow in China, and lawyers East Africa, and Qiu sees potential room for his law firm in this area. should be fully prepared for that. “Although family trusts are a relaFor Winners, resolving international trade and investment disputes, tively new concept in China, they have been a useful mechanism in and helping Chinese enterprises to avoid international trade barriers protecting and managing family wealth throughout the world. It will are one of the key areas the firm will focus on. The ripple in overseas be an inevitable choice for Chinese people as well,” says Qiu. expansion by Chinese enterprises has expanded to financial institutes, But to grab these opportunities, Tianjin lawyers have to prepare and then to related service providers including lawyers, according to them for the challenges. “Not only lawyers do have to improve themYang of Join & High. In a bid to renew a contract with one of its banking selves as professionals in their areas of expertise, local law firms have clients, Join & High was required to give an assessment of its talent to modify their modes of management to maximise the utilisation of resources in international trade laws, and the firm’s international netresources. It’s impossible for a lawyer who fights as an individual to work in target markets, the first time for the law firm. “The overseas compete with a legal team who is supported by a modern firm,” says expansion of Chinese enterprises and financial institutes has opened Li. Li’s law firm is a pioneer in management reform in Tianjin that has new opportunities for lawyers,” says Yang. been reshuffled from a traditional partnership law firm to one with According to the Tianjin Bureau of Statistics, 76 Tianjin enterprises corporation system. invested in 28 countries and regions in 2011, taking Tianjin’s outbound selling schemes. Victims involved the Chinese general public across the country.

In response to inquiries from Chinese media, Tianjin’s PE regulator, Tianjin Municipal Development and Reform Commission says that as of the end of June, around 30 PE funds had been wiped out of Tianjin market for either illegal operations or failing to meet the new measures since they were enforced. According to Guo, who has been assisting the Tianjin government in drafting and reviewing the PE regulatory measures, around 70 to 80 percent of PE funds in Tianjin met the requirements of the new rules, and would pass an annual review by the Tianjin Administration of Industry and Commerce, a contradiction to assertions that Tianjin has been abandoned by PE funds for its efforts to revamp the industry. While frustrated by a crisis of investor confidence and a seemingly stagnant PE market brought about by regulatory uncertainty, lawyers interviewed by ALB for this report

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43

winners law firm

International integration: Moving forward in a time of globalisation

E Simon Bai Oxon Partner & Attorney

very firm has its strength and limitation. Organic growth or merger and acquisition take time and do not always happen easily. The most efficient and effective means to expand a firm’s capabilities to serve clients’ needs, particularly when such business cross borders, is to utilize the resources of our international counterparts.

This is exactly the reason why law firms increasingly find it imperative that they must have international legal capabilities to better fulfill client’s requirements by enlisting legal support of foreign jurisdictions. One of the best ways to achieve it is to establish or join strategic alliances with international law firms from other jurisdictions.

Winners Law Firm (“Winners”) is one of the earliest movers in the industry in China to embrace the strategy of “go global and connect to a world of opportunities”. By establishing and participating in international contacts and network, we have been able to offer our clients strength, scope and flexibility that no single firm can ever achieve. In the meantime, with the critical mass that only genuinely international alliance offers, we can tap into local resources across the world, being part of a truly global force.

In September 2011, Winners co-hosted a seminar in Tianjin Nikko Hotel with Japanese law firm Oh-Ebashi Lpc & Partners. The seminar covered latest legal and policy updates on preferential policies towards foreign investment in Tianjin, and case studies in relation to investment in Japan by Chinese entities. In the past one year, both law firms have been promoting each other’s business development efforts and have mutually benefited from such an informal collaboration relationship.

A: Beijing Office Room 1826, Bright China Chang An Building, No.7, Jianguomennei Avenue, Dongcheng District, Beijing 100005 Tianjin Office 4th Floor Silk Mansion, No.10 Nanjing Avenue, Hexi District, Tianjin 300042 Binhai New Area Office 23rd Floor TEDA Central Hotel, No.16 the Third Avenue, TEDA Tianjin 300457 T: +86-010-65101827 F: +86-010-65101837 E: bxy@winlawfirm.com W: www.winlawfirm.com

From 6 February to 15 February 2012, Simon Bai and Andrew Xu, two partners from Winners, invited by White and Williams LLP (“WW”), visited its offices in New York and Philadelphia. On February 13, 2012, White and Williams LLP and Winners, partnered with the City of Philadelphia and its Sister Cities Program to recognize and celebrate the opportunities for business and advancement between Philadelphia and its Sister City, Tianjin, announced and signed a strategic alliance between WW and the Winners.

Guy Cellucci, Managing Partner of WW, and Simon Bai representing Winners signed the strategic alliance agreement which was witnessed and co-signed by the Mayor of Philadelphia, Mr. Michael Nutter, making it the first alliance between a Philadelphia and Tianjin law firm.

Mayor Nutter addressed city dignitaries and other guests at the event saying ”The alliance will support a mutual cooperation in areas of business law.” He added, “Philadelphia must enhance its international perspective, its view and its presence in a global economy. We

(Philadelphia) are one of the greatest original international cities in the world. We must obtain that prominence all across the globe.” The Mayor regarded the strategic alliance as another step towards highlighting Philadelphia as a great international city.

Having long recognized the competitive edge of being able to leverage multi-jurisdictional legal resources, Winners joined Lawyers Associated Worldwide (LAW) in 2006 and has been an active member ever since. LAW is a global association of more than 110 independent law firms located in more than 180 major commercial centers throughout the world. It allows member firms to service the legal needs of clients that are expanding their operations and relationships into new domestic and foreign markets because of the increasing globalization of the business world. The partner of Winners, Mr. Simon BAI has the honor of being elected the Asia Pacific Regional Representative in 2008 and has since then served on the global Executive Committee of LAW for four years. Simon BAI has been working tirelessly on the Executive Committee and has witnessed the growth and success of LAW over the years.

On 9 March 2012, LAW 2012 Asia-Pacific Regional Meeting hosted by Winners convened in Tianjin. Attorneys from Asia Pacific regions attended the meeting. On 10 March 2012, Mr. Jindu CUI, the Deputy Mayor of Tianjin, received LAW’s Executive Committee at his office, and briefed the delegates of LAW on Tianjin’s recent development and achievement over the years. The Deputy Mayor was impressed that the LAW members have been able to share their strength and expertise across different jurisdictions by forming an alliance.

On 3 Jun 2012, WW together with Philadelphia Orchestra visited Tianjin. In the evening, Philadelphia Orchestra put on a performance at the newly-completed Tianjin Culture Center as part of the Sister City Program between Tianjin and Philadelphia. Winners and WW jointly hosted a reception at Tianjin Culture Center. Tianjin Mayor Xingguo HUANG and Deputy Mayor Junfang ZHANG met with representatives from Philadelphia Orchestra and attended the reception before the performance.

Winners also entered into strategic alliance with Meitar Liquornik Geva & Leshem Brandwein, an Israel’s leading international law firm, which promises to enhance both firm’s credential to develop China-Middle East-related legal activities.

Striving to become a best local law firm with national influence and international recognition, Winners is committed to being further integrated into the international legal community which enables us to provide better value to our clients in the long run and forms part of our strategy of internationalization.

44

In-house perspective

ASIAN LEGAL BUSINESS september 2012

Well grounded legally: China Fortune Land Development

Heading up a legal department of 13, Chief Legal Officer of China Fortune Land Development, Li Yikun, speaks to Liu Zhen about managing expectations, future strategies, and being a risk “goalkeeper� for a fast-growing real estate company.

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In-house perspective

45

铸就法务基石: 华 夏幸 福 基 业

华夏幸福基业法务总监李宜坤统率着一支13人的专业法律 团队，本期专访中她与记者分享了团队管理，未来战略和如 何在快速发展的地产企业中做好风险把关人的心得。 ALB: Please introduce your legal team at China Fortune Land Development (CFLD).

YL: As a leading real estate developer in China, CFLD has the full-range operations, from primary land development to secondary development, from industrial park management to commercial projects, and so on. We have seven business units including Industrial Land Division, Park Development Division, Hotel Division, Commercial Land Division, etc.

with the government agencies, some have worked for domestic or international law firms like me, and there were people more seasoned than me.

At the moment we have a vertical management structure. All legal staff in each business unit are directly dispatched by our department, and report to us. However, we are also discussing the possibility of shortening the procedure, and authorising some of the power to the unit as our businesses expanding substantially.

In the past, some of these divisions had their own full-time legal employees, or had special counsels at law firms. Their job, based on business demands, was mainly about documentation and contract processing. Later, out of the company’s need for an integrated legal management, I joined CFLD, and helped the restructuring of the legal department.

ALB: How did you manage to integrate the legal staff?

YL: I have worked in the real estate sector for more than a decade before joining CFLD, which I had had enjoyable cooperation with. I joined the company in the first half of 2010, and started the integration in August that year, which was just two years ago.

We now have 13 legal professionals including their assistants, half of whom are women. Among the team members, some have experiences

It was not an easy job. The counsels, when reporting only to the division heads, were the number one of their units in legal issues and key

ALB:请简要介绍华夏幸福基业的法务团队。 YL: 华夏幸福基业作为国内领先的产业新城投资运营企业集 团，核心业务包括产业园区开发运营和城镇开发建设。事业版 图遍布河北、天津、青岛、沈阳、山东、无锡等地，我们旗下 有7个事业部，业务涵盖区域开发、住宅地产、工业地产、商 业地产、旅游地产和物业管理。

也在探讨，随着事业部的在地域上的扩展，将来我们也可能会 尝试缩短流程，把派驻事业部法务人员的一部分授权给到事业 部的总经理。

这些事业部以前有的有自己的专职法务人员，有的没有，也有 的有外聘法律顾问。以前的法务是基于业务的需要的角度上 来帮助解决文本、合同这些问题。后来公司出于风险管控的需 要，认为需要整合法务，统一管理，于是我就加入了并且帮助 完成了法务部的整合。 我们团队现在有13个成员，包括助理。男女律师的比例一半 一半吧。有以前在政府机关做过的，也有跟我一样在律所、外 企、内资都做过的。还有资历比我老的。 我们现在的法务部是垂直管理的，各事业部上的法务人员，都 是总部派驻的，汇报、考评全部归总部这边管。不过现在我们

ALB: 您是怎样进行法务部的整合的？ YL: 我在之前在一家大型知名律师事务所做了五年多的地产金 融律师，后来到企业做公司法务，在这个行业做了十几年。我 是在2010年上半年加入的，整合是从2010年的8月份开始， 距离现在大约两年了。 这个整合的过程是有一定困难的。会遇到一些天然的抗性，从 事业部律师的角度，以前他是向业务负责人汇报。在他们那个 事业部，在法律方面，他就是权威，老大就得听他的。突然加 了总监上来，在专业上会对他形成一种压力。另外事业部的老 大可能也会不爽，原来是属于我管的人给拿走了。另外他也是 不希望法律由总部管理的，因为出了问题、出了风险什么的他 宁愿用自己的律师来搞定，不愿意让上面知道。所以从这个角 度来讲也是有一定困难的。

46

In-house perspective

advisers to their bosses. Their professional pride was under threat from a female “chief counsel” suddenly thrown upon them. Meanwhile, the unit heads were not quite happy the people that used to be under their command would be taken away. And they did not want the headquarters to set a hand on their legal issues as they would prefer covering up the “minor” problems they encountered to the intervention from the superior. In such sense, the integration was to some degree difficult.

However, we were fully prepared for the resistance. The company executives made it perfectly clear that they were supportive to this reform. We kept good communication with all parties, and thus made everything ok. So far people have had little complaint.

We analysed many models of in-house legal management. The old model of CFLD was not bad at all, since it suited the early development of the company. But since we were restructuring for the IPO, the executives and the shareholders decided that we had to be more institutional. In terms of risk control, an integrated legal department would safeguard all business divisions realise their targets because we could systematically resolve any problem.

As for colleagues on the team, I emphasised the benefits value elevation they would enjoy. They used to struggle alone in a business unit without a team. And in the long run, staying in one division for too long could only narrow their vision, and give them neither peer exchange nor room to self-development. But after the integration, we have weekly exchange sessions about specialised practices as well as interesting topics. And the legal counsels are able to have a sense of belonging to a team, and make their presence known by other departments.

ALB: How do you lead your team?

YL: What I think is very simple. First, I put the right person at the right place where he is the expert. For instance, maybe a counsel is not care-

但是我们也做了充分的准备。一开始还是会碰到一些阻力，但 是公司领导的方向是比较明确的，给予了我们很大的支持。我 们也和各方面都保持着良好的沟通，所以过程OK，到现在为 止大家感觉还是挺好的。 我们分析了各种法务管理的模式。以前的模式并不是不好，它 也是适应发展初期的需要，但是整合的决定是从高管层，从股 东的角度做出的。因为当时我们在运作上市的重组期，我们需 要更加规范。从风险的角度上讲，法务集中管理也是帮助各个 事业部更安全地实现业绩。出了问题我们会想办法系统性地解 决。 另外对于 法 务 部 的 同 事 ， 我 们 强 调 这 种 整 合 对 他 的 好 处和价 值。他们 以 前 就 是 一 个 人 在 一 个 业 务 团 队 里 单 打 独 斗 ，没有 团队感，而且长期在一个事业部，只了解该业务相关的法律事 务。没有同行交流，也没有成长空间。而法务部整合以后，每 周都会有交流，每周每个人都拿出来他那一块的业务，或者是 比较感兴 趣 的 话 题 进 行 共 享 ， 所 以 可 能 商 业 地 产 的 律 师也了 解到住宅，酒店的律师也了解到一级开发，这样是一个相互促 进。而且法务人员内部也有一个团队观念，外部公司其他部门 也了解了公司现在有了一个法务部了，法务部也开始由以前被 动的接受咨询转化成主动的法务管理，对公司的各项业务发挥 前所未有的作用，逐渐树立了专业的权威性和团队影响力。 ALB: 您怎样去领导这个团队？ YL: 我 不 是 一 个 专 业 的 管 理 人 才 ， 我 是 因 为 业 务 好 才 做 的 管

ASIAN LEGAL BUSINESS september 2012

ful enough dealing with words, but perhaps he is good at government relations. I am unable to start my team with all my favourite hires, but only to rebuild one with existing human resources. I have to utilise each person’s advantage by putting him at the spot he likes and is good at.

To manage a person well you have to help him add value, which is essential. For those prospective lawyers that want to improve their specialities, we provide their training opportunities. For those burdened too much over time, we hire assistants.

Also it is very important to make people feel like they belong to a team. We organise team building events, dinner, karaoke, etc, to eventually get there.

Frankly speaking, legal professionals have very high pride. It is impossible to manage them in the way of military or boot camp like some other departments. And I think we should ask for no more as long as they solve the problems for the company in the correct way. At the end of the day I am helping them, they are doing their job fine, and our team is moving forward steadily.

ALB: How have you dealt with the business divisions since the legal integration? How do you settle conflicts, if there any?

YL: The functions of the in-house legal are supporting and controlling.

In comparison to the business division, we should say we have different standing points and responsibilities, not necessarily conflicts. They ought to constantly push the boundary to fulfil their goal, and our responsibility is to hold on to the red lines that they shall not cross. It is a natural contrariety. We focus on different points contrast to the sales or the constructions. There was resistance at the beginning, with complaints that they were working hard selling houses whilst we were nitpicking their minor bugs. But we told them we were just

理，所以，我的管理理念很朴素也很简单。首先要把合适的人 放在合适的地儿，看他擅长做什么。比如我们有的律师可能在 文字方面不是很细致，但是他善于跟政府沟通。我不是从零开 始自己建一个团队招聘我顺眼的人，我是需要像烂尾楼改造一 样，把现有的人才用好，就是发挥每个人的优势，把他放在他 有兴趣，有能力的地方。 你想管好这个人，一定得给他带来价值，帮他提升，能帮助到 他，我觉得这个特别重要。有些律师希望提升自己的专业能 力，他也有提升的空间，我们就尽量提供培训满足他，让他参 与从前未接触的业务领域。还有的律师会觉得工作量大加班特 别多，我们也考虑给他们配备一定的助理。 另外让大家有归属感也很重要。所以我们每周会有例会，交流 工作，分享话题，进行培训，还会不时地组织一些团队活动， 吃吃饭、唱唱歌，大家慢慢地就有一种归属感了。 其实，每个律师的内心都是很骄傲的，他们天生是一群很自信 很骄傲的专业人士，所以管律师是很不容易的，要是说非要像 有些部门那样类似军队化的管理，那是不可能的。我觉得大方 向只要抓住了，他能帮公司解决这个领域的问题就好，能履行 好职责就好，至于其它细枝末节的方面就不再要求得过细了。 所以我想我能在大方向上帮助到他们，他们也能解决业务领 域内的问题，不断地树立并维护我们团队的专业权威性和影响 力，目前我们的团队发展也挺稳定的。

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helping them eliminate potential trouble. In fact as long as we provide them with a good resolution, they are willing to accept our criticism.

For instance, during the regular review this morning, we spotted that some sole buyers of contracts made payment via their family member’s bank account. The sales didn’t think it was problematic, but we regard it as an entrusted payment behaviour that needs a written confirmation otherwise the buyer could later claim it was false. We reminded the sales and simultaneously prepared them a template of such confirmation for the customers to sign along with the contract. The sales found it simple and reasonable, and appreciated our thoughtfulness.

We should always appear constructive and helpful, instead of rigid and picky. I believe as long as we offer a better solution, people are willing to accept our advice.

ALB: Have you ever come across anything that you think is excessive, and you need to veto?

YL: Yes. We have come across such situations time after time.

Sometimes we turn it down, and request a revision. Sometimes we let the procedure go on, but reserve our objection. Sometimes we have to ask the CEO to judge and decide.

Normally our suggestions are taken to make improvement. But there are occasions when our opinions are not accepted. The company might weigh the business timing more than potential risk. But the executives would be mentally prepared for the prematurity. In a company there tends to be someone who always aggressively breaks the way, while we are constantly raising the alarm. The company is progressing forward. And my duty is to say what I ought to say, what my profession and conscience requires. But in fact these risks are not highly likely to happen according to our business judgment.

ALB: What distinctions do you witness between a private lawyer

ALB: 您怎样处理法律集中管理之后和业务部门的关系？怎样 去沟通协调可能的冲突？ YL: 法务的职能一个是支持，一个是管控。和业务部门也不能 说是冲突，只能说是立场和职责不一样。业务部门本来就该不 断地去完成业绩，需要突破突破再突破。而法务的职责就得有 原则有底线，我就告诉你这是红线，你不能越。所以会有这种 天然的矛盾。法务跟销售、跟工程、跟拓展、跟任何业务部门 都可能会有这种问题，因为大家的关注点不一样。 刚开始的时候其实还是有一种抗性，我们去检查的时候人家也 会觉得，我们在前面辛辛苦苦地卖房子，你们还老来挑我们的 毛病。实 际 上 我 们 会 告 诉 他 们 我 是 在 帮 你 ， 让 你 实 现业绩没 有后顾之忧，而且如果你确实能给他提出一些好的解决性的建 议，他们还是能接受的。 比如我们上午检查的时候，发现有的合同的购买人只有一个， 但是带的卡不够了就亲戚朋友代刷一部分。销售人员觉得没有 问题，财务人员也没发现问题，而我们法务认为这是属于一种 委托收付款的行为，需要让购买人和代付款人共同书面确认， 否则会有法律风险，万一日后人家会说你收错钱了呢。所以我 们提醒销售部门有可能会有这样的法律问题，并且还准备好了 这种委托收付款声明的范本。销售时你就让他们顺便签一下， 很简单就可以避免将来出问题。他们觉得有道理，还是你们想 得比较周到。 我们觉得 还 是 以 一 个 帮 助 他 们 的 角 度 来 出 现 ， 不 能 光给人挑

In-house perspective

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and an in-house counsel?

YL: The in-house job is much different from my imagination when I was a private lawyer - that a general counsel just leisurely passes on the work to the firms. In fact, sometimes in-house is more difficult.

As a lawyer, the opinions are relatively conservative as the paramount concern is that of self-interest and the firm. And the suggestions are “for your reference only”. But in a company, we have to work together with the business people to realise the plan. We need not only indentify the mine field, but also discover a way out. A lawyer can just say “no, such conduct could face punishment, black list, this and that”, and that’s all, which an in-house could never do. We have to serve the business divisions with a business mindset.

However, I also insist that we have to adhere to principles. We have to say no whenever needed. It is the executive’s decision when we can’t reach an agreement, but we cannot easily compromise. In the first place we need to think of a resolution that could help them meet their goal. But once it really crosses the line, we have to stick to principles, because we,the legal people, are the goalkeepers. The requirement for the in-house is even higher. One cannot do it well unless he knows the business.

ALB: What is special about legally serving the real estate sector?

YL: The real estate sector is highly policy-sensitive as it is closely influenced by credit policy, land policy, sales supervision and so forth.

It has a long industrial chain, long time cycle, and is capital-intensive.

Because of the high risk, the compliance in decision-making and running operations is essential. Legal wise, we need to inform the company about what a compliant operation is like, in terms of land development, construction project, sales, etc. We should tell all divisions their specific policy requirements.

刺，还得告诉他怎么才能更好，这样的话我觉得大家还是都 可以接受的。只会踩刹车，不会给油门的律师，不是好律师， 尤其是做公司法务的，一定不能只说NO，还要给出解决的建 议，帮助业务去成就业务，从这个角度来讲，这对公司法务的 要求很高。 ALB: 有没有遇到需要动用否决权的情况？ YL: 这种情况在我们的流程里经常会有，有的时候就会驳回， 让他们重新回去改善。还有就是要提出保留意见，但是这个流 程可以继续往下走，然后由总裁来做决定。 我们的意见通常会被接纳，重新去改，重新去谈。也有不被接 纳的情况。公司可能会认为这是一个风险。但是做生意时机很 重要，要等所有问题都解决了再去做，可能已经没有机会了， 时机没了，所以权衡各方面因素可能也还是去做了。但是公司 会根据法务提示的风险提前制订风险预案。从商业上考虑，有 些风险是存在，但是通常我们判断它的发生可能性也不大。公 司里肯定会有一些人不断地冲，我们这些人就会不断地亮红灯 警示。公司还是正常地往前跑，我要做的第一就是尽责，我要 对得起我的职业，对得起我的良心，该说的我一定要说，我尽 到我的职责。 ALB:就您的体会而言，律师和企业法务的主要区别是什么？ YL:在企业里做法务和原来做律师时候的想象真的不一样。我 原来做律师的时候总觉得要是在企业做法务多轻松，有什么活 派给外聘。其实发现到企业里做法务有时反而会更难。

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In-house perspective

Also we have to keep a high sensitivity to the policy changes. We need to predict the possible influence of a certain policy, and work out a contingency plan. We should also study relevant cases and market trends. For example, home prices went down last year due to macrocontrol, which caused protests of previous consumers. And we had made contingency plan for that.

ALB: What changes have you seen over the past decade in legal services for the sector?

YL: In the beginning, legal focused on commercial services, including sales contracts and mortgages. Such routine jobs made up the majority of the lawyers’ work. Nowadays the bar is increasingly high that a legal counsel should also know investment and accounting, and be able to provide a comprehensive solution. For example, in the increasing field of M&As or equity financing deals, we need to evaluate the overall risks of a project - not only the legal ones, but also the risks in finance and auditing. The present real estate companies are so increasingly specialised that they require the legal services to be more customised and sophisticated. Having only law knowledge is far from sufficient.

Therefore, my department is seeking all-round training for our members, including lectures on the industry, and finance and accounting courses. The CFDL has its own training department for everybody. We also have the funding and budget for it.

ASIAN LEGAL BUSINESS september 2012

for a legal counsel in a company. I am thinking of a system of more detailed subdivisions of professional titles as acknowledgements of their expertise. Also I would like to offer them opportunities in different business areas, like relocating an overly long-serving secondary land development lawyer to hotel operations or financing. We have a full industrial chain that covers up the entire real estate sector. Whatever you want to learn, there is an opportunity. It is an effective inspiration.

ALB: Can you provide an example where you helped the company spot risk, and prevent it?

YL: It happens every day. For example, we carry our regular and random inspections in all divisions and projects. There have been cases where, due to the business people’s lack of legal knowledge, great legal risk was caused for the company. This morning we had an inspection on a project too. There was a problem where our financing and sales are two separate business lines, and they do not have an information exchange mechanism. It happened that the sales were not aware that certain houses had been mortgaged by the financing, and consequently failed to inform the buyers. In fact, as long as the sales clearly tell the customer this fact, we are off the liability. But without such a notification, it is dangerous. In our inspection we found that in the sales procedure the “mortgage status check” was absent.

Then we alerted the company to straighten it up, and improve communication in the future.

ALB: What makes an ideal in-house counsel?

YL: I think first he must be able to handle a business on his own, which means independently manage the relevant legal issues of his given unit. But it is so rare to find one so fully developed. Fundamentally we have to raise our own people to improve, to inspire their enthusiasm.

I am also considering some specific issues. For example, there is indeed a glass ceiling – probably at the senior manager level or so -

It is not rare to discover such defects. Some are out of ignorance, and some are due to dereliction. We have to comb them out, and correct it with other measures like performance management. We point them out, report the problems to the procedure management department of the headquarters or the VP himself, and ask for improvement.

我们原来做律师出的法律意见，说是维护当事人利益，其实首 先是考虑到本律师本律所的利益，所以律师出的法律意见通常 相对保守。法律建议方案都是仅供参考。但是在公司里就不一 样，方案做完不是仅供参考，而是要跟业务一起，带他实现这 个方案。不光是要指出雷区，还要带他过去。法务有时需要变 成业务，还得比业务更高明。这样才能带他穿过雷区。你要在 律师事务所做律师直接就告诉他们No，你如果这样做可能会 面临处罚，面临黑名单，面临上市公司的高管谴责，说完就完 了。但是你在公司里不能这样，首先还是要服务于业务，要有 商业眼光。

个行业的风险也比较大。因此战略规划、投资决策，经营运作 合规都是特别重要的。从法律上讲，我们首先得告诉公司合规 经营应该遵守些什么，包括土地方面的，工程方面的，销售方 面的等等。我们要告诉公司不同的专业，不同业务链条中政策 法规是怎么要求的。

但是另一方面，我觉得也要有原则，该说不的时候就得说不。 到最后没有办法妥协的情况下只能交给最高决策者，由他来判 断。但是我们不能放弃原则，要坚守底线。我觉得首先得想办 法，你帮他千方百计地想办法去实现他要做的那个事儿，但是 一旦真的触 碰 到 红 线 ，我 觉 得 该 坚 持 的 原 则 就 得 坚 持，因为 你是法务人士，是把关的，是最后一道防线，所以我觉得在某 种程度上来讲做公司律师要更难。对于法务的要求真的是挺高 的，法务应该是一个既精通法律有熟悉业务的人，他才能真正 做好法务。 ALB: 具体到房地产行业，您觉得在这种企业里做法务有什么 特别之处？ YL: 房地产行业是一个投资规模比较大、周期比较长、产业链 条比较长 、 业 务 模 式 比 较 复 杂 又 很 容 易 受 政 策 导 向 影 响的行 业，跟土地政策、信贷政策、销售监管政策密切相关。所以这

ALB: How will you try to create a system to prevent these risks

其次我们还得保持对政策的敏感性。我们需要有一些预判，例 如如果某个政策出台了会对我们有什么影响，我们能提前采取 什么措施。还包括一些相关案例的研究。还有一些市场趋势， 比如去年调控的时候市场出现了下滑，房价出现了下降，前期 的业主肯定就会不平衡，可能引发一些群体性的纠纷，我们需 要提前做些预案来给公司提出建议。 ALB: 这些年来房地产行业的法律业务有什么变化？ YL: 最早对律师的要求是偏重于商事服务领域，主要就是帮助 起草合同，出具法律意见，包括销售合同，按揭法律审查等。 律师主要面向业务量比较大的、比较成形的，比较常规的营销 领域。而现在对于律师的要求也是越来越高了，要求是懂投 资，懂财务的复合型人才，还要能给出一些综合的解决方案。 比如说在收/并购方面要参与很多，需要评判这个项目的综合 风险，或者是公司股权投/融资，不光是法律方面，还要要懂 一些财务，懂一些审计。因为现在的房地产企业都也越来越专 业，所以对法律服务的要求也越来越高。律师光是局限于法律 肯定是不够的。 为了更好的适应市场对我们的需求，我们法务部也在积极学

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beforehand?

YL: We are studying the strategic legal management, which I would like to categorise as strategy level, managing level, and operation level.

On the strategy level, the legal issues include stock rights strategy, governance strategy, and other strategically important affairs like intellectual property rights (IPR) and investment management.

On the managing level, two issues are about legal entity and compliance. So far we have over 100 legal entities in the need for management and maintenance like IPR and informant disclosure. Compliance management requires annual checks and amendments on the regulations, such as licence supervision and compliance training.

On the operation level, everything is contract centred. Most of our job

习，一方面提升专业力，另一方面也需要系统补充行业知识， 我们也在 寻 求 一 些 内 外 部 培 训 ， 比 如 行 业 知 识 ， 包 括项目管 理、风险管理、非财务人员的财务管理等等。我们公司现在还 有一个专门的培训机构，为大家安排一些这方面的课。我们也 配备了相应的培训的费用和预算。 ALB: 您所期待的公司法务人员是什么样子？ YL: 我觉得最重要的是独当一面，就是他能够管理好他自己那 个业务领域内的工作，做到支持业务与管控风险的完美统一。 但是要找到那种特别合适称职的也是很难的，所以我觉得还是 不断地去提升、去培养，激发他自己进步的热情，这是很重要 的。 我这边也有一些具体问题，比如法务在公司里会碰到天花板， 事业部的 法 务 做 到 高 级经 理 就 到 头 了 。 所 以 我 们 也 在考虑可 以给他们一些职称上分层级的认可。还有就是给大家不同业务 领域的机会，比如原来是做二级地产或者做酒店业务轻车熟路 了，可能换去再做一做土地一级开发、投资并购或者是信托融 资。因为我们公司的业务涵盖房地产领域各个业态，公司业务 也是蓬勃发展而且我们的产业链也巨长，从最初的项目拓展、 投融资、收并购、土地一级开发、二级开发一直到最后的物业 管理我们都有，所以我们可以为大家提供全产业链地全业态的 发展平台，总能学到东西。以此也可以激发大家的工作热情。 ALB: 能否列举法务部为公司排除风险或解决问题的例子？ YL: 这种事情每天都在发生。比如我们也经常到各个部门、各

In-house perspective

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is related to contracts, while each and every business of the company is made true by contracts. The in-house’s involvement in all sorts of contracts is fundamental and inevitable.

It seems too ordinary to be noticed. But last year alone, seven of our team members together had reviewed 20,000 contracts which supported our 18.6 billion yuan business. Some regard the contract checking as low-tech. But I must say it is essential.

In terms of company running, the easiest and most economic risk control is by better contract management. Post-incident resolutions are much more costly and resource-consuming, not to mention the reputation damage. As a result, an important part of our job is to create contract templates, which help increase efficiency, and reduce risk. We now have eight categories, more than 200 types of contract templates which cover over 80 percent of our frequent contracts. And

个项目上去做合规检查。因为以前有好多业务部 门由于不太 懂法律知识，他们的疏漏会给公司造成很大的法 律风险。比 如我们以前去项目检查发现，我们的融资部门和销售部门是两 条平行的业务线，他们之间对抵押情况没有一个沟通的平台和 机制，可能会出现融资就把房产和土地抵押了，但是销售不知 道，就他就没能告知给买房的人。其实你只要明确告知他们你 就没有责任了，但是如果没有告知的话这个法律风险还是比较 大的。我们通过检查发现了这个问题，在销售管控里缺少确认 抵押状况的这一个流程，所以我们就提示给公司，他们现在建 立起了这种沟通机制，而且弥补了前期的问题。 这种事儿其实经常发生，有一类是他不知道这样做会有问题， 我们就会给他培训，告诉他合规要求是什么，还有一类就是失 职或失责，这就需要我们去检查，然后配合绩效管理考评来解 决。我们通过我们合规性的检查发现他们的薄弱点，我们就给 他提出来，反映到主管领导和公司总部的流程管理部门，让他 们加以改进和完善。 ALB: 那么怎样通过建立规范的体系来防范此类风险呢？ YL: 我们正在研究法务的战略管理，将法务管理分为战略层 面、管控层面和运营层面。在战略层面具体包括股权战略，治 理权战略、投融资战略、经营战略、知识产权战略等内容。 在管控层面是是法人事务和合规管理。现在我们有100多家法 人实体，我们负责开公司、关公司、变公司、管理和维护各个 法人实体的依法成立并合法存续，法人事务还包括知识产权管 理、信息披露这些方面。合规管理包括法务制度体系建设、流

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In-house perspective

they are all drafted by our counsels.

When making such templates we always consult the relevant department, and repeatedly revise them according to their suggestions to satisfy their needs. We also give them training to use the templates well, and require them to submit proper explanation in exception cases.

ALB: What will be your focus and key target in the upcoming year?

YL: In the near future, the legal department will be concentrating on the creation of a risk management system. It is not on a case-by-case basis. It will be a series of instructions on each business unit’s risk prevention. We have started this since this year.

The instruction on the Risk Prevention in House Sales has been completed, so has that of the bidding for construction projects. And we are working on the one dealing with construction projects. We decided to start from those of larger amounts of business, and higher influences on the company. Other aspects include equity management, governance management, and operation management, which have various risks and prevention points. We want to work out a systematic resolution. It will be quite a heavy job, which I’m afraid might take more than a year.

But such a job has to be done by the people who know the company really well. At the moment each counsel has an excel spreadsheet in hand to collect the daily problems occurring in the company operational procedure related to his job. With such information we compile the “risk prevention guidance” containing relevant laws, regulations

程设计、合规检查、培训宣贯。 在运营层面上主要是以合同管理和诉讼管理为中心，因为作为 法务来讲，参与业务最多的就是合同，而合同对于公司来讲， 合同是企业的利润之舟，企业的利润通过什么取得呢？是通过 合同取得的。公司赚的每一分钱和花的每一分钱，都是通过合 同实现的。合同是企业对外的承诺。现代社会已进入“法商时 代”，是“合同生存时代”。所有的业务都是通过合同实现的。 合同管理这项工作看起来特别平凡特别不起眼，去年一年，我 们负责合同审核的7个律师，一共审核了 2万份合同，支撑了 我们160个亿的业绩。有人觉得审合同的工作是比较低端的没 价值的，但是我觉得这项工作看起来平凡但却非常重要，就像 空气一样，你感觉不到她的存在，但并不意味着她没价值。 从运营层面上，把合同管理抓好了其实是最直接的，而且也是 最有效，最经济的一种帮助公司防控风险的方法。要是等到出 了事儿了再去补救需要花很多人力财力，还会造成声誉损失。 所以我们还有一项很重要的工作就是编制合同范本。不仅能够 提高效率，还能有效控制风险。我们现在有8大类，200多个 合同范本，覆盖了80%以上的业务。 制作合同范 本 时 ， 我 们 会 跟 业 务 部 门 来 商 量 ， 了 解 他们的需 求，征求意见并做出修改，让他们愿意用范本。我们还会给他 们做培训。当然，范本一旦发布，我们就要求适用，如果特殊 情况不按范本来，他们需要解释清楚为什么，提供正当合理的 理由。 ALB: 您预计近一年内，您的法务部这边主要的工作内容和工 作目标会是什么？

ASIAN LEGAL BUSINESS september 2012

and policies, potential risk and consequences, prevention measures, and contingency plans. It is delicate and time-consuming, but a watched kettle never boils.

Most of the legal risks are about the business and finance. Hence the risk management has to be integrated to match the managing standard of other parts. Progress takes a long time and requires participation. Just like the rehabilitation of a sick person. The illness can probably be healed by a single injection, but for recovery to full fitness, it is a slow and invisible process. We are doing the hard work of bodybuilding in order to make it healthy and strong eventually.

ALB: How do you raise the profile of the legal department within the company?

YL: We developed a “perfect prevention – legal risk training course”, “perfect sale”, “perfect construction”, “perfect delivery”, “perfect investment attraction”, “perfect expansion”, and so on. Some are optional, and some are compulsory. The latter includes the training on contracts as it is the most effective and economic way of prevention of most risks.

The legal team could never be as glamorous and eye-catchy as the sales or the branding. It is the same case in any company that legal is a secondary department. But in fact, the achievement of the company is supported by us. When everything is peaceful and quiet, we are forgotten. When there is trouble we are called to hurry up. But I am used to it. Choosing this profession means enduring all this.

I believe a legal counsel must do something, but not necessarily in a

YL: 法务部在近期主要还是帮助公司系统性地来做一些风险管 理方面的工作，不不是一事一议，而是做成各个业务模块的风 险防范指引。，我们从今年已经开始启动。比如我们已经做了 商品房销售的风险防范指引，还有工程招投标的 风险防范指 引，现在正在做战略集采和工程建设的。我们准备先从业务量 比较大，对公司影响比较大的业务模块开始。另外还有股权战 略、治理权战略、经营战略，都要制定出方案，梳理出风险点 以及防范措施。我们是想从系统上解决一些问题，所以任务也 比较重，我觉得一年半年恐怕都做不完，做完了也还需要持续 改进。 这些法务战略方面的工作，应该由对公司非常了解的人来做才 比较适合。现在我们每人手边就有一个Excel表格的风险事件 库，不断收集公司内部跟自己的运作流程有关的问题，针对这 个再去编制风险防范指引，包括风险描述、法律规定，风险和 后果，防范措施，紧急应对等等。它是一个长期、细致的活。 需要循序渐进。 需要强调的是，法律风险很多都是由业务的风险、财务的风险 等转化而来的，所以风险管理应该是系统化的一体化的，法律 风险管理要跟其它管理水平相匹配，需要一个长期的、全员参 与的过程才能慢慢地把它做好。就像治病和养生一样，治病可 能一下子打一针就好了，但养生会是很慢的，一时间也很难看 到效果，但养生解决的是根本是长久。所以我们现在就是在养 生，正在慢慢地调这些隐患。 ALB: 有没有在公司内部让其它部门增进对法务部门的了解？ YL: 我们开发了一个“完美的防范——法律风险防范系列培训” ，其中有“完美的合同”、“完美的销售”、“完美的工程”、“完美 的交房”、“完美的招商”、“完美的拓展”等系列课程，我们会定

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high-profile way. In my opinion, ordinarily doing the job well to put the company at ease is all that our profession and conscience require.

And that’s OK. ALB: Do you prefer the life as private lawyer or as an in-house counsel?

YL: I think each of these two kinds of lives has own pros and cons. As for myself, I always have been living in the present throughout each step of life without much worrying. I believe the profession of being a lawyer brings pride and honour, as well as enormous pressure.

Everybody makes mistake, except the lawyer. Lawyers are humans.

Humans make mistakes. But people do not allow lawyers to make mistakes. We are under extreme pressure.

But it is the nature of the job as a legal professional. And our company is developing quickly and passionately. Starting as a small company in Hebei province, we have made 100 percent annual growth for three straight years, and after the IPO last year, we have now become number nine in China’s top ten real estate developers according to the official stats. In some quick growing companies, every employee is pushed to keep up with the pace.

ALB: Do you need more staff?

YL: We will consider a proper amount of addition to our workforce as we are indeed short of hand. But I don’t think we should make the legal department too large because the productivity does not increase in a linear manner with the number of people. We want to hire more people who have a deeper affection for the company, so we launched an “Ivy

期或不定期地给各个业务部门做培训，培训也是事先防范的重 要手段。 法务永远都不像一线部门销售、工程那样会得到天然的关注， 也不象品牌那样光鲜。任何一个公司都是这样，法务总是在二 线的。有好事的时候一般没人想到我们，一般一出事的时候， 我们就得 冲 上 去 解 决 问 题 ， 我 也 习 惯 了 ， 因 为 你 选 了这个职 业，你就得承受这个。实际上公司业绩报表里的每个数字背后 都有法务的支持。 我觉得法务要想在公司有地位就一定要有所作为，但是我们也 没必要特别高调，我们不是红花，要甘当绿叶，我觉得平平凡 凡地把这些事儿做好了，公司放心了，我觉得就对得起职业， 对得起良心，这样就OK了。 ALB:您个人是比较喜欢当初做律师的感觉还是现在做法务的感 觉？ YL: 我觉得各有各的好，也各有各的不好。我觉得我这个人就 是踏踏实实的，每一步，每一个状态，活在当下。不会特别纠 结，我觉 得 律 师 这 个 职 业 会 给 人 带 来 职 业 上 的 尊 荣 感、荣誉 感，，同时你一定要承担很大很大的压力，你要替当事人解决 麻烦。所有的人都可以出错，律师不可以。但是律师也是人， 律师也会出错，但是人们不会允许你出错。所以我们的压力是 特别大的。但是一名法律工作者，本来就应该这样。 我们公司是特别有激情的，我们的发展速度特别快，从98年只 是一个在廊坊成立的小地产公司，，发展到今天，华夏幸福以 卓越业绩位居2012沪深上市房地产公司综合实力ＴＯＰ１０ 第9位，所以在这样一个业绩发展非常快的公司，法务的工作 量是非常大的，工作频率也是非常快的。

In-house perspective

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plan” to develop law school graduates who have a sense of belonging and loyalty to CFDL. We produce them to become management and operational experts, plus the lateral hires of experienced practitioners as well as using external lawyers. That would be enough.

ALB: What’s your standard for external law firms and lawyers?

YL:Our job is mainly done by our in-house team, but we also hire external lawyers. All the firms we use are domestic because we don’t have much overseas business yet. For example, we have one firm to handle our M&A deals, one for primary land development, one for disputes in house sales and owner complaints, and one for intellectual property. I think we can’t just rely on one full-service team. There isn’t one doctor who can treat all diseases. Different kinds of problems require different specialists.

We invite firms from our pool of sources to bid for our specific projects.

Their legal opinions are compared by me, and finally chosen by the VP. I am in charge of their daily management and communication. I contact them on a regular basis, and our counsels on projects also keep a close connection with their partnering lawyers.

Since we are all professional legal people, we value the external lawyers’ experience and speed. For the complicated big projects, we need them to be our witness. We are capable of guaranteeing the work quality. So far all the lawyers we’ve picked before are really good, and we had a pleasant time working together. Basically we have long-term strategic partnerships with all of them.

ALB: 那么法务方面是否会需要更多人员？ YL: 我们会考虑适当地增加，引进一些人员，现在人手确实也 比较紧张，但是我不主张把法务部弄得巨庞大，人特别多，其 实人多的话生产力并不一定会成倍增长。我们想适当地增加一 些比较强的律师，再配备一些基础不错的法学院毕业生。我们 公司每年有“常青藤计划”，招聘应届大学生重点培养。这些学 生对公司特别有归属感，也有一定的忠诚度，你可以培养他做 一些运营层面、操作层面的法务，然后我们再适当地引进一些 比较有经验的资深人士，再结合外聘律师，这样就能解决了。 ALB: 刚才说的是对内，您这边外聘的律师的要求是什么？ YL: 虽然业务主要是由内部的法务来做，我们也选聘了一些优 质的律师事务所作为外聘顾问，基本都是国内的所，因为我们 是内资公司。有一家主要是负责做收并购的，还有一家是做土 地一级开发的，还有一家是针对商品房销售、小业主投诉纠纷 的，还有一家是知识产权方面的，因为我觉得你不可能找一个 就够了，不可能有什么病都治的包治百病的医生，还是要找专 科的、精通的。 我们有资源库，会把我们公司的一些需求形成邀约，有点像邀 标。他们提供法律服务方案，法律建议书，由我这边来比较， 最终是由公司常务副总裁来审批。管理他们的主责在我这边， 我们会有一些定期的沟通或者专项的沟通。具体分到项目上， 我们的律师也会和律所的律师进行沟通协作。 因为我们自己本身都是专业的，所以我们需要的律师看中的一 定是他的丰富经验，要有一定速度，对于一些复杂的、重大的 项目，有时候是给我们做旁证。从质量上来讲我们自己是可以 把关的。目前选的这些律师都是很不错的，合作起来也都挺好 的，所以基本都是长期的战略合作。

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I

Trusts

ASIAN LEGAL BUSINESS september 2012

t is interesting that the concept of “trust companies” (or xin tuo gong si in Chinese Pinyin) in China is different from how the term “trust” is applied in the West. The purpose of this article is to draw your attention to the difference.

Trust companies are unique to China. A trust company in China is a distinctive Chinese financial institution, being regulated by the government, and combining characteristics from the private equity, asset management, investment and banking sectors.

After the People’s Republic of China’s first trust law was promulgated and took effect in 2001, recent changes in Chinese law and policy regarding trusts and foreign investment are a positive part of the reason for a large influx of foreign investment into China. Sometimes, people may gain better interests from these trust companies than from banks. Assets under management in the trust sector sharply rose by 58.25 percent to RMB 4.8 trillion ($757 billion) by the end of 2011, and hit RMB 5.5 trillion during the second quarter of 2012. A recent news report from the Wall Street Journal (published on July 18, 2012) describes China’s trust companies as “a major component of China’s shadow financing sector”, and “could soon leapfrog the mammoth insurance sector to become the country’s second-largest industry

for financial services”.

However, in common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a settlor who transfers some or all of his or her property to a trustee who holds that trust property for the benefit of the beneficiaries. Individuals may have different purposes to set up a trust, such as for privacy, charities, tax-planning, wills and estate planning and so on. The trustee may be either a person or a legal entity such as a company.

“The term of trust in ‘Chinese Trust Law’ is an English translation of the Chinese word ‘sin tuo’. The titles of ‘trust companies’ in China should not be confused with how the term ‘trust’ is applied outside China. They are only sharing the same English word ‘trust’, but their concepts are totally different,” says Sunny Liew, a Shanghai-based lawyer and wealth management consultant at Stephenson Harwood.

“If we take an everyday example, one property has one owner in China, but in the concept of how the term of trust is applied outside China, one property has one legal owner and one beneficiary owner.

The trustee has a legal title to the trust property, but the beneficiaries are beneficial (or equitable) owners of the trust property.”

More

money, Not only is the offshore trust business booming in China, but there is also a marked increase in trust companies on the Mainland. Jingjing Fu explores the difference in trust concepts between the East and the West, and how China’s rich are driving up business for law firms specialising in wealth management and trusts.

REUTERS/NIR ELIAS

Trusts

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—

both investing their wealth and passing it on.

The new social group of the super wealthy and the increasing opportunities of overseas investment has also caused a tremendous investment flow from China to other countries, whereupon the group of super rich has become an important new market for law firms that specialise in wealth management consulting, and personal and business financial planning. Specialised lawyers provide consultant services that can help their clients to understand tax policies, and using tax havens to avoid paying taxes in the target country.

While the trusts system and trusts industry in China are still at a nascent stage either from asset protection or financial investment perspective, China’s trusts business and the need for Chinese wealth management are expected to continue rising rapidly in the next decade, and probably much longer.

As the Chinese combination of a modern market economy and a Communist political system has begun to mature, China, one of the world’s oldest countries with 5,000 years of civilization and the largest population in the world, has claimed numerous titles. It has become

A background The People’s Republic of China promulgated its first trust law in 2001.

In order to regulate the trust relationship, normalise trust acts, protect the lawful rights and interests of the parties to a trust, and promote the healthy development of the trust business, the Trust Law of the

An offshore trust is simply a conventional trust that is formed under the laws of an offshore jurisdiction. Offshore trusts involve a settlor transferring assets and property on the trustees for management to benefit the beneficiaries. When an offshore trust is established in an appropriate or suitable offshore jurisdiction, there might be no local taxes applicable to the assets and income of the trust. Offshore trusts have advantages for those who may want to transfer wealth to their heirs in a tax-efficient manner, or in accordance with their wishes, and not in accordance with the laws of the country where they live. Offshore trusts also may help them maximise the benefits of their wealth for family members and others, and allow individuals to reduce the costs of both investing their wealth and passing it on.

more

trusts the world’s second-largest economy, the world’s fastest growing major economy, and also one of the countries that has the fastest growing population of high net worth individuals. Thus, the field of wealth management and property inheritance has become an important step for the Asian giant.

Three decades of economic reform has also resulted in the emergence of the super rich, a new social group that includes new occupations and professions as generated by the opening up of the Chinese market. However, unlike a Western wealthy family with several generations in wealth inheritance, high net worth individuals in China have little experience in terms of dealing with the succession of family wealth, and contributing the legacy back to the society. Because of the different meaning and application of the word “trust”, sometimes it is more difficult for the Chinese to accept the trust model of the West, especially when considering inheritance, property protection, and other comprehensive property management issues.

The need for Chinese wealth management is rising, and the use of offshore trust has become popular not only because legal protections are generally much stronger, but also because taxes are almost always significantly lower, allowing individuals to reduce the costs of

PRC was adopted at the 21st session of the Standing Committee of the Ninth National People’s Congress on April 28, 2001, with an effective date of Oct.1, 2001.

Chinese trust law is substantially modeled after trust concepts found in common law countries. A PRC trust is a legal arrangement under which a settlor entrusts property to a trustee who manages such property in the name of the trustee in accordance with the wishes or requirements of the settlor for the benefit of the beneficiaries or for a specific purpose. However, “if discussing the trust law from a deeper level, it’s more likely to be a ‘Nominee Law’,” says Liew. “It should not be confused with how the trust system is applied in the West.”

From Liew’s perspective, Chinese trust law only borrows the name “trust”, while its meaning and concepts are quite different from the usage of the term in the West. The Chinese Trust Law serves as an important foundational law for special laws and regulations on investment and pension funds, as well as on asset securitisation. Liew points out that “in Chinese trust law, a trustee is more likely to be a nominee who is named and designated by a fund owner who can withdraw the funding, or change the nominee at anytime he or she wants.” It is a “personalised” or “tailored” solution to the owner’s objectives to make

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Trusts a profit, which is more likely a business model and a fund raising party that becomes a vital source of financing for many privately-owned companies in China.

On the other hand, wealthy people have a suspicion on the security of a trust and the creditworthiness of a trustee. For many Chinese people, a trust is a new term borrowed from the West, and they seldom have an insight into what a trust really is in practice. There are disputes whether an inheritance tax should be proposed on wealthy people “but the dispute is only on the Internet, right?” jokes a lawyer from Shanghai. Some professionals do not think it is applicable because China has not built up a property registration system for the wealth accumulated by individuals.

“Only more, no less. There is still significant room for market growth in the next five to 10 years.”

Dingfa David Liu, Jun He Law Offices

China’s trust companies: Financial institutions From a financial perspective, trust companies in China are variously referred to as trust banks or trust and investment companies, and there are specialised trust fund managers who administer the funding to make a bigger profit.

During the past several years, the trust sector has progressively become a target of both domestic and foreign investors who are seeking to obtain a state of China’s fast rising financial services sector. This move has been primarily brought about by regulatory changes, including the Measures for the Administration of Trust Companies instituted in 2007, and the Measures for the Administration of Net Capital of Trust Companies established in 2010. The latter sought to clarify the future improvement of trusts, and specify principles to reduce and moderate the uncertainty and high-level risk in this financial sector.

The trust sector market in China has grown rapidly in the past several years, however, it is believed by many financial institutions that the trust sector is still small compared to other areas of the finance industry. This means that it still has great potential to grow in the near future, especially when many privately-owned companies in China are unable to secure banks for various reasons during the economic downturn. The trust sector provides comparative flexibility for financing.

With the help of light regulation and financial innovation, China’s trust industry has boomed in the past several years. A KPMG report says that 2010 saw trusts overtake mutual funds in asset value for the first time. According to the statistics released by the China Trustee Association (CTA), total trust assets for 64 trust companies surveyed hit RMB 5.5 trillion (about $870 billion ) during the second quarter of 2012 that ended on June 30, up 49 percent compared to the same quarter last year. In the quarter that ended on June 30, 2011, the total assets were RMB 3.7 trillion.

The CTA is a non-profit social institution under the guidance and supervision of the China Banking Regulatory Commission (CBRC).

It serves as a self-regulatory organisation for the trust industry that was established according to relevant provisions of the PRC Trust

ASIAN LEGAL BUSINESS september 2012

and the Administrative Regulations on the Registration of Public Organisations.

According to CTA’s Main Business Data of Trust Companies in the second quarter of 2012, the total revenue obtained was almost RMB 26 billion, and the total profit reached RMB 19 billion. In the pool of trust assets, around 24 percent is invested in industrial and commercial enterprises, 23 percent in infrastructure, 13 percent in real estate, 12 percent in financial institutions, 10 percent in securities (including stocks, public offering funds, and bonds), and 18 percent in others.

When trust funds are growing and offering better returns, regulators are taking note that debt trust funds are providing financing to some enterprises by leveraging investors’ comparatively high-level risk enthusiasm.

Therefore, the CBRC has placed tighter inspection on trust companies to moderate the uncertainty and high-level risk in this financial sector.

Zhou Xiaoming, a specialised board member of the CTA, suggests in his recent analysis paper on China’s Trust Industry that was published earlier this year, that the growth of the trust market requires big clients and sustainable development of the trust market, and that trust financial management needs qualified individual investors. These are the part of the cornerstones that underpin the steady and fast development of China’s trust industry.

Offshore trusts: An asset protection perspective While the assets of Chinese trust companies are increasing rapidly with media coverage, offshore trust business is growing in a low-key style. The robustly growing private wealth is one of the important necessary conditions for offshore trusts.

An offshore trust can serve as a secure asset protection tool, and can enable effective asset protection and tax planning to preserve personal or corporate wealth. Offshore trusts involve a settlor transferring assets and property on the trustees for management to benefit the beneficiaries. When an offshore trust is established in an appropriate or suitable offshore jurisdiction, there might be no local taxes applicable to the assets and income of the trust. In most common law jurisdictions, trusts must either be formed for the benefit of persons, or charitable purposes. But some offshore jurisdictions have also amended their laws to permit trusts to be formed for non-charitable purposes.

There is a saying that super wealthy

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Trusts

“The term of trust in ‘Chinese Trust Law’ is an English translation of the Chinese word ‘sin tuo’. The titles of ‘trust companies’ in China should not be confused with how the term ‘trust’ is applied outside China. They are only sharing the same English word ‘trust’, but their concepts are totally different.”

Sunny Liew, Stephenson Harwood

individuals and/or families predominantly use offshore trusts as part of their tax planning. The existence and truth of the saying remains in dispute. Offshore trusts also have other purposes, such as being used as part of capital markets or trade finance transactions, through which people may get wealthier via dealing with the outside world.

Most of the time, lawyers who specialise in estate planning and offshore trusts, as well as legitimate financial institutions that can assist settlors in setting up an offshore trust, will conduct an investigation into their background. The purpose of this investigation is to ensure that the financial institutions are not helping to further criminal or terrorist activities.

Recognising the change of the need for Chinese wealth management, there is a target market for offshore trusts, and the small group includes China’s wealthiest people and rich foreigners living in big cities like Beijing and Shanghai, and in the coastal areas of Zhejiang and Guangdong provinces.

The “Shanghai Wealth Report 2011”, released by Hurun Wealth Report, shows that Shanghai has 132,000 millionaires with personal wealth of RMB 10 million or more, and Shanghai has the second-largest number of millionaires in China after Beijing. China, the world’s most populous country, has 960,000 millionaires, up 85,000 individuals or 9.7 percent year-on-year.

According to Hurun’s statistics, Shanghai has 7,800 super rich people, elite luxury consumers with 100 million yuan or more in assets. In total, China has 60,000 super rich people with 100 million yuan or more, up 9.0 percent last year. The average age of the super rich is 43 years old.

“Only more, no less. There is still signifi-

cant room for market growth in the next five to 10 years,” says DingFa David Liu, a Shanghai-based tax and corporate partner of Jun He Law Offices, who has already started to work on the PRC tax aspect offshore trust business. Clients of international law firms set up suitable offshore trust for purposes of bypassing estate transfer upon death of the grantor or entrepreneurs, and avoidance of potential high capital gains and inheritance taxes.

“The whole process of setting up an offshore trust won’t take long.

Clients need to provide certain application documents to their international law firm - as opposed to traveling to the particular country for the purpose of setting up the trust,” Liu says. The current prevailing market practice is that the lawyers often provide general counseling, tax planning, drafting of trust documents, helping clients locate a trustee, and selecting a trust manager in the country where the trust will be located.

Individuals who are interested in setting up an offshore trust need to find lawyers that specialise in wealth management and offshore trusts. These lawyers also need to be familiar with all areas of domestic and international law surrounding these types of accounts, including how to set up trusts in low tax rate countries, and how to avoid capital gains and inheritance taxes legally.

Liew of Stephenson Harwood often suggests and helps his highend clients to assess their financial situation to evaluate the possibility of setting up an offshore trust. Liew says that selecting the location of where to set up an offshore trust is very important, and that offshore trusts are only set-up by overseas funds via overseas trust sector. The country should be one that has a low tax rate, and has tax shelters in place for offshore accounts.

After all, the popularity of offshore trusts is based on the fact that assets, including real property, shares and stocks, bank deposits and savings and etc, can be transferred to a foreign trust without a taxation obligation. This would help realise tax savings, and provide maximum protection of the assets. According to Liu of Jun He, offshore trusts are popular with people looking to invest money without being liable for penalties and fees when the trusts are paid out. While it is in an offshore trust, the return on the investment has the potential to be more substantial than if the property owner invests in traditional domestic avenues.

As Chinese private wealth continues growing, “the wealth management market in China will continue to grow rapidly over the next 10 years,” says Liew.

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Client choice

Name: Guo Guiying（郭桂英） Firm: King & Wood Mallesons Areas of practice: Foreign direct investment, M&As in China and China outbound investment Why client choice?: Guo’s rich experience, honesty, high service quality, and strong professional ethics earn top marks from clients.

A leading lawyer in China outbound investment practices, Guo Guiying has been active in a number of high-profile deals representing major Chinese enterprises including Hisense Group, The Shandong Commercial Group also known as Lushang Group, and Yantai Moon Group.

She has made herself popular among clients by deeply knowing their business and purposes. Via regular and effective communication, she ensures the clients understand technical legal issues, and prepares them integrated resolutions to choose from.

The cross border business, in the meantime, highlights national duty, says Guo. She suggests that Chinese clients be more aware of the legal risks – in particular business and reputation risks – overseas, and keep a close contact with foreign business partners in any possible stalemate situation.

Accompanying the “going out” of Chinese enterprises, Guo believes that Chinese lawyers have to further improve their sense of responsibility, professional capabilities as well as international vision.

Methodology During August, an online client choice survey was sent out to hundreds of leading in-house legal counsel and business professionals to provide feedback on the best private practice lawyers in China.

The results of the survey enabled us to identify the top 20 individuals across all practice areas.

甄选方法 今年八月，本刊向众多顶尖的企业内 部法律顾问和商界人士发放了一份在 线《客户首选律师调查表》，请他们 选出中国最优秀的私人执业律师。通 过调查结果，我们甄选出了各执业领 域中最顶尖的律师共20名。

“We, the Chinese lawyers, are facing more complicatedly structured and multijurisdictional transactions in this era. We have to equip ourselves with the necessary knowledge on relevant global business development, the judgment under a multicultural background, and the skills to solve potential problems during and after the project procedure,” she says. 姓名：郭桂英 律师事务所：金杜律师事务所 执业领域：外商直接投资、中国国内并购和中国境外投资。 为何成为客户首选？：郭律师以其丰富的执业经验、诚实的人品、高水准的服务和极强的执业道德赢得 了客户的最高分。 作为中国境外投资领域的顶尖律师，郭桂英一直活跃在大量的高端交易中，代表包括海信集团、山东鲁 商集团和烟台冰轮集团在内的众多大型中国企业。 郭律师凭借对客户业务和目标的深入了解而深受客户亲睐。通过经常性地与客户进行有效沟通，郭律 师不仅能确保客户理解法律技术问题，还能为客户准备综合解决方案供其选择。 郭律师表示：“跨境业务同时也突出了国家责任。”她建议中国客户增强法律风险意识 – 尤其是境外商业 和名誉方面的法律风险 - 并在任何可能陷入僵局的情形下与境外商业伙伴保持紧密联系。 随着中国企业不断地“走出去”，郭律师相信，中国律师必须进一步提升他们的责任感、专业能力，并拓宽 自身的国际视野。 郭律师表示：“在当今时代，我们中国律师正面临着更多结构复杂、跨越多个司法管辖区的交易。我们必 须掌握相关国际商业发展方面的必要知识，加强多元文化背景下作出决策的能力，培养在项目流程中及 项目结束后解决潜在问题的技能。”

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

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客户最青睐的20位中国顶级律师 Name: Jessie Chenghui Tang（唐承慧） Firm: Jones Day Areas of practice: M&A, FDI, IP, and dispute resolution Why client choice?: Qualified in both China and the U.S., Tang wins the trust of clients with her proficiency in the laws, and practices of the world’s top two economies, as well as her hard-working and easy communication.

Name: Wu Yi（吴毅） Firm: Beijing Kang Da Law Firm Shanghai office（上海康达） Areas of practice: Economic law, commercial, securities, corporate, and real estate Why client choice?: Wu is considered by clients to be highly professional, responsible, and with a deep sense of duty. 姓名：吴毅 律师事务所：上海康达律师事务所 执业领域：经济法、商法、证券、公司和不动产 为何能成为客户首选？：客户称赞吴律师经验丰 富、专业技能过硬，服务迅速周到。

After a decade of running one of the most highly regarded practices in China, Jessie Tang’s most recent effort was a cross border M&A deal representing a Chinese SOE to acquire companies in Germany and in the U.S. The deal required integrated advice on M&A as well as intellectual property, labour and employment, environmental regulations, foreign investment approval, national security review and antitrust review.

“I always aim to truly get under the skin of my clients’ business to understand the issues inside and out,” says Tang. “I feel my clients greatly appreciate my dedication and levels of involvement.”

To further increase the client-lawyer cooperation, Tang suggests her clients get the lawyers involved even earlier, and stay closer. “In the early stages, the costs are lower, and your lawyer’s involvement will pay off if the client and lawyer together can anticipate legal issues, and be proactive instead of reactive,” she explains.

A combination of deep local knowledge and international expertise, and the network of international and local counsels are considered by Tang as the key to the success of law firms in the present world.

“We should understand the intricacies of the Chinese legal environment, and it is our responsibility to stay current on the continuing changes in the financial, business, legal, and regulatory regimes in which our clients operate,” she says. 姓名：唐承慧 律师事务所：美国众达律师事务所 执业领域：并购、外国直接投资、知识产权、争议解决 为何能成为客户首选？：唐律师在中国和美国均拥有执业资格，她深谙这两个世界顶级经济体的法律实 践规则，此外勤奋的工作态度和易于沟通的个性，也使她赢得了客户的信任。

Name: Yu Xingang（余昕刚） Firm: Zhong Lun Areas of practice: M&A Why client choice?: A client favourite, Yu is credited as being an “energetic” and hardworking lawyer. 姓名：余昕刚 律师事务所：中伦律师事务所 执业领域：并购 为何能成为客户首选？：余律师深受客户青睐，是 客户眼中“精力充沛”、工作勤奋的律师。

在中国，唐律师在最受关注的执业领域奋斗了十余年，最近在一笔跨国并购交易中，她代表一家中国国 有企业参与收购若干德国和美国公司。除了并购方面的法律意见，这笔交易还需要知识产权、劳动、环 境法规、外国投资许可、国家安全审查以及反垄断审查方面的综合法律意见。 唐律师表示：“我总是力求通过深入了解客户的业务来把里里外外的问题彻底厘清，我感觉客户对我的 敬业精神和投入程度都赞赏有加。” 为进一步增强客户与律师之间的合作，唐律师提倡律师能更早地介入交易，更紧密地与客户合作。她解 释说：“在交易早期阶段，成本相对较低，如果客户与律师都能共同预见到法律问题，并采取积极而非 消极的态度应对，那么律师的及早介入也会收到成效。” 唐律师认为，当今世界律所获得成功的关键即在于对本地和国际法律的深入了解，，以及国际律师和本 地律师的密切合作。 她表示：“我们应该理解中国法律环境错综复杂，我们有责任密切关注与客户运营 相关的金融、商业、法律和监管体制方面的变化情况。”

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

** 鑫马翻译提供中文译文 **

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Name: Zhu Xuefeng（朱薛峰） Firm: Hanyuan （上海瀚元） Areas of practice: Criminal litigation, corporate, and real estate Why client choice?: Clients of Zhu, the director and managing partner of Hanyuan, commend his profound experience and skills. 姓名：朱薛峰 律师事务所：上海瀚元律师事务所 执业领域：刑事诉讼、公司和不动产 为何能成为客户首选？：朱律师是瀚元律师事务 所的执行合伙人，客户十分认可其丰富的专业经 验和技能。

Name: Mu Jiyun（穆继云） Firm: Beijing Rainmaker Law Firm Areas of practice: Mining and resources Why client choice?: With her “professional and conscientious” services in the mining sector, Mu is appraised to be working above and beyond clients’ satisfaction.

Name: Ma Jianjun（马建军） Firm: Jun He Law Offices Areas of practice: Labour law, corporate, and litigation Why client choice?: Acknowledged by clients as a professional and knowledgeable labour attorney, one called Ma “the best employment lawyer in China”. 姓名：马建军 律师事务所：君合律师事务所 执业领域：劳动法、公司和诉讼。 为何能成为客户首选？：作为一名专业能力出色且 学识渊博的劳动法律师，马律师深得客户认可，有 客户将马律师称作“中国最好的劳动法律师。”

Focused on mining and resources sectors, Mu Jiyun recently acted in China Gold Group’s acquisition of a Kyrgyzstan copper and gold mine, and in Shandong Heze Chengxin Group’s investment in Canada. She says that winning the recognition from the client means having to do the best with a sincere, diligent, and responsible attitude.

A spirit of teamwork and open-minded approach are also her advantages.

While taking care of clients’ foreign-related business, Mu concludes that the lawyers have an increasingly important part to play.

“The lawyers who are managing multipractices and capabilities are playing more and more roles as general coordinators on the stage of Chinese companies’ foreign adventures, instead of being nothing but a legal counsel.”

However, the clients also have to keep a cool head, she adds.

“A company has to be clear on whether it wants a century business or is only eager for some quick money,” says Mu. “The law or the lawyer doesn’t value impatient gold diggers very highly, but instead weighs those who have a long-term vision as indispensible parts.” 姓名：穆继云 律师事务所：北京市雨仁律师事务所 执业领域：矿业和资源 为何能成为客户首选？：穆律师本着“专业、负责”的态度提供矿业领域的法律服务，客户称赞其所提供 的服务总能超出预期。 穆律师专事矿业和资源领域的业务，近期在中国黄金集团收购吉尔吉斯斯坦铜金矿的交易以及在山东 晨新集团（音译：Shandong Chenxin Group）在加拿大的投资中提供法律服务。她表示：“赢得客户的 认可即意味着要全心全意做到最好。”团队协作精神和开明的态度亦是其优势所在。

Name: Li Ya（李亚） Firm: Zhong Lun Law Firm Areas of practice: Corporate and M&A, PE and VC, FDI and cross border M&A, structured finance and securitisation, project finance, real estate, energy and natural resources, and employment Why client choice?: Clients commend Li for being a very experienced and energetic expert in his fields of practice.

在处理客户的涉外业务时，穆律师得出的结论是：律师的作用正日益增大。在中国公司对外投资的舞台 上，执业领域广泛且能力突出的律师正越来越多地扮演着“总协调人”的角色，而不仅仅是担任法律顾 问。 穆律师补充道：“但客户也必须保持一个冷静的头脑。”穆律师表示：“一家公司必须明确其是想成为一家 百年老店，还是只想赚些快钱。不管是法律本身还是律师，都不会珍视短视的淘金者；相反，他们看重 的是将长远目标作为必备要件的企业家。”

姓名：李亚 律师事务所：中伦律师事务所 执业领域：公司/并购、私募/风投、外国直接投资/ 跨境并购、结构性融资及证券化、项目融资、不动 产、能源和自然资源、劳动。 为何能成为客户首选？：客户称赞李律师在其执 业领域中是一名经验丰富且精力旺盛的专家。 **The Chinese translation of this story was prepared by Synmax Translation**

** 鑫马翻译提供中文译文 **

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Name: Qu Miao（瞿淼） Firm: King & Wood Mallesons Areas of practice: Intellectual property counseling, and litigation Why client choice?: A former in-house counsel at an IT company, clients extol Qu as “a very good and professional IP lawyer”.

Focusing primarily upon intellectual property counseling and litigation, encompassing software and domain names, Qu Miao regularly represents multinational corporations, domestic companies, and foreign clients before the courts and arbitration institutions. She recently added into her case book Microsoft’s copyright dispute in Guangdong, and acted as a member in representing Apple Inc in its trademark case.

Treating clients with a sincere heart and professional perspective, and providing all-round services that the clients really need is how she maintains a good relationship with clients, says Qu. “In selecting a lawyer, outstanding professional skills and sense of service are the clients’ necessary requirements; whereas in choosing a long-term trustworthy legal partner, the clients also have to take into account whether there are values and ideologies in common,” she adds.

According to Qu, when dealing with clients of different interests and cultures, professional lawyers have to be able to represent them equally professionally as the cultural convergences and economic system integrations are growing faster and faster.

“Chinese lawyers are participating deeper and wider in globalisation,” she says. “We will be burdened with more social responsibilities and national missions in this progress.” 姓名：瞿淼 律师事务所：金杜律师事务所 执业领域：知识产权法律咨询和诉讼 为何能成为客户首选？：瞿律师是曾在IT公司担任内部法律顾问，客户称赞其是一名“非常优秀和专业的 知识产权业务律师。” 瞿律师主要从事知识产权法律咨询和诉讼，包括计算机软件及域名，她经常代表跨国公司、国内公司和 外国客户在法院和仲裁机构出庭。她近期代理了微软公司在广东的著作权纠纷案，并与其他律师共同 代表苹果公司处理商标案件。 瞿律师称与客户维持良好关系的方法就是真心对待客户，为客户提供专业的观点和客户真正需要的全 方位服务。她补充道：“客户选择律师的必要条件是律师具备出色的技能和服务意识；然而，在选择长 期值得信赖的法律拍档时，客户还必须考虑是否和律师有共同的价值观和理念。” 根据瞿律师的观点，由于文化趋同加上经济体系一体化进程越来越快，专业律师必须以同等的专业水 准为代表不同利益和文化的客户服务。她说：“相比以前，中国律师现已更加深入和广泛地参与到全球 一体化的进程中，所以我们在这个进程中，承担着更多社会责任和国家使命。”

Name: Li Zhenhe（李振合） Firm: Jun Ze Jun Law Offices Areas of practice: Corporate finance, FDI, and arbitration and litigation Why client choice?: Li is recognised by clients for his expertise in a broad range of areas, and is commended for his diligent and responsive attitude. 姓名：李振合 律师事务所：君泽君律师事务所 执业领域：公司融资、外国直接投资、仲裁和诉讼。 为何能成为客户首选？：李律师在众多专业领域的专业技能均 得到了客户的认可，其勤勉、负责的态度也得到客户的称赞。

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

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Name: Zhang Xuebing（张学兵） Firm: Zhong Lun Areas of practice: Corporate restructuring and reorganisation, M&A, IPO and listing, finance, banking, real estate, arbitration and litigation Why client choice?: The leadership Zhang possesses as the managing partner of Zhong Lun and president of the Beijing Bar Association further reinforces his eminence as an outstanding lawyer. 姓名：张学兵 律师事务所：中伦律师事务所 执业领域：并购 为何能成为客户首选？：作为中伦律师事务所的 执行合伙人以及北京律师协会的会长，张律师的 领导才能进一步巩固了其杰出律师的形象。

Name: Huang Xiong（黄雄） Firm: JXD Law Firm Areas of practice: Corporate, anti-dumping, antitrust, banking and finance, IP, and arbitration and litigation Why client choice?: Huang is admired by clients for being “very efficient” in helping them clear their accounts receivable. 姓名：黄雄 律师事务所：佳信达律师事务所 执业领域：公司、反倾销、反垄断、银行及金融、 知识产权、仲裁和诉讼。 为何能成为客户首选？：黄律师能“非常高效地”帮 助客户清理应收账款，广受客户赞扬。

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Name: Yang Peiming（杨培明） Firm: Llinks Areas of practice: Dispute resolution, litigation, FDI, real estate, and IP Why client choice?: Yang’s depth of experience has won him high recognition from clients.

Having represented many multinational corporations, foreign-invested enterprises, state-owned enterprises, and private companies in hundreds of litigation and arbitration cases, Yang’s clients cover a wide range of business sectors.

Name: Zhao Deming（赵德铭） Firm: HaoLiWen Areas of practice: Corporate, commercial and litigation practices, with additional specialties in shipping litigation, customs and tariffs, and compliance Why client choice?: Decorated with many accolades, Zhao’s clients recommend his “practical experience in very specialised areas”, and appreciate his consummate professional skills. 姓名：赵德铭 律师事务所：昊理文律师事务所 执业领域：公司、商业和诉讼业务，擅长船事诉 讼、海关和关税以及合规方面的业务 为何能成为客户首选？：赵律师身上有着很多称 号，客户称赞他“在非常专业的领域拥有实际经验” ，对他完美的执业技能也赞赏有加。

Name: Jin Yulai（金玉来） Firm: Shanghai Kai-Rong Law Firm Areas of practice: Litigation, arbitration, maritime law, corporate law, and finance and risk investment Why client choice?: Jin is renowned among the clients for being “dutiful and dedicated”. 姓名：金玉来 律师事务所：上海市凯荣律师事务所 执业领域：诉讼、仲裁、海商法、公司法、融资和 风险投资。 为何能成为客户首选？：金律师因其“尽职尽业”的 执业风格而在客户当中广受赞誉。

As an outstanding litigator and arbitration lawyer, Yang serves his clients in his own “thoughtful” way, in which he considers everything out in the client’s best interest, spotting unnoticed problems, and providing them with friendly advice. A bit of emotional elements attached to professional service is added value for the clients, he suggests.

However, the soft part in his approach never makes him a “Yes Man”. Quite the opposite, Yang emphasises that sticking to the law is the best professional advice a lawyer can ever provide to the clients.

“To strictly abide by the rules in some ways might not be efficient or economic. But in the long run, it is definitely the most valuable thing with the highest return,” he says.

As lawyers are participating now more deeply in all aspects of social, cultural and political aspects besides economic life in China, Yang believes Chinese lawyers will continue to head into the global arena of legal business, and gain a proper position. 姓名：杨培明 律师事务所：通力律师事务所 执业领域：争议解决、诉讼、外商直接投资、不动产、知识产权 为何能成为客户首选？：杨律师丰富的经验得到了客户的高度认可。 杨律师的客户遍及各行各业，曾代表很多跨国公司、外资企业、国有企业和民营企业参与过千起诉讼和 仲裁案件。 作为一名杰出的诉讼和仲裁律师，杨律师能为客户提供周到的服务，他凡事都考虑到客户的最大利益， 发现未被察觉的问题并向客户提供有利的建议。他建议在为客户提供专业服务时增添一点人性化服务 来提升价值。 但提供人性化的服务从未使他成为一个“唯命是从的人”。恰恰相反，杨律师强调，严格遵守法律是律师 能为客户提供的最好的专业服务。他表示：“从某种程度上而言，严格遵守规则未必高效经济。但从长远 来看，肯定能带来最高的价值和回报。” 当今中国，除经济生活领域外，律师对社会、文化和政治领域的参与度也越来越高。杨律师认为中国律 师将继续向国际法律业务的舞台挺进，并赢得相应的地位。

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

** 鑫马翻译提供中文译文 **

Client choice Top 20

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

Name: Xiong Jin（熊进） Firm: King & Wood Mallesons Areas of practice: Corporate, cross border M&A and FDI Why client choice?: Clients appreciate Xiong’s rich experience, strong professional skills, and thorough and quick service.

Xiong Jin specialises in corporate, cross border M&As, and foreign direct investment. His recent outbound investment clients include major Chinese energy and resource SOEs like Huaneng Group, Sinosteel, and Hunan Valin Steel. He has also represented many multinational corporations such as GE, AMP Capital, IFC and Moody’s on their investments in China in many sectors including mining, energy, distribution, logistics, and manufacturing.

“I believe the fundamental and effective principle in serving the client is to make sure there is a frank exchange in any case, try everything to offer them the best service possible, and keep sensitive to clients needs in order to establish their long-term trust upon the team,” says Xiong.

In a time when increasingly active resource assets acquisition by Chinese companies, wider international cooperation among lawyers and firms, and more niche positioning in the market are anticipated, Xiong believes such a domestic client base is the fortune for Chinese lawyers.

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姓名：熊进 律师事务所：金杜律师事务所 执业领域：公司、跨境并购、外国直接投资 为何能成为客户首选？：客户对熊律师丰富的执业经验、优秀的专业技能、 以及周全迅速的服务称赞有加。 熊律师专事公司、跨境并购和外国直接投资方面的业务。他近期代表的境外 投资客户包括诸如华能集团 、中钢集团以及湖南华菱钢铁在内的中国能源 和资源类国有企业。此外，他还代表通用电气、安保资本(AMP Capital)、国 际金融公司以及穆迪评级等众多跨国公司参与在中国多个领域的投资，这些 领域涉及矿产、能源、分销、物流以及制造。 熊律师表示：“我相信服务客户最根本有效的原则就是确保在任何案件中与 客户真诚交流，尽一切努力尽可能为客户提供最好的服务，并时刻洞察客户 的需求，以使客户与律师团队建立长期的信任。” 当中国公司主动出击收购能源资产越来越频繁时，我们可以预见到，律师和 公司之间将存在更为广泛的合作，市场定位也将更为细化。熊律师相信中国 国内的客源是中国律师的一笔财富。熊律师表示：“我们将成为顶尖的律师， 协调位于不同司法管辖区的团队，为客户提供一体化的多语言服务。” “这是一个很好的机会，也是一个很大的挑战。这意味着我们必须不断完善 自身在跨境业务方面的能力并与客户一道‘走出去’。”

“We are going to become the leading counsels, coordinating teams located in different jurisdictions to provide seamless multilanguage service to the clients,” he says.

“It’s a great opportunity as well as a great challenge. It means we have to improve our cross border abilities and ‘go out’ together with our clients.”

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stablished in 2003, HaoLiWen Partners has been a fullservice law firm duly authorized to practice Chinese law in the People’s Republic of China. HaoLiWen has offices in Beijing, Shanghai and Dublin.HaoLiWen serves clients in every facet of investment, trade, financing and other commercial transactions, and is known for its expertise and experiences in areas of Corporate and Mergers & Acquisitions, Customs Duties and Investigations, Intellectual Property, Compliance & Crisis Handling, Corporate Crime Risk Advice & Defense, Dispute Resolution, International Trade, Real Estate and Construction, Tax, Labor & Employment, Shipping & Logistics, Banking & Project Finance, Private Equity & IPO and Energy, Natural Resources & Environment.

HaoLiWen has seasoned lawyers practicing Chinese law

Tel: +86 21 5840 6188

Fax: +86 21 5840 6288

and foreign law. They are either former in-house counsels from multinational companies, or former judges of Chinese courts, or former officials with foreign investment approval authority or other authorities, or senior lawyers with domestic and international firms, or distinguished scholars from law schools or Customs College in China. Many of HaoLiWen lawyers have graduated from universities aboard or practiced overseas. Fluent in Chinese, English or Japanese, lawyers at HaoLiWen represent or assist clients from different cultures or jurisdictions in their China-related or transnational business transactions. We provide proactive and preventive compliance approach tailored to Chinese market, and help clients resolve crisis triggered by non-compliance with Chinese administrative or criminal laws and regulations.

www.haoliwen.com

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Client choice Top 20

ASIAN LEGAL BUSINESS september 2012

Name: Xu Ping（徐萍） Firm: King & Wood Mallesons Areas of practice: FDI, M&A, and technology transfers Why client choice?: Xu is tops in clients’ books not only because of her rich experience and deep understanding of Chinese and international laws and practices, but also because she is lauded for being easy to communicate with.

She brings clients high efficiency and professionalism.

An expert in foreign direct investment in China, M&As, and technology transfers, Xu Ping has been one of the clients’ most popular choices in her area, thanks to her extensive experience, deep local knowledge, effective communication skills, and professional efficiency.

She has participated in deals in various industries including automobiles, energy, pharmaceuticals, chemicals, machinery, and infrastructure facilities. Her most recent highlight was advising China’s Weichai Power on its acquisition of German truck maker Kion Group, the largest direct investment by a Chinese company in Germany so far.

“The most important thing is to understand the client’s needs… knowing how to add value to the clients using the professional services.” says Xu, explaining her popularity among the clients.

She also provides comprehensive legal advice to both Chinese and foreign-invested enterprises on customs formalities, taxes, labour issues, and intellectual property protection. And she believes in the unique advantages that Chinese lawyers possess in terms of client services and relations.

姓名：徐萍 律师事务所：金杜律师事务所 执业领域：外国直接投资、并购、技术转让 为何能成为客户首选？：徐律师之所以成为客户首选不仅因为她丰富的执业 经验以及对中外法律的深入了解，也因为她易于沟通并因而受到客户的赞 誉。她能为客户提供高效、专业的服务。 作为外商在华直接投资、并购以及技术转让方面的专家，徐律师一直都是这 些领域最受客户欢迎的律师，这些都归功于她丰富的经验、对本地法律的深 入了解、有效的沟通技巧以及她的专业和高效。 她参与过的交易遍及各个行业，包括汽车、能源、医药、化工、机械和基础 设施建设。最近代理的重大交易是中国潍柴动力收购德国叉车制造商凯傲 集团(KION Group)的交易，这次收购乃是迄今为止中国公司在德国最大的 直接投资。 徐律师在解释其为何广受客户欢迎时表示：“最为重要的是理解客户的需求， 知道如何利用专业服务为客户实现增值。” 她还就海关手续、税务、劳动以及知识产权保护事宜为中国及外商投资企业 提供综合法律咨询。她认为中国律师在客户服务和客户关系方面拥有得天 独厚的优势。徐律师表示：“随着中国公司的国际化，律师提供的专业支持在 跨境交易中已成为不可或缺的部分。” “中国律师了解中国客户的需求，也深谙他们的理念，这是为客户提供高附加 值服务的基础。”

“As Chinese companies going international, professional support from lawyers becomes absolutely necessary in the complicated cross border transactions,” says Xu. “Chinese lawyers understand Chinese clients’ demands, as well as their concepts, which is the foundation of offering value-added services to them.”

Name: Zou Wenlong（邹文龙） Firm: AllBright Areas of practice: IP, M&A, litigation and dispute resolution Why client choice?: Zou’s clients appreciate his extensive experience on the strategy of IPR development and protection. “He has rich experience, and performed excellently for us in our famous cartoon brand’s IP-related affairs,” notes one.

Zou Wenlong received high reviews for his effective work helping protect clients’ intellectual property rights. His successful record features representing the copyright holder of popular cartoon series Pleasant Goat and Big Big Wolf among other world renowned film makers and entertainment companies. Moreover, he has been involved in other cross border M&A deals as well as PE, VC and IPO cases, too.

“In short, I always think for the clients from their perspective, and I always finish my work in time with high quality,” says Zou, speaking of his winning techniques. “I solve problems for the clients, for their sake, not for my own revenue. It is the essential starting point.”

Also specialised in litigation, Zou stresses that the first precondition of winning is that the clients provide thorough background and complete evidence of the case. To achieve that, a full trust in the lawyers is necessary, and has to be by built through candid communications.

Zou believes as market competition becomes fierce, a lawyer who wants to perform better has to update his knowledge on all kinds of law very quickly, and improve his or her language skills. He also needs to keep learning from colleagues, especially those with international firm experience. **The Chinese translation of this story was prepared by Synmax Translation**

姓名：邹文龙 律师事务所：锦天城律师事务所 执业领域：知识产权、并购、诉讼和争议解决 为何能成为客户首选？：邹律师的客户对其 在知识产权开发和保护策略方面的丰富经验 赞赏有加。其中一名客户说：“他的经验非常 丰富，就知识产权相关事务为我们的知名卡 通品牌提供了优质的服务。 邹律师在帮助客户保护知识产权方面的工作 卓有成效，获得了客户的高度评价。除了世界 知名的电影片商和娱乐公司以外，他还成功代表过广受欢迎的卡通系列《 喜洋洋和灰太狼》的著作权人。此外，他还曾参与其他跨境并购交易以及私 募、风投和IPO等案件。 邹律师在谈及他的成功秘诀时表示：“简单地说，我总是从客户的角度思考问 题，并且总能按时高质量地完成工作。我为客户解决问题，是出于客户利益 考虑，并非为了赚取利润。这是最根本的出发点。” 邹律师还是诉讼业务的专家，他强调胜诉的第一个先决条件就是客户向律 师提供详尽的背景资料和案件的完整证据。要达到此目的，客户必须充分信 任律师并必须通过坦诚的沟通建立这种信任。 邹律师相信，随着市场竞争越来越激烈，如要表现得更好，律师必须学会快 速更新所有种类的法律知识，并提高语言技巧。此外还需要不断向同事，特 别是具有国际律所工作经验的同事学习。

** 鑫马翻译提供中文译文 **

Client choice Top 20

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

Name: Zhang Yi（张毅） Firm: King & Wood Mallesons Areas of practice: PE Investments, FDI, M&A, insurance, and securities and capital markets Why client choice?: “He has outstanding legal skills,” remarks one happy client. In addition, other clients laud Zhang’s excellent legal professional skills, and say he is highly responsive.

Zhang Yi specialises in foreign direct investment in China, M&As, corporate restructuring, reorganisation and IPOs, infrastructure construction and the privatisation of public services, and insurance.

Most recently he handled the $2 bilion IPO of IHH Healthcare in Singapore and Malaysia. His expertise also includes insurance law where he has served a number of insurance companies and their foreign investors.

Zhang says winning clients’ trust and recognition needs comprehensive effort.

“We have to know their business purpose, keep good communication, and solve the actual problem with professional skills,” says Zhang.

The “professional skills” refers to a series of ever growing requirements for the lawyers in the quickly changing time, when more and more Chinese companies are pursuing international development. In this case a lawyer has to know international laws besides the domestic ones, master English and other languages to be able to draft relevant documents when necessary, and manage foreign firms as the lead counsel in a cross border deal, according to Zhang.

“Putting the client first has been our principle,” he says, adding that he always hope to solve the problems together with the clients using professional knowledge and observation.

Name: Yan Chunfu（颜春复） Firm: AllBright Areas of practice: WTO, anti-dumping Why client choice?: Yan has won client votes for being professional, and demonstrating unparalleled concentration on his work.

Despite being young and having yet to lead a case by himself, Yan Chunfu has impressed clients with his competence and professionalism so much that he was nominated to the top 20. His tools include guaranteeing real time communication, adjusting flexibly to clients’ feedback, and leveraging the firm’s rich and unique experience in relevant areas in his own cases.

Specialising in WTO and anti-dumping dispute resolution, Yan has represented Chinese companies and the Chinese government in the relevant investigations and litigations, mainly at foreign venues, where the Chinese parties have difficulties in understanding the rules because of the language, way of thinking, and the lack of case studies.

“Our mission is to help the Chinese government and companies better understand the WTO and other international rules, and encourage them not to fear foreign-related disputes,” he says.

姓名：张毅 律师事务所：金杜律师事务所 执业领域：私募投资、外商直接投资、并 购、保险、证券和资本市场 为何能成为客户首选？：曾有客户满意 地评价张律师：“他的法律技能非常突 出”。此外，其他客户也对他精湛的法律 专业技能和认真负责的工作态度都赞 不绝口。 张律师专事外商在华直接投资、并购、 公司重整、重组和IPO、基础设施建设、 公共服务私有化和保险方面的业务。最近，他办理了马来西亚综合保健控股 (IHH Healthcare)在新加坡和马来西亚20亿美元的IPO。他还擅长保险法方 面的业务，已为多家保险公司及其外国投资人提供了法律服务。 张律师说：“赢得客户的信任和认可需要全方位的努力。我们必须了解客户的 商业目的，与客户保持良好的沟通，并运用专业技能解决实际问题。” “专业技能”指的就是当中国公司走在国际化发展之路上时，这个瞬息万变的 时代对律师提出的越来越多的要求。张律师说：“所以除了国内法律以外，律 师还必须了解国际法律，掌握英语和其他语言以便在必要时能够起草相关文 件，并作为牵头律师在跨境交易中协调好外国律师事务所的工作。” 他表示：“我们的一贯原则就是把客户放在第一位”，同时指出，他也希望能够 利用自身专业知识和见解与客户一道解决问题。

姓名：颜春复 律师事务所：锦天城律师事务所 执业领域：WTO、反倾销 为何能成为客户首选？：颜律师因其出色的专业能力和工作中所表现出来的 无比专注的态度赢得了客户的青睐。 尽管颜律师年纪尚轻尚未担任过案件团队领导，但他自身的能力和专业素养 给客户留下了深刻的印象，因此被提名为客户最青睐的中国前20位律师之 一。他的良好工作习惯包括：实时沟通，根据客户反馈灵活调整工作模式以 及将本所相关领域内丰富独特的经验充分用于自身案件的处理。 颜律师专事WTO和反倾销争议解决，曾代表中国公司和中国政府参与过许 多主要在外国法院进行的相关调查和诉讼。因为语言、思维方式不同以及 缺少案例分析，中国当事方在这些调查和诉讼案件中对规则的理解有一定 难度。 他表示：“我们的使命就是帮助中国政府和公司更好地理解WTO规则和其他 国际规则，并鼓励他们不要畏惧涉外纠纷。” 在过去，许多缺乏自我保护的中国客户在面对反倾销或WTO调查时由于不 知道可以采取何种措施，所以不敢主动对抗。但增强客户的信心最终还是律 师的责任。他表示：“我们应当鼓励客户采取诉讼方式保护自身的合法权益， 并学会利用合理的法律手段。”

In the past, many defenseless Chinese clients dared not to react positively when facing anti-dumping or WTO investigations as they knew little about what to do. But eventually, it is the lawyers’ job to boost their confidence.

“We should encourage our clients to fight using lawsuits to protect their legitimate rights and interests, using rational and lawful methods,” says Yan. **The Chinese translation of this story was prepared by Synmax Translation**

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ASIAN LEGAL BUSINESS september 2012

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international tax

提单管辖权条款在中国法院的尴 尬效力 提单管辖权条款，是承运人预先印制的，规定提 单当事人在发生与有关提单的相关争议时，由指定 国家/地区的法院或仲裁机构管辖的标准条款。该 些管辖权条款通常都将处理纠纷所在地约定为承 运人所在地或其主要营业地，以达到适用当地法律 及就近解决纠纷的目的。当然，提单管辖权条款是 否具有效力，在实践中仍然存在很大争议，各国对 此也持有不同的看法，在中国同样存在争议。 中国的法律法规并未对提单管辖权条款的效力直接进行规定， 但从民事诉讼法的相关规定来看，只要提单管辖权条款选择的管 辖地与纠纷具有关联因素，似乎不应该排除该条款的效力。但是， 在司法实践中，就货物索赔方向承运人提起的诉讼来看，各地法 院、甚至同一法院对于该条款的效力，仍持有不同意见。 部分判例显示，内地法院以“对等原则”肯定提单管辖权条款， 即以承运人所在国的法院在司法实践中确认我国航运公司签发的 提单中“管辖权条款”的效力为由，肯定其效力；或以“条款明示、 显著提示”为由肯定提单管辖权条款效力。但更多、更新的判例显 示，内地法院多以“提单管辖权条款约定的法院与案件无实际联系 （并非运输起运地、中转地、目的地、事故发生地）”、或以“提单管 辖权条款为单方制定格式条款，未经双方协商一致”为由，否定其 效力。

AzureTax Ltd

因此，就货物索赔方向承运人在内地法院提起的诉讼而言，如 果承运人以提单管辖权条款为由提出管辖权异议，多数法院将驳 回承运人的异议。当然，在面对承运人作为原告向货方提起诉讼 时，我们却看到了不同的结果。一旦货方提出认可提单管辖权条款 的效力，认为案件应该由提单约定的承运人所在国管辖/仲裁，内 地法院可能顺水推舟，以双方无异议为由，肯定该条款的效力，驳 回承运人的起诉，变相的保护国内货方的利益。 Suite 1010 10/F 89 Queensway

金鐘道89號力寶中心2座10樓1010室

从以上分析不难看出，提单管辖权条款在内地法院面临着尴尬 的效力。在承运人作为原告时，法院可能根据被告的确认而认可该 条款的效力，要求承运人在境外提起诉讼/仲裁；而在承运人作为 被告时，法院可能认为约定的管辖地与案件无实际联系或未经双 方协商一致为由，驳回承运人的异议。 Lippo Centre Hong Kong

为了避免上述尴尬效力，我们建议国际航运或物流企业在拟定 提单管辖权条款时，将该条款仅限制在向承运人提起索赔的案件， 而排除承运人作为索赔方时适用该条款。 Tower Two

Lai Jianbin (Calvin) / 赖建斌, Associate T: +86 592 239 3355 F: +86 592 239 2255 E: lai.jb@sphere-logic.com A: Sphere Logic Partners / 世礼律师事务所

26/F, COSCO Building, 268 Lujiang Road Xiamen, China 361001

New attribution of UK capital gains made by non-resident close companies to UK tax residents As a general rule: • Non-UK tax resident companies that do not carry on a trade in the UK through a permanent establishment or agency are not subject to UK tax on their capital gains.

• Capital gains realised by a company are not taxable in the hands of its shareholders.

However, non-UK resident close companies (ie companies owned by 5 or fewer shareholders ) that would be close companies if UK resident are subject to anti-avoidance rules contained in section 13 of the UK Taxation of Chargeable Gains Act 1992 (TCGA 1992) (section 13). Section 13 permits any capital gains that such close companies realise to be brought within the UK tax net by attributing those gains to UK resident shareholders and certain other persons with an interest in the company (subject to a minimum attribution in any case of 10% of the chargeable gain), including the trustees of non-UK resident trusts. (Although non-UK resident trustees would not, themselves, be subject to tax on the attributed gains, those gains may be further attributed to a UK resident settlor or beneficiary of the trust under the rules contained in sections 86 and 87 of TCGA 1992.)

Gains on assets used only for the purposes of a trade carried out outside the UK are excluded from the charge under section 13, but there is currently no motive test excluding arrangements whose purpose does not include tax avoidance.

EU asks UK to amend these tax rules While the UK consultation /proposals to amend these rules to comply with EU tax law, with effect from 6th April 2013, is aiming to bring the rules into line with EU law, they are trying to do this without making significant changes to their effect. It is believed the proposed amendments should be beneficial for any genuinely commercial arrangements that would fall foul of the existing rules. More than ever, it will be sensible to maintain separate holding structures for commercial and non-commercial activities. Taxpayers establishing new commercial ventures that may benefit from the new exemptions should consider using a fresh holding structure for these post-6 April 2012 arrangements.

Comment The UK government clearly believes that the new concept of “economically significant activities” is the answer to the concerns raised by the European Commission, and it would not be surprising to see this concept extended to other areas if similar concerns arise in future.

The UK government’s impact assessment (which forms part of the consultation document) acknowledges the additional burden that the new tests will place on HMRC, because of the functional analysis required where it is not clear whether activities are economically significant. A similar burden will inevitably fall on taxpayers and their advisers, and we can expect test cases on arrangements that are close to the line.

The exclusion of investment businesses from economically significant activities mirrors other parts of the tax code, such as inheritance tax business property relief (BPR).

The UK government’s proposals on the amendments required for EU law purposes are quite specific, although the consultation document makes it clear that the draft legislation requires further work

10

TH ANNIVERSARY 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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新交所提高主板上市标准

对“闽灿坤B缩股保壳应对退市风 险”的分析

SINGAPORE

2012年7月19日，新交所发布公告，修改其主板上市 手册，提高主板上市标准，修改后的上市手册自2012 年8月10日开始执行。本次新交所主板上市手册主要对 第210(2)及241条进行了如下修改：

•

SHANGHAI

2012年7月7日，沪深交易所发布上市公司退 市新规，其中规定“B股上市公司连续20个交易 日 HYPERLINK “http://stock.hexun.com” \o “http://stock.hexun.com/blocked::http://stock. hexun.com/” \t “_blank” 股票收盘价低于面值 的，将终止其上市。”在新规实施之后，闽灿坤B连 续18个交易日股价低于面值，直逼退市的边缘。7 月31日晚间，闽灿坤突然发布公告称，因拟筹划重 大事项自8月2日起停牌，并于8月24日晚间宣布“缩 股保壳”方案。9月13日，闽灿坤B股东大会通过了 《关于公司拟实施缩股的议案》，这也意味着公司 将按公告的6:1的比例实施缩股方案。至此，首家 因股价低于1元人民币面值而触及退市新政红线 的公司，以峰回路转的方式解除了退市警报。

• 第210(2)条 该条主要规定了主板上市的财务要 求。自2012年8月10日起，在新交所主板申请 上市的企业须达到下列任一条件： • 最近一个财务年度合并后的税前利润达到新币三千 万元以上，并且有至少三年的财务记录；或 • 最近一个财务年度盈利，有至少三年的财务记录， 且在挂牌上市时的市值不少于新币1.5亿元；或 • 最近一个完整财务年度有运营收入，且在挂牌上市 时的市值不少于新币3亿元。房产信托及商业信托 若在挂牌上市时市值可达新币3亿元，且能够显示 其在上市后立即有业务收入，则可以不要求有过往 的财务记录。 第241条 该条规定公司挂牌上市时发行的最低股价（非可转 换类证券除外）从原先的新币0.2元提高至新币0.50元。

有关缩股方案，以下几点值得投资者和上市公司注意： 1．深交所有关负责人表示，B股市场长期不活跃，纯B股公司 缺乏融资功能，扩张股本只能通过送红股或转增等方式，股价 比较低迷有客观原因。由于纯B股公司的特殊性，通过缩股方式 保留上市地位的做法局限于纯B股公司。

基于上述修改，上市手册的下列条款也进行了相应修改： •

•

•

•

第212(2)条 凯利板上市公司申请转向主板市场须符合主板市 场的上市条件； 第838条 上市公司发行红利股(bonus issue)、资本化发行 (capitalilsation issue)或股票分拆，其根据资本化发行或股票 分拆的每日加权平均股价不得低于新币0.5元。上市 公司在 2012年7月19日之前就该类公司行动已经发布公告的，该股价 仍适用原先规定的新币0.2元，否则应适用修改后的新币0.5 元； 第1015(2)条 特大收购(very substantial acquisition)的业务 必须是盈利的且具有健康的财务状况。上市公司须聘请一位 合格且独立的评估师就拟收购的业务进行评估，该特大收购 须获得新交所批准； 第1015(3)条 反向收购将注入的业务及扩大后的集团须符合 主板上市要求，上市公司须聘请一位合格并独立的评估师就拟 注入的业务进行评估。

2、 除缩股方式外，交易所还鼓励公司通过大股东增持、公 司回购等方式提高股价，以维持上市地位。另一方面，对选择主 动退市的公司，交易所会充分考虑历史因素并尊重公司的意愿， 且允许其在日后符合条件后再次申请上市。 3、缩股方案首先需要经过股东大会审议通过，像闽灿坤这样 的台商独资企业，随后还应将该方案报商务部批准。此外，因缩 股减少了注册资本，按照《公司法》规定，公司还应该在股东大 会通过决议后10天内通知债权人，并在30日内公告相关法律程 序的履行情况； 4、公司在作出退市决定指示应予慎重。当日闽灿坤公司向社 会公告可能退市，许多中小投资者在获悉公告后抛售股票，而如 今公司的行动被认为涉嫌信息虚假披露，许多原股东已开始了考 虑联合起来向监管部门举报或起诉公司，要求公司赔偿损失；和

对于上述修改，新交所为拟上市公司及从凯利板申请转换至主板 市场的公司提供了下列过渡期：(i) 券商可在新交所发布该公告后14天 内，即最迟2012年8月2日向新交所提供上市或反向收购申请，且该申 请在递交后9个月内得到新交所的上市批准，除此之外，所有上市申请 须符合修改后的上市标准；(ii) 凯利板上市公司可在新交所2012年7月 19日后9个月内提交主板申请，在这9个月后提交的申请将适用修改后 的上市标准。

5、缩股的确可以在短时间内提升每股股价，解决公司因面值 而退市的问题，但治标不治本。缩股无法彻底改变股价的低迷 以及提升股票交易的活跃度。上市公司的股价最终还是取决于 其业绩表现，否则上市公司无法真正走出股价持续低迷的状态。 若日后市场若依然羸弱，公司也缺乏市场认可，则股价下跌后， 上市公司依然面临退市的风险。

新修改后的上市手册大大提高了主板的上市要求，显示新交所希望 吸引更大、更好的公司在主板挂牌上市。不过凯利板，主要面向快速并 具高成长性的公司，其上市标准没有修改，也没有具体的财务指标要 求。对于未达到主板上市标准的公司可考虑先在凯利板挂牌上市，再 转向主板市场。

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

陶丽, 主任合伙人 T: +86 21 6211 2390, +86 1391 1000 063 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

65

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

66

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

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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.

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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.

Vietnam

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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.

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fUIJIAN 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.

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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.

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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.

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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.

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BEIJING 2012

IN-HOUSE LEGAL SUMMIT THE WESTIN BEIJING CHAOYANG - 28 NOVEMBER 2012

A special platform for the frank exchange of views, sharing of best practices and formulation of strategies to deal with opportunities in 2013 and beyond.

Topics include Private Antitrust Litigation in China, PRC Employment Law, M&A updates, PRC Trademark Law and much more. Interact with some of the most active and influential lawyers from around Asia.

For more information, please contact Tracy at +852 3762 3262 or email tracy.li@thomsonreuters.com WWW.ASIANLEGALBUSINESSEVENTS.COM WORKSHOP SPONSORS

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BJ summit 2012HP ad.indd 1

A-H Allbright 62, 63 Ashurst 10 Azure Tax 64 Baohua 15-18 Beijing KangDa Law Firm 57 Beijing Rainmaker Law Firm 27 China Fortune Land Development 44-51 Clifford Chance 4 Conyers Dill & Pearman 4 Cravath, Swaine & Moore 4 CWL Partners 10 Fangda Partners 20-24 Freid, Frank, Harris, 4 Shriver & Jacobson Freshfields 4 Fulbright & Jaworski 5, 26-32 Gleiss Lutz 4 Guantao Law Firm 11 Han Kun Law Offices 20-24 Hanyuan 58 HaoLiWen 60-61 Harneys 10

20/9/12 6:48 PM

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I-P

Jingtian & Gongcheng Join & High Law Offices Joinway Law Firm Jones Day Jun He Law Offices JunZeJun Law Offices JXD Law Firm King & Wood Mallesons

26-32 15-18

4 40-42 12-13 5, 10, 57 4, 15, 52-55, 58 59 59 4, 10, 56, 59, 61-63 Laowei 15-18 Lefevre Pelletier & associes, Avocats 10 Llinks Law Offices 60 Loo & Partners 38-39, 65 Maples and Calder BIC McDermott Will & Emergy 10 McMillan 26-32 Mingzhou Law Firm 40-42 Morrison & Foerster 4 Nixon Peabody 10 Norton Rose 5

Ogier 4 Orrick, Herrington & Sutcliffe 4 Paul Hastings 4 Paul, Weiss, Rifkind, Wharton & Garrison 4 Pinsent Masons 4

Q-Z Reed Smith 10 Ropes & Gray 10 Shanghai Kai-Rong Law Firm 9 Sheppard Mullin Richter & Hampton 10 Simpson Thacher & Bartlett 4 Skadden, Arps, Slate, Meagher & Flom 4 Sphere Logic Partners 64 Stephenson Harwood 52-55 Stikeman Elliott 26-32 Sullivan & Cromwell 4 Sunshine Law Firm 15-18 Tiantong & Partners 15-17 Victory Legal Group 65 Walkers 10 Winners Law Firm 40-43 Zhong Lun Law Firm 4, 20-24, 58, 57-59

SUNDRIES

68

ASIAN LEGAL BUSINESS september 2012 Compiled by RANAJIT DAM

HONG KONG: HOME TO ASIA’S PRICIEST PROPERTIES CITY

PRICE PSM

GLOBAL RANK

Hong Kong (houses)

47,500

4

Hong Kong (apartments)

28,300

10

Singapore

25,600

13

Shanghai

19,600

22

Beijing

17,400

26

Mumbai

11,400

36

Bangkok

6,500

51

Jakarta

2,900

60

Source: Wealth Report 2012 released by Knight Frank and Citibank

QUOTE OF THE MONTH

BANKER SUES YAHOO! OVER IMPOSTER Sandeep Sharma, a Singapore-based managing director at HSBC’s private banking arm, sued Yahoo! last month in order to get the web giant to reveal details about a Yahoo! user who was impersonating him and making offensive online remarks about Singaporeans. This posting impersonator, claims Sharma’s lawsuits, made at least three posts on Yahoo’s websites disparaging Singaporeans including calling them “highly incompetent” and saying foreigners are Singapore’s future. Yahoo! says it cannot reveal data related to its users unless there is a court or police order and hence the lawsuit. We do not know whether the imposter will be caught or not, but the incident cannot have done much to aid the currently tattered reputations of bankers everywhere.

“UNLESS YOU’RE SMOKING CRACK, YOU KNOW THESE WITNESSES AREN’T GOING TO BE CALLED.”

Judge Lucy Koh tells Apple lawyer William Lee that she won’t be accepting his list of 22 potential witnesses during the AppleSamsung dispute hearing in California.

FACEBOOK STOLE OUR TIMELINE: CHINESE WEBSITE

For those who dislike Facebook’s “Timeline” feature, here is yet another reason for you: a tiny social networking website in China claims that the Zuckerberg-led behemoth stole that feature from it. Chinese social network L99.com, so small that it barely ranks among China’s 400 most-visited websites, REUTERS/Valentin Flauraud is planning a U.S. lawsuit against Facebook on the ground that it launched its own timeline feature back in February 2008. The company even claims to have video evidence of Mark Zuckerberg attending a lecture during which L99.com timeline was revealed. And the lawyers are not missing out either: U.S.-based legal firms have apparently been asking whether L99.com has plans to take Facebook on and if it requires representation to do so. Now this is a David-versus-Goliath battle we would pay to watch.

THE VALUE OF THE LAWSUIT FILED BY NEW DELHI TELEVISION (NDTV) AGAINST INDIAN TV RATINGS AGENCY TELEVISION AUDIENCE MEASUREMENT, AND ITS PARENT COMPANIES NIELSEN AND KANTAR MEDIA, IN THE NEW YORK STATE SUPREME COURT. NDTV ALLEGES "WILFUL NEGLIGENCE AND MANIPULATION OF THE VIEWERSHIP DATA

BY TAM, NIELSEN AND KANTAR" IN ITS COMPLAINT.

BRIEFS

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IN CASE YOU MISSED IT

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

REUTERS/STRINGER Japan

JAL sets IPO at $8.5 bln: Strong demand

Japan Airlines set the pre-market price for its initial public offering at the top end of the range, raising $8.5 billion for state coffers in a sign of solid demand for the world’s second-largest IPO this year.

REUTERS/Handout .

Foxconn to tap cheap labour in Indonesia, huge consumer market

Foxconn Technology Group’s investment of up to $10 billion in Indonesia will allow the main supplier of Apple Inc to tap one of the cheapest labour forces in Asia and a dutyfree zone of some 600 million consumers.

REUTERS/Jason Lee

Does history suggest China growth is about to rebound?

The last time China’s vast manufacturing sector had conditions like those in August it was March 2009, and the economy was about to rebound from the global financial crisis. This time around analysts are not so certain a clear recovery for the major global growth engine will come anytime soon.

REUTERS/China Daily China Daily Information Corp - CDIC

China signs investment pacts with Canada, Chile

China and Canada signed an investment pact which will help build a strategic partnership between the two nations. The treaty, inked after 18 years of negotiations, contains the widest range of investment agreements China has ever signed with any country.

REUTERS/Tim Chong

Maples and Calder opens in Singapore Maples and Calder became the latest offshore firm with a Singapore outpost, after the Caymans-headquartered firm announced it would be opening an office in the Lion City.

REUTERS/Aly Song

Politics the priority for China as economy slows

China’s policy chiefs have about two weeks left to decide about giving the economy a proper stimulating prod, or risk parading a new Communist Party leadership to the world just as growth falls below target for the first time in nearly four years.

CHINA INTERNATIONAL ECONOMIC AND TRADE ARBITRATION COMMISSION

中国经验 中国仲裁的国际品牌

国际仲裁的

中国国际经济贸易仲裁委员会 公

告

中国国际经济贸易仲裁委员会是1954年经中央人民政府政务院批准，由中国国际贸易促进委员会（中国国际商会）组 织设立、独立处理经济贸易争议的常设涉外仲裁机构。中国国际经济贸易仲裁委员会设立分会。中国国际经济贸易仲裁 委员会及其分会是统一的仲裁委员会，适用统一的《仲裁规则》和统一的《仲裁员名册》。 为了适应形势发展需要，进一步规范业务管理，提高工作效率，为当事人提供优质的仲裁服务，2012年1月，根据我国 《仲裁法》以及国务院1988年有关批复精神，中国国际经济贸易仲裁委员会对其《仲裁规则》进行了修订。该《仲裁规 则》于2012年2月经中国国际贸易促进委员会（中国国际商会）批准，将自2012年5月1日起施行。 自2012年5月1日起，中国国际经济贸易仲裁委员会2012年《仲裁规则》将统一适用于中国国际经济贸易仲裁委员会及 其分会。 该《仲裁规则》已在中国国际经济贸易仲裁委员会官方网站www.cietac.org上发布，敬请查阅。 特此公告。 中国国际经济贸易仲裁委员会 二○一二年四月二十四日

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