China Legal Business 5.9

ISS

UE

5.9

CHINA

Environmental lawGreen development sparkes new opportunities法律服务业面临绿色机遇

Capital marketsA-share markets down, legal work continues股市下滑对律所证券业务影响有限

TrademarkLawyers rise to the enforcement challenge律师深度参与商标保护执法行动

www.legalbusinessonline.com DEALS ROUNDUP LATERAL MOVES IN-HOUSE VIEW REGULATORY UPDATES UK, US REPORTS

The hottest legal eagles of 20082008年度二十五位热门律师2008年度二十五位热门律师

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2

EDITORIAL >>

ISSUE 5.922

IN THE FIRST PERSON

The art of being versatile

In our culture, change has always been regarded as an intrinsic part of the fl ow of life. As much as change brings challenges, it also brings with it opportunities. In today’s rapidly changing commercial environment, the ability to cope with change and adjust quickly to new situations is needed more than ever before.As this issue of ALB China reports, the region’s stock markets have surely

changed from a honey pot to wasp nest for many fi rms. IPO volumes are down signifi cantly in the two economies that drive the entire region – China and Hong Kong (see analysis on p12) – and capital markets have been affected to various degrees.

Domestic fi rms can learn valuable lessons from their international counterparts who have weathered many market ups and downs. Only a versatile fi rm can survive in changing market conditions.

“All practice areas will have different roles to play in different market conditions,” said Elsa Chan, head of Baker & McKenzie’s securities group in Hong Kong. “Firms who have an extensive scope of services will be in a better position than those who don’t in a market downturn.”

Firms that want to stay ahead in the long term need to make use of the quieter times to improve themselves, consolidate their practices and fi ne-tune their offerings to cater for the upturn.

It is also wise for fi rms to invest in emerging areas when the time is right. For example, amid the rising awareness of environmental protection, some fi rms have pioneered environmental law practices (see p40) and are reaping rewards from the country’s ‘green’ development plan.

For while trials and tribulations may open doors hitherto closed, capitalising on them is not simply a matter of turning up – it is about differentiation in an environment of uniformity. It may not necessarily mean seeking out new or novel approaches, but instead, be as simple as deploying existing resources in different ways. Above all, it is about learning the art of being versatile.

“The Olympics have raised environmental awareness across China and put environment protection at the heart of the country’s future development”Wang Jihong, partner at V & T, expects the need for environment-related legal services to surge (p40)

“I’ve witnessed protection of IP over the last 10 years and there has certainly been a shift from administrative enforcement to include criminal enforcement. For a long time, multinationals have been lobbying hard to protect their IP by pressing for criminal liability on those who infringe their trademarks” James Luo, head of Bird & Bird’s Asian IP enforcement practice in Beijing, on the importance of effective enforcement on trademark protection in China (p36)

Firms who have an extensive scope of services will be in a better position than those who do not in a market downturn CHINA

ISSUE 5.94

CONTENTS >>

contents

ANALYSIS

6 Securities JV US and European investment banks are racing to ink coveted joint ventures with local securities houses in an attempt to access the boundless potential of China’s capital market

12 Capital markets ALB China reports on how leading capital markets law fi rms are faring in the face of the plunging A-share and H-share markets

14 Olympic legal work Morrison & Foerster and King & Wood give ALB China an insight into their gold standard legal work as counsel for the Beijing Organising Committee for the Olympic Games

FEATURES

36 Trademark As China’s economy continues to fl ourish, its legal infrastructure must keep pace and intellectual property rights lawyers have welcomed tougher enforcement of the trademark law sparked by the Beijing Olympics

40 Environmental lawThe period of clearer and cleaner skies in Beijing during the Olympics has heightened environmental awareness in China and a new legal framework for environment protection is producing more ‘green’ work for lawyers

44 Record management Off-site records management is steadily becoming a growing practice among law fi rms interested in risk management

REGULARS

8 NEWS• Jincheng & Tongda and Need International

join forces • Jinmao partners split to form new fi rm • Boutique fi rm Jiayuan expands to Shanghai • TerraLex network adds new member• Microsoft fi ghts back over monopoly

accusations • Dechert welcomes US-trained managing

partner to Beijing offi ce• EDF signs joint venture agreement with

CGNPC• Coca-Cola bids for China Huiyuan Juice • China Resources Logic acquires China

Resources Gas

19 UK report

25 US report

48 Sign off

COMMENTARY

20 Arbitration SIAC

21 Regulatory Zhonglun W&D

22 ShanghaiLlinks Law Offi ces

22 RegulatoryPaul Weiss

23 SingaporeLoo & Partners

23 InsuranceGrandall Legal Group

26 International taxAzure Tax

PROFILES

7 Guantao

15 Lifang & Partners

ALB CHINA ISSUE 5.9

36

12

40COVER STORY30 ALB China Hot 25

As the year moves closer to its end, ALB China reviews the past 12 months. A report highlighting the best and brightest lawyers in their fi eld and who’s been making headlines

ALB

30

6

NEWS | analysis >>

ISSUE 5.9

I n 2007, IPOs in the A-share market generated RMB447bn and brought in approximately RMB8.88bn in underwriting fees for securities

companies. As the A-share market cap and trading volumes grew and the potential for further development was recognised globally, an onshore presence became a priority for foreign investment banks.

Following the country’s entry to the WTO in 2002, foreign investment banks have been allowed to partner with domestic securities houses. The rules enable foreign banks to form joint ventures or take a strategic stake, to help domestic fi rms develop products, services and operating systems that will allow them to compete globally.

Evolution of the reformThe fi rst partnerships were announced in 2003 and 2004 as the large US and European investment banks rushed to fi nd partners. Among the fi rst banks to settle an investment were Morgan Stanley, BNP Paribas, UBS and Goldman Sachs. Approval criteria

Banking on the securities businessUS and European investment banks are racing to ink coveted joint ventures with local securities houses in an attempt to access the boundless potential of China’s capital markets. ALB China reports

SINO-FOREIGN JOINT VENTURES ►In 1995 CICC became the fi rst ever investment • banking joint venture in China between Morgan Stanley, China Construction Bank and several other partners, offering brokerage and underwriting services. After • BNP Paribas set up its joint venture, Changjiang BNP Paribas Peregrine Securities became the fi rst foreign bank to act as lead underwriter for Chinese equity and debt issues.At the end of 2004 • Goldman Sachs received approval to establish its joint venture with Beijing Gao Hua Securities.In 2006 • UBS secured a 20% stake in UBS Securities with Beijing Securities just prior to the one-year moratorium. The venture began business in May 2007, with UBS enjoying management control. After the approval process reopened, • Credit Suisse was the fi rst fi rm to obtain approval for its joint venture with Founder Securities in June this year. CESL• , the investment banking joint venture between CLSA (whose largest shareholder is France’s Crédit Agricole) and Hunan-based Fortune Securities, received a brokerage licence in June this year to augment its existing underwriting business. This year • Citibank signed a memorandum of understanding with Zhongyuan Securities and Deutsche Bank AG applied for an underwriting licence in June 2008 to partner with Shanxi Securities. HSBC• has renewed its efforts to fi nd a partner after two previous deals fell through. Merrill Lynch• , JP Morgan and Lehman are yet to enter into joint ventures but are investigating potential partnerships.

and limits on ownership were designed to slow the process. Jonathan Stone, a partner with Skadden Arps in Hong Kong, said that this approach was taken because the Chinese government wanted to ensure that its local securities houses were able to “compete and gain a real footing”.

After the initial fl urry of agreements, the approval process was suspended in 2006 to allow the restructuring of domestic securities businesses and a revision of the rules. Last year, China reiterated its pledge to open the domestic securities industry to overseas fi rms to comply with WTO rules, and the new guidelines regulating foreign investment became effective as of January 2008.

The revised rules modestly expanded the business scope of foreign brokerage joint ventures, widened the scope of who could apply and offered more choice for organisational form of the joint venture, but did not revise the

one-third joint venture ownership limit. In addition, the revised criteria allow only relatively large domestic securities houses to be eligible for the joint ventures – a move that was designed to ensure smaller players were not snapped up by predatory foreign investors.

The fi rst fi rm to receive approval after the new rules became effective was Credit Suisse. Applications by Citibank and Deutsche Bank soon followed.

Benefi ts aboundThe benefi ts to the foreign investment banks are obvious, but the benefi ts to

Jonathan Stone, Skadden Arps

ANALYSIS

NEWS | analysis >>

7www.legalbusinessonline.com

the domestic securities houses are also signifi cant.

Stone points to the availability of “a huge amount of expertise and experience among global investment banks that can benefi t the local players in an emerging market like China”. He cites the experience of the global banks’ entry into Russia as an example of how it raises the bar for all participants.

Now that the A-share markets have turned bearish, international expertise is even more important. “The Shanghai market has come down a tremendous amount this year,” said Stone. “It’s no longer so easy to make money. This means it becomes more necessary for Chinese houses to have expertise to handle customers, volatility and periods of lower volumes.”

Robert Chu, partner in charge of Sullivan & Cromwell’s Beijing offi ce, agrees. “The macro benefi t is signifi cant, because the Chinese securities industry isn’t in great shape at the moment, and it’s certainly in the interest of the industry overall to have the expertise and managerial experience that

international investment banks can bring to the table.”

Demand for legal servicesChu said that there are two stages of possible involvement by international law fi rms. “First there’s the initial structuring of the joint venture arrangements,” he said. “They can get very complex with different contributions at various levels. You need to make sure the structure works for both sides and it doesn’t run afoul of regulatory requirements on the PRC side as well as the US rules and the rules of any other jurisdiction involved. Needless to say it’s a time-consuming process requiring a combination of global experience and local knowledge.”

The second stage, given that the joint ventures will mean further developments in the range of work the investment banks are doing onshore means more work for law fi rms. “An expansion of the mandate of the international investment banks in China means an expansion of our work. In this connection, we expect to

be working very closely with PRC law fi rms,” explained Chu.

Going forward, the joint ventures will expand the work that the international banks can do in China, but, Chu said, we will have to wait and see precisely what this entails in individual cases.

Link-ups likely to continue Despite the climate of global instability and the weakened domestic capital markets, the appetite for underwriting and brokerage platforms here has not abated. “A lot of the banks are fi refi ghting right now, dealing with sub-prime fallout and the downturn in deal fl ow. They all have more pressing short-term issues to deal with,” said Stone. “But from a long-term strategic perspective, I don’t think they have downgraded joint ventures as a priority.”

Chu agrees. “I would expect more news in the coming months and years for the banks that don’t have a joint venture in place announcing that they’re working on it. HSBC announced earlier this month and DB has put in an application. It’s not at all surprising.” ALB

7www.asianlegalonline.com

Firm Profi le Guantao Law FirmMinistry of Commerce Issued the Notice

of Archiving Documents on Foreign Investment in the Real Estate Industry

The Ministry of Commerce issued the Notice of Archiving Documents on Foreign Investment in the Real Estate Industry (“Notice No. 23”)

on June 18, 2008.The Notice No. 23 (hereinafter referred

to as the “Notice”) sets out that the Ministry of Commerce shall authorize competent provincial departments of commerce to examine the archival materials on foreign investment in the real estate industry and the Ministry of Commerce shall carry out selective examination on certain number of foreign invested real estate enterprises (“FIREE”) each quarter. In case a FIREE fails to conform to current provisions, its foreign exchange registration shall be cancelled.

Consistent with former Opinions, the Notice restates project company principle. Foreign investment (including capital increase) is only limited to an

approved single real estate project, which means, one FIREE is limited to operate one project and vice versa, one project can only be operated by establishing one FIREE.

Additionally, the Notice lists types of materials that the competent provincial departments of commerce shall examine in accordance with Document No. 171 and Document No. 50. It is our experience that in practice, the Ministry of Commerce usually conducts selective examination on these issues: (1) whether the establishment of the FIREE (including capital increase) has been in compliance with project company principle and whether the FIREE is only limited to an approved real estate project; (2) whether the shareholders of the FIREE are not companies formed offshore by a domestic company/natural person, and whether all shareholders of the FIREE are

not affi liated to each other, or are not subject to a same actual controller; (3) whether the balance of registered capital and total investments complies with relevant regulations.

The Notice, together with other formerly promulgated rules and regulations, have formed a series of principles governing foreign real estate investments during recent macroeconomic adjustment period, i.e. business existence principle, project company principle, limitation on offshore fi nance principle, limitation on return investment of domestic residents and project archiving requirements etc.

Written by: Qiu Guang Li, Attorney at Law, Partner, Director of Sichuan Offi ceBeijing Guantao Law Firm, Sichuan Offi ceRoom 1919, 19/F, Western Tower, No.19, 4th Section, Renminan Avenue, Chengdu, China 610041Tel: (8628) 6829 9886 Fax: (8628) 6829 9899

8

NEWS | deals >>

ISSUE 5.9

would no doubt pay attention to

• This project is one of the largest JV investments in China to date and involves the very latest nuclear technology

| CHINA |

COCA-COLA – CHINA HUIYUAN ►JUICE BID 可口可乐收购汇源可口可乐收购汇源果汁果汁Value: US$2.4bn

Firm: Skadden 世达世达Client: Coca-Cola 可口可乐可口可乐Lead lawyers: Martha McGarry, Greg Miao, Nick Norris

Firm: Freshfi elds Bruckhaus Deringer 富而德富而德Client: China Huiyuan Juice 汇源果汁汇源果汁• The bid is the largest foreign

acquisition of a Chinese company and is the most signifi cant since the country's anti-monopoly law took effect in August 2008

• The deal is subject to regulatory approvals, but on successful completion the new entity will control 37% of the nation's juice market

• It is expected that Chinese demand for concentrated juices will increase with income rises and better lifestyles, hence the move by Coke to move beyond carbonated drinks

• The two fi rms re-instated their client relationships: Freshfi elds has previously advised China Huiyuan on its IPO in Feb 2007, while Coca-Cola has engaged Skadden on a variety of work, including its US$1.75bn sale of bonds and the acquisition of VitaminWater brand for US$4.1bn

| CHINA |

CHINA RESOURCES LOGIC ►– CHINA RESOURCES GAS ACQUISITION 华润励致收购华华润励致收购华润燃气润燃气Value: US$488m

Firm: Slaughter and May 司力达司力达Client: China Resources Logic 华润励致润励致Lead lawyer: Benita Yu

• China Resources

• French energy company Electricité de France (EDF) has signed a joint venture agreement with the China Guangdong Nuclear Power Co to construct, operate and maintain two third-generation reactors in Taishan city

• About US$45bn in scientifi c and industrial contracts between the two countries were signed and EDF will control about 30% of the French-Chinese nuclear partnership for 50 years

• The deal is highly signifi cant on several levels in terms of the knowledge and technology transfer to China, where the development of nuclear power will help China manage its power shortages, as well as reduce pollution. The deal may set a precedent for future joint ventures, something other international fi rms

| CHINA |

ELECTRICITE DE FRANCE – ►CHINA GUANGDONG NUCLEAR POWER COMPANY JV 中广核中广核与法国电力公司合资建台山与法国电力公司合资建台山核电站

Firm: Clifford Chance 高伟绅高伟绅Client: Electricité de France 法国电法国电力集团力集团Lead lawyers: Peiji Gao, Bruce Schulberg, Geraint Hughes

Firm: Grandall Legal Group (Shenzhen) 国浩律师国浩律师集团（深圳）集团（深圳）Client: China Guangdong Nuclear Power Company 中国广东核电集团中国广东核电集团Lead lawyer: Eric Wu 吴爽吴爽

deals in brief

Gao Peiji, Clifford Chance

Benita Yu, Slaughter and May

Logic Ltd is to acquire China Resources Gas Ltd from its parent, China Resources (Holdings) Co Ltd, gaining access to the booming natural gas industry in China

• The transaction is subject to due diligence review and shareholders' approval

| CHINA |

VANKE BOND ISSUE ►CORPORATE 万科发行公司万科发行公司债券债券Value: US$863m

Firm: Shu Jin广东信达广东信达Client: Vanke 万科企业股份有限科企业股份有限公司公司Lead lawyers: Ma Yunyan and Wei Shaohui 麻云燕、韦少辉麻云燕、韦少辉Firm: Zhonglun 中伦中伦Client: Underwriters 承销团承销团Lead lawyer: Ye Beicheng 叶倍成叶倍成

• Vanke, China's largest listed property developer, has successfully raised RMB5.9bn (US$863m) from issuance of corporate bonds

• Part of the proceeds from the bond issuance will be invested to improve the company's debt structure and optimise its debt ratio, and the remainder will supplement its capital fl ow

• CITIC Securities has been appointed by the issuer to be the lead underwriter for the issuance

• According to Yan Xueming, Vanke Group’s head of legal and risk management, the group often works with Shenzhen-based Shujin law fi rm for securities and capital markets related matters

| CHINA |

TPFTZ CORPORATE BOND ISSUE ►Value: US$410m

Firm: AllBright 锦天城锦天城Client: Tianjin Port Free Trade Zone Investment Co 天津保税区投资有天津保税区投资有限公司限公司Lead lawyers: Zhang Lili and Ding Qiwei 张莉莉、丁启伟张莉莉、丁启伟

Yan Xueming,Vanke Group

NEWS | deals >>


YOUR MONTH AT A GLANCE ►

Firm Jurisdiction Deal name Value Deal type

AllBright China TPFTZ Investment Co bond issuance 410 Debt market

Baker & McKenzie China Old Mutual plc - ABN AMRO TEDA Fund Management Co acquisition

245 Equity/M&A

Clifford Chance Hong Kong Star Cruises - Travellers International Hotel Group acquisition

335 Equity market, Finance

China, France Electricité de France - China Guangdong Nuclear Power Company JV

Undisc Energy & Resources

China Commercial Law China Shandong Fin CNC Machine IPO 47 Equity

Chiu & Partners China/Singapore Trump Dragon Distillers IPO Undisc Equity

Conyers Dill & Pearman China/Singapore Trump Dragon Distillers IPO Undisc Equity

China/Singapore Qian Feng Fabric Tech IPO 15 Equity

Fangda Partners China Old Mutual plc - ABN AMRO TEDA Fund Management Co acquisition

245 M&A

Foo Kon Tan Grant Thornton China/Singapore FSYM Construction - Beijing Yongmao Holdings acquisition

Undisc Equity/M&A

Freshfi elds China China Mengniu Diary share placement Undisc Equity

China International Finance Corporation equity sale

135 Equity

China China Communications Services - China International Telecommunications Construction acquisition

Undisc M&A

China Coca-Cola - China Huiyuan Juice bid 2,400 M&A

Grandall Legal Group China/France Electricité de France - China Guangdong Nuclear Power Company JV

Undisc Energy & resources

China/Singapore Qian Feng Fabric Tech IPO 15 Equity

Guantao Law Firm China ARC - Shaanxi Education equity acquisition 71 Equity/M&A

Herbert Smith China Old Mutual plc - ABN AMRO TEDA Fund Management Co acquisition

245 Finance

Huen Wong & Co. in ass Fried Frank

China Beijing Capital International Airport acquisition of Terminal No. 3

3,450 M&A

JSM Hong Kong Dah Chong Hong Holdings - Silver Precious International acquisition

18 M&A

Jingtian & Gongcheng China Trump Dragon Distillers IPO Undisc Equity

King & Wood China Old Mutual plc - ABN AMRO TEDA Fund Management Co acquisition

245 Finance

Paul Weiss Rifkind Wharton & Garrison

China Olympus Capital Investment in Zhongwang 100 Equity/M&A

Rajah & Tann China/Singapore FSYM Construction - Beijing Yongmao Holdings acquisition

Undisc Equity/M&A

Richards Butler China Olympus Capital Investment in Zhongwang 100 Equity/M&A

Skadden China Coca Cola - China Huiyuan Juice bid 2,400 M&A

Slaughter and May China/Hong Kong China Resources Logic acquisition of China Resources Gas

488 M&A

Shujin China Vanke bond issuance 863 Debt market

Zhang Lili, AllBright

• Tianjin Port Free Trade Zone Investment Co. has successfully issued US$410m worth of corporate bonds. The seven-year bonds will bear nominal annual interest of 7% payable annually

• The issuer is mainly engaged in development and construction of infrastructure in Tianjin Port Free Trade Zone and Tianjin Airport International Logistics Zone and equity investment in the fi nancial and high-tech sectors

• All proceeds will be used to develop and construct the infrastructure for Tianjin Airport International Logistics Zone and the Airbus A320 Final Assembly Line project

| CHINA |

OLD MUTUAL – ABN AMRO ►TEDA FUND MANAGEMENT ACQUISITION 耆卫集团收购泰耆卫集团收购泰达荷银基金管理有限公司股权达荷银基金管理有限公司股权Value: US$245m

Firm: Baker & McKenzie 贝克•麦贝克•麦坚时坚时Client: Fortis Bank S.A./N.V 富通富通银行银行

Firm: King & Wood 金杜金杜Client: Fortis Bank S.A./N.V 富通银行富通银行

Firm: Herbert Smith 史密夫史密夫Client: Old Mutual 耆卫集团耆卫集团Lead lawyers: Gary Lock, Su Hao, Karen Ip

Firm: Fangda Partners 方达方达Client: Old Mutual 耆卫集团耆卫集团

• Old Mutual acquired a 49% interest in ABN AMRO TEDA Fund Management Co, a major Sino-foreign joint venture asset management company in China, from Fortis Bank/ABN AMRO

• Recently acquired by Fortis, ABN AMRO Asset Management (Asia) Limited has held a 49% interest in AATEDA since 2003. The other 51% is owned by a Chinese company controlled by TEDA

Gary Lock, Herbert Smith

10

NEWS | deals >>

ISSUE 5.9

corporate fi nance, private equity investment and M&A transactions

| CHINA |

BEIJING CAPITAL ►INTERNATIONAL AIRPORT COMPANY LIMITED – TERMINAL NO. 3 ACQUISITION 首都机场股份收购三号航站首都机场股份收购三号航站楼资产楼资产Value: US$3.45bn

Firm: Huen Wong & Co in association with Fried Frank 香港香港王桂埙律师行联合法朗克律师行王桂埙律师行联合法朗克律师行Client: Beijing Capital International Airport Company 北京首都机场北京首都机场股份股份Lead lawyer: Stephen Mok

Firm: Tian Yuan 天元天元Client: Beijing Capital International Airport Company 北京首都机场北京首都机场股份股份Lead lawyers: Liu Yan and Kong Xiaoyan 刘艳、孔晓燕刘艳、孔晓燕

Firm: V & T Law fi rm 万商天勤万商天勤Client: Capital Airports Holding Company 首都机场集团公司首都机场集团公司

• Beijing Capital International Airport Company acquired the airport's Terminal No. 3, which includes airfi eld assets, from Capital Airports Holding Company

• Opened six months before the start of the 2008 Olympic Games, Terminal 3 at Beijing Capital International Airport is the world’s largest building and most advanced airport

| CHINA |

OLYMPUS CAPITAL ►INVESTMENT IN ZHONGWANG泰山投资亚洲控股公司投资忠泰山投资亚洲控股公司投资忠旺国际集团旺国际集团Value: US$100m

Firm: Paul Weiss Rifkind Wharton

& Garrison 宝维斯维斯Client: Olympus Capital Holdings 泰山投资亚洲控股山投资亚洲控股公司公司Lead lawyers: John E Lange, Gloria Liu-Luster

Firm: Richards Butler 齐伯礼齐伯礼Client: Zhongwang Group Limited 忠旺国际集团旺国际集团• Private equity fi rm Olympus

Capital Holdings Asia has invested US$100m in Zhongwang International Group Ltd, a Liaoning-based aluminium manufacturer

• Olympus Capital will appoint one director to the board of China Zhongwang Holdings, the holding company of Zhongwang

• This is the third investment in China by Olympus Capital; prior investments include the Sichuan Emeishan Special Cement Co, China Minzhong, and Tamarisk

| CHINA |

ARC – SHAANXI EDUCATION ►EQUITY ACQUISITION 瑞寰基金瑞寰基金投资陕西教育机构投资陕西教育机构Value: US$71m

Firm: Tian Yuan 天元天元Client: Arc Education 瑞寰基金瑞寰基金

Firm: Guantao Law Firm 观韬观韬Client: Shaanxi EducationLead lawyer: Cui Liguo 崔利国崔利国

• ARC Education Investment

Management acquired 45% equity interest in Shaanxi Da De Education Development, which holds direct interests in Xi’an International University and Xinhua Institute of Chang’an University, two private education institutions in China. Sixty per cent of the consideration has been paid at the fi rst closing

• Guantao Law Firm, as the legal counsel for Shaanxi Da De, was responsible for the legal due diligence and advice on the fi nancing structure and documentation

| CHINA |

CHINA NEW ENTERPRISE ►INVESTMENT CO JIANGSU FEIDA GROUP INVESTMENT 新企创投投资江苏飞达集团企创投投资江苏飞达集团Value: US$50m

Firm: Zhonglun 中伦中伦Client: China New Enterprise Investment Co 新企创业投资企业企创业投资企业Lead lawyer: Jeremy Dai 戴志文戴志文

• China New Enterprise Investment Co is a China incorporated closed-end private equity fund targeting opportunities in China

• Feida Group is a well-known manufacturer of drill bits, taps, diamond blade and electric tools. Its tool bits account for more than 40% of total export amount of country

• Jeremy Dai is a partner with Zhonglun based in Shanghai, who has extensive experience in

Cui Liguo, Guantao

Jeremy Dai, Zhonglun

John Lange, Paul Weiss

| CHINA |

SHANDONG FIN CNC MACHINE ►A-SHARE IPO 法因数控A股IPO法因数控A股IPO并上市并上市Value: US$47m

Firm: Zhonglun 中伦中伦Client: Shandong Fin CNC Machine Co. 山东法因数控机械股份有限公司山东法因数控机械股份有限公司Lead lawyers: Zhang Zhong and Hu Tingfeng 张忠、胡廷峰张忠、胡廷峰

Firm: China Commercial 广东华商广东华商Client: Underwriters 承销商承销商

• Shandong Fin CNC Machine Co. (Fin CNC Machine) debuted on Shenzhen Stock Exchange on 5 September, raising more than RMB300m through its IPO

• China Commercial Law Firm advised the underwriters led by China Merchants Securities

• The issuer is a Shandong-based high-tech enterprise, which exports products into Western Europe and commands 62.14% of domestic market share

• Li Shengjun, president of Fin CNC Machine, said the IPO proceeds will be used to construct the production base of steel structure digital full-set device in Jinan

| CHINA |

FSYM CONSTRUCTION – ►BEIJING YONGMAO JIANGONG ACQUISITION 抚顺永茂收购北抚顺永茂收购北京永茂建工京永茂建工

Firm: Yuan Tai 源泰源泰Client: Yongmao Holdings Limited永茂控股永茂控股

Firm: Rajah & Tann 新加坡立杰新加坡立杰Client: Yongmao Holdings Limited永茂控股永茂控股Lead lawyer: Serene Yeo

• Fushun Yongmao Construction Machinery agreed to acquire a 66% interest in Beijing Yongmao Jiangong Machinery Manufacturing, a tower cranes manufacturer, from Fushun Yongmao Industry Group

• FSYM construction is a wholly-owned subsidiary of Yongmao Holdings, which is listed on the

NEWS | deals >>


YOUR MONTH AT A GLANCE (CONT) ►

Firm Jurisdiction Deal name Value Deal type

Tian Yuan China ARC - Shaanxi Education equity acquisition 71 Equity/M&A

China Beijing Capital International Airport acquisition of Terminal No. 3

3,450 M&A

V&T China Beijing Capital International Airport acquisition of Terminal No. 3

3,450 M&A

Yuan Tai China/Singapore FSYM Construction - Beijing Yongmao Holdings acquisition

Undisc Equity/M&A

Zhonglun China Jiangsu Feida Group PE investment 50 Private equity

China Vanke bond issuance 863 Debt market

China Shandong Fin CNC Machine IPO 47 Equity

Does your fi rm’s deal information appear in this table?Please contact [email protected] 61 2 8437 4700

| CHINA/SINGAPORE |

TRUMP DRAGON DISTILLERS ►LAUNCHES SINGAPORE IPO 祥龙控股新加坡IPO及上市龙控股新加坡IPO及上市Value: US$50m

Firm: Jingtian & Gongcheng竞天公诚竞天公诚Client: Trump Dragon Distillers Holdings 祥龙控股祥龙控股Lead lawyer: Zhang Xusheng 张绪生张绪生

Firm: Chiu & Partners赵不渝马国强律师事务所赵不渝马国强律师事务所Client: Trump Dragon Distillers Holdings 祥龙控股祥龙控股

Firm: Conyers Dill & Pearman康德明康德明Client: Trump Dragon Distillers Holdings 祥龙控股祥龙控股

Firm: Stamford Law Corporation 腾福腾福Client: UOB Kay Hian (underwriter)新加坡大华继显证券公司新加坡大华继显证券公司

• Trump Dragon Distillers Holdings, incorporated in Bermuda earlier this year, is the fi rst baijiu (白酒) maker to list in Singapore. The company and its subsidiaries, based in Henan province, produces 68 different types of baijiu, including its signature brand “四五四五” (“Siwu”)

• The issuer’s joint CEO Zhou Tao said that Singapore is the fi nancial centre of Southeast Asia, which is very attractive to foreign investors, and it is a strategic place for mid-sized companies to be listed as it has fl exible regulatory listing requirements and simple approval procedure

• Currently, a number of Henan-based companies have been listed in Singapore, including Synear Food Holdings, China XLX Fertilizer and CentraLand

| CHINA/SINGAPORE |

QIAN FENG FABRIC TECH ►SINGAPORE LISTING 乾丰集团乾丰集团新加坡上市新加坡上市

Firm: KhattarWong 凯德凯德Client: Qian Feng Fabric Tech 乾丰集团乾丰集团Lead lawyers: Ch’ng Li-Ling, Chen Mao

Firm: Grandall Legal Group (Guangzhou)国浩律师集团（广州）国浩律师集团（广州）Client: Qian Feng Fabric Tech乾丰集团乾丰集团

Firm: Conyers Dill & Pearman康德明康德明Client: Qian Feng Fabric Tech 乾丰集团乾丰集团

• Qian Feng Fabric Tech, a Fujian-based maker of knitted synthetic fabrics incorporated in Bermuda, has raised US$15.3m through its IPO in Singapore to fund its expansion

• Qian Feng provides its products to over 100 clients, including Adidas, Nike, Triumph and Li Ning

“Singapore is the fi nancial centre of Southeast Asia, which is very attractive to foreign investors. It’s also a strategic place for mid-sized companies to be listed, as it has fl exible regulatory listing requirements and simple approval procedure”

ZHOU TAO, TRUMP DRAGON DISTILLERS HOLDINGS

Singapore Exchange. Yuantai advised the IPO and listing of Yongmao Holdings on Singapore Exchange at the beginning of 2008

12

NEWS | analysis >>

ISSUE 5.9

IPO ► s BY NATION

1 Jan – 7 Aug 2008 1 Jan – 7 Aug 2007

Domicile nation Proceeds raised (US$m)

Mkt. share (%)

Number of issues

Proceeds raised (US$m)

Mkt. share (%)

Number of issues

YOY growth (%)

US 26,026 27 26 26,395 13 124 -1.4

China 21,151 22 97 36,982 18 119 -42.8

Hong Kong 889 1 11 5,824 3 30 -84.7

Japan 813 0.9 28 2,040 1 86 -60.2

UK 808 0.9 18 10,967 5 69 -92.6

Source: Thomson Reuters

TOP A-SHARE IPO ► s SO FAR (2008)

Issue date Issuer Proceeds (US$m)

28/01/2008 China Coal Energy 3,559

26/02/2008 China Railway Constr Corp

3,113

18/04/2008 Zijin Mining Group 1,429

10/04/2008 Jinduicheng Molybdenum Group

1,277

6/08/2008 China South Locomotive 955

TOP A-SHARE IPO ► s SAME PERIOD (2007)

Issue date Issuer Proceeds (US$m)

13/02/2007 Ping An Ins (Grp) Co of China

5,018

26/04/2007 BoCOMM 3,266

15/01/2007 Industrial Bank 2,055

20/06/2007 China COSCO Holdings

1,988

20/04/2007 China CITIC Bank 1,732

The impact on leading capital markets law fi rms of tumultuous A-share and H-share markets has thus far been remarkably light. ALB China reports

Equity: Opportunity in adversity

From the record high of 6,000 points last October to lows in the 2,000s, the Shanghai stock index is still continuing its downward trend.

In the fi rst eight months of 2008, the number of IPOs in the Greater China region and the total funds raised in the A-share and H-share markets have nose-dived. Many companies have postponed their listing plans amid global economic uncertainty.

Law fi rms across the region, particularly those focusing on capital markets, have been affected to various degrees.

However, there is a philosophy in this dynamic legal services market that as much as adversity brings challenges, it also brings with it opportunities for profi t. Leading capital lawyers say their billable hours have not been declining in line with the sagging stock index, and the prospects for prosperity remain plentiful.

ANALYSIS

Subtle changes in work patterns Baker & McKenzie and Jiayuan recently helped ensure the A-share and H-share IPOs of China South Locomotive & Rolling Stock Corp were successful. The issuer, China’s largest train maker, has raised US$1.5bn through its debut, and its H-share IPO is the third largest in Hong Kong so far this year.

A few large IPO projects have kept the capital markets teams at the two fi rms quite busy so far this year, but their partners have felt the pinch of the stock market downturn.

“If we say we aren’t affected, it would be far from the truth,” said CY Leung, senior partner of the securities group at Baker & McKenzie in Hong Kong. “But we are probably less affected than many of our competitors, including some of the best capital markets fi rms from London and New York.”

Before the China South Locomotive listing, Baker & McKenzie had also advised on the H-share issuance of China Railway Construction Corporation – the largest listing in Hong Kong so far this year, and the global offering of SJM Holdings, Macau’s largest casino operator.

“We haven’t seen many securities

NEWS | analysis >>


A-SHARE IPO VOLUMES ►Issue date (totals) Proceeds

(US$m)Number of Issues

1 Jan – 7 Aug 2008 13,989 66

1 Jan – 7 Aug 2007 20,639 67

YOY growth -32%

HONG KONG IPO VOLUMES ►Issue date (totals)

Proceeds raised (US$m)

Number of issues

1 Jan – 7 Aug 2008 7,818 23

1 Jan – 7 Aug 2007 18,420 46

YOY growth -57%

issues this year compared to last year, and although Chinese companies will continue to want to raise funds in Hong Kong, the number of deals in the pipeline is smaller than 18 months ago,” said Leung.

The fi rm’s securities group is working on some IPO projects, which are getting closer to completion. If the market conditions do not further deteriorate, partners expect to see one or two more IPO launches at the end of this year.

Similar to Baker & McKenzie, Jiayuan was involved in a number of large IPOs earlier this year, including the ‘fi rst A then H’ share listing of China Railway Group and A-share issuance of Hong Kong-listed China Coal. The fi rm’s managing partner has reported that IPO activity is slower than the same period last year but lawyers are still busy with a range of capital markets-related projects.

“While there is a slow-down in the number of IPOs we’re advising, we are actively involved in other fi nancing activity, including private placements, seasoned equity offerings and rights offerings,” said Yan Yu, managing partner of Jiayuan.

“Areas in which we have experienced

signifi cant growth this year are M&A and restructuring,” Yan added. Her fi rm is currently advising on Panzhihua Steel’s plan to merge with four other companies through share swap, and an M&A deal between Shanghai Automotive Industry Group and Shanghai Bashi Industrial Group.

Staying versatile“The biggest difference between this year and last year is that there have been less IPOs launched this year, and to be fair we aren’t as busy as last year,” said Paul Chow, partner with Linklaters in Beijing. “The number of IPOs we’ve been involved in hasn’t changed much this year, but one or two IPOs have been delayed due to market conditions, and that has some impact on our practice.”

Usually legal fees will be paid in full once an IPO is actually launched. If a deal is not going to market, the fees will still be paid but may be at a different rate.

In spite of a few deals being delayed, Chow is confi dent that revenue for 2008 will meet or exceed the fi rm’s expectations. “While some IPOs have been delayed, other areas remain busy such as ongoing M&A activity and private, illiquid fi nancings,” said Chow.

Any fi rm that wishes to stay in the market for the long term and survive market cycles will need to be versatile. This is a valuable lesson that domestic fi rms can learn from their international counterparts who have gone through several market ups and downs.

“All practice groups will have different roles to play in different market conditions,” said Elsa Chan, head of Baker & McKenzie’s securities group in Hong Kong.

“Firms who have an extensive range of services will be in a better position than those who don’t in a dire situation.”

A hopeful futureAt the downside of the economic cycle, the outlook for law fi rms remains positive.

Linklaters recently relocated William Liu, a partner specialising in advising on debt-and-equity-linked issues,

from Hong Kong to Shanghai. “We see potential in China’s capital markets, so we made an investment by relocating Liu,” said Chow. “We are very confi dent in the pipeline of deals – not only the quantity, but also the quality of the deals that the China market will produce. Going forward, deals will become increasingly complex with novel structures.”

As many of the large SOEs have already listed, international and domestic fi rms are now anticipating the IPOs of a large number of substantial private enterprises and companies in the natural resources and consumer sectors. However, it is also expected that IPOs ranging between US$500m and US$1bn will still be plentiful, they say, while mega-IPOs like ICBC will be rare.

“Many companies will still go for Hong Kong listings, because they want the international shareholder base, international-standard corporate governance and the cash,” said Chow.

Chow’s optimistic sentiment seems to be shared by the legal fraternity in the region. “The usual wisdom is that if the Shanghai index and Hong Kong index have hit a certain level in the past, then sooner or later they may be able to reclaim that territory. Whether that will happen and how long it will take for them to get back to that level is a trillion-dollar question,” said Leung. ALB

“The number of IPOs we’ve been involved in hasn’t changed much this year, but one or two IPOs have been delayed due to market conditions, and that has some impact on our practice”

PAUL CHOW, LINKLATERS

14

NEWS | analysis >>

ISSUE 5.9

Olympic work: Rising to the challengeMorrison & Foerster and King & Wood set the gold standard in their roles as counsel for the Beijing Organizing Committee for the Olympic Games (BOCOG). Their marathon mantra? No pain, no gain

From the fi ne print on each entry ticket to the tomes of contracts with the world’s broadcasting networks, Olympic lawyers at

Morrison & Foerster and King & Wood have had a busy – but uplifting – time of late.

Morrison & Foerster, with its well-established offi ce in Beijing, and prominent domestic fi rm King & Wood had a hectic six years since they were appointed as the sole international counsel and PRC counsel respectively for BOCOG. In an exclusive interview with ALB China, Steve Toronto, lead partner of the MoFo team, said the preparatory work was well worth it for the “relatively smooth” running of the Games during its two weeks.

“We drafted thousands and thousands of documents, forms and lease agreements and vetted them through to the fi nal print. This was the most important part of our role as international counsel as it set the legal framework of what could be done and what couldn’t be done so that everyone acted accordingly,” said Toronto.

Seemingly minute details such as the formation and signature of indemnity forms from the parents of the children whose faces were used in advertisements were overseen by the fi rm. The fi rm played its most pivotal role in the joint venture formation of a broadcasting entity – The Beijing Olympic Broadcasting Corporation – between the BOCOG and International Olympic Committee (IOC). The JV had to be formed as the government did not permit foreign investment or ownership of broadcast media in the country, but it had to be done as the IOC required control over the television production of the Games. MoFo worked closely with their PRC counterparts King & Wood in this matter.

“This is the most signifi cant part of our work, as the two principal sources of

revenue for the Games are the sales of broadcasting rights for the Games and the sports marketing programs via the licensing of the fi ve Olympic rings to corporate sponsors and the production of Olympics merchandise. The entire event was fi nanced by those who were willing to pay for proximity to the Games and its trademarks to sell advertisements,” said Toronto.

American broadcaster NBC, for example, paid well over US$1bn for the broadcasting rights to the Games.

MoFo’s experience as counsel for the Salt Lake City Olympic Winter Games in 2002 and the 2004 Olympic Games in Athens stood them in good stead. “We brought to the table a high degree of experience that understood the wide, complex and unique aspect of how the Olympics operate, such as how sports sponsorships work. Given the sophisticated nature of international legal negotiations and that an Olympic organising committee only goes through the process once, we had a lot to offer,” said Toronto.

For fi rst-time Olympic advisor King & Wood, the experience of working with the IOC and BOCOG on the world’s most important sports event was eye-opening, stimulating and invaluable.

Lead partner of King & Wood’s legal team, Susan Ning, said the fi rst year was the most diffi cult, because of the well-established and sophisticated regulations, rules and by-laws adopted by the IOC – new territory for both BOCOG and King & Wood. “We had to spend a signifi cant amount of time studying and understanding IOC by-laws, and trying to implement them under Chinese legal framework,” said Ning. “It was a very challenging process, so the fi rm gave the Olympic legal team its full support and high priority.”

After the fi rst year, the Olympics legal services had become a routine practice of the fi rm. Two partners were fully dedicated to working with BOCOG’s 40-man legal affairs department headed by Liu Yan and Li Yanjun. Eight or more

partners were available to contribute their specialty services in different areas whenever it was required.

King & Wood’s outstanding performance in advising BOCOG has met with high praise from both BOCOG and the IOC. Moreover, said Ning, the invaluable experience of advising the world’s most important sports event will benefi t the fi rm in the long run.

Since 2002, King & Wood has been working with BOCOG as the PRC counsel, advising on event planning and organisation, marketing activities, IP matters, broadcasting, cultural campaigning, venue construction and management as well as sports-related contracts and dispute settlement.

Although the Olympics have ended, there is still work to be done as BOCOG dissolves. The lawyers are very much involved in the process of transferring all the intellectual property generated by the event to the IOC, and ensuring the settlement of any outstanding claims and that the BOCOG’s contractual requirements have been fulfi lled.

It has been a marathon indeed and one in which the gold standard has been set. ALB

ANALYSIS

Steve Toronto, MoFo

NEWS | analysis >>


迎接奥运挑战迎接奥运挑战无论是奥运会比赛场馆入场券背后的印刷内

容，还是各国广播公司就奥运会转播权签署的各种合同，都与美富和金杜在过去几年中的的工作密不可分。

自从六年前，美富与金杜分别被北京奥组委任命为北京奥组委国际法律顾问和中国法律顾问，两间事务所便一直为奥运筹备忙碌不停。美富北京代表处管理合伙人Steve Toronto在接受《亚洲法律杂志》独家采访时表示，为期两周的奥运赛事“进行地较为顺利”，筹备阶段付出的所有努力都是值得的。

Toronto表示：“我们起草了成千上万份文件、表格和租赁协议，提供全程审查，直至最后印刷出版。作为国际法律顾问，我们工作最重要的组成部分是帮助设定法律框架，明确哪些事情可以做，哪些不能做，所有人都据此行事。”

即使是十分琐碎的事务，法律顾问也必须认真监督，比如对于在广告中使用其肖像的孩子，家长保证表格的形式和签名事宜。在北京奥组委和国际奥委会（IOC）合资组建转播公司－北京奥运会转播公司的过程中，美富也发挥了重要作用。由于中国政府不允许境外机构投资或持有中国的广播媒体股权，而国际奥委会要求对奥运会电视转播拥有控制权，因此必须成立合资公司。美富与金杜密切合作帮助北京奥组委解决了相关问题。

Toronto 表示：“奥运会收入主要有两大来源，其一是奥运会转播权的出售，其二是通过吸引奥运五环特许赞助商和生产奥运商品进行体育市场营销。希望为奥运会提供赞助资金和借助奥运为品牌做广告的企业是整个奥运会的重要资金来源。因此，这也成为我们工作中的一个重要部分。” 以美国广播公司NBC为例，该公司出资10亿美元才获得奥运会转播权。

2002年盐湖城冬季奥运会和2004年奥运会期间，美富亦曾担任组委会法律顾问，那些经验使其能从容应对相关问题。Toronto表示：“我们拥有丰富的经验，深入了解奥运会运作的广度、复杂性和独特性。鉴于国际法律谈判的复杂性，以及北京奥组委是一次性参与相关工作，我们的深厚经验可令客户获益匪浅。”

对于金杜而言，这次是其首次为奥运会提供法律服务，能有机会与国际奥委会和北京奥组委合作，参与全球最重要体育赛事的筹备工作，可拓宽律所视野、激发潜能、积累宝贵经验。

金杜奥运法律业务团队主管合伙人宁宣凤表示，第一年的工作最为困难，原因在于国际奥委会已形成十分完善且复杂的规定、规则和议事程序－这对北京奥组委和金杜而言都是全新

领域。2007年奥运会最后一年倒计时开始时，宁宣凤曾表示：“我们需要拿出大量时间研究并了解国际奥委会的议事日程，努力在中国法律框架内执行这些日程。这项工作具有非常大的挑战，事务所为奥运会法律团队提供全力支持和优先对待。”

第一年过后，奥运会法律服务步入正轨，成为该所日常业务的一部分。金杜的两位合伙人全职协助由刘岩和李雁军负责的北京奥组委40人的法律事务部。在必要情况下，事务所有八位以上合伙人可随时在各自的专长领域提供法律支持。金杜在为北京奥组委提供顾问服务期间表现出色，赢得北京奥组委和国际奥委会的一致好评。此外，宁宣凤表示，为全球最重要体育赛事提供顾问的经历将使事务所在长期发展过程中获益。

自2002年以来，金杜以中国法律顾问的身份与北京奥组委共同工作，在赛事计划和组织、市场营销活动、知识产权事务、广播、文化宣传计划、场馆建设和管理以及与体育相关的合同和纠纷解决方面提供顾问服务。

虽然奥运会已落下帷幕，但北京奥组委解散后续工作尚待完成。律师们正忙于将奥运会产生的所有知识产权转交给国际奥委会，确保未决主张的清算，保证北京奥组委的合同要求充分履行。这是一项漫长的工作，也是一个树立黄金服务标准的过程。

Susan Ning, King & Wood

Firm Profi le Lifang & Partners


Available approaches for evidence collection in patent infringement litigation concerning a pharmaceutical process patent

Collecting evidence for a patent infringement litigation concerning pharmaceutical process patents is an important issue but can often be

a very complicated one in Mainland China. In most cases, the following approaches are available to the plaintiff;

1. Apply to the court to obtain application documents from the Pharmaceutical Administrative AuthorityPursuant to the relevant laws, pharmaceutical enterprises must provide application documents, such as those detailing the manufacturing process, to the Pharmaceutical Administrative Authority before being granted a licence to produce the pharmaceuticals. In order to identify the defendant’s process, the plaintiff may apply to the court to obtain the said application documents from the Administrative Authority.

It must be noted that the manufacturing process recorded in the application for registration is not necessarily the process actually

used. In other words, although according to the application documents, the defendant’s process does not infringe the plaintiff’s patent, the possibility remains that the manufacturing process actually used by the defendant does indeed constitute an infringement.

2. Apply to the court for evidence preservationThe plaintiff may apply to the court for preservation of the following evidence on the defendant’s infringing behaviour: operational specifi cations, production records, test records, warehouse inventories and delivery records.

However, pharmaceutical manufacturers sometimes use their own codes for the materials used rather than their offi cial names in the said documents. If the meaning of these codes cannot be confi rmed, identifying the production process which is actually used will be diffi cult.

3. Apply to the court to entrust a testing agent to conduct testsThe plaintiff may apply to the court to take

samples of the materials and products used, as well as samples of the various mixtures which are results of chemical reactions during the production process, and entrust a testing agent to test the said samples so as to identify the process actually being used by the defendant.

It is crucial to ensure that the defendant does not have the opportunity to prepare before the collection of samples, otherwise it can be very hard to obtain authentic evidence.

Written by: Liu Yongquan, partner, Lifang & PartnersTel: 8610-64096099-605E-mail: [email protected]: A1105 Nan Xin Cang International Building, A22 Dong Si Shi Tiao, Dongcheng District, Beijing, China 100007 Website: www.lifanglaw.com

16

NEWS >>

ISSUE 5.9

BEIJING

Jincheng & Tongda announces merger with Need International

The merger between Jincheng & Tongda and Need International

has been fi nalised, creating a new fi rm – JT & N. This merger is the most recent step taken by both fi rms towards enhancing their ability to provide quality legal advice and services to their ever-expanding client base.

The addition of the Need International team, led by founding partner Lan Lan, will signifi cantly strengthen Jincheng & Tongda’s international practice expertise and experience. Lan, who obtained a JD degree from Harvard Law School, is qualifi ed in China and a member of the New York Bar. Prior to establishing Need International, she had served as the general manager of John Hancock Life Insurance Company in China, overseeing its Beijing, Tianjin and Guangzhou representative offi ces, and worked for Skadden Arps in China.

She has extensive experience in corporate and fi nance areas, with an emphasis on banking and insurance. She has successfully assisted many multinational fi nancial service groups in their entry into the Chinese market.

金诚同达与 N E E D 金诚同达与 N E E D International合并International合并

金诚同达与Need International的合并最终完成，催生全新事务所JT&N。此次合并是双

方发展战略中的重要举措，旨在增强专业实力，并继续拓展客户基础，同时努力为客户提供更高品质的法律意见和服务。

在创始合伙人蓝岚的带领下， N e e d International团队并入金诚同达后，可显著提升新所处理国际业务的实力和经验。蓝律师在哈佛法学院获法学博士学位，并且在中国和纽约两地拥有律师执业资格。在创办NEED International之前，她曾在中国担任美国恒康人寿保险公司的中国总经理，负责北京、天津和广州代表处的业务运作，还曾在世达律师事务所中国办事处任职。

蓝律师在代理公司事务和融资领域有丰富经验，专长为银行和保险业务。她曾为诸多跨国金融服务机构提供顾问服务，协助他们成功进入中国市场。

In a shocking move, nine partners at Jinmao, including Mao

Huigang and Li Zhiqiang, ended their partnership with the fi rm and splintered off to set up their own shop branded Jinmao-Kaide.

The split was not a smooth one and the two parties had to go through a court case and months of discussion to achieve an agreement on division terms. Yet, it remains unclear how they will divide their clients.

Jinmao used to have 32 partners and was one of the top three law fi rms in Shanghai before the nine partners left, but had struggled to develop its internal management to keep pace with its rapid growth in recent years. Several lawyers in Shanghai familiar with the fi rm said key issues within the fi rm were diverging interests and internal disagreements on management philosophy and direction.

After the division, the two fi rms will develop their businesses in different practice areas. Jinmao-Kaide will focus on corporate fi nance, capital markets

and foreign investment. The remaining partners and 45 lawyers at Jinmao, headed by partner Wu Boqing, will continue to focus on corporate law, project fi nance, commercial property, IP, litigation and dispute resolution.

金茂凯德现身上海金茂凯德现身上海包括毛惠刚和李志强在内的九位前金茂律师

事务所合伙人已完成退伙手续并重新创立金茂凯德律师事务所。

此次退伙过程并不顺利，双方经过数月的协商甚至对簿公堂才就分离条款达成一致。但目前尚不清楚双方将如何划分客户。

在九位合伙人离职前，金茂有32位合伙人，曾是上海领先律师事务所之一。但是，金茂的内部管理以及运营模式与近年来该所的快速发展难以保持一致。数位熟悉金茂的上海律师指出，金茂内部的关键问题在于合伙人在利益分配方式，管理理念和发展方向上存在较大分歧。

两家律所将在不同的领域发展业务。金茂凯德将更专注于公司融资、资本市场和外商投资。金茂剩余的合伙人和45位律师将在管理合伙人吴伯庆的带领下继续侧重于公司法律、项目融资、商业物业、知识产权、诉讼和纠纷解决。

SHANGHAI

A new ‘Jinmao’ in town

NEWS >>


18

NEWS >>

ISSUE 5.9

in GuangzhouMuch like the legal environment in

general, the competition among legal associations is intense. Each network seeks to differentiate itself from the pack and appeal to a particular demographic. Asia, particularly China, has become an increasingly strategic location, where associations need to have a strong presence.

Already having three member fi rms in China, US-based TerraLex has expanded its network in the region further by adding Guangzhou-headquartered fi rm Wang Jing & Co to its membership.

The newest member fi rm, with nearly 50 lawyers, is a leading law fi rm in

SHANGHAI

Jiayuan sets up shop in Shanghai

Corporate fi nance and capital markets boutique fi rm Jiayuan has

established a branch offi ce in Shanghai to further capitalise on the potential growth of the A-share market.

Based in Beijing, Jiayuan has advised on a large number of high-profi le IPOs and listings, including the ‘fi rst A then H’ listing of China Railway Group, the A-share listing of China Coal and the most recent IPO of China Southern Locomotive.

As part of the fi rm’s growth strategy, the Shanghai offi ce will be the fi rm’s base in the booming Yangtze River Delta region to better service existing regional clients and new clients who need to raise capital at home and abroad. The Shanghai offi ce is also set

to provide support to clients in M&A transactions in the region.

“An increasing amount of work is coming from Shanghai and the Yangtze River Delta region. Client demand has driven the need to open an offi ce there,” said Yan Yu, the managing partner at Jiayuan in Beijing. “An offi ce in Shanghai will provide cost-effective services to our clients in the region and increase the productivity of our lawyers.”

The Shanghai offi ce is currently headed by partner Shi Benning, and supported by seven lawyers and staff.

GUANGZHOU

TerraLex expands membership

OTHER INTERNATIONAL LEGAL ►ASSOCIATIONS WITH MEMBERS IN CHINA

Lex Mundi• Meritas• MSI Global Alliance• Lawyers Associated Worldwide (LAW)• LawExchange International (LEI)• LAWorld•

TERRALEX MEMBERS IN CHINA ►Hylands• Liu, Shen & Associates• AllBright• Wang Jing & Co•

Yan Yu, Jiayuan

news in brief >>MICROSOFT SEEKS OUT HYLANDS TO REIN IN PIRACYThe IP practice group of Hylands has been appointed by Microsoft to advise on its anti-piracy campaign in areas of north China, including Beijing, Tianjin and Hebei.

The Hylands team is co-headed by partners Ma Xiaogang, Yu Rong and Zhang Bin. Ma is one of the founding partners of the fi rm and had previously served for many years at National Copyright Administration and had participated in drafting the copyright law and other laws and regulations relating to IP.

However, Microsoft’s piracy problems in China may well be the cure for its alleged violation of the new anti-monopoly law (see page 20).

微软携手浩天信和打击盗版微软携手浩天信和打击盗版浩天信和的知识产权业务团队获微软委托，协助微软在包括北京、天津、河北在内的中国北方五个地区打击盗版活动并提供相关法律服务。

此次为微软服务的浩天信和团队由合伙人马晓刚、俞蓉和张斌带领。马晓刚是事务所创始合伙人之一，曾在国家版权局任职多年，曾参与版权法和其它与知识产权相关的法律法规的起草工作。

而微软在中国面临的盗版困扰却可能是解决其新《反垄断法》问题的良方（详见第20页）。

Guangzhou and has a strong reputation in shipping and insurance practice areas. The addition of the fi rm to TerraLex’s global network provides the legal network and its global members access to and service capacity in the economic centre of the Peal River Delta, one of China's leading commercial and manufacturing regions.

The membership in TerraLex will also serve to upgrade Wang Jing & Co’s competitive strengths and level of service in the Chinese legal services market.

JONES DAY GEARS UP FOR SINGAPORE FOREIGN LAW PRACTICE LICENCE International fi rm Jones Day has been invited to apply for a Qualifying Foreign Law Practice (QFLP) licence in Singapore just a week after Singapore’s Ministry of Law announced that it will accept QFLP applications.

Only fi ve licences will be granted initially. The QFLP is part of Singapore’s plan to liberalise its legal market to support its fi nancial services sector in the city state. Currently, foreign law practices are permitted to practise Singapore law only within a joint law venture through a Singapore law practice. Under the new QFLP scheme, selected foreign law practices will be allowed to practise Singapore law in permitted areas and employ Singapore-qualifi ed lawyers.

众达为申请新加坡外国律师事务所执照积众达为申请新加坡外国律师事务所执照积极筹备极筹备新加坡司法部部长宣布将接受外国合格律师事务所从业申请后仅一周，国际律师事务所众达便“获邀”申请新加坡合格外国律师事务所（QFLP）执照。

首批仅颁发五张执照。QFLP是新加坡推行法律服务市场开放计划的组成部分，旨在为新加坡的金融服务行业提供支持。目前，仅允许外国律师事务所通过与新加坡律师事务所合资的形式在新加坡开展法律服务业务。依据全新的QFLP计划，政府将允许选定的外国律师事务所在允许的领域内开展业务，且允许聘用符合资格的新加坡律师。

NEWS >>


uk report

ROUNDUP

Linklaters’ Belgium partner Jean-Pierre Blumberg has replaced Jean-Marc Lefèv to take on the role • of European managing partner, representing the fi rm’s mainland Western European offi ces

Clyde & Co partners have approved plans to set up an international board to drive the fi rm’s global • strategy, which will be chaired by commercial partner Anthony Garrod

Norton Rose has re-elected chief executive Peter Martyr for another three-year term•

Commercial partner Peter Valert has taken over as managing partner of DLA Piper’s Prague offi ce•

Keeping up with its reputation as one of the best-paying law fi rms outside of the Magic Circle, • Macfarlanes has unveiled across-the-board salary raises for all of its associates, with some receiving up to a 6.5% hike

Recent fi gures reveal that Pinsent Masons now has the fastest growing AIM practice in the top 10, • beating both DLA Piper and Norton Rose to become the top legal advisor on London’s junior market. The fi rm has acquired three new AIM clients in the last three months, and has now represented 59 AIM companies in total

Linklaters, Weil Gotshal & Manges and DLA Piper will all take lead roles on the upcoming £1.1bn • sale of Foodvest to private equity group Lion Capital

Chief executive David Gray has stepped down from the helm at Eversheds, sparking a leadership • contest. UK managing partner Bryan Hughes is tipped to take his place

At Clifford Chance, Laurent Vallee, formerly a Conseil d’État judge, joins as head of CC’s Paris-based tax • practice while Amy Mahon returns to the London offi ce as a corporate partner from Macquarie Bank

Linklaters and Freshfi elds go head to head in ECM rankings Linklaters and Freshfi elds have topped the Thomson Reuters European equity capital markets rankings, with both fi rms coming out on top in relation to number of deals and value of deals respectively.

The fi gures revealed that while Linklaters had successfully advised managers on 20 deals over the fi rst half of 2008 (nine more than Freshfi elds, which came in second), the fi rm’s deals totalled US$14.6bn over the six-month period, behind Freshfi elds which worked on deals worth a total of US$29.8bn.

CMS mulls over merger options CMS Cameron McKenna recently revealed it is considering a major UK merger as an option to boost the fi rm’s presence in London.

Although the fi rm has not decided on any specifi c targets, managing partner Duncan Weston said the fi rm is investigating various types of merger.

Eversheds expands in Europe Eversheds has signed an alliance agreement with 12-partner Dutch practice Faasen & Partners which will cement the fi rm’s presence in both Amsterdam and Rotterdam.

The alliance, expected to be made offi cial on 1 October 2008, will introduce Faasen & Partners as a member of Eversheds International, an international network of law fi rms in 24 jurisdictions with more than 2,500 lawyers.

Bottom rung of the Linklaters equity ladder could be lowered – if plans by partners go ahead Linklaters’ lawyers generally enter the equity with eight years’ PQE but a proposal – part of the firm’s consultation on its partnership structure – would allow senior associates and salaried partners to do so on the same level of experience as their counterparts in more established sectors when they launch new practices. Profi tability of the new practice would largely infl uence how much a rung is lowered.

嘉源上海分所开业嘉源上海分所开业嘉源是专注于公司融资和资本市场的专业型

律师事务所，近期在上海成立分所，希望更好把握A股市场发展潜力和机遇。

嘉源总部位于北京，曾为许多大规模IPO和上市项目提供法律服务，包括中铁股份有限公司先A股后H股上市项目，中煤能源股份有限公司A股上市和近期中国南车股份有限公司的IPO。

作为事务所发展战略的组成部分，上海分所将为事务所拓展长江三角洲地区业务提供新契机，同时为现有客户和希望在境内外融资的新客户提供更好的服务。上海分所亦将在并购交易领域为该地区的客户提供法律支持。

嘉源北京总部管理合伙人颜羽表示：“上海和长江三角洲地区的业务量正不断增加。我们在客户需求的推动下成立上海分所。新分所不仅能为该地区客户降低法律服务成本，还能增加事务所律师的工作效率。”

嘉源上海办事处目前由合伙人施贲宁负责，有7位律师和文员。

与法律服务市场的情况类似，法律联盟机构之间的竞争也日趋激烈。各大律所联盟均

希望树立与众不同的形象，吸引更多会员加入。在亚洲，中国尤其成为日益重要的战略目标，国际联盟体均希望在中国拥有较强的会员基础和影响力。

美国TerraLex在中国已经拥有3家会员事务所，近期新增总部位于广州的敬海律师事务所成为会员，进一步扩展在中国的会员网络。

新会员敬海律师事务所有近50位律师，是广州的领先事务所之一，在航运和保险领域声誉卓著。珠三角是中国领先的商业和制造业基地，敬海加入TerraLex全球会员网络后，可为TerraLex的法律服务网络及其全球会员提供进入珠三角经济中心的机会。

TerraLex欢迎广州TerraLex欢迎广州新会员新会员

20

NEWS >>

ISSUE 5.9

BEIJING

Microsoft defends anti-trust allegations

DONG ZHENGWEI PUTS MICROSOFT IN THE HOT SEAT ►Dong Zhengwei of Zhongyin sent a letter to the Ministry of Commerce, State Administration of Industry and Commerce, and National Development and Reform Commission the day before China’s new Anti-Monopoly law became effective, alleging Microsoft had used its dominant market share to manipulate software prices in China.

Dong has subsequently received a formal notice from the MOFCOM stating that anti-trust investigations would be conducted by its Department of Treaty and Law. The NDRC has also formally noticed him that his petition against Microsoft had been accepted and would be handled by the NDRC’s price monitoring department.

Microsoft may have a viable legal defence against its fi rst ever anti-monopoly claim in China, given the

prevalence of pirated Microsoft products in the country and how ‘market share’ is defi ned by the Chinese authorities.

When lawyer Dong Zhengwei, a partner with Beijing-based Zhongyin law fi rm, grabbed the headlines by alleging that Microsoft was using its dominant market share to manipulate software prices in China and calling for a US$1bn fi ne to be imposed on the global software giant, Microsoft global VP Zhang Yaqin was quick to reply with an interesting counter argument: “Microsoft did not even have the preconditions of conducting monopoly activities in China,” he said. “Genuine Microsoft products have a very low market share in China because its products are widely pirated.”

Pirated goodsAccording to 2006 fi gures from the Business Software Alliance – an industry group that tracks the illegal software trade – an estimated 82% of software installed on computers in China were pirated. The BSA calculated that sales lost due to software piracy in China were about US$3.9bn in 2005 alone.

Lawyers ALB China spoke to said that in determining a “dominant market position”, the Anti-Monopoly Law will mainly focus on whether a company has the power to control the price, sales volume and other trading conditions of its products.

“Obviously, sales of fake goods are beyond the control of the genuine producers, and it is unreasonable to count fake goods into the determination of market share. Thus, as a victim of fake goods, I won’t be surprised if Microsoft’s market margin in China is much smaller than most people have expected,” said Michael Zhang, a senior legal consultant at Sheppard, Mullin, Richter & Hampton’s Shanghai offi ce.

Relevant marketDominance of a company’s preponderant market share is also determined by its ‘relevant market’. “There is a presumption of single fi rm dominance with a market share of 50%, though dominance may also be found where a lower market share exists. In order to establish the market share, it is necessary to defi ne the ‘relevant market’,” said Kirstie Nicholson, of counsel at Lovells in Shanghai. “It isn’t clear whether the relevant software market in China comprises only genuine products or includes fakes. With no case law to look to for guidance, it isn’t clear at this stage how the Anti-Monopoly Enforcement Agency will approach the question of market defi nition,” she said.

Arbitration

UPDATE >>

Prof Ge Huangbin

新加坡高等法院最新裁定：新加坡高等法院最新裁定：当事人可将争议提交新加坡国际仲裁中心当事人可将争议提交新加坡国际仲裁中心依据国际商会规则仲裁依据国际商会规则仲裁Arbitration Clause Referring to SIAC and ICC Rules 1

[2008] SGHC 134Facts – the plaintiff had entered into a License

Agreement with the defendant. A dispute arose under the Agreement. The Agreement provided an Article

that “any and all such disputes shall be fi nally resolved by arbitration before the Singapore International Arbitration Centre (“SIAC”) in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) then in effect.” The Tribunal ruled that the arbitration could be administered by SIAC applying ICC Rules. Dissatisfi ed with the Tribunal’s decision, the plaintiff applied to set aside the Decision on Jurisdiction.

Held – Plaintiff’s application dismissed. [1] The parties did not bargain for an ICC administered arbitration but for an SIAC administered one applying the ICC Rules. [2] There is in principle no objection to an arbitration being administered by SIAC in accordance with ICC Rules. Any uncertainty of the operability of the clause had been cured by the parties’ conduct and SIAC’s confi rmation of its willingness and ability to administer.

2008年8月14日，新加坡高等法院就一关于仲裁条款有效性的争议作出裁定：当事人约定将争议提交新加坡国际仲裁中心（下称“新仲”）并按照国际商会仲裁规则（下称“商会规则”）进行仲

裁的仲裁协议有效。根据新加坡法院公布的判决书，该案当事人在一许可合同中订立了

仲裁条款：任何争议提交新仲并按照当时有效的商会规则通过仲裁最终解决。争议发生后，应诉人先向国际商会提起仲裁，申诉人答称：国际商会不是本案的仲裁机构，应该向新仲提交仲裁；应诉人随之撤回在国际商会的仲裁，向新仲申请了仲裁。仲裁庭组成后，申诉人又反对向新仲提交仲裁。仲裁庭就管辖权作出决定：仲裁协议有效，可以提交新仲适用商会规则进行管理。申诉人遂向高等法院申请撤销仲裁庭的管辖权决定。

高等法院朱迪法官裁定：驳回申诉人申请。法官认定，当事人的合意是将仲裁提交新仲管理、适用商会规则进行仲裁程序，而不是提交国际商会管理仲裁；当事人的行为以及新仲对管理该仲裁案的确认，补正了条款的操作性瑕疵，新仲按照商会规则管理仲裁没有违反任何原则；组庭程序符合当事人约定。

该案再次说明，完整、准确、明确地订立仲裁条款的重要性。该案也从侧面反映了新加坡司法实践对当事人仲裁意思自治的高度尊重。1. Singapore Arbitrator Issue 4. 2008

作者：葛黄斌，新加坡国际仲裁中心By Prof Ge Huangbin, Head of China Desk

Singapore International Arbitration CentreAddress: City Hall 3 St Andrew’s Road Singapore 178958Tel: + 65 6334 1277 Fax: +65 6883 0823Email: [email protected]: www.siac.org.sg

NEWS >>


UPDATE >>

Regulatory

Zhonglun W&D Law Firm has signed a permanent legalcounselling contract with the SINOPEC’s headquarters for the ‘Sichuan-to-East China Gas’ project.

On 28 August 2008, a signing ceremony was held at Dazhou Hotel, Dazhou, Sichuan Province, for the engagement of a permanent legal advisor for the ‘Sichuan-to-East China Gas’ project. Chen Wen,

principal of Zhonglun W&D Law Firm, signed the permanent legal counselling contract with the SINOPEC’s headquarters for the ‘Sichuan-to-East China Gas’ project. Wang Chunjiang, deputy director of the afore-said headquarters, presented letters of engagement to Chen and Wang Zhijian, principal of Zhonglun W&D Law Firm, Chengdu branch. Also present at the signing ceremony was Dai Quyang, lawyer of Zhonglun W&D Law Firm, Chengdu branch.

The ‘Sichuan-to-East China Gas’ project, offi cially approved by the State Council of PRC on 9 April 2007, is SINOPEC’s number one project at the new historic starting point and is a signifi cant project during the period of China’s 11th Five-Year-Long National Development Program. The said project, named by the State Council, is a signifi cant national project which enjoys equal popularity with the ‘Three Gorges Project’, the ‘South-to-North Water Transfers’ project, the ‘West Gas to East China’ project and the ‘Qinghai-Tibet Railway’ project. This particular project, when completed, will have great signifi cance with respect to securing China’s energy safety, easing the imbalance between energy supply and demand, and furthering regional economic development.

Zhonglun W&D Law Firm, engaged as permanent legal advisor for the ‘Sichuan-East China Gas’ project, will render legal services in such fi elds as contracts management, tendering and bidding practice, management of HSE (health, safety and environment), land expropriation and residents relocation, application for project examination and approval, labour affairs, project insurance and litigation or arbitration, etc, and provide a legal framework for construction work.

“The legal counselling engagement for the ‘Sichuan-to-East China Gas’ project is another great opportunity for Zhonglun W&D Law Firm to render legal services for China’s exceptionally large construction projects, following its excellent service for the ‘South-to-North Water Transfers’ project, and the construction project of the 2008 Olympic Games – this was indeed a glorious but arduous task”, said Chen and Wang. Zhonglun W&D Law Firm will form a seven-member-lawyer team to provide excellent and effi cient legal services for the ‘Sichuan-to-East China Gas Project’.

Zhonglun W&D Law FirmYear established: 2003Beijing address: 19/F Golden Tower, No.1, Xibahe South Road, Chaoyang District, Beijing, 100028, P.R.C

Tel: 86-10-6440 2232 Fax: 86-10-6440 2915/6440 2925Website: www.zhonglunwende.com E-mail: [email protected]: Wang Hao

Total number of partners: 28Total number of lawyers: 115Offi ces: London, Paris, Lyon, Shanghai, Tianjin, Chengdu, Shijiazhuang, Languages: Chinese Mandarin, English, French, Korean, Japanese, GermanKey areas of practice: Corporate and securities, fi nance, real estate, IP, telecommunications, investment, M&A, commercial, energy, etc.

The case has sparked global interest for several reasons. The Anti-Monopoly Law – which took effect on 1 August – is closely based on anti-competition law in the European Union, where Microsoft faced a series of anti-trust investigations in the past decade and was fi ned more than US$613m in 2004 by the European Commission.

As China fi nds its feet with its AML and puts more bite into its intellectual property laws, this case will be one to watch closely as the software giant is both an alleged perpetrator of software monopoly and a victim of pirates.

微软巧辩反垄断指控微软巧辩反垄断指控鉴于盗版的微软产品在中国大行其道和中国监管机构确定“市场份额”的方

式，微软在面对中国境内首次反垄断调查时，或许有成功辩护的可能。北京中银律师事务所合伙人董正伟在7月底向监管部门建议对微软开展反

垄断调查。他认为，全球软件巨头微软公司利用其在中国的主导性市场份额操纵软件价格，主张对其处以10亿美元的罚金。微软全球副总裁张亚勤对此迅速回应：“微软在中国不具备进行垄断活动的先决条件，因为盗版软件横行，正版微软产品在中国的市场份额极低。”

盗版软件盗版软件商业软体联盟是追踪非法软件交易的行业组织，根据该组织2006年提供的数据，中国电脑上安装的软件约82％为盗版。根据商业软件联盟的计算，仅2005年，在中国因盗版软件造成的销售损失就高达39亿美元。

接受《亚洲法律杂志》采访的律师表示，在确定“主导性市场地位”的过程中，反垄断法关注的焦点在于该公司是否有能力控制产品的价格、销量和其它交易条件。

盛智律师事务所上海办事处高级顾问律师张小艺表示：“显然，正版软件生产商无法控制盗版产品的销售，确定市场份额时，如将盗版产品在内，是不合理的。因此，作为盗版软件的受害者，我对微软的市场利润率低于多数人的预期并不感到意外。”

相关市场相关市场“相关市场”也是确定公司产品的市场份额是否占主导地位的重要因素。路伟上海办事处顾问律师Kirstie Nicholson表示：“假设某一家公司的市场份额为50％，在存在更低市场份额的情况下，仍有可能出现主导性优势。为确定市场份额，有必要明确“相关市场”。对于中国的相关软件市场是否仅由正版产品和盗版产品组成，目前尚不明确。在无以往司法案例供参照的情况下，对于反垄断执行机构如何解决市场定义的问题，目前尚不明确。”

该案例引发全球关注，有多个重要原因。《反垄断法》于8月1日生效，而该法是参照欧盟反竞争法制定，过去十年，微软在欧盟境内面临一系列反垄断调查，2004年被欧洲委员会处以6.13亿美元的罚金。

随着中国反垄断法的实施和对知识产权法重视程度的提高，该案例尤其值得关注，软件巨头微软既是软件垄断方面被指控的对象，又是盗版软件的受害者。

22

NEWS >>

ISSUE 5.9

UPDATE >>

Regulatory

Hong Kong’s Proposed Competition Law

The Hong Kong Government has been considering the promulgation of a competition law for many years. Such law may fi nally be issued since a public consultation paper in relation to the draft law has

been circulated for comments with the aim of passing the bill in the 2008-2009 legislative session.

Similar to other countries, the proposal seeks to prohibit two types of conducts when they have the purpose or effect of substantially lessening competition: “[participating] in agreements and concerted practices” and “abusing substantial market power.” The “agreements and concerted practices” prohibition focuses on horizontal arrangements, whereas vertical arrangements are instead evaluated under the “substantial market power” prong. Neither conduct is a “per se” infringement, though the suggested market share threshold which triggers review for “abusing substantial market power” is 40%. An independent Competition Commission would be established to issue guidelines specifying examples of anti-competitive activities and clarifying infringement thresholds, to investigate and determine whether an infringement has occurred, and to apply sanctions and remedies. This Commission would be authorized to impose civil penalties of up to HK$10 million for violation of the proposed law. A separate Competition Tribunal would also be established to review the rulings of the Commission, with the power to impose even more severe penalties. These administrative proceedings of the enforcement bodies would likely be less formal and swifter than the courts’, and the Tribunal’s decisions are appealable to the Court of Appeal.

Despite its efforts, the new Law raises additional issues. One major issue relates to how mergers should be considered. The paper suggested three options: (i) only completed mergers raising “serious competition concerns” would be investigated without clear defi nition for that term; (ii) include a merger provision but with a delay in enforcement; or (iii) exclude a merger provision but allow reconsideration after review of the new Law’s effect. Clearly none of the options is satisfactory. Another issue involves the proposed Law’s exemptions and exclusions. “Government and statutory bodies” are controversially excluded, raising concerns of Government self-interest. Other exceptions are relatively undefi ned and raise questions as to how and to whom they might apply, including for anti-competitive agreements with overriding economic benefi ts, operations of public services of general economic interest, and certain activities to be exempted by the Chief Executive on public policy grounds.

Will Hong Kong enhance its competitive edge by the enactment of this Law? Until these uncertainties are resolved and questions answered, the answer to this question will not be known for awhile.

Written by Jeanette Chan, partnerMelissa Mao, summer associate

Paul, Weiss Rifkind, Wharton & Garrison Unit 3601, Fortune Plaza Offi ce Tower A No. 7 Dong Sanhuan Zhonglu Chao Yang District, Beijing 100020 PRC Email: [email protected] Ph: (8621) 5828-6300 or (852) 2536-9933

Jeanette Chan

UPDATE >>

Shanghai

New rules for private equity funds registered in Shanghai

On 14 August 2008, Shanghai Financial Services Offi ce, Shanghai Administration of Industry and Commerce, and Shanghai Finance Bureau jointly issued the Circular on Matters Concerning

the Industrial and Commercial Register of Private Equity Enterprises in Shanghai (known as ‘the Circular’). The Circular contains the following provisions that necessitate attention:

Scope of applicationPursuant to the relevant provisions, the Circular is applicable to the private equity enterprises and private equity management enterprises (known as ‘the Enterprises’). The Circular also provides that the private equity enterprises shall have the registered capital or capital contribution of no less than RMB100m, in which an individual natural person shareholder or partner shall make a capital contribution of no less than RMB5m. Meanwhile, the number of shareholders or partners shall be no more than 50 where the private equity enterprises are established in the form of limited companies or partnership enterprises; the number of shareholders shall be no more than 200 where the private equity enterprises are established in the form of companies limited by shares. In the case that a private equity management enterprise is established in the form of a company limited by shares, its registered capital shall be no less than RMB5m, while the paid-up capital shall be no less than RMB1m where the private equity management enterprise is established in the form of a limited liability company.

Investors of the EnterprisesGiven that the Shanghai Foreign Investment Committee, as the approval authority for foreign investors, does not participate in the enactment of the Circular, foreign investors will still encounter diffi culties in investing in the Enterprises in practice.

Tax privilege Pursuant to the Circular, the Enterprises should be established in the form of companies or partnerships. Where the Enterprises are established in the form of limited partnership, the business income and other income of the Enterprises shall be subject to the income tax payable by the partners only. Natural persons as general partners who are in charge of the affairs of limited partnership enterprises shall pay the income tax at the progressive tax rate of 5–35% of the taxable income which is determined based on the production and operation income of the individual industrial and commercial householders. However, where natural persons as limited partners who are not in charge of the affairs of the limited partnership receive the private equity returns through interest and dividends, the income tax will be payable at the rate of 20% of interest and dividends received.

Charles Qin : [email protected] Charles Qin

NEWS >>


新加坡交易所优化上市公司公告模版新加坡交易所优化上市公司公告模版

上市公司作为公众公司，需要将运营过程中的一些重要信息定期或不定期的向公众披露，使得投资者或公众股东更好的了解公司的运营情况，同时接受公众对上市公司的监督。公告作为信息披露

的一种方式，是维系上市公司和公众股东的极为重要的纽带。为方便上市公司及时披露重要信息，亦为保证公众股东便捷了解公司

的新动态，日前，新加坡交易所（“新交所”）宣布优化其部分公告模版，新模版将于2008年6月9日起启用。

新的公告模版主要针对一下几类公告：

1. 人事任命公告根据证券期货法令要求，上市公司任命新的董事或重要高级管理人员，需要及时向公众披露。通过新的公告模版，上市公司可以披露其任命或续聘该董事或高管的原因、聘用目的、选聘过程及该人员与公司发展战略的关联，便于投资者更好的了解公司的人事任命。

2. 任期终止公告将原有的“辞职公告”更名为“任期终止公告”，明确该模版不仅适用董事及高管的辞职，并可适用于其他的任期终止情况。上市公司亦可借此公告中向股东披露该董事或高管其任期终止的相关信息。

3. 股份回购公告在新的股份回购公告中，上市公司须批露股份回购后，其持有的库存股及减少的股份数量。

4. 暂停办理过户登记公告新的暂停办理过户登记公告模版，使得公司根据上市手册的相关要求，更为方便的披露相关信息。

5. 列入观察名单公司的财务业绩公告新交所将业绩表现达不到要求的上市公司列入“观察名单”，并要求该类公司根据上市手册的相关规定，将其财务状况及时予以披露。该新的公告模版有助于被列入观察名单的上市公司更为方便、更为有效的及时更新其最新的财务状况。

巫美清企業融資部资深律師Ph: (65) 6322-2228

Fax: (65) 6534-0833

E-mail: [email protected]

翁慧婷企業融資部專員Ph: (65) 6322-2237

Fax: (65) 6534-0833

E-mail: [email protected]

俊昭法律事務所88 Amoy Street, Level Three

Singapore 069907

Singapore

UPDATE >>

翁慧婷

巫美清

UPDATE >>

Insurance

Comments on the draft of a new Chinese Insurance Law

In August of this year, a revised draft of the Chinese Insurance Law was approved by the State Council. Due to dramatic differences in this proposed law; it can be most aptly characterised as a completely new law rather than

simply a revised version.The current Chinese Insurance Law, which came into effect in

1995, has long been criticised by insurers, brokers, agents, loss adjustors and other individuals in the insurance business. Even though it was revised once in 2002, the predominant view was that this was still insuffi cient, particularly considering the rapid growth in the insurance industry and the entrance of more and more foreign companies in this fi eld. The four most common complaints are explained below.

First, a large part of China’s Insurance Law is transplanted from English and German law. This includes relevant terminologies, principles, stipulations and rules. The interaction of these rules from abroad has produced confl ict, contractions and inconsistencies in their application to Chinese law.

Secondly, although Chinese law has borrowed signifi cantly from other countries, many important insurance principles and much terminology have been excluded. For instance, warranty clauses are often used in insurance policies in China, but there are no laws or regulations which explicitly mention these clauses except in Chinese Maritime law. Thus, if a warranty clause dispute does not refer to marine insurance, courts tend to think that it is void.

Thirdly, the law is outdated and impractical. The insurance market has grown by over 150% over the last seven years and the law has not adequately kept pace with all of the changes. Transactions are becoming much more diverse and complex in nature, many of which are not properly accounted for in the law. Differentiated regulations for life and property insurance not being adopted, for example, has resulted in more than a few disputes.

Although the draft of the new insurance law is still a long way from coming into effect, many experts, including insurance lawyers, are satisfi ed that the changes to the law address many previous concerns. The key improvement is in clarity. Many defi nitions relevant to insurance contracts (insurable interest, insurance target and insurance value) have been revised.Interpretation has always been a frequently debated topic in China in the insurance fi eld, as legal terms were often seen as being confusing, inconsistent and unclear. This draft is effective in increasing the clarity of insurance legal terms and also making them more suitable to the Chinese legal system, particularly with regard to stipulations.

It is probably too early to make a complete assessment on the new Insurance Law, as it is still a long way from coming into effect and many more revisions may be made. In fact, four years ago the Chinese Supreme Court published a draft on the Explanation of the Insurance Law. To this date, however, the Supreme Court’s draft has still not come into force in China. Maybe we should not hold our breath for the coming into effect of the new Chinese Insurance Law.

Zhan Hao, Managing PartnerGrandall Legal Group Beijing Offi ceTel: 010-65890699 Fax: 010-65176801E-mail: [email protected]: www.grandall.com.cn

Zhan Hao

24

NEWS >>

ISSUE 5.9

LAWYERS PROMOTE TIANJIN OPPORTUNITIES IN HONG KONGBeijing-based Run Ming Law Offi ce and Jones Day jointly organised a seminar and invited offi cials of Tianjin Commission of Commerce to speak on how the investment environment and policies of the Tianjin Binhai New Area will affect Hong Kong companies.

At the seminar, which was held at Jones Day’s Hong Kong offi ce, Liu Yi and Ron Ma, partners of Run Ming, briefed the participants with laws, regulations and policies of Tianjin Binhai New Area, focusing on fi nancing, real estate and tax.

The seminar panel also included Jones Day’s senior partner Barbara W.K. Mok, Chen Liming, Tianjin Commission of Commerce’s deputy director and its two department heads in charge of foreign investments, Hu Xiaopian and Zhang Wengang. They answered questions such as whether foreign investment is restricted in real estate. Given that Tianjin is the new hot spot for investments, this seminar gave Hong Kong-based companies a face-to-face opportunity to consult with Tianjin offi cials.

“Many overseas enterprises and investors have shown great interest in investment in Tianjin and participating construction of Binhai New Area. So we are planning to invite Tianjin Commission of Commerce to organise a series of seminars in other region such as Japan and Korea,” said Wang Yadong, executive partner of Run Ming.

news in brief >> REGION

ACLA strengthens local profession through international training programsBuilding on the success of an

initiative to promote international cooperation and capacity building, the Australia-China Legal Profession Development Program will run again in 2009. It continues to be supported by the International Legal Services Advisory Council (ILSAC) and funded by AusAID. The program is facilitated by the Law Council of Australia and the Commonwealth Attorney-General’s Department, in cooperation with the Chinese Ministry of Justice through the All China Lawyers Association (ACLA).

The aim of this legal exchange program is to help Chinese lawyers draw knowledge and expertise from their Australian counterparts in the public and private sectors, as well as to promote understanding and goodwill between the Australian and Chinese legal sectors.

This program is similar to the Lord Chancellor’s Training Scheme for Young Chinese Lawyers (LCTS) held in the UK, which was established in 1989 by the China Law Council in association with the British Council, the ACLA and the Ministry of Justice.

The LCTS aims to give young lawyers an understanding of English law and the English legal system in both contentious and non-contentious work and to facilitate the building of relationships between the UK and Chinese legal professions.

In the four-and-a-half month placement program in Australia,

now in its third year, four to six selected lawyers will take on an education program and study tour in Melbourne, Canberra and Sydney, followed by placements in private law fi rms and legal institutions, such as the courts, government departments and agencies. As a component of the program, participants develop short presentations on topics relevant to their studies and experience in Australia after they complete the program.

As a demonstration of just how infl uential the program has been, one of the participants planted his ideas from Australia in China. “My legal aid centre has got some signifi cant ideas and skills for development, such as the direction of starting a project, fi nancing solution and so on,” said Chen Dong, a 2007 participant.

“I have introduced the Australian legal aid system to them and shown slides of my experience in Australia to lawyers in Xinjiang. Some of them are really attracted to this program and some are quite interested in their legal system.”

Applications from prospective participants for the 2009 program close on 31 October 2008, and according to Lan Hong, head of ACLA’s international section, the 2009 program has already attracted interest from many lawyers, particularly young lawyers.

律师在香港推广天津投资机遇律师在香港推广天津投资机遇总部位于北京的润明律师事务所近日联合美国众达律师事务所，共同邀请天津市商务委员会官员在众达香港办事处举办了“天津投资政策研讨会”。在研讨会上，润明合伙人刘屹和马骋就天津滨海新区金融业、房地产业以及税收方面的具体法律法规和政策向与会企业进行了说明，包括外商投资房地产业的宏观调控政策、“港股直通车”、滨海新区给以金融机构的优惠政策等热点问题。

研讨小组还包括众达的高级合伙人莫玮坤、天津市商委常务副主任陈黎明、外资管理处副处长胡孝骈以及负责招商引资工作的副处长张文刚。他们就天津滨海新区的投资政策和环境进行了介绍，并解答了与会企业代表提出的问题。

润明执行合伙人王亚东表示：“目前，许多境外企业、投资人对在天津投资和参与“滨海新区”的建设表现出浓厚兴趣。润明与众达将考虑继续与天津商委配合在其它地区，如日本、韩国，举办类似的研讨会。”

NEWS >>


us report

Merger turns sour for French offi ce with US ambitionsTaylor Wessing’s French offi ce and US fi rm Nixon Peabody have locked horns in a legal battle, following botched merger talks between the fi rms.

Taylor Wessing France claims Nixon poached 13 of its partners in violation of a non-disclosure agreement and is consequently seeking an injunction to prevent the hire and suing the fi rm for US$5m.

Nixon Peabody is allegedly responding by seeking an injunction and US$1m plus punitive damages from Taylor Wessing for tortuous interference with advantageous business relations.

Due to the nature of Taylor Wessing’s fi rm structure, each of the international offi ces operates as a separate legal entity.

Alston & Bird proceeds with West Coast merger Alston & Bird is set to merge with West Coast fi rm Weston Benshoof Rochefort Rubalcava & MacCuish, a deal that will provide Alston with its fi rst LA outpost.

Atlanta-based Alston already has six domestic offi ces, and the merger with 83-lawyer Weston will create a combined fi rm of almost 900 lawyers. This total will be boosted with the addition of an extra 12 IP lawyers, including three partners, that

the fi rm recently poached from the Silicon Valley offi ce of Akin Gump.

Bakers on a roll Baker & McKenzie has shattered the US$2bn revenue mark, ending the fi scal year 2008 in June with a fi gure of US$2.19bn, and a reported increase of almost 20% in global fee income.

Firm-wide profi ts per partner have also improved from last year, with the US giant reporting double-digit growth – a 20% increase to US$1.206m from US$1.063m last year.

Hammonds on the prowl for transatlantic merger partner Hammonds is moving full steam ahead with plans to revamp its US strategy and initiate a transatlantic merger.

The fi rm – whose US business is worth £15m – is said to be considering three strategies at the moment: a merger with one US fi rm, a strategic alliance which would lead to a more formal association, or maintain the status quo and develop its existing relationships with US corporates and law fi rms.

Hammonds’ managing partner has confi rmed that if a merger does win out, the fi rm would prefer to match with a fi rm that has a signifi cant presence in Eastern Europe and/or Asia.

ROUNDUP

Heller Ehrman may be on the lookout for a new DC managing partner, following the loss of its • current Washington offi ce head Geoffrey Aronow to Bingham McCutchen

Reed Smith will soon set up in Silicon Valley following the hire of Morrison & Foerster partner • Rich Scudellari

Hunton & Williams recently raided Akin Gump for nine partners, who are to be distributed • throughout the fi rm’s offi ces in Washington DC, Houston and Los Angeles

Orrick Rambaud Martel has appointed Yves Lepage as the fi rst head of its Paris project fi nance group •

Thelen Reid Brown Raysman & Steiner has lost another of its name partners, with tech and IP • attorney Richard Raysman bidding the fi rm goodbye to join New York’s Otterbourg Steindler Houston & Rosen

US mega-fi rms Shearman & Sterling and Sullivan & Cromwell have bagged top roles in insurance • giant Allianz’s US$9.8bn sale of Dresdner Bank to German rival Commerzbank. Once the merger is complete, Commerzbank will lead in the German private and business banking market

中华全国律师协会通过中华全国律师协会通过国际培训项目提高本地国际培训项目提高本地律师业实力律师业实力继两届国际合作和专业培训活动成功进行

后，中澳法律职业发展项目将于2009年再次启动。此项目是中国司法部、中华全国律师协会与澳大利亚司法部和澳大利亚律师协会之间签署的合作交流计划。澳大利亚国际法律事务咨询委员会（ILSAC）将继续提供支持，澳大利亚国际/海外发展署（AusAID）也将继续为此项目提供赞助。

该法律职业发展项目旨在帮助中国律师学习澳大利亚政府部门和商务律师事务所同行的专业知识和执业经验，同时促进澳大利亚和中国法律领域之间的理解和友好合作。

该计划与英国司法大臣办公室中国青年律师培训项目（LCTS）类似。LCTS项目于2001年启动，它是自1989年开始由中国法委员会与司法部和中华全国律师协会共同成功组织的青年律师培训项目的后续项目。

LCTS 项目的宗旨是使中国律师获得商法、诉讼、法庭程序及法律事务管理方面的实际经验。同时推动英国和中国的法律专业人士建立良好的合作关系。

中澳法律职业发展项目现已进入第三届，计划选派6名中国律师管理人员和律师于2009年2月初赴澳大利亚进行为期4个半月的考察和培训。项目将安排参训学员学习澳大利亚法律体系，并在澳大利亚商务律师事务所、律师协会、政府部门或国际公司法律顾问室学习研究。离开澳大利亚前，每位参训学员要准备一份简明的“行动计划”，讲述如何学以致用。回国后，参训学员还要将研究成果在国内予以宣传。

2007年项目参训者之一表示：“此次培训为我的法律援助中心提供了很多重要的发展理念和技巧，比如开始某一项目的方向定位、融资解决方案等。我已向在新疆的律师同事们介绍了澳大利亚的法律援助体系，并用幻灯片演示我在澳大利亚的学习体验。有些律师对该活动兴趣浓厚，有些则热衷于了解澳大利亚的法律体系。”

2009年活动报名的截止日期为2008年10月31日。据中华全国律师协会国际部主任蓝虹介绍，2009年活动已经吸引大量律师关注，尤其是青年律师。

26

NEWS >>

ISSUE 5.9

BEIJING

Dechert gets new Beijing head from DLA PiperUS fi rm Dechert has netted US-trained

Henry Wang as managing partner of its newly-opened Beijing offi ce to “bridge the legal and cultural gaps between the East and West”, its chairman Barton Winokur said. Wang, previously general counsel for Shanghai General Motors, orchestrated the legal structure for the company’s investments while he was with the Chinese-US joint venture company.

Wang’s familiarity with government regulations and practice as well as his ability to structure transactions was obviously at the top of his resume. A Chinese native, Wang graduated with a Bachelor’s degree from the Shanghai Institute of Foreign Languages and worked for the Chinese Foreign Ministry and the United Nations before he obtained his law degree from the University of Wisconsin in the US and a Master’s degree in International Relations from the University of Chicago.

He left Shanghai General Motors to join DLA Piper in 2006 and represented Boeing, GMAC, Toyota, the Soros Fund, Blackstone, UniCredit and Iveco, among others. His focus is on structuring domestic and cross-border mergers & acquisitions, corporate fi nance, joint ventures and wholly foreign-owned entities, among others, and represents major global corporations, fi nancial institutions and private investors in connection with their corporate transactions involving China.

Earlier this year, Dechert opened its fi rst Asian offi ce in Hong Kong after entering into a formal association with local fi rm Hwang & Co. It obtained its licence to open its Beijing offi ce in August.

前欧华合伙人加入岱恪前欧华合伙人加入岱恪北京代表处北京代表处美国岱恪律师事务所北京代表处近日成立，并聘请前欧华北京合伙

人Henry Wang担任其北京办公室管理合伙人。岱恪主席Barton Winokur表示，希望Henry Wang能发挥桥梁作用，帮助客户跨越东西方法律和文化之间的鸿沟。Wang此前曾担任中美合资的上海通用汽车总法律顾问，为公司投资提供法律保障。

Wang 与政府监管部门和业内人士保持良好关系，可为交易确定合理架构，是其最突出的专业优势。Wang是中国人，毕业于上海外国语大学，获学士学位，此后进入外交部和联合国工作，后在美国威斯康星大学（University of Wisconsin）获法学学位，并在芝加哥大学获国际关系硕士学位。

2006年，Wang离开上海通用加盟欧华，曾为波音、通用、丰田、索罗斯基金、黑石基金、联信征信和Iveco等企业提供顾问服务。Wang 擅长的业务领域包括：跨境并购交易结构优化、公司融资、合资和外商独资企业等，曾为多家大型跨国公司、金融机构和私人投资者提供服务，协助其完成与中国相关的商务交易。

今年初，岱恪与香港当地的Hwang & Co律师事务所正式联合后，在香港成立首个亚洲办事处。上月（8月），岱恪获北京代表处执照。

Henry Wang, Dechert

UPDATE >>

International Tax

First Tax case in the Hong Kong High Court in 2008 Re: Compensation for Loss of Offi ce

Our tax case to the High Court – against the Hong Kong Commissioner of Inland Revenue - resulted in a substantial win for our client. This was the fi rst appeal to the Hong Kong High Court on a

tax matter in 2008; and the Court took a different view on the matter than the Hong Kong IRD. The main tenet, that compensation for loss of offi ce or employment is tax free in Hong Kong, remains intact, although the amount paid as compensation can be the subject of further fi ndings. The hearing was on 29 May 2008 and the judgment was handed down by Hon J Burrell; on 26 June 2008.

ProcedureIn this case, and to shorten the process, we by-passed the Board of Review on a point of law and appealed the Inland Revenue’s determination directly to the High Court.

The FactsOur client, a German National, was fi rst employed by the German bank “HvB” in 1976. He was regularly promoted within the bank. In 2000 he was posted to the Singapore Branch and in 2003 he was posted to the Hong Kong branch on a 3 year employment contract, all negotiated and agreed with HVB AG in Munich. In 2005 HvB was taken over by an Italian bank and there was no continuing role for our client. He agreed a termination arrangement in Munich in September 2005 and worked until December 2005 transitioning the new personnel into post. Compensation of HK$18.3m was made. The employment contract described compensation arrangements in the event of a termination, but the amount actually agreed and paid to the taxpayer was different, and subject to a separate written agreement.

The HK IRD assessed the whole amount because parts of the termination were mentioned in the employment contract, and they refused to accept that the whole payment was a separate compensation payment. To assist their argument, they split the payment into three elements, and argued that each part was taxable in Hong Kong. In our view this was overridden by the termination agreement, and, even if it was not, it related to his 29 years with the bank and should be pro rated accordingly. The IRD refused to accept either argument, and argued that it was paid according to the 2003 contract. In our view, splitting out the termination payment was an analysis invented by the IRD.

The JudgmentThe High Court agreed to our argument that HK$6.3m of the amount in dispute was a compensatory amount and tax free, but sided with the IRD on $8.9m of the payment made. Our client is now appealing the latter part of the High Court’s Decision.

Debbie Annells, Managing Director,AzureTax Ltd, Chartered Tax Advisers Suite 1010, 10/F Lippo Centre, Tower Two, 89 Queensway, Hong Kong.

www.azuretax.com, a member of AzureTax Group(Tel) +852 2123 9339 (direct line), (Main Line) +852 2123 9370,(Fax) +852 2122 9209

Registered with the Chartered Institute of Taxation for purposes of anti money laundering legislation.

Debbie Annells

NEWS >>


Following the retirement of former

Asian managing partner Jim Baird due to ill health, Peter Charlton, currently the global head of Clifford Chance’s corporate practice, has been elected to be Baird’s successor. He is moving from London to Hong Kong in November as the fi rm’s new regional managing partner.

Charlton specialises in corporate fi nance, domestic and cross-border M&A, restructurings, buyouts, takeovers and stock exchange matters. He has been a partner at Clifford Chance since 1986 and was appointed head of the global corporate practice in 2005. He was previously managing partner of the fi rm’s London offi ce.

“In the past 12 months, business and investment fl ows around the globe have changed beyond all recognition, and Asia increasingly sits at the heart of the world economy,” said Charlton, who has been a regular visitor to the region in the past few years as the head of the corporate practice.

“Leading Clifford Chance in Asia is the most exciting challenge in the fi rm

REGION

Clifford Chance elects global corporate head to Asia MP

BEIJING

Cadwalader loses sole Beijing partner to Allen & Overy

Former managing partner of Cadwalader Wickersham & Taft’s

Beijing offi ce, Mark Roppel, has joined Allen & Overy, leaving Cadwalader’s Beijing offi ce partnerless with fi ve associates. Roppel’s departure comes after recent news that 96 associates from the fi rm’s capital and fi nance groups were laid off. Cadwalader managing partner Bob Link had made an emergency visit to the Beijing offi ce after Roppel’s defection to Allen & Overy last month.

Cadwalader said that Roppel’s departure is unrelated to news of 96 lawyer redundancies affecting the fi rm’s capital markets and fi nance groups. Roppel joined Cadwalader’s New York corporate practice in 2005 from Shearman & Sterling’s New York mergers & acquisitions department, transferring to Beijing in 2006.

凯威莱德唯一北京合凯威莱德唯一北京合伙人转投安理伙人转投安理凯威莱德律师事务所北京代表处管理合伙人

Mark Roppel已加盟安理，使凯威莱德北京办公室只剩五位律师留守。近期有消息称，凯威莱德资本和金融业务部门有96位律师被解聘，Roppel的离职正值此敏感期。上月，Roppel转投安理之后，凯威莱德执行合伙人Bob Link紧急赶赴北京稳定大局。

凯威莱德表示，Roppel的离职与事务所资本市场和金融业务部裁减96名律师的新闻并无关联。2005年，Roppel离开Shearman & Sterling律师事务所的纽约并购业务部，加盟凯威莱德纽约办事处的公司业务部，2006年调至北京任职。

Jim Baird, CC

today, and growing our business in the region is critical to the fi rm’s success,” said Charlton.

According to the fi rm, the process of appointing a new global head of the corporate practice will begin shortly.

高伟绅全球公司业务高伟绅全球公司业务主管升任亚洲执行合主管升任亚洲执行合伙人伙人高伟绅前任亚洲执行合伙人Jim Baird因健

康问题退休后，全球公司业务主管Peter Charlton成为Baird的继任者。Peter Charlton将于11月由伦敦赴香港任职，成为高伟绅新任地区执行合伙人。

Charlton犹擅长公司融资、国内和跨境并购、重组、全部收购、接管和股票交易业务。自1986年以来，Charlton便担任高伟绅的合伙人，2005年任全球公司业务主管。Charlton曾任事务所伦敦办事处管理合伙人。

过去几年内，Charlton作为公司业务主管，曾定期到亚洲工作和视察，他表示：“过去12个月内，全球的业务和投资流向变化超出所有人的预料，亚洲正日益成为全球经济核心。”

Charlton认为：“当今，在亚洲地区带领高伟绅发展是最激动人心的挑战，亚洲地区的业务增长是事务所获得成功的重要因素。”

高伟绅透露，将在短期内确定全球公司业务主管的新人选。

28

NEWS >>

ISSUE 5.9

LATERAL HIRES ►Name Leaving Going to Practice Location

Lan Lan Tianlun & Need Jincheng & Tongda International practice Beijing

Mark Roppel Cadwalader Wickersham & Taft

Allen & Overy M&A Beijing

James Luo Motorola Bird & Bird Intellectual property Beijing

Thomas Man Orrick Lovells M&A Beijing

Mark Allen Cohen US Embassy Jones Day Intellectual property Beijing

Stephen S. Birkett Hong Kong Securities and Futures Commission

Morrison & Foerster

Capital markets, Securities

Hong Kong

Luke Gannon Freehills DLA Piper Funds Hong Kong

Michael KS Chan Jones Day K& L Gates M&A, Securities Hong Kong

Gavin Lewis UBS AG Herbert Smith Litigation Hong Kong

Cadwalader Allen & Overy

Allen & Overy takes Cadwalader’s sole Beijing partner Allen & Overy has bolstered its capital markets offering with the hire of Mark Roppel, the former managing partner of Wall Street fi rm Cadwalader Wickersham & Taft’s Beijing offi ce.

Roppel, who took the helm at Cadwalader’s Beijing offi ce in 2006, is now based in A&O’s Shanghai offi ce as a corporate practice partner, but is also expected to split his time between Beijing and Hong Kong.

A&O’s head of US law, David Johnson, said: “With his immense experience, Mark will immediately broaden our US M&A capabilities and signifi cantly strengthen our existing capital markets practice in Hong Kong, China and across the region.”

安理将凯威莱德唯一的北京合伙人招至麾下安理将凯威莱德唯一的北京合伙人招至麾下安理律师事务所将华尔街律师事务所凯威莱德北京办事处前执行合伙人Mark Roppel招至麾下，增强其资本市场领域的专业实力。

Roppel于2006年担任凯威莱德北京办事处合伙人，现在安理上海办事处担任公司业务合伙人，预计未来工作会往返于北京和香港。

安理美国法律主管David Johnson表示：“Mark拥有丰富经验，可立即增强安理在美国并购领域的服务实力，并巩固事务所在香港、中国和亚太地区资本市场业务的实力。”

Motorola Bird & Bird

Bird & Bird gets IP specialist from MotorolaIntellectual property veteran James Luo is now heading Bird & Bird’s Asian enforcement practice in Beijing. He was previously Motorola’s senior IP counsel and in charge of IP enforcement and litigation in mainland China, Hong Kong, Taiwan, Japan, South Korea and Vietnam.

Luo has extensive experience in all types of contentious and non-contentious IP work covering patents, trademarks, copyright and design, preparation of IP enforcement strategies, handling lobbying efforts with law makers and IP enforcement authorities and negotiation of royalty licences with Chinese multinationals.

Bird & Bird’s intellectual property team in Hong Kong and Beijing provides the full range of contentious and non-contentious IP services. The fi rm is able to fi le trademarks directly in China through its own trademark agency Bird & Bird IP (Beijing) Co.

鸿鹄将摩托罗拉的知识产权专家招至麾下鸿鹄将摩托罗拉的知识产权专家招至麾下知识产权专家罗正红现在北京担任鸿鹄律师事务所亚洲执法业务主管。罗正红此前曾任摩托罗拉公司高级知识产权顾问律师，负责在中国大陆、香港、台湾、日本、韩国和越南的知识产权执法活动和诉讼。

罗正红对于处理各种类型的知识产权事务均有丰富经验，包括涵盖专利、商标、版权和设计的争议和非争议知识产权事务、知识产权执法策略的筹备、负责向法律制订者和知识产权执法机构的游说工作以及就特许授权问题与中国跨国企业谈判等。

鸿鹄在香港和北京的知识产权团队提供完善的争议和非争议知识产权服务。事务所可通过自己的商标代理机构Bird & Bird IP (Beijing) Co 在中国直接申请商标。

UBS AG Herbert Smith

Bank in-house counsel returns to Herbert SmithMaking the move in-house has become somewhat commonplace for today’s lawyer, but a move in the other direction – from in-house to private practice – is something that is much harder to pull off.

Not so for Gavin Lewis who has joined Herbert Smith’s Hong Kong offi ce as a partner. Lewis’ move brings the number of partners in Herbies’ Hong Kong litigation team up to fi ve. Lewis will link up with Herbies’ litigation and contentious regulatory practice after having spent the last two years at UBS

James Luo

MAYER BROWN JSM EXPANDS TAX PRACTICEMayer Brown JSM has expanded its tax team in Beijing with the addition of one consultant and two lawyers.

Julie Zhang, a specialist in tax planning and tax implications, leads the tax practice in China, and joins Mayer Brown JSM from Baker & McKenzie where she assisted multinational corporations on tax structuring strategies and offered advice on international taxation to PRC enterprises investing overseas. The two new lawyers include Kevin Wang and Xin Jiang, both of whom have strong tax capabilities as well as M&A backgrounds.

Mayer Brown JSM拓展税务业务Mayer Brown JSM拓展税务业务Mayer Brown JSM新增一位顾问律师和两位律师，继续扩充北京办事处税务团队。

Julie Zhang是税务计划和税务执行领域的专家，是中国的税务领域权威人士，加盟Mayer Brown JSM之前曾在贝克∙麦坚时任职，协助跨国公司制定税务结构策略，并向投资海外的中国企业提供国际税务方面的顾问服务。两位新律师分别是Kevin Wang 和 Xin Jiang，均有深厚的税务专业实力和并购背景。

HONG KONG LAWYERS JAILED FOR HK$2.15bn SCAMThree lawyers who were charged with conspiracy to defraud in a scam involving HK$2.15bn have been jailed for up to 33 months. The two partners of Koo and Partners, Fan Cho-man and Donald Koo Hoi-yan, were sentenced to 33 months and 24 months in jail respectively. Partner at Deacons Simon Lai Sau-cheong received a 30-month jail sentence.

All allegedly conspired with Zhou Zhengyi – ex-property tycoon in Shanghai – to defraud Hong Kong’s stock exchange, the Securities and Futures Commission and the shareholders of ImGo in relation to the “false representation they made in the joint announcement and composite offer and response document regarding the acquisition of ImGo”, ICAC said.

香港律师因涉21.5亿港元的欺诈案入狱香港律师因涉21.5亿港元的欺诈案入狱三名被控参与价值高达21.5亿港元欺诈案的律师被判入狱，最高刑期达33个月。顾恺仁律师事务所合伙人范楚文和顾恺仁分别被判入狱33个月和24个月。的近律师行合伙人黎寿昌被判入狱30个月。

所有获罪律师均被控与上海前地产大鳄周正毅合谋欺诈香港联交所、证券及期货事务监察委员会和建联通股东，廉政公署表示：“有关被告在为收购“建联通”发表的联合公告、收购建议和回应的综合文件上虚假陈述。”

news in brief >>

Julie Zhang, Mayer Brown JSM

NEWS >>


AG heading up the investment bank’s litigation and regulatory inquiries unit for Asia-Pacifi c.

Lewis, who fi rst joined the fi rm in 1996, had advised clients involved in investigations by the Securities and Futures Commission and the Independent Commission Against Corruption in Hong Kong.

银行法律顾问重返史密夫银行法律顾问重返史密夫对于现今的公司律师而言，离开商务律师事务所而加入企业法务部已司空见惯，但由公司内部律师转为商务律师的反向转变则很少出现。

此前曾在瑞士银行任职两年，担任投资银行亚太区诉讼和监管咨询业务组负责人的Gavin Lewis一反常规，加盟史密夫律师事务所，担任香港办事处合伙人。Lewis加盟后，将参与诉讼和争议性监管业务，他的加盟使史密夫香港办事处诉讼团队的合伙人增至五位。

Lewis曾于1996年第一次加盟该事务所，主要为涉及香港证券及期货事务监察委员会和廉政公署（ICAC）调查的客户提供顾问服务。

Orrick Lovells

Lovells acquires M&A lawyer for Beijing offi ceLovells has appointed Thomas Man as a partner for its Beijing offi ce. Man, a Shandong native, came to the fi rm from Orrick where he acted on high-profi le M&As, divestitures and JVs. Widely known as a ‘greenfi elds’ expert, Man was also formerly a corporate and securities partner in the Chicago, Beijing and Shanghai offi ces of Baker & McKenzie.

Man currently serves as one of only two foreign legal advisors appointed to the drafting committee of China’s Institute of Evidence Law and Forensic Science, which was commissioned by the Supreme People’s Court to draft the fi rst Uniform Rules of Evidence for all Chinese courts.

The move marks the third time this year that a high-profi le partner has made the move to Lovells. Last month banking & fi nance guru Owen Chan joined the fi rm from Stephen Harwood & Lo and earlier this year corporate partner Fred Chang.

路伟为北京并购团队再添一员路伟为北京并购团队再添一员路伟任命满运龙担任北京代表处合伙人。满运龙是山东人，此前曾在奥睿律师事务所受理高端并购、资产剥离和合资项目。满律师此前曾在贝克∙麦坚时律师事务所芝加哥、北京和上海办事处担任公司和证券业务合伙人。

满运龙现为中国证据科学研究院起草委员会任命的两位外国法律顾问之一，最高人民法院委托该机构起草首部《统一证据规定》，供所有中国法院使用。

满运龙的加盟标志着今年第三位高级合伙人加盟路伟。上个月，银行和金融法资深律师Owen Chan 离开罗夏信加盟路伟，今年初，公司业务合伙人张羲淳加盟路伟。

US Embassy Jones Day

Intellectual property expert hops to Jones DayMark Allen Cohen, senior intellectual property attache

at the US Embassy in Beijing, has joined Jones Day’s Beijing offi ce as of counsel, focusing on intellectual property and technology transfer matters.

Cohen served as an attorney-adviser for the Offi ce of International Relations of the US Patent and Trademark Offi ce and was involved in bilateral patent and trademark prosecution, Internet copyright enforcement, civil litigation technical assistance, anti-monopoly law, domain name dispute resolution, standards setting and technology transfer initiatives.

知识产权专家跳槽至众达知识产权专家跳槽至众达Mark Allen Cohen（柯恒）曾任北京美国大使馆高级知识产权专员，现加盟众达律师事务所北京办事处，担任顾问律师，专业领域为知识产权和技术转让事宜。

Cohen 曾担任美国专利和商标局国际关系办公室顾问律师，曾参与双边专利和商标诉讼、互联网版权执行、民事诉讼技术协助、反垄断法、域名纠纷解决、标准确立和技术转让事务。

The Hong Kong SFC Morrison & Foerster

Morrison & Foerster hires corporate fi nance veteranMorrison & Foerster’s securities presence in the region is getting a boost after adding Stephen Birkett to its Hong Kong team.

Birkett’s expertise includes securities regulatory matters, and he joined the fi rm from the Securities and Futures Commission in Hong Kong, where he served for three years as senior director of Corporate Finance. Before that, he was a partner at Johnson Stokes & Master (now Mayer Brown JSM) where he was head of Corporate Finance.

Birkett has more than 20 years of experience in handling corporate fi nance transactions in Hong Kong and also London.

美富招募公司融资专家美富招募公司融资专家Stephen Birkett加盟美富香港团队后，事务所在该地区证券领域的实力如虎添翼。

Birkett的专长包括证券监管事务，加盟事务所之前，他曾在香港证券及期货事务监察委员会（SFC）担任高级公司融资主任达三年。在SFC任职之前，他曾是孖士打律师行（现Mayer Brown JSM）合伙人，担任公司融资业务主管。

在处理香港和伦敦的公司融资交易方面，Birkett 拥有20余年从业经验。

Jones Day K&L Gates

K&L Gates lures Chan from Jones DayK&L Gates announced that it has secured the services of corporate partner Michael KS Chan in its Hong Kong offi ce.

Chan, who was previously a partner at Jones Day, is a noted M&A and securities specialist who has particular expertise in venture capital and private equity investments, corporate restructurings and fi nance.

The move is not only expected to bolster the fi rm’s offering in these areas as well as being a shot in

the arm for its China cross-border capabilities. The fi rm opened its second offi ce in China in May this year and more recently absorbed nine lawyers from Taipei-based fi rm J&J Attorneys-at-law.

高盖茨将众达合伙人招至麾下高盖茨将众达合伙人招至麾下高盖茨宣布，公司业务合伙人Michael KS Chan正式加盟事务所香港办事处。

Chan 此前曾在众达担任合伙人，是著名的并购和证券专家，在风险资本、私募股权投资、公司充足和融资领域有独特建树。

Chan 的加盟不仅能使事务所在相关领域的实力大大加强，还将拓展事务所在中国提供跨境服务的实力。今年5月，事务所在中国开设第二家办事处，近期还从台北文利申法律事务所吸引9位律师加盟。

Freehills DLA Piper

Head of funds from Freehills moves to DLAIn setting up a new transactional funds practice dedicated to its clients on equity capital markets and M&A in Asia, DLA Piper has hired Freehills’ partner and head of funds Luke Gannon to head the practice in Hong Kong. Gannon said he decided to join DLA Piper because it would give him more opportunity to work cross-border and experience a new culture. “Hong Kong is one of the biggest fi nancial centres in the world; it’s still the gateway to China,” he said.

Freehills律师事务所基金业务主管加盟欧华Freehills律师事务所基金业务主管加盟欧华欧华致力于开拓全新的交易基金业务，为亚洲地区股权资本市场和并购领域的客户提供服务，近日成功吸引Freehills的合伙人兼资金业务主管 Luke Gannon加盟香港办事处。Gannon表示，加盟欧华的原因在于，新事务所将为他提供更多参与跨境业务的机会，且能够体验全新文化。他表示：“香港是全球最大的金融中心之一；也是通往中国的门户。”

Hong Kong Shanghai

Linklaters relocates capital markets partner to ShanghaiIn response to the rapid growth and increasing levels of sophistication of China’s capital markets, Linklaters’ partner William Liu has relocated from Hong Kong to Shanghai. The move has positioned Linklaters as the fi rst international fi rm to offer clients the services of a China-based debt and equity-linked specialist. Liu’s signifi cant experience in international and domestic capital markets including public debt, equity and equity-linked deals as well as illiquid investments is further strengthen the fi rm’s China capital markets.

年利达将资本市场合伙人调至上海年利达将资本市场合伙人调至上海为应对中国资本市场的快速发展和交易复杂程度的不断提升，年利达将合伙人William Liu由香港调至上海。Liu在国际和国内资本市场拥有丰富经验，包括公共债务、股权和股权相关交易和非现金投资，他的调任将进一步巩固年利达在中国资本市场的地位。

Thomas Man

Stephen Birkett

Luke Gannon

30

FEATURE | ALB China Hot 25 >>

ISSUE 5.9

Over the last 12 months, a wealth of lawyers have set our news room abuzz. In this year’s ALB China Hot 25 we have again catalogued the feats of those who made a difference, made an impact, or went beyond the call of duty.

Now in its fi fth year, the ALB China Hot 25 provides an admittedly subjective overview of the past year, listing those legal personalities who have been exceptional in their fi eld.

The purpose of this article, as always, is not to offend or serve as a defi nitive guide to the industry but, rather, to entertain

L-R: Liu Wei, DLA Piper; Wang Zhongde, Dacheng; John Chu, Jun He; Wang Jiabin, Lifang & Partners; Dong Zhengwei, Zhongyin; Lawrence Liu, ACC China

30


ISSUE 5.9

Over the last 12 months, a wealth of lawyers have set our news room abuzz. In this year’s ALB China Hot 25 we have again catalogued the feats of those who made a difference, made an impact, or went beyond the call of duty.

Now in its fi fth year, the ALB China Hot 25 provides an admittedly subjective overview of the past year, listing those legal personalities who have been exceptional in their fi eld.

The purpose of this article, as always, is not to offend or serve as a defi nitive guide to the industry but, rather, to entertain

L-R: Liu Wei, DLA Piper; Wang Zhongde, Dacheng; John Chu, Jun He; Wang Jiabin, Lifang & Partners; Dong Zhengwei, Zhongyin; Lawrence Liu, ACC China



THE

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Why hot: Lam topped off a wonderful year by winning International Dealmaker of the Year at the recent ALB China Law Awards, cementing her reputation as one of the leading dealmakers in the equity arena. Over the course of 2007 Lam worked on a series of market-shaping deals including ICBC’s US$5.5bn acquisition of a strategic interest in South Africa’s Standard Bank and China Railway Group’s US$5.5bn IPO.

Name: Celia Lam 林楚丽Title: PartnerFirm/organisation: Linklaters Location: Beijing

Why hot: Led by David Yu, Llinks’s M&A team has reported strong performance in the past 12 months with the completion of more than 30 deals. Deal highlights include advising Zim Israel Integrated Shipping Services on its US$2.7bn investment in China Railway United International Container, advising on Shanghai Automotive Industry Corporation (Group)’s acquisition of Nanjing Automobile (Group) Corporation, and acting for the target company in Warburg Pincus’ US$200m investment into Redstar Macalline.

Name: David Yu 俞卫锋Title: PartnerFirm/organisation: LlinksLocation: Shanghai

Why hot: Yan Yu enjoys a strong reputation for her work in capital markets. She excels in providing full services and support to large companies, especially large state-owned enterprises, in relation to their IPOs and fi nancing. Most recently, Yan has been involved in the US$1.5bn “fi rst A then H” listing of China South Locomotive, and the A-listings of China Railway Group and China Coal in Hong Kong and Shanghai.

Name: Yan Yu 颜羽 Title: Managing partner Firm/organisation: JiaYuanLocation: Beijing

Why hot: Less than two years after joining DLA Piper, Liu Wei has been elevated to managing partner of the fi rm’s Beijing offi ce. Liu, who obtained a PhD in law from the University of Cambridge, is also the joint head of DLA Piper’s Asia capital markets practice. He specialises in H-share and red-chip listings in Hong Kong and has advised on more than 100 IPOs and listings including the US$5.5bn listing of China Railway Group and China Merchants Bank’s recent acquisition of Wing Lung Bank.

Name: Liu Wei 刘巍 Title: Managing partner of the Beijing offi ceFirm/Organisation: DLA PiperLocation: Hong Kong/Beijing

Why hot: Jonathan Zhou, founding partner of Fangda and managing partner of the fi rm’s Beijing offi ce, has extensive experience in M&A transactions, domestic and overseas share offerings, and private equity investments. As a lead partner, Zhou has advised Alibaba on its IPO, acted as the underwriter’s counsel in COSCO’s A-share public offering, and acted as Carlyle’s counsel in its acquisition of a 20% stake in China Pacifi c Insurance Group, which is the largest private equity investment in China so far.

Name: Jonathan Zhou 周志峰Title: Managing partner of Beijing offi ceFirm/Organisation: Fangda & PartnersLocation: Beijing/Shanghai

32


ISSUE 5.9

Name: Charles Guan 管建军Title: Managing partnerFirm/organisation: Grandall Legal Group Location: Shanghai

Why hot: Charles Guan enjoyed an outstanding year in 2007. Deal highlights include advising Giant Interactive Group on its IPO, Cgen Media on its sale to Focus Media, Hoau Logistics (the largest road transportation group in China) on its sale to TNT Group, and Jiayu Logistics on its sale to YRC Worldwide. Guan was awarded Best Lawyer for M&A by Global M&A Research Center and the CMAA in 2007. At the ALB China Law Awards 2008, Grandall Legal Group (Shanghai) was awarded Shanghai Firm of the Year.

Name: Zhu Linhai 朱林海Title: Managing partnerFirm/organisation: AllBrightLocation: Shanghai

Why hot: After losing a few important members of the corporate group, AllBright Law Offi ces’ new managing partner, Zhu Linhai, has revamped the fi rm’s management structure and is leading Shanghai’s largest fi rm to new heights. AllBright’s revenues in 2007 increased signifi cantly to US$32m, while the number of partners has grown from 41 to 62. As part of its strategic growth plan, AllBright established the Sino-Global Legal Alliance in September 2007 with international fi rm Lovells and eight leading domestic fi rms.

Why hot: Under Wang Zhongde’s management, Dacheng has had another bumper year. The fi rm has opened fi ve new offi ces across China in the past 12 months, doubled its revenues and attracted a large number of new lawyers and partners. With all of these achievements, Wang was awarded Managing Partner of the Year at the 2008 ALB China Law Awards. He speculates that his fi rm will continue its exponential growth in the years to come.

Name: Wang Zhongde 王忠德Title: Managing partnerFirm/organisation: DachengLocation: Beijing

Why hot: Liu Zhengdong, the founding and managing partner of Shanghai fi rm Junyue, made the headlines when he took over the helm of the Shanghai Bar Association from Lv Hongbing, who stepped down at the end of his three-year term. The newly elected president of the association, the youngest of all presidents of local bar associations, will follow in the footsteps of his predecessor and take the legal profession from strength to strength, servicing Shanghai’s dynamic growth as an international business and fi nancial hub.

Name: Liu Zhengdong 刘正东Title: PresidentFirm/organisation: Shanghai Bar AssociationLocation: Shanghai

THE

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Why hot: King & Wood has set itself an ambitious plan to make the country’s largest fi rm a dominant player in the high-end corporate, capital markets and cross-border transactions scene. The person who is tasked with this project is Wang Ling, the fi rm’s managing partner. Under Wang’s management, the fi rm has expanded into emerging key markets in second-tier cities, including Tianjin, Suzhou and Qingdao, and ventured into Australia through establishing a strategic alliance with Sydney-based fi rm Gilbert + Tobin. King & Wood has also topped many league tables, such as Bloomberg’s 2007 Ranking of IPO issuers’ counsel on the Hong Kong Stock Exchange by volume.

Name: Wang Ling 王玲 Title: Managing partnerFirm/organisation: King & WoodLocation: Beijing



Why hot: As Haier Group is among the pioneers in establishing global brands and global markets, so is the group’s general counsel, Su Xiaoxi, a pioneer in assisting the group in ventures at home and abroad. Under Su’s leadership, the in-house department has worked with a large number of international and national fi rms and continues to value the role external counsel can play. The group’s in-house team continually strives to broaden and deepen its expertise and improve internal standards of practice and management.

Name: Su Xiaoxi 苏效玺Title: General counsel Firm/organisation: Haier GroupLocation: Qingdao

Why hot: Wang Lei, a former deputy chief of the WTO Desk in the Ministry of Foreign Trade and Economic Cooperation, who had engaged in negotiations for China’s WTO accession, is a veteran lawyer and expert on the WTO and in international trade remedy. In the past 12 months, Wang has regularly been invited by offi cials from other Asian countries, such as Laos and Vietnam, to advise on matters relating to the WTO.

Name: Wang Lei 王磊Title: Partner Firm/organisation: Gaopeng & PartnersLocation: Beijing

Why hot: Dong Zhengwei is the fi rst lawyer to put China’s newly enacted anti-trust law to the test and has become well-known domestically and globally. He has formally lodged a complaint with the regulators against Microsoft for breaching the anti-monopoly law and proposed a US$1bn fi ne against the global software giant. The regulators, including the Ministry of Commerce and National Development and Reform Commission, have offi cially notifi ed Dong that investigations into the matter will be conducted.

Name: Dong Zhengwei 董正伟 Title: PartnerFirm/organisation: ZhongyinLocation: Beijing

Name: Wang Jiabin 王加斌 Title: PartnerFirm/organisation: Lifang & PartnersLocation: Beijing

Why hot: With an increasing number of Chinese companies being affected by the US ITC’s section 337 investigations, Wang Jiabin, dual qualifi ed in the PRC and the US and specialising in IP law, TMT and ITC 337 investigations, has often been sought out by Chinese companies to resolve their IP and trade-related disputes overseas. A Lifang team led by Wang is currently representing several Chinese clients in two patent infringement cases before the ITC.

Why hot: Liu Chi, a pioneer in sports law and arbitration, has played an important part in ensuring disputes arising during the 2008 Beijing Olympic Games are resolved effectively and with fairness. Last November, he was appointed by the Court of Arbitration for Sport (CAS) as one of the 12 ad hoc arbitrators for the CAS ad hoc division for the 2008 Beijing Olympic Games. The division provides all participants in the Games with free access to justice, rendered within time limits that keep pace with the competition.

Name: Liu Chi 刘驰 Title: Senior counselFirm/organisation: Jun HeLocation: Beijing

THE

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34


ISSUE 5.9

Why hot: A team of former Junyi lawyers led by Liu Yi has joined forces with Run Bo Law Offi ce, headed by Wang Yadong, to forge a new brand – Run Ming. The team has brought substantial expertise in aircraft fi nance/leasing, aerospace projects, banking and fi nance and foreign investment to the new fi rm. Since it was established, the fi rm’s lawyer headcount has increased by 20% and revenue growth has been “very satisfactory”.

Name: Liu Yi 刘屹Title: Executive partnerFirm/organisation: Run MingLocation: Beijing

Why hot: One of the fi ve founding partners of Jun He, John Chu has decided to rejoin one of the country’s leading law fi rms 12 years after he left. Since leaving the fi rm in 1994, Chu has worked as in-house counsel for Motorola, Nortel and General Motors. Most recently, he was a partner with Beijing fi rm Broad & Bright.

Name: John Chu 储贺军Title: PartnerFirm/organisation: Jun HeLocation: Beijing

Why hot: Former managing partner of O’Melveny & Myers’ Beijing offi ce, Howard Zhang has given up his management role to focus on fee-earning as a partner in Davis Polk & Wardwell’s Beijing offi ce, which was opened last February. Zhang is reputed for his expertise in venture capital and private equity transactions. In his new role at Davis Polk, he will advise clients on cross-border securities, M&A and strategic investment transactions.

Name: Howard Zhang 张新华Title: PartnerFirm/organisation: Davis Polk Location: Beijing

Why hot: The former Asia head of DLA Piper has jumped ship to Heller Ehrman to succeed Jonathan Palmer as the regional managing shareholder. Seddon has been credited with the rapid regional expansion of DLA Piper, which demonstrated impressive revenue and headcount growth under his leadership as well as two new offi ce openings. His track record of growing law fi rms positions Heller Ehrman for rapid expansion.

Name: Nick SeddonTitle: Regional managing shareholder, AsiaFirm/organisation: Heller EhrmanLocation: Hong Kong

THE

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Why hot: 20-year-old Jinmao, which was one of the top three law fi rms in Shanghai, has split into two fi rms. Former managing partner Li Zhiqiang and eight other partners have splintered off to establish Jinmao-Kaide, while the remaining partners and lawyers continue to practise at Jinmao. The split-up case was high-profi le in Shanghai’s legal community and was spurred by an acrimonious quarrel between senior partners.

Name: Li Zhiqiang 李志强Title: PartnerFirm/organisation: Jinmao-KaideLocation: Shanghai



Why hot: ICBC has had an outstanding year, and at the helm of its legal department is Zhang Wei. After making sure all things went smoothly for ICBC’s IPO in 2006 – the world’s largest global public offering ever, Zhang had another busy year assisting the bank in closing big-ticket M&A transactions. He has led his in-house team, working closely with board executives and external counsel, and ensured the resounding success of ICBC’s recent US$5.5bn investment in South Africa’s Standard Bank. He has also handled his organisation’s remittance freezing dispute with the US Offi ce of Foreign Assets Control.

Name: Zhang Wei 张炜 Title: Head of legalFirm/organisation: Industrial and Commercial Bank of ChinaLocation: Beijing

Why hot: Zhang Yuejiao is the fi rst ever Chinese judge on the WTO’s highest judiciary body – the Appellate Body – which gives fi nal rulings on trade disputes. Zhang was appointed by the WTO late last year and commenced her four-year term on 1 June 2008. Zhang has extensive experience in the areas of international trade, fi nance and investment. She once held senior positions at the Ministry of Commerce as well as at the Asian Development Bank.

Name: Zhang Yuejiao 张月姣Title: Senior counsel Firm/organisation: Jun HeLocation: Beijing

Why hot: With extensive experience in anti-dumping proceedings, Pu Lingchen has been in the spotlight recently. He was invited by the Ministry of Commerce to give a lecture to a delegation of developing country offi cials in Beijing this June. At the lecture, Pu shared his knowledge and experiences with trade offi cials from countries including Thailand, Vietnam, Malaysia, Russia, South Africa and Brazil. In 2007, Pu Lingchen provided supporting legal arguments on anti-dumping and countervailing as an expert consultant to the Ministry of Commerce in the WTO’s Doha Round negotiations.

Name: Pu Lingchen 蒲凌尘 Title: Partner Firm/organisation: ZhonglunLocation: Beijing

SH

ININ

G

LIG

HTS

Why hot: Liu has been appointed as the chief representative of the Association of Corporate Counsel (ACC) in China. He is responsible for building ACC’s membership in China and setting up a platform for Chinese corporate counsel to take their place in the international community. Liu and the ACC regularly host seminars and provide training to in-house lawyers. Liu also serves as general counsel of the China Electronic Systems Engineering Corporation, and has been named one of 25 outstanding in-house lawyers in Asia by ALB.

Name: Lawrence Liu 刘宏强Title: Chief representativeFirm/organisation: ACC ChinaLocation: Beijing

Name: Tang Jinlong 唐金龙 Title: Chief partnerFirm/organisation: ZhongyinLocation: Beijing

Why hot: Riding the wave of a major overhaul of China’s laws relating to lawyers, Tang Jinlong, founding partner of Zhongyin, has announced a plan for converting the fi rm to special general partnership, a similar structure to limited liability partnership in the US, following a merger between Zhongyin and Zhengtai. Tang is the fi rst managing partner to take the plunge to adopt the new structure, hoping to grow the size of the fi rm signifi cantly and better manage risks associated with existing practices and further growth.

36

FEATURE | trademark >>

ISSUE 5.9

RISING NUMBER OF REGISTERED ►TRADEMARKS AND INFRINGEMENTS

Figures from China’s State Administration for • Industry & Commerce (SAIC) show that, by the end of 2005, the country had accumulated 2.37 million registered trademarks, among which 422,000 were registered by foreign enterprises from 129 countries. In 1993, the total number of registered trademarks was roughly 90,000 including 10,000 foreign trademarks from 20 countries.Li Dongsheng, deputy director of SAIC, said the • Administrations for Industry & Commerce (AICs) at all levels across the country dealt with 193,332 trademark infringements, including 28,000 foreign-related cases, between 2001 and 2007. Close to 800 suspects involved in 774 cases were transferred to the police for criminal investigations.

INTELLECTUAL PROPERTY RIGHTS AND ►THE BEIJING OLYMPICS 2008

According to statistics, AICs has dealt with 1,128 • Olympic symbol-related infringement cases from 2004–06, in which the damages amount to RMB14.9m (US$2.18m) and fi nes totalled RMB8.38m (US$1.23m). Seven suspects involved in two cases were transferred to the judicial authorities for criminal liabilities. In 2006, AICs further intensifi ed their campaigns to crack down on infringement of Olympic symbols. Altogether, 428 cases were dealt with, which is a 45% increase compared with that of 2005.

Last month, law fi rm Allens Arthur Robinson dismantled an international operation that was illegally selling t-shirts bearing

World Wide Fund for Nature’s (WWF) iconic panda trademark. The source was in China, distributing the goods on alibaba.com and being sold at Paddy’s Market in Sydney.

A few phone calls between Sydney and China later and the trademark infringer was located and legal letters were served, forcing an immediate shut-down. Allens’ intellectual property partner, Andrew Wiseman, contacted his Beijing counterparts – practice manager, Ted Marr, and lawyer, Jimmy Huang – and shut down the illegal operation. “Each new or repeat player who pops up selling pirated goods needs to be shut down. The best, but often more diffi cult, task

Trademark enforcement makes its markIntellectual property rights lawyers started embracing tougher enforcement of trademark law in the country’s lead up to host the Beijing Olympics. Lawyers told ALB China that tougher enforcement is one sure sign of the country’s commitment to keep its legal infrastructure up to pace with its economic development

is to locate the source and take action. It secures not just an Australian solution, but a global one,” says Wiseman.

The truth is that multinational companies are taking the lead in enforcement efforts against trademark infringements here. Budgets have been allocated to employ in-house lawyers and to commence investigative work. In earlier days, self-help was often the most basic form of IP protection when government agencies were not so pro-active.

“We work with local companies, international companies and law fi rms to track down trademark infringers. It can be a very long process, but we have to start somewhere,” says Spring

Spring Chang, Chang Tsi &

Partners



Chang, head of Chang Tsi & Partners’ intellectual property department.

A lot of the IP lawyers’ investigative and enforcement work is confi dential for a reason – so they can stay ahead of the counterfeiters. Any anti-piracy work undertaken by IP enforcement lawyers almost always involves a web of private investigators and agents who try to work up the food chain to nab the big players.

“We have our local networks who collect information on where the counterfeiters operate. At the end of the day, we have to evaluate if it’s worth our while to conduct a raid. The value must be at least double the lawyer fees,” says James Luo, director of Bird & Bird’s intellectual property group and head of the IP enforcement practice in Asia.

For example, fi rms like Motorola have more than 40 agencies, including law fi rms, to provide sightings of counterfeit handsets and mobile phone accessories

around the country. A few years ago, a syndicate was uncovered and found with RMB7m worth of counterfeit goods in Guangzhou. Luo and his team pressed for criminal liability.

Luo is also Motorola’s senior IP counsel for North Asia and is in charge of IP enforcement and litigation in mainland China, Hong Kong, Macau, Taiwan, Japan, Korea and Vietnam. He led the 2006 lawsuit for Louis Vuitton, Prada, Chanel, Burberry and Gucci against the landlords of the Beijing Silk Market for allowing counterfeit items to be sold there.

Enforcement is the keyTrademark infringers can expect more law fi rms to get in on the act as business owners fi nd more support from the state government in cracking down on those who persist in breaking the law. “China is becoming more open and competitive as the economy grows. Thus, there’ll be an upward trend in trademark infringement cases at the same time. One way to curb

this is through effective government legislation,” says Chang.

“I’ve witnessed protection of IP over the last 10 years and there’s certainly

IN THE COURTS: TRADEMARK ►INFRINGEMENT CASES

May 2008:• Shampoo pirates: The Xihu District People’s Court in Nanchang, Jiangxi Province, jailed a man for selling counterfeit shampoo. There were close to 2,000 cases of counterfeit trademark representations of Rejoice, Pantene, Olay, and Lux. They were distributed widely in Hongcheng Market, Nanchang. Xu Jin earned RMB152,941 (US$22,390) from the illegal sales. The unsold illegal goods were worth RMB248,826 (US$36,428).April 2008:• Without permission from Lacoste SA, Shaoxing Shulan Knitting & Garments Co Ltd labelled its products with the trademark representation ‘LACOSTE & Device’. The Shaoxing Intermediate People’s Court in Zhejiang Province ruled that Shaoxing Shulan should immediately stop the infringement and compensate Lacoste SA with RMB200,000 (US$29,256).July 2007:• The Shenzhen Ministry of Security worked with the US Federal Investigation Bureau to smash a major piracy ring which had manufactured fake Microsoft products.

James Luo, Bird & Bird

38


ISSUE 5.9

been a shift from administrative enforcement to include criminal enforcement. For a long time, multinationals have been lobbying hard to protect their IP by pressing for criminal liability on infringers,” says Luo.

Under the current law, Administrations for Industry & Commerce (AICs) have the authority to transfer cases to the courts for judicial criminal action. So, in addition to imposing fi nes and awarding damages to the rightful IP owner (based on the average price of the genuine goods), jail sentences of up to seven years can also be meted out to counterfeiters. This applies across the board – from local to foreign counterfeiters.

Last December, the Guangdong High People’s Court jailed Swedish mobile phone charger manufacturer Martin Marsousher Barzargan for 15 months and fi ned him RMB50,000 (US$7,143) for illegally using the registered trademarks of Motorola, Nokia, Sony Ericsson and Samsung.

Morphing piratesLovells’ head of IP in China, Douglas Clark, emphasises that “effective enforcement” is the key. “The biggest issue is stopping counterfeiting. Getting more criminal enforcement is hard – work is being done but it’s happening slowly. There’s also the issue of corruption and local protectionism,” says Clark. Local protectionism comes in the form of locals who are reluctant to report such activities because they are paid not

to do so. Sources close to ALB China said that this is especially so when the locals are employed by the counterfeiters.

“In the past, the police didn’t enforce IP protection because the work wasn’t identical to a typical criminal case. These days, however, even the customs offi cials are getting in on the act. This makes a big difference because counterfeiters work very quickly. They don’t keep sales records, and ship out the illegal goods very quickly from one

“We’re seeing more help from the government and this is extremely important to the country’s economic development. China isn’t a common law country so there

are no case precedents to refer to, so companies have found it hard to achieve full IP protection”

SUSAN MUNRO, O’MELVENY & MYERS IN SHANGHAI

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place to another when they receive word that their operation has been uncovered,” says Luo.

With the advent of cyber-squatting – when trademark pirates register trademarks in their internet domain names by either running a business from it or hoping a company buys it from them for a quick buck – new avenues for piracy are abound.

Chang Tsi & Partners recently handled a case in which the Formula One domain name was usurped by a local company.

Playing by global rulesGiven China’s huge role as ‘the workshop of the world’, and its geographical vastness, enforcing intellectual property rights can be diffi cult.

But IP protection became signifi cantly important in the lead up to the Olympics this year in Beijing. Part of the country’s bid to host the Olympics was its undertaking to conform to international IP laws in protecting the

usage and distribution of the Olympic symbol. Working from the ground up and by making these efforts apparent are also part of the government’s strategy to curb piracy. Court cases and convictions by the government are updated on ipr.gov.cn. Prior to 2006, no such updates were available.

China's Trademark Law was fi rst enacted in 1982, and then amended in both 1993 and 2001 to meet the requirement of economic development and entry into WTO. The most recent draft amendment of the Trademark Law (Third Draft Amendment) was released for public comment in August 2007.

The third draft includes an amendment in which the maximum fi nes are increased. At present, infringers may be up for RMB100,000 (US$14,651) if the business value of the infringer cannot be determined. The draft proposes a maximum fi ne of RMB1m (US$146,502).

Li Dongsheng, deputy director, the State Administration for Industry & Commerce (SAIC), has stressed to

foreign media that the protection of the exclusive right to use registered trademarks is necessary to attract foreign investment, encourage innovation, to develop self-owned brands and to increase the competitive power of the domestic industry.

“We’re seeing more help from the government and this is extremely important to the country’s economic development. China isn’t a common law country so there are no case precedents to refer to, so companies have found it hard to achieve full IP protection. Having said that, the Beijing and Shanghai IP courts have strong jurisdictions and we’re beginning to see some high damages coming out of these courts,” says Susan Munro, counsel with O’Melveny & Myers in Shanghai.

While the country shapes up a golden shield for IP through legislation, lawyers are hopeful for additional ground enforcement to further armour their clients’ trademarks, patents and copyrights. It may take some time, but at least the process has already begun. ALB

40

FEATURE | environment >>

ISSUE 5.9

Green is goldA legal framework that is enlightened and geared to energy conservation and protecting the environment is producing more ‘green’ work for lawyers

During the Beijing Olympics, tourists from around the world and local residents alike enjoyed the cleanest air in the

city for a decade. Beijing’s enormous effort to reduce pollution, clear the skies overhead and make the roads less congested impressed everyone who was there during August.

“My clients from Hong Kong were really delighted to see blue skies over Beijing during the Olympics – and so was I,” says Wang Jihong, a senior partner in the Beijing-headquartered law fi rm V & T. “It was achieved as a result of the signifi cant efforts and input by the Beijing government and the Beijing Olympics organiser in recent years,” she adds.

Wang’s fi rm also played a part in Beijing’s ‘Blue Sky’ project – the name used by offi cials to refer to the Olympics

clean-up plan – because it was appointed by the Beijing Environmental Protection Bureau in 2004 to provide legal services on a retainer basis.

The city implemented long-term regulations as well as strict temporary measures – such as closing polluting factories, reducing the number of cars on the road and suspending urban construction projects – to ensure the best possible environment for the Olympics and the Paralympics.

Wang and her team assisted the bureau by advising on most of the policies, regulations and measures drafted to improve Beijing’s environment in the years leading up to the Games, and then reviewing them. They also represented the bureau in any disputes arising from the clean-up process.

“The central government has had a strong focus on environment protection

for some years, but the Olympics was a milestone on the country’s path to pursuing sustainable, green development,” says Wang. “The Olympics have raised environmental awareness right across China and put the environment at the heart of the country’s future development.”

Hoping to keep the skies blue over Beijing even after the Olympics, the capital city is leading the whole nation in dealing with pollution. Du Shaozhong, deputy director of the Beijing Environmental Protection Bureau, said at a recent press conference that some of the temporary measures for reducing pollution would become permanent, and gave examples by stating that the bureau would continue removing the vehicles responsible for heavy pollution and modifying them, and also stepping up dust reduction on construction sites.



Wang is also experienced in advising on large construction and infrastructure projects, and she expects the volume of work relating to environment issues in V & T to soar.

“It is a golden opportunity for the fi rm to consolidate its environmental law practices,” she says, “as the increasingly sophisticated legal framework of environment protection will certainly prompt companies to seek compliance and regulatory advice from external lawyers.”

Winds of change for environment protectionThe national environment protection campaign gained most momentum in 2008, not only because of the Olympics, but also due to its elevation from an administrative body, to the Ministry of Environmental Protection (MEP), and also the promulgation of a new Circular Economy Law.

Passed at the end of August and coming into force on 1 January 2009, this law is set to promote sustainable development through energy-saving, recycling and the reduction of pollutant discharges.

“The new law provides a solid, integrated and practical legal framework governing environmental issues,” says Zhou Yacheng, partner in the Beijing fi rm, Huatang, “and the need for legal services will be created at every stage of the process when companies implement the law.”

Under the new legislation, they are required to increase their input in environment protection and, in order to be compliant with it, they need to adopt more energy-saving measures, acquire green technologies, update equipment and develop recycling systems, invest more in R&D and improve waste management.

“Implementing the new law may affect companies’ profi tability temporarily and cause a reshuffl e in certain industries,” says Zhou. “But the more committed a company is to environment protection, the better image it has in the market as being socially responsible, which is obviously more attractive to investors.”

The impact of this law is focused on companies in heavy industries that are high in energy consumption and pollutant emissions. Most of them are dominated by State-

owned enterprises, and many of these SOEs have already adopted strict measures to achieve the energy-saving and pollution-reduction goals set by the government before the law was passed.

“Environment protection has been a main focus of the steel industry in recent years and our company has been implementing the strategy of clean production. The in-house legal department is playing an integral part in it,” says Sun Shuwei, the head of legal at Jinan Steel, a company widely recognised for its achievements in recycling, energy-effi ciency and pollution control. As in all other steel companies, a dedicated department was set up in Jinan Steel to handle environment protection and safety matters.

“The new law will spur companies in all sectors to take concrete action to save energy and protect the environment,” says Sun.

Many multinational companies in China, that fall into a range of sectors potentially affected by the new law, were also among the fi rst to react to the legislative changes. International fi rms have started getting calls from clients enquiring about its implications.

“A number of clients who have heard about it are curious to know how the law will affect them,” says Beatrice Schaffrath, partner of Baker & McKenzie in Beijing and a member of the fi rm’s global environment and climate change practice groups.

“The law is important for providing a guide to some of the environmental and climate-change issues that the government has decided to focus on as the country develops industrially and economically, but the nitty-gritty details often lie in the implementation regulations which come some time after the law is introduced.”

According to Schaffrath, players across a wide range of market sectors are now increasingly aware of the potential impact of certain of their activities on the environment being a focus of their operations in China.

The environment exchangesWhile lawyers and clients are waiting for detailed implementation rules to be issued, another exciting development on the environmental front has caught their eye – the establishment of environment and energy exchanges in Beijing and Shanghai. Tianjin is also expected to set up an environment exchange in the near future.

“As these exchanges lay the foundation for companies to use market-based methods to solve the problems related to environmental protection, saving energy and reducing pollutant emissions, lawyers will have to be predominantly involved in these transactions,” says Liu Wei, Grandall’s executive partner in Shanghai.

“The Olympics have raised environmental awareness right across China and put the environment at the heart of the country’s future development”

WANG JIHONG, V & T

Source: www.ndrc.gov.cn

ENERGY-SAVING REQUIREMENTS ►GET SERIOUS

Last year, the National Development and Reform Commission (NDRC) launched a plan which required 998 large domestic enterprises in the petrochemical and iron and steel industries, and other sectors with high energy consumption, to meet global energy-saving requirements and save 100m tons of standard coal by 2010.

According to a recent report by the NDRC, 879 of them have achieved their energy-saving goals for 2007, whereas 74 enterprises, including subsidiaries of Sinopec Group, China Datang Corporation and China Huangneng Group, did not succeed.

Those who didn’t achieve their goals in 2007 will have to work out rectifi cation measures within a month, and are also not elligible to enjoy national preferential policies or to be inspected in order to receive approval for new energy-saving investment projects or submit applications for new industrial land in 2008.

42


ISSUE 5.9

relation to this development. However, any project like this which implicates regulatory and legal issues that are going to affect clients will drive up the need for legal advice on them.

“It seems many of our practice’s areas of expertise will be involved in our clients’ expectations on these exchanges. Based on the available information, there would be a number of issues coming into play from the legal perspective, so we would anticipate to see work in this regard,” says Schaffrath, giving two examples: the exchanges are to involve technology issues, which requires the fi rm’s IP practice expertise, and fi nancing and equity issues, which will require its expertise in areas of capital markets, project fi nancing and bank loans.

“The establishment of the exchanges is a refl ection of the market’s recognition of the regulatory importance the government has placed on improving the country’s environmental situation,” says Schaffrath. “It’s also recognition that sometimes commercial incentives can help achieve environmental objectives.”

While still in its infancy, the new ‘clutch’ of exchanges indicates that the government has decided to explore various avenues to encourage environmentally focused behaviour in the market.

Foreign investment turns ‘green’The increased environmental consciousness in China has raised the bar for future foreign investment and caused some concerns over a possible slow-down in foreign investment projects and activity. However, lawyers say that while foreign investment will be restricted in certain areas, such as the low-end manufacturing sector, other areas of the economy will provide new opportunities for foreign investors, including energy-saving and green technologies.

“In certain energy and resources fi elds, especially industries in which pollution levels are traditionally high, foreign investment that can bring capital, new technology and management approach to help Chinese companies improve their environmental performance will be promoted and welcomed,” says Wang Jihong of V & T.

Wang and her fi rm are currently working on several projects involving foreign funds investing in large Chinese industrial groups.

Similar types of transactions are also taking up a signifi cant percentage of the billable hours of environmental law practice groups in international fi rms.

“On top of providing more compliance services, we are acting on an increasing number of investments

“The new Circular Economy Law will spur companies in all sectors to take concrete action to save energy and protect the environment”

SUN SHUWEI, JINAN STEEL

QUICK FACTS ABOUT THE ►ENVIRONMENT EXCHANGES IN BEIJING AND SHANGHAI

The Shanghai Exchange, owned by Shanghai United Assets and Equity Exchange (SUAEE), will

collect, fi lter and publicise information for the • environment and energy-related equity and emission credit trading provide a platform for carbon emission credit • trading deals between companies or institutions and provide equity owners, energy reservation • integrators, research companies and investment institutions with consultancy, project design and evaluation, fund operation and technical support

The Beijing Exchange, operated by an entity called China Beijing Environment Exchange, will

promote the exchange of technologies for • environmental protection, energy conservation and pollution emission reductionprovide a platform for trade in SO2 and COD • discharge rights, and act as an information service for the reduction of • greenhouse-gas emissions

Source: China Daily

Liu and his team have participated in a number of pioneer projects in environmental areas, including the world’s largest CDM project agreement between Shandong Dongyue and Nippon Steel and Mitsubishi. Now, Liu is actively assisting the Shanghai Environment Exchange in establishing the operational infrastructures and procedures for companies to exchange environment-related technologies and trade emission reductions, such as SO2, COD and Nox discharge rights.

Yet, again, not much detail has been released regarding how the two exchanges will operate, how they will interact with international markets and whether foreign investors can participate. It is also unclear what type of advice these procedures and operational issues will require in



by overseas funds in renewable energy and energy-effi ciency projects in China,” says Campbell Davidson, partner in Allens Arthur Robinson in Shanghai. Although the fi rm’s headquarters are in Sydney, most of the China climate-change practice group’s clients are from Europe. However, as Australia has ratifi ed the Kyoto Protocol, Davison expects an increase in mandates from the fi rm’s home jurisdictions.

“An important driver for these investments is the tax incentives provided by the government to promote green energy technologies and environmentally friendly projects,” says Davidson. “Some law and regulations passed in recent times encourage investors to enter the renewable energy industry, and established companies are also adjusting their business to benefi t from preferential treatments.”

With the legal framework concerning environmental issues improving and strengthening, environmental lawyers will work more closely with

other practice groups to provide good guidelines for clients, as they take environmental issues increasingly into account when they evaluate risks for a project.

“A decade ago, the enforcement risk of the authorities in relation to whether a project had the proper environmental discharge permit or not, often was a take-it-or-leave-it proposition and depended on the invetor’s comfort level with that risk. And many foreign investors, in the

past, undervalued the impact of the lack of the proper environmental documentation in a project.” says Schaffrath. “But now, there is a much more heightened awareness that this is an area that should no longer be so low on the risk calculus list.”

Putting law and regulations in place is a good start, but suffi cient enforcement and implementation of them are certainly the key to a buoyant legal services market in environmental law. ALB

“The establishment of the environment exchanges is a refl ection of the market’s recognition of the regulatory importance the government has placed on improving the country’s environmental situation. It’s also recognition that sometimes commercial incentives can help to achieve environmental objectives”

BEATRICE SCHAFFRATH, BAKER & MCKENZIE

44

FEATURE | records management >>

ISSUE 5.9

As fi rms expand their presence nationally and globally to serve fast-growing client lists, employing ever more lawyers

and staff and receiving an increasing number of mandates, effi cient information retention subsequently becomes a major issue. It also includes indexing and data tracking, while ensuring client standards of confi dentiality are met and the fi rms themselves keep current with confl ict-of-interest procedures.

Document management systems can help make the often onerous task of data retention easier through a diverse range of products and services. Whether it be making electronic versions of hardcopy fi les or devising a work-fl ow method, a secure document management system can ensure a fi rm is not in the headlines for the wrong reasons.

In terms of retention, fi rms can store items physically or electronically. Furthermore, they can locate these documents and fi les securely either internally or remotely.

Some organisations choose either one solution or the other while others use both solutions for the many and varying departmental and work-fl ow requirements.

The hows and whys of the system depend on the scale of the fi rm, while the geographic position of offi ces and the quantity of information that needs to be gained and created determines which is the best solution for each individual company.

The understanding of good record keeping is closely related to the topic of risk management. Minimising the risks associated with heavy fl ows of data is a necessary requirement of day-to-day

Good record-keeping: good businessThe trend towards managing records off-site is growing, with law fi rms paying increasing attention to risk management. ALB China reports

procedure. In the end, it all boils down to having the architecture in place to cover your daily processes, as well as a back-up to avoid any ‘worst-case scenarios’.

“Like any other business, law fi rms must – without exception – protect, secure and maintain their information and data. They are affected by the same laws by which they practise,” says John List, general manager of GRM China Records Centres. “And documents, fi les, evidence and clients’ statements must be maintained for a certain time – and also made available and accessible. If an item is called for in the court, it must appear and it is the law fi rm’s responsibility to make sure that happens.”

For information management to be effective, however, it has to work from the top down. You can have all the software available in place, but without a coherent data management process it simply goes to waste.

“The most challenging thing for local law fi rms in managing their information and documents effi ciently is that different partners have different approaches to handling records and there is a lack of a centralised, established system,” says Stephen Gao, the China manager of Santa Fe Records Management Services in Shanghai.

Gao also points out that the high rate of staff turnover local fi rms often have could make records management and business continuity more diffi cult.

The benefi ts of working with professional records managersVirtual worlds are emerging fast on the business landscape with law fi rms increasingly retaining records as e-mails, word-processing documents,

FEATURE | records management >>


spreadsheets, digital images and documents in all types of multimedia formats. Retrieval has now shifted from physical fi les to computers and fi rms have to realise that electronic records need the same level of care as actual ones, because the format is not the issue – it is the content that needs to be managed.

Some examples in the UK and the US have proved that if fi rms don’t take archiving and retrieval of all documents extremely seriously, the consequences can be catastrophic.

While many still interpret document management as ‘opening the mail’ and ‘fi ling’, there has been a defi nite shift towards businesses now realising the need to ensure effective records management is in place, but it needs to go a step further so that professional records managers are engaged to undertake the role.

Gone are the days when the benefi t a ‘records management’ company offered a law fi rm – a business entirely paper-driven – was simply the facility to store its boxes remotely less expensively than it was to have them on-site in costly prime real estate. Now, however, the benefi ts far exceed storage prices.

“Record management companies today have the personnel with the expertise to complete special projects and handle records quickly and effi ciently – both the manpower and the skills that law fi rms simply don’t have on hand,” says List. “Due to the expertise of these record centres and the expeditious way a project and program can be completed, savings in time and money are two of the immediate benefi ts.”

No matter whether a fi rm has locations around the globe, across the nation or simply one offi ce on

DIGITAL IMAGING FOR BETTER ►BUSINESS EFFICIENCY

To plan for business continuity, a fi rm must know that potential impact on it may not necessarily be caused by a natural disaster or an island-wide emergency.

If fi rms manage records in digital form, it means that they are not entirely reliant on paper fi les for information. Should a disaster strike or an emergency occur, these alternative sources of data should allow work to continue easily, regardless of staff or offi ce location.

As an ongoing business process, converting paper records into digital images has the following benefi ts:

it eliminates the risk of misplacing paper fi les • during multiple physical handlingit enables multiple access regardless of the • storage silo, so that the original paper records need not ‘fl oat’ in the offi ce unnecessarilyit controls borderless access, so authorised staff • can access the relevant information anywhere, any time it affords retrieval that is instant – or, at least, • quick – and, as online search for a document can be synchronised with the indexing criteria (pre-determined during the scanning process) it can provide an audit trail in retrieval, • depending on the sophistication of the image-storage database, so you can know who has accessed what information for what purposeAllen & Overy in the UK proved its in-house

imaging solution works when the Iron Mountain warehouse in London went up in fl ames in 2006 and most of the paper records were lost.

Shao May Peh, Crown Records Management

RECORD MANAGEMENT IN A ►VIRTUAL WORLD

It was said 15 years ago that paper would disappear. Today, however, paper inventories continue to grow at a rate of 20% per year.

There are newer technologies such as electronic vaulting which back up data to secure data centers electronically. Imaging is growing too but not at the rate that many predicted – what has grown is the accessibility and strategic use of the technology.

When it was introduced, people started microfi lming and then imaging everything, thinking they could destroy all the paper, but this did not happen. They kept the images and stored the paper. Today’s trend is to image an item when it is retrieved from storage rather than when it is fi rst stored, and the benefi t is accessibility. The internet has also provided law fi rms and other clients with the facility of a ‘virtual record center’, whereby they can view their inventory, complete data entry, update destruction/retention schedules, run sophisticated reports – such as what is out and to whom – and so on, without leaving their desks. The internet has made a record center a true extension of the Firm.

John List, GRM China

Main Street, outsourcing record management off-site allows it to allocate its resources to revenue-generating activities and leave the tasks of document storage that take up time and space to the ‘document-storage experts’.

In addition, records management companies can ensure data security and protection, which are critical issues for law fi rms. If a single piece of data – or even one tape – was lost, it could be disastrous and cost a fi rm millions of dollars. Professional record-management service providers are in the business of protecting virtual data with as much care and expertise as a physical record through advanced technologies and IT systems.

“Storing data off-site and having it delivered on what is known as a rotation schedule is an important component in many law fi rms’ contingency plans,” List says. “Off-site data protection centres also provide optimal climatic conditions and fi re-suppression systems for the proper protection and preservation of magnetic media.”

In the relatively young legal profession in China, the current market for contracting records-management services is still small, but this is changing rapidly and will undoubtedly continue to do so.

“Law fi rms in China are increasingly handling large-scale corporate issues, like M&A transactions and IPOs. As the size of fi rms, their business and client base expand, they will inevitably have to archive a signifi cant volume of documents and data, and – of course – retrieve it. So the need to outsource their records-management work will grow alongside,” says Gao. ALB

“The most challenging thing for local law fi rms in managing their information and documents effi ciently is that different partners have different approaches to handling records and there is a lack of a centralised, established system”

STEPHEN GAO, SANTA FE RECORDS MANAGEMENT SERVICES, SHANGHAI

46 Asian Legal Business ISSUE 8.6

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48

Sign off >>

Asian Legal Business ISSUE 8.6

Figures from Thomson Financial have shed some light on recent IPO activity.

The table below reveals the extent to which China dominated the Asia-Pacifi c IPO charts. The country was responsible for US$21bn in deals, with its closest rival, India, at US$4.5bn.

A former Orrick Herrington & Sutcliffe associate is suing his former fi rm over an alleged broken agreement to

make him a partner. According to Patrick Hoeffner, the fi rm had promised to

bring him into the partnership to prevent him leaving and taking a client with him.

During this time Hoeffner claims he turned down several offers, and was hoping to receive US$100m (£51m) in damages based on lost future earnings and other alleged economic losses as a result of his failure to become an Orrick partner.

A New York State judge has since rejected this claim and ruled that Hoeffner may only seek nominal damages – which can be as low as $1. However, a jury could still conceivably award Hoeffner punitive damages.

Once again, Clifford Chance is tightening its wallet, and this time it’s hitting employees where it hurts – in

the stomach. According to the cost-cutting conglomerate, leisurely

lunches, breakfasts and after-hour snacks will no longer be coming out of the company pocket, so associates will have to cater for themselves.

Following the recent taxi saga, CC has now slashed its dinner subsidies as well as cab charges, amidst a background of soaring food prices – the beloved staff deli has been shut for breakfast and afternoon tea and turned self-service, and associates working double-time on weekends will now be forced to search for foodstuffs in the Canary Wharf shopping malls.

Rajah & Tann employees have got it good. The Singaporean fi rm recently introduced some fresh new

incentives for staff – and the extras are sure to go a long way when it comes to employee retention rates.

One-month paid sabbatical:• Deserving senior legal associates who have stayed true to the fi rm for four years or more will be entitled to a one-off offer of a breezy month of paid leave to do, well… whatever they want really. The activity is not specifi ed, so they will be able to use the paid leave to go on their honeymoon, help look after the baby or just relax.Chill-out lounge:• Employees at this forward-thinking

fi rm are also blessed with a 17th fl oor lounge, complete with game consoles like the Nintendo Wii and Microsoft Xbox, as well as a pool table. Making sure to cover all bases, the fi rm also provides a free breakfast daily, as well as lunch once a week, and a free fl ow of Ben and Jerry’s ice cream for its 600-plus employees. Not bad.

Singaporean fi rm with all the trimmings

Silicon Valley lawyer-entrepreneur Craig Johnson recently launched a

virtual law fi rm with 14 other lawyers. Johnson hopes the fi rm – titled

Virtual Law Partners – will forge a new model for the legal industry and encourage work-life balance while working from home.

The new system is also geared to save on overheads so that clients are charged less, and attorneys are said to get 85% of what they bill. VLP lawyers can also set their own rates; however, the average billing rate is estimated to be around $400 an hour.

Aspiring partner sues over broken promise

CC says no to chow on company credit

Legal entrepreneur launches virtual vision

TOP CHINA A-SHARE IPO ► s ON RECORDIssue date Issuer Proceeds

(US$m)

29/10/2007 PetroChina Co Ltd 8,933.5

26/09/2007 China Shenhua Energy Co Ltd 8,871.1

11/09/2007 China Construction Bank Corp 7,726.3

20/10/2006 ICBC 5,908.3

13/02/2007 Ping An Ins(Grp)Co of China 5,018.1

17/12/2007 China Pacifi c Ins(Grp)Co Ltd 4,070.8

19/12/2006 China Life Insurance Co Ltd 3,626.0

28/01/2008 China Coal Energy Co Ltd 3,559.1

26/04/2007 BoCOMM 3,266.2

26/02/2008 China Railway Constr Corp 3,113.3

* ALB staff are currently lobbying to have the same incentives applied in their offi ces around Asia.