| 作者 |
 [资料备查]《Law Firms in Greater China 2003》-International Law Firms and Other Info. |
 |
dontbesocute
[博客]
[个人文集]
头衔: 海归中将
声望: 专家
加入时间: 2004/08/05
文章: 3020
海归分: 624866
|
|
|
作者：dontbesocute 在 海归商务 发贴, 来自【海归网】 http://www.haiguinet.com
资料来源 www.asialaw.com
International Law Firms
Unlike in Hong Kong, foreign lawyers in the PRC cannot sit for the domestic bar exam and cannot practice or advise on local law. Although legal services are among those in China that must be liberalized under China's WTO agreements, the practice of Chinese law is scheduled under these agreements as a market access limitation, meaning that China has in fact not committed to opening the domestic legal field to foreign competition. Opinions vary as to the government's real views on the matter of allowing foreign lawyers to become more actively engaged in PRC law. Perhaps under pressure from the most influential local firms, the Ministry of Justice's most recent law governing the operation of foreign law firms in China, the Administration of Representative Offices of Foreign Law Firms in China Implementing Regulations, which came into effect in September 2002, was, to use one foreign lawyer's phrasing, "strangely drafted". There are some catchall provisions in the law that can be interpreted as circumscribing a foreign law firm's practice in China. For example, a foreign law firm is permitted, under the Schedule of Specific Commitments on Services that China agreed to in its WTO accession agreement, to enter into long-term entrustment relations with local law firms but the September 2002 regulations make this very difficult to realize in practice because of limitations on what constitutes "employing" a local lawyer and by extension having a working relation with a Chinese law firm. More directly, no foreign law firm may provide any specific opinions in respect of the application of Chinese law.
The above notwithstanding, foreign commercial law firms have played a crucial role in the development of law as a profession in the PRC. The first representative office licences were issued to foreign law firms in 1992. Many PRC lawyers have been trained and gained valuable experience in international law firms, both in China and overseas, and have taken their experience to local law firms.
Although there have been some high-profile burnouts in the PRC practices of international firms, most lawyers feel that the legal market for international services in China can only grow along with the rest of the country's economy. Foreign direct investment in China continues at very high levels, and M&A and restructuring work involving already established foreign-invested enterprises has gained momentum in the past year as many areas of the economy become more sophisticated and market competition intensifies.
In addition, the momentum generated by China's WTO membership is strongly in evidence in legal reform efforts and scores of new commercial laws issued in the past year, as well as in the expanding commercial areas that are open to foreign investment.
Foreign commercial law practices are centred in the big cities, which have gained the lion's share of foreign direct investment. Beijing and Shanghai are the main centres for foreign legal activity, although Guangdong province bordering Hong Kong is the site of many branch offices of international law firms, especially those from Hong Kong. Direct investment in Beijing is much less than Shanghai, but its traditional advantage and attraction as a site for representative offices of international law firms has been in the administrative area. Most law firms find it crucial to forge contacts with the central government bureaux and ministries that formulate investment policy and promulgate legislation governing the legal and economic issues facing all foreign investors.
Building on market expansion in 2002, in 2003 many foreign law firms have opened second offices in Shanghai and Beijing. These include US firms such as Baker & McKenzie, Jones Day, Morrison & Foerster and O'Melveny & Myers. UK firm Freshfields Bruckhaus Deringer in December 2002 received Ministry of Justice approval to convert its associated office in Shanghai, under the name of its German partner Bruckhaus Westrick Heller Lober, to Freshfields Bruckhaus Deringer to create a second office. Coudert Brothers is a leading firm working from both Shanghai and Beijing. Other leading US and UK firms maintain significant representative offices in one city, including Lovells, Paul, Weiss, Rifkind, Wharton & Garrison, Shearman & Sterling, Skadden, Arps, Slate, Meagher and Flom, and Sullivan & Cromwell all in Beijing, while Debevoise & Plimpton, Kaye Scholer, Simmons & Simmons and White & Case maintain focused teams in Shanghai. Allen & Overy, Clifford Chance and Linklaters all have been operating in both Beijing and Shanghai since last year, while fellow UK firm Herbert Smith this year gained approval for a second representative office in Shanghai, in addition to its office in Beijing. Masons has also opened an office in Shanghai recently.
Norton Rose recently acquired the services of the team from French firm Vovan & Associes, and its Beijing office works closely with Hong Kong and international offices of the firm on China issues.
Sidley Austin's global merger with Brown and Wood in 2001 created Sidley Austin Brown & Wood one of the largest law firms in the world. In China, this merger resulted in the Shanghai representative office (Sidley Austin) combining with the Beijing office of Brown and Wood.
California firm Morrison & Foerster has a well regarded and growing China practice. The firm is strong in venture capital investment issues, intellectual property, and corporate and commercial work.
O'Melveny & Myers is a large full service firm, with Beijing and Shanghai offices. O'Melveny & Myers has scored some big successes representing parties in international trade disputes between China and international parties, as well as diverse corporate and commercial and M&A investments.
White & Case has worked on China issues for years, originally only from Hong Kong and since 2000 officially in Shanghai as well. The firm has considerable experience in banking and finance issues in China, as well as M&A, disputes, energy projects, insolvency and restructuring and IT/telecoms work.
Washington DC-based Hogan & Hartson set up in Beijing in August 2002. The firm has a relatively small Beijing staff, but works closely with the firm's large international network on a range of commercial and regulatory issues in China and the region. Hogan & Hartson acquired Canadian firm Torys' Beijing team.
Canadian firm Blake Cassels Graydon has been in Beijing for several years offering services for Canadian as well as international firms working in China. US firm Davis Wright Tremaine, although with a modest presence in Shanghai, is doing well assisting US firms in a range of industries and investments in the PRC, including e-commerce, IP and foreign direct investment. Many other US firms have notable reputations and considerable experience in China, including Altheimer & Gray, Dorsey & Whitney, Faegre & Benson and Perkins Coie.
The CMS group operates under CMS Cameron McKenna in Beijing and under CMS Bureau Francis Lefebvre in Shanghai. The CMS group as a whole is a collection of eight European-based firms, and the China practice of the group effectively combines the offices' network of clients and expertise.
CMS Bureau Francis Lefebvre is active representing French clients investing in China, and notably in the clothing and garment industries, which licence many French brands in China. Through CMS Hasche Sigle, another group firm, German clients as well as clients from German speaking countries are advised in China. German investment in manufacturing remains high, with significant interest also in the hotel management and IT services sectors in China.
There are many European law firms working in China that have solid reputations and client bases. Some have been in the PRC since the first foreign law firm representative office licences were granted in 1992, while others have only been in China for a few years. Adamas was the first French firm to be granted a representative office licence in 1992 and today operates from both Beijing and Shanghai. Fellow French firm Gide Loyrette Nouel has worked in China since 1987 and has offices in Beijing and Shanghai; the latter office opened in December 2002. Thieffry & Associes operates in Shanghai and serves a range of French companies and investors working in China.
German firms are prolific investors in China, and German law firms have followed close behind to offer counsel. Beiten Burkhardt and Haarmann Hemmelrath & Partner are among the best-regarded German law firms working in China.
Italian interests are well represented by Birindelli Associati Studio Legale, which recently won approval for a second office licence in Shanghai. Previously the firm had an association with O'Melveny & Myers in Shanghai.
Several Australian firms have a successful China practice as part of their broader regional strategies. Allens Arthur Robinson, Blake, Dawson Waldron, and Minter Ellison have all done well in China with a combination of local and regionally oriented practices. Australian building, construction and infrastructure-focused companies play a leading role in their fields throughout the Asia-Pacific region, and the China market in these areas has already developed as a prime growth area.
Allens Arthur Robinson has active foreign direct investment and M&A practices, and has a strong mining practice as well. The firm has organized a Beijing-based lobby to work with the Ministry of Land and Resources to improve the foreign investment climate in China's mining industry.
Japanese law firms working in China keep a fairly low profile but are very successful supporting Japanese investment and business ties with China. Among the leaders are: Anderson Mori; Itoga; Komatsu, Koma & Nishikawa; Mori Hamada & Matsumoto; Oh-Ebashi Law; and TMI Associates.
Investment in China by Singaporean Chinese is considerable. Some premier Singaporean law firms have Beijing or Shanghai offices, including Drew & Napier, and Yeo-Long & Peh. Helen Yeo & Partners merged recently and now operates as Rodyk & Davidson.
Many Hong Kong law firms have offices in the PRC. In November 2002, three new office licences were awarded. Capital markets and corporate finance specialist Charltons gained approval to open offices in Shanghai, as did Fairbairn Catley Low and Kong. Robertsons opened an office in Guangdong.
Hong Kong institutions Deacons, Johnson Stokes & Master and Vivien Chan and Co. have strong PRC practices. Siao, Wen and Leung has a Shenzhen office that primarily offers Hong Kong legal services to China entities, as well as facilitating PRC investment for Hong Kong and international firms. Phyllis K.Y. Kwong & Associates is a small and medium-sized enterprise specialist with offices in Beijing, Shanghai, Shenzhen and Guangdong. Vivien Chan & Co., one of the first Hong Kong firms to have a PRC office, works from Beijing and Shanghai offices and is strong in intellectual property, insolvency and debt issues, M&A, and dispute resolution. Gallant Y.T. Ho, Koo & Partners (in association with Paul Hastings) and Wilkinson & Grist all have significant PRC practices. TransAsia Lawyers is a boutique firm with offices in Hong Kong, Shanghai and Beijing. The firm prides itself on its IT and telecom practice.
Deacons has one of the largest PRC presences and practice teams among Hong Kong firms. Its Guangzhou office opened in 1994, Shanghai in 1999 (via Deacons, Australia) and Beijing in 2002. Three lawyers at the firm are authorized by the PRC Ministry of Justice as China-appointed attesting officers. Active in practically all commercial areas in China, the firm reports being especially busy in recent months in PRC-focused insolvency and bankruptcy, dispute resolution and corporate and commercial work.
PRACTICE AREAS
Banking and Finance
Bad debt in China's banking sector is estimated at several hundred billion US dollars. With a high-level government mandate to clean up the non-performing loan (NPL) situation, four bank asset management companies (AMCs) were set up in 1999 to absorb the debt from the four largest commercial banks. Huarong AMC acquired assets from the Industrial and Commercial Bank of China; Great Wall AMC from the Agricultural Bank of China; China Orient AMC from the Bank of China; and Cinda AMC from the China Construction Bank. Despite several years of media and government attention, the problem remains intractable. The incoming Chinese leadership under Premier Wen Jiabao faces a daunting task in building a solvent financial system as China moves on with its economic development strategy.
Many domestic and international law firms have had an ongoing role in the NPL sphere, on both the buying and selling side of transactions.
Jones Day has been involved in China's NPL saga on an ongoing basis. At the end of March 2003, its long-standing assistance to Morgan Stanley paid off. The Morgan Stanley-led consortium received final regulatory approval for the purchase of a US$1.3 billion portfolio of NPLs from Huarong AMC. This deal is the largest sale of non-performing assets in China to date.
The deal also represents the first time that an international consortium and a Chinese AMC have created an onshore joint venture (JV) to purchase Chinese NPLs. Additionally, it is expected that the deal will lead to the establishment of a Sino-foreign NPL JV asset-servicing company in China. The transaction is also one of the first that obtained third-party financing (from the International Finance Corporation) for the acquisition of an NPL portfolio.
Dorsey & Whitney is experienced in matters relating to distressed assets. Its China team lawyers have done a series of large deals helping sophisticated fund investors in the acquistion, restructuring and disposal of PRC NPLs from Chinese asset management companies.
Global Law Office has represented Huarong AMC in disposal of NPLs via a trust mechanism. Global also represents Cinda Asset Management in NPLs.
Sidley Austin Brown & Wood's Beijing office recently counselled the Construction Bank of China on its disposal of Rmb3 billion in NPLs to international investors, and also advised Great Wall AMC in disposal of Rmb4 billion in NPLs.
Hong Kong's Vivien Chan & Co. has been serving as counsel to US venture capital funds that are active in the acquisition of state debt portfolios via joint ventures.
Capital Markets
The liberalization of different aspects of financial industry legal services has made a direct impact on law firms. Among recent legislation that should affect law firm practice the most is the move by the China Securities Regulatory Commission and the Ministry of Justice to abolish the examination and approval requirement that stipulated law firms and individual lawyers must have a securities service licence. Under the old rules, a few firms built up considerable securities practices and gained renown for their securities work. Now, many more firms are eager to try their luck and set up a securities law practice group.
Arguably the biggest event in 2002 involving a Chinese company was the US$2.67 billion IPO of Bank of China Hong Kong (Holdings) Limited, the Bank of China holding company on the Hong Kong exchange in July. This was the first international equity offering of an affiliate of a Chinese bank, the first international IPO from the PRC banking sector and the biggest ever merger and restructuring in Asia ex-Japan. Allen & Overy was global joint coordinator, along with Sullivan & Cromwell and Commerce & Finance Law Offices, to BOCI Asia, Goldman Sachs and UBS Warburg, while Clifford Chance, Jun He and Shearman & Sterling advised the Bank of China.
The New York and Hong Kong IPO of China Telecom in November 2002 was among the largest public offerings of a mainland firm last year. The China Telecom IPO was delayed due to poor market sentiment, and eventually raised US$1.4 billion, roughly half of the company's initial target.
Despite its rocky start, the listing represented a milestone in the internationalization of China's state-owned sector. Executive Vice President and Executive Director Li Ping rang the opening bell at the New York Stock Exchange to mark China Telecom's trading in the US. The IPO followed on the long awaited restructuring of China Telecom, completed earlier in 2002, which replaced China Telecom's former monopoly in all areas of telecommunications with a slightly more competitive regional and service-specific arrangement of telecommunications providers.
Haiwen & Partners represented the underwriters in the China Telecom IPO, Merrill Lynch, Morgan Stanley and China International Capital Corporation (CICC) along with Shearman & Sterling and Slaughter and May. Freshfields Bruckhaus Deringer, Jingtian & Gongcheng and Sullivan & Cromwell represented China Telecom.
London powerhouse Freshfields Bruckhaus Deringer has been active in capital markets work in China. Freshfields assisted BOCI International and CSFB on the listing and global offering of Sinotrans, a huge entity that is part of the Ministry of Foreign Trade and Economic Cooperation. Sinotrans has about 15,000 employees and covers freight forwarding, shipping and express delivery services. It is the largest international freight forwarding company in the world. Haiwen & Partners assisted Sinotrans in the February 2003 listing, and Morrison & Foerster's Hong Kong team assisted UPS, a strategic investor in Sinotrans, in its investment in the IPO.
In November 2002, Sidley Austin Brown & Wood represented China Oilfield Services Ltd (COSL), the largest integrated oilfield services provider in China, on its US$287 million IPO. The firm acted as both US and Hong Kong counsel to COSL, which offered H shares globally, with main board Hong Kong listing on November 20. COSL is the third entity in the China National Offshore Oil Corporation (CNOOC) group to list. Freshfields assisted CSFB and Merrill Lynch on the US offering of shares in COSL.
Sidley Austin Brown & Wood earlier in 2002 advised on CNOOC's US$500 million global bond offering.
Freshfields Bruckhaus Deringer advised Clear Media on its HK$865 million initial public offering and listing on the Hong Kong stock exchange.
White & Case is working on two ongoing Hong Kong H share listings involving PRC private enterprises. The firm has also advised two Hong Kong companies on the spin-off of their PRC businesses, as well as the preparation of mainland A share listings for both.
Global Law Office has recently advised on many securities market transactions, including the February 2003 Hong Kong GEM listing of Lai Fai International Holdings, a jewellery retailer.
Corporate/Commercial and Investment
After two decades of economic reforms and progressively more liberal macroeconomic policies, foreign direct investment (FDI) remains one of the pillars of China's economic growth. Figures for total FDI in the first half of 2002 issued by the Ministry of Foreign Trade and Economic Cooperation show growth of 31% in dollar terms for contracted investment over the same period in 2001. The January-July 2002 figure was nearly US$44 billion.
Shanghai's contracted FDI in 2002 reached US$10.58 billion, a rise of more than 43% year-on-year, and the city's economy expanded by nearly 11% in 2002. Beijing's contracted foreign investment rose a much more modest 3.6% in 2002, and reached more than US$2.81 billion. Beijing's economy grew by 10.2% in 2002.
The backbone of many international and local law firms' practice remains advising on traditional manufacturing investments across a range of industries. IT, high technology and financial services investments have also recently witnessed some high profile joint ventures.
Sidley Austin Brown & Wood's Shanghai office worked on the Dong Feng Motor Corp. joint venture with Peugeot Citroen Group. The Rmb12 billion deal was concluded in October 2002. Sidley Austin represented Dong Feng, one of China's largest automobile manufacturers, and advised Dong Feng on the restructuring and expansion of Dong Feng Citroen Automobile Co., an existing venture. The new company, Dong Feng Citroen Peugeot Automobiles, will comprise an engineering and a manufacturing division, and separate marketing divisions for Peugeot and Citroen cars for their sale in China.
Jones Day assisted Dong Feng Automotive Co. in their US$1 billion 50:50 joint venture with Nissan. Nissan thereby acquired a 50% share in all of Dong Feng's automotive manufacturing operations in China, except for the above-mentioned joint venture that Dong Feng has with the Peugeot Citroen Group, and an engine manufacturing joint venture the Chinese firm has with Honda. Jun He represented Nissan in the joint venture.
Vivien Chan & Co. has been assisting a US automotive manufacturer on its investments in China, including the structure of joint venture manufacturing operations that the client has been negotiating.
Allen & Overy advised LG.Philips LCD on its LCD manufacturing facility in Nanjing. The project has an estimated total investment of over US$1 billion in two phases, with a committed first phase investment of US$77 million. The module production factory should be in operation later in 2003.
Davis Wright Tremaine's Shanghai representative Ron Cai reports that recently the firm has assisted in the establishment in Shanghai of a joint venture for a global leader in the software industry, and has advised on the set up of a joint venture in Guangdong for a leading multinational company.
White & Case is involved in many corporate deals in the PRC. It has been representing a leading US pharmaceutical in its proposed joint venture to manufacture, market and sell pharmaceuticals in the PRC. White & Case has also been assisting a North American aircraft manufacturer with a joint venture in China to produce aircraft parts and components.
White & Case is involved in assisting a leading optical products manufacturer in the establishment and restructuring of its PRC operations.
Dorsey & Whitney continues to represent major industrial companies, high technology firms and other investors in a wide variety of investment projects in China. It has been assisting a number of large US manufacturers in setting up operations and acquisition projects with investment amounts in the hundreds of millions of dollars.
US firm Squire, Sanders & Dempsey maintains a strong telecommunications practice focused on China, and is also busy in M&A and general corporate work. The firm has recently been active in counselling different US telecommunications companies regarding multi-million dollar investments in China. The firm is also advising on the establishment of a US$400 million fund geared to China investment opportunities in retail and distribution, life sciences and technology, and enterprise restructuring. UK firm Lovells has been involved with many manufacturing investments in China by international telecom equipment firms.
Holman Fenwick & Willan has been advising a Dutch company on the establishment of a multi-million US dollar nickel-plating plant in Shanghai and the Netherlands.
Jin Mao Law Firm recently advised a leading international computer chip manufacturer on setting up its regional headquarters in Shanghai. In July 2002 the Shanghai municipality promulgated legislation on establishment of regional headquarters by foreign multinationals. Shanghai and the surrounding areas are already major destinations for foreign investment, and many multinationals have long sought to be able to set up holding companies that can handle all aspects of their subsidiaries' businesses. International firms with multiple investments in China have been actively campaigning for the government to allow more rational investment structures for these multinationals.
Although some requirements of the Shanghai legislation have been criticized as setting up high hurdles for multinationals that will not assist with the municipality's goal of competing with Singapore or Hong Kong as a desirable sight for regional headquarters, some multinationals have taken advantage of the new rules. Jin Mao's computer chip client sees Shanghai as a necessary investment in the mainland.
Guangda Law Firm has also been busy with more traditional foreign investment structures, including representation of China National Tobacco in its Guangdong joint venture with Schweitzer Mauduit, an international cigarette paper manufacturer. The investment is estimated at US$84 million. The firm has also advised apparel manufacturer Luen Thai International in a US$120 million investment in Qingyuan City in Guangdong, and Continental Chemical in establishing a wholly owned subsidiary in Nansha, Guangzhou.
Shanghai-based Wyselead Law Firm reports active corporate and commercial, dispute resolution and M&A practices. The firm has been following up its ongoing advisory role to Alcatel in Alcatel's acquisition of a majority stake in Shanghai Bell. The new firm is Alcatel Shanghai Bell.
Wyselead has been counsel on a US$150 million foreign direct investment in Shanghai, assisting a global photomask manufacturing leader in its set up of a wholly foreign-owned enterprise. For an international client already in China, Wyselead assisted in the acquisition of the Chinese parties' interest in a joint venture so as to create a wholly foreign-owned enterprise after acquisition. The client is a global leader in the agricultural equipment business.
In real estate, Wyselead assisted a Hong Kong property development company in an acquisition of a PRC residential building for Rmb400 million and also advised the client on the financing aspect of the transaction.
Clifford Chance has also been active in real estate transactions recently. In December 2002, the firm helped Citigroup to complete an investment in a new building in Shanghai's Pudong district. The 42-floor building, to be named Citigroup Tower, will house Citigroup's corporate investment and consumer banking divisions, and a retail bank branch will be opened in the building's lobby. Citigroup is planning on taking four floors of the tower. Citigroup signed the deal with Shanghai Bading Property Development Co.; the developer's investment is estimated at Rmb2 billion. The developer was represented by Shanghai ZhongJian Law Firm.
B&J Partners, a local Beijing firm, reports being active in commercial work centring on the logistics industry. B&J has recently been advising on project and purchase agreements for distribution networks in China's pharmaceutical industry.
Financial Services Investments
Llinks Law Office has advised on some high-profile investments by international banks and finance companies in mainland banks. In one noteworthy transaction, Llinks assisted HSBC and Shanghai Commercial Bank with their investments in the Bank of Shanghai, which concluded at the end of 2002. At the completion of the acquisition, 18% of the total capital of Bank of Shanghai was acquired by the foreign entities. This was the first case of an equity acquisition in a PRC domestic bank by a foreign equity.
Llinks also advised Shanghai Pudong Development Bank (SPDB) in different aspects of its deal with Citibank, in which Citibank acquired an initial 5% stake in SPDB, with agreements that the stake can be increased. At the same time, SPDB will jointly establish and operate a credit card business with Citibank. Linklaters, advised Citibank on the investment. The 5% stake is equal to about US$67 million, and the deal included arrangements for enlargement of the holding. This was the first-ever foreign stake in a listed PRC bank. Clifford Chance also advised SPDB on the deal.
There are several interesting aspects to this project, including structuring the Citibank investment so as to account for ramifications when Citibank's shareholding reaches 25%, which is the traditional threshold for determining whether an entity can be legally considered as foreign-invested under Chinese law. Another aspect of the deal is that only since January 2003 have transfers of non-listed shares in a listed entity (such as SPDB) been allowed, and thus there is no precedent for this strategic alliance. The complexity of the arrangement is compounded by the fact that both firms are banks, a sector that has been traditionally been highly restricted in China.
Another issue is the uncertain status of foreign-invested credit card businesses in China. Although it is not yet possible to set up a joint venture credit card business in China, the parties hope to be able to convert the credit card centre currently set up within SPDB to a joint venture credit card business when such businesses are permitted.
Under rules issued by the China Securities Regulatory Commission and effective July 2002, foreign-invested fund management joint ventures are now permitted to operate in China. Joint venture tie-ups between international and Chinese fund managers are still largely at the preliminary stages. Only in March 2003 was it announced that the first fund has been launched, by the joint venture ING Investment Management established with several Chinese parties, including China Merchants Securities. Joint venture securities firm regulations were issued by the CSRC at the same time.
Jun He represented HSBC Insurance in its October 2002 acquisition of shares in Ping An Insurance Co. HSBC purchased 10% of the share capital of the insurance firm, which is China's leading private insurance firm. Ping An has transformed itself from a state insurance concern under the China Merchants Group into a private financial services firm. In 1994, Morgan Stanley and Goldman Sachs each bought a 7% stake. China Merchants Group has divested itself of its interest in Ping An.
Also in insurance in 2002, Jun He represented shareholders of Huatai Insurance Co. in sale of their holding to US insurer Ace Group. The sale amounted to over US$100 million, and gave Ace a 22% stake and senior management and board of directors representation in the Chinese property and casualty specialist.
In commercial banking, Jun He has been representing the shareholders of a PRC-listed bank in the sale of their shareholding to potential foreign investors. The transaction is still ongoing.
Zhong Lun advised on Guotai Junan Securities Co. tie up with Germany's Allianz Group, approved in October 2002 as the first joint venture fund management firm to be set up under the new rules. Zhong Lun also advised on the set up of another Sino-foreign fund management joint venture, between Huabao Trust and Investment Co. and France's Societe Generale Asset Management SA. Linklaters advised Societe General on the deal.
Llinks has also recently advised on several joint venture fund management companies. The firm represented Fortis in its tie-up with Haitong Securities, advised Hua An Fund Management in its setting up of a joint venture with JP Morgan Fleming, and represented Shenyin & Wanguo on organizing a fund management joint venture with BNP Paribas Asset Management.
In insurance, Freshfields assisted Cigna Corporation in its joint venture with China Merchants Group, the first post-WTO accession insurance tie-up to be approved by the China Insurance Regulatory Commission. The deal was announced in December 2002. Through the new venture Cigna & CMC Life Insurance Co., US-headquartered Cigna will work with SDZ, part of the China Merchants Group, initially in Shenzhen and later in other major cities.
M&A and Restructuring: Reorganizing China's Economy
At the end of 2002 and the beginning of 2003 the central government passed a series of laws that address different aspects of a fundamental structural issue affecting domestic businesses and their competitiveness, or lack thereof: the preponderance of loss-making state-owned enterprises and their influence on the economy at large. Since the beginning of economic reforms in 1979, it has been recognized that any serious attempt to create more efficient allocations of capital and resources domestically would entail a fundamental shift in the organization of trade, investment and manufacturing enterprises. Given the enormity of the task and the unpredictable fallout from the closure or reorganization of enterprises that employ millions of people, the task of state enterprise reform has been deferred. Instead, the government has focused on a piecemeal approach to reform, attracting foreign investment into certain targeted areas of the economy that have grown enormously as a result, while at the same time propping up and sheltering other industries and enterprises from any meaningful competition.
Almost all law firms will say that M&A and restructuring is becoming more important as an investment strategy. Effective January 1 2003, the government has allowed foreign investment in the restructuring of state-owned enterprises (SOEs). Though the key word in the government's Using Foreign Investment to Reorganize State-owned Enterprises Tentative Provisions is "Tentative", the legislation for the first time offers a plan and some details on how foreign investment can be used to recreate China's state sector.
In March 2003, the government promulgated new M&A rules that are effective from April 12 2003. Along with the above-mentioned SOE restructuring rules, qualified foreign institutional investor rules issued in December 2002 that target foreign investment in the A share market, and additional rules issued at the end of 2002 governing transfers of state-owned and legal person shares in A share listed companies to foreign-funded enterprises, the new M&A rules will redefine the arcane and complicated matrix of acquisition policies that have prevailed in China.
While foreign direct investment will continue to be an important component of China's overall investment climate, M&A and restructuring work is seen as reflecting the maturing of China's investment environment. Many first and second-generation investors are changing their strategies as the economy develops and as more reform is imposed on China's state sector.
Rising insolvency and bankruptcy work is a corollary of the reorganization of the PRC economy. The National Bureau of Statistics reported that the number of accepted bankruptcies nearly doubled between 1999 and 2001, and the first wholly foreign-owned enterprise bankruptcy was reported at the end of 2001 in Shanghai.
The financial and legal complexity of the China Mobile acquisition of mobile communications businesses in eight provinces, valued at about US$10.3 billion, gave work to many law firms. Linklaters advised China Mobile, as did Shearman & Sterling and Jingtian & Gongcheng. Herbert Smith, Sullivan & Cromwell, and Haiwen & Partners advised CICC and Goldman Sachs on the project.
In another restructuring based on the reorganization of the telecom sector, Freshfields Bruckhaus Deringer assisted China Unicom in the acquisition of mobile networks in nine provinces from its parent, China United Telecommunications Ltd, for US$2.7 billion. About US$2.15 billion will be purchased via debt offering, with the balance paid for in cash. The purchase was announced in November 2002.
White & Case has been representing a major global pulp and paper company in the auction and proposed sale of some PRC business units. The client is involved in an overarching debt restructuring. White & Case is also assisting a major European building products company in its acquisition of a stake in a Sino-foreign joint venture.
Jincheng Law Firm in Beijing is working on the China Unicom SK Telecom joint venture, which is set to be the first foreign-invested joint venture in China's much-hyped mobile phone market.
Deacons has been assisting a Hong Kong-listed company on creation of a Sino-foreign joint venture, by way of a share acquisition in the domestic firm, to conduct infrastructure project management.
Vivien Chan & Co. has been advising an international yarn manufacture and supply group on the acquisition of processing businesses in China. Separately, the firm has been acting as PRC and Hong Kong counsel to one of the world's largest supplier of pumps in the acquisition of the foreign-invested operations of another international pump manufacturer already present in China.
Haiwen & Partners and Jun He together are advising Samsung Corning on acquisition of the legal person shares in SEG Samsung Glass Co., an A share listed company. Under the aforementioned rules promulgated at the end of 2002, the transfer of legal person shares in listed companies to foreign investors is allowed for the first time. The Samsung Corning acquisition will likely be among the first acquisitions under these rules.
Jun He in 2002 represented Jabil Circuit in its acquisition of a Lucent Technologies facility in Shanghai by means of an asset purchase transaction. Since 1989, Lucent Technologies had been in a joint venture, Lucent Technologies of Shanghai, with several Shanghai-based partners. The joint venture produced optical transmission equipment for the regional market. In the acquisition agreement, US-based Jabil Circuit acquired a manufacturing facility and production machinery and inventory from Lucent Technologies of Shanghai. All employees of the Lucent operation also went to Jabil.
In separate deals, Jun He has been representing multinationals in China acquisitions. The firm has been acting for one multinational in the reorganization of its subsidiaries in China and multi-million dollar acquisitions of shares in domestic and international companies. In a different transaction, Jun He has acted for a multinational company in takeover of shares in a domestic firm and the merger of the multinational's PRC subsidiaries.
In similar deals, Boss & Young reports being busy recently assisting foreign clients to rationalize their sundry joint venture and wholly owned ventures in China into more coherent overarching management and company structures. The government has introduced rules recently in many areas, including regulations on companies limited by shares (CLS), which have enabled many foreign-invested enterprises to reorganize their operations, including associated tax and accountancy issues. In one example, Boss & Young assisted a Fortune 500 chemicals industry multinational recently in the restructuring and conversion of all of its entities in the PRC to a CLS umbrella structure.
Boss & Young also reports considerable foreign investment interest into formerly state-run enterprises, most of which are being aggressively restructured for commercial management as investment vehicles, and many of which are actually being converted to CLS, with varying degrees of privatization.
Another important trend is that leading Chinese enterprises in a range of industries are beginning to more actively investigate investment opportunities abroad. Boss & Young recently counselled on the purchase of a manufacturing enterprise in the US by a large Chinese concern in the same field. Such activity offers great opportunities for the brokering of big-ticket M&A and investment transactions by Chinese law firms.
Guangda Law Firm in Guangzhou has recently been involved in several M&A and restructuring deals in Guangzhou. The firm advised ATOFINA, the petrochemical and chemical division of TotalFinaElf on a chemical industry acquisition in Guangdong. Guangda has also represented the Chinese party in a joint venture with Rhodia for divestment of their controlling equity interest in HengChang Chemical Co. to Rhodia, with the transaction estimated at US$30 million.
Global Law Office's M&A practice has also been busy recently. Global advised a Hong Kong-listed telecom equipment manufacturer on acquiring a plant in Shenzhen, which will result in a second listing, and has been advising another Hong Kong-listed firm on acquisition of a Rmb300-400 million paper plant in China.
Both Deacons and Freshfields Bruckhaus Deringer were involved in the strategic alliance of US beer firm Anheuser-Busch and Tsingtao Brewery worth about US$182 million. As part of the deal, Anheuser-Busch will increase its stake in China's largest brewery to 27% over time. Currently, Anheuser-Busch holds about 4.5% in equity in Tsingtao. Tsingtao will issue convertible bonds to Anheuser-Busch, which will be converted into equity over several years, eventually culminating in a 27% equity stake in Tsingtao. All shares held will be in Hong Kong-listed H shares.
The Asia Netcom Corporation acquisition of Asia Global Crossing Ltd was a high-profile example of the internationalization of Chinese companies. Shearman & Sterling and Conyers Dill & Pearman represented Asia Netcom in the acquisition of some assets and assumption of certain liabilities from Asia Global Crossing, an undersea cable operator that filed for Chapter 11 bankruptcy. Asia Netcom is a wholly owned subsidiary of China Netcom Corporation (Hong Kong) Ltd. This was the first cross-border acquisition of a telecom company by a Chinese state-owned company. Gibson Dunn & Crutcher, Slaughter and May and Kasowitz Benson Torres & Friedman acted for Asia Global Crossing.
In recent months, Hogan & Hartson has been busy with significant restructuring projects involving its international clients. The firm assisted in the US$225 million acquisition by Corning of Lucent's fibre optic-related assets in China. The total acquisition consisted of the sale of Lucent's stakes in two separate companies, Lucent Technologies Shanghai Fiber Optic Co. and Lucent Technologies Beijing Fiber Optic Cable Co. The deal concluded in October 2002. The Shanghai firm makes optical fibre, and the Beijing venture makes fibre cable.
In another restructuring deal, Hogan & Hartson is involved in the reorganization of a major LPG terminal company in the Yangtze River delta.
Restructuring: China Telecom
In tandem with China's accession to the WTO, the telecommunications sector was overhauled. At the end of 2001 and the beginning of 2002 the government issued a series of new regulations and policies that changed the face of the industry in China. The changes largely centred on the state telecom operator, China Telecom. Telecommunications investment is a sensitive area for the Chinese government, and considerable attention has been focused on when and how foreign investors would be able to participate in a revamped telecom sector. Over a year since WTO accession, it is still not clear how the development of telecom services in China will use foreign investment.
As part of the China Telecom restructuring, mobile operator China Mobile became the largest telecom operator in China in terms of revenue. It is the largest mobile phone operator in the world in terms of network capacity and number of customers. In 2002, China Mobile acquired telecom networks in eight provinces, in addition to what had already been gained in the China Telecom restructuring. Haiwen & Partners advised the underwriters CICC and Goldman Sachs on the deal, along with Herbert Smith and Sullivan & Cromwell. Shearman & Sterling advised China Mobile (Hong Kong) as US counsel on the multi-billion dollar acquisition, in which China Mobile (Hong Kong) acquired the assets and businesses from its parent, China Mobile Communications Corp. Jingtian & Gongcheng and Linklaters also represented China Mobile on the acquisition.
Haiwen & Partners also advised Guangdong Mobile Communications, a China Mobile subsidiary, on its listing on the Shanghai stock exchange and its renminbi-dominated (at Rmb8 billion) bond offering. This was the largest domestic bond offering ever in China.
Restructuring: The Debt Hangover of Guangdong Enterprises
Guangdong Enterprises was organized in the early 1980s to help finance the investments and growth of hundreds of new companies in Guangdong province when the province opened its economy and liberalized investment rules at the beginning of the reform period. By the mid-1990s, however, the investment arm of the provincial government was badly in debt to overseas and domestic lenders, with about US$6 billion owed to banks and financial institutions.
Jingtian & Gongcheng in December 2002 finished work on the restructuring of about US$2 billion in debt of GH Water Supply and Guangdong Yue Gang Water Supply Co., two subsidiaries of the Guangdong Enterprises group of companies. Jingtian & Gongcheng and international firm Linklaters advised the two firms on the refinancing, which was the largest ever such refinancing done in Hong Kong dollars. In the deal, the Industrial and Commercial Bank of China (represented by Herbert Smith) provided a combined facility of HK$14.8 billion and Rmb2.17 billion secured limited recourse financing to the two firms. The complexity of the debt restructuring involved the services of other firms, including Allen & Overy, which acted for Standard Chartered (the security trustee), White & Case, which advised The Bank of New York as the bonds trustee, and Commerce & Finance, which advised Goldman Sachs.
Projects and Project Finance
Zheng Liu Yuan & Zhou has been a leading energy and infrastructure projects firm for decades. It advised on most of China's early internationally backed energy projects that spanned the 1980s and 1990s, including the Daya Bay nuclear power plant (as counsel for the project owner), the Shanxi Pingshuo An Tai Bao open pit coal mine (counsel to the Chinese party to the joint venture), the Ling Ao nuclear plant (counsel to the project owner), and the Guangdong Shajiao B plant.
Today the firm remains busy with engineering, procurement and construction (EPC) contracts, and in a range of water projects, LNG supply projects, and downstream petrochemical projects.
Another of Zheng Liu Yuan & Zhou's specialty areas is aircraft finance. It has acted as legal counsel to the General Administration of Civil Aviation of China and many Chinese airlines in the purchase of aircraft, as well as advising on lease-back transactions between Chinese airlines and foreign lessors.
Gide Loyrette Nouel has been a leader over the years advising on BOT projects. Many of China's biggest energy and infrastructure projects in the past decade have involved crucial participation by the French firm. The firm advised the Guangxi provincial government on the Laibin B power project, in which the concession was awarded to Electricite de France and GEC Alstom. In the Chengdu water plant, Gide advised Vivendi (which won the concession to build the plant along with Marubeni of Japan), and the firm is now advising Changsha municipality on the Changsha power plant, with the concession still in the formative stages.
Allen & Overy has been advising on the financing for the above-mentioned Daya Bay power project. In what will be the largest joint venture investment in China, Shell has joined with the China National Offshore Oil Corporation (CNOOC) to build the Nanhai petrochemical plant in Daya Bay near Hong Kong, at a staggering cost of US$4.5 billion. Allen & Overy advised the parties on project financing. Negotiations on the project have been in progress for more than a decade, and the plant should be operational by 2005. Freshfields Bruckhaus Deringer has advised the export credit agencies on this limited recourse financing project.
In another major financing deal, Allen & Overy played a key role advising Bank of China and HSBC, the arrangers on US$2.7 billion worth of bank debt financing in relation to the SECCO Shanghai ethylene cracker project. To date, this is the largest ever greenfield energy project and the largest uncovered financing in China.
Freshfields Bruckhaus Deringer has advised ExxonMobil and Saudi Aramco on the establishment of a US$3.6 billion refinery and integrated petrochemical complex with Fujian Petrochemical Co.
Simmons & Simmons assisted its client China Resources Power Holdings, the power division of a state enterprise, on acquisition of Mirant Asia-Pacific's interests in the Shajiao C power project. The project, with installed capacity of 1,980MW, is the largest coal-fired project in Guangdong province, and is one of China's largest power plants. Linklaters was advisor to Mirant. The acquisition was priced at about US$300 million. Simmons & Simmons advised on legal issues in the competitive tendering, due diligence and ultimate acquisition of Mirant's interest in Shajiao C. The acquisition was completed in December 2002.
An energy-related deal that Squire Sanders & Dempsey is proud of is the arrangement of financing for a biomass energy project in Shandong province in the PRC that will convert wheat into fuel. As the PRC becomes more aggressive in its pursuit of environmentally friendly technologies, and faces huge energy demands and serious environmental damage, the opportunities for foreign firms that have expertise in alternative energy projects such as this biomass project will grow. The Taiwan office of Squire Sanders & Dempsey has been closely involved in the project.
White & Case is working on many energy and infrastructure projects in the PRC. The firm is advising a crude oil production company on aspects of the establishment of an integrated crude oil refining and petrochemical project in south-eastern China. White & Case is also representing a US energy company in connection with its acquisition of power generation-related equipment from a PRC vendor.
In financing, Llinks advised a banking syndicate led by SPDB, the Industrial and Commercial Bank of China and the China Construction Bank in a seven-bank project limited recourse financing for Shanghai Grace Semiconductor Manufacturing Corporation worth US$830 million. The deal was the first time that PRC banks arranged such a limited recourse project finance, and that an asset-backed trust mechanism was created in which the contractual rights were assigned as trust property and collaterals arranged on the basis of such trust property. In addition, exclusively PRC law was used in the project finance transactions as all parties to the arrangement are PRC companies.
Jin Mao recently advised the Bank of China on project finance for a hot galvanized steel production project in Dalian, Liaoning province. The project is an equity JV between Angang Steel and ThyssenKrupp and the project finance totalled Rmb1 billion. The firm handled the entire project finance arrangement for the deal. All project finance for the joint venture was arranged by Chinese commercial banks.
Jones Day has been acting as lead counsel to the Joint Executive Office of the US$600 million Guangdong LNG Terminal and Trunkline project as well as advising on complex financing issues. The project is a joint venture including CNOOC (with a 33% stake), BP (30%), and other major energy concerns. Years in the planning, the Guangdong LNG project is the biggest project finance deal for many years in China, and signals a major government commitment away from coal-fired energy plants to more environmentally friendly fuel sources.
Blake Dawson Waldron has played a key role in some of China's high profile infrastructure projects. The firm is acting for the Beijing municipality in the Beijing No. 10 water plant project, which has a total investment of Rmb2.091 billion. This potable water project aims to modernize one aspect of Beijing's infrastructure in time for the 2008 Olympics. Anglian Water Plc and Marubeni are the foreign contractors for the project.
Blake Dawson Waldron has recently acted for some PRC enterprises investing in Australia. In June 2002, the firm represented state enterprise Shanghai Baosteel Group Corp., China's largest steel enterprise, in a mining investment in the Pilbara region of Western Australia. Baosteel will hold 46% of a joint venture with Hamersley Iron, Rio Tinto's 100%-owned subsidiary, in an iron ore development project. In the 20-year JV, Hamersley will provide 10 million tonnes of iron ore per year to Baosteel. In 2003, Blake Dawson Waldron has acted for a Chinese investor in an agri-food concern in Australia.
Minter Ellison, largely from its Hong Kong office, has been advising BP, BHP, Shell, Chevron, Mimi and Woodside in relation to the US$14 billion LNG supply contract and the LNG shipping arrangements for the Guangdong LNG Terminal Project.
Minter Ellison is also advising BASF on gas supply arrangements with Petrochina for the US$3 billion Nanjing Petrochemical Project that will take gas from the West - East Pipeline.
Minter Ellison has the only dedicated construction practice among foreign law firms in China. The firm is confident that as most FDI still centres on manufacturing facilities, foreign investors are looking to foreign contractors, and both investors and foreign contractors need specialist construction lawyers. Increasingly, Chinese law is the governing law in construction projects. Foreign engineering and construction firms will need more advice on what the law entails, and how their respective joint ventures can operate.
Projects: The 2008 Olympics
The build up surrounding the Beijing 2008 Olympics has spread work to many law firms and their international clients. The urban water infrastructure project discussed above is one project among many that will modernize Beijing in time for the games.
In September 2002, Allen & Overy was appointed by the Beijing Municipality Development Planning Commission to advise on aspects of the building of six major facilities the Olympic Village, National Stadium, National Gymnasium, National Swimming Centre, a convention and exhibition centre, and general commercial facilities for the 2008 Games.
Morrison & Foerster has been retained by the Beijing Organizing Committee for the Games of the XXIX Olympiad (BOCOG) as international counsel. King & Wood is domestic counsel. Morrison & Foerster will offer advice on diverse legal issues for the 2008 international sporting event, including on television broadcasting, marketing, and intellectual property protection. The firm played a key role in legal advisory for the Salt Lake City Olympics in 2000, and will build upon their international and China practices to assist BOCOG for the 2008 games.
Projects: Theme Parks
China's domestic tourism industry is a booming growth area, and the growing affluence of the coastal cities is a prime target for major foreign investments in large-scale, family-oriented entertainment complexes and parks. Disney is banking on Hong Kong's love affair with all things Hollywood to make its theme park on Lantau island (due to be completed in 2005) a big success, and several other international developers have similar hopes for mainland consumers' growing appetite for Hollywood culture. Though several mainland cities have reportedly been developing theme park projects, only two so far have been officially approved.
Richard Wang is representing both the Shanghai and Tianjin municipal governments in the Universal and Paramount theme parks, respectively. Universal Studios is being represented by Haiwen & Partners and Skadden, Arps, Meagher, Slate & Flom. The Paramount investment is still only at the formative stages, but Tianjin is reportedly very keen on pushing the project through.
Intellectual Property
Liu, Shen & Associates was China's first private intellectual property practice when it was established in 1993. The firm is licensed to undertake patent and trademark filing and registration for foreign clients in China.
In December 2002, the firm won a landmark case for its long-time client Interlego against the Tianjin Toy Co. for copyright and patent infringement of some of the plaintiff's products. The case was widely hailed as the most important intellectual property case China's courts have seen, and was the culmination of several years' work.
Liu Shen's Eugene Yu points out that the most important aspects of the case were two-fold: first, the victory marked the first time that intellectual property infringement claims were upheld on an applied art copyright basis in the PRC, and secondly that applied art can enjoy dual protection in both patents and copyrights. The court's decision gave heart to international manufacturers that have brands in China, as the court explicitly upheld the applied art basis for protection as established under the Berne Convention and the Trade-related Aspects of Intellectual Property Rights (TRIPs) Agreement, which govern China's IP commitments with respect to its WTO membership.
Kangxin & Partners' Samson Yu reports that with China's continued high levels of foreign investment, research and development investment is becoming more important. As a corollary, patent and trademark filing is on the rise. Yu adds that the demand for knowledgeable and skilled Chinese patent attorneys will grow and they will be in heightened demand in both drafting patent specifications and litigating successfully with the prosecution and technical background for the work.
Leading PRC firm King & Wood reports some interesting work recently in intellectual property. Partner Shi Yu-sheng has been working on a major case involving Toyota and Jili, a domestic automotive manufacturer. King & Wood has been representing Toyota, which has filed a claim with the Beijing Second Intermediate People's Court, alleging that Zhejiang-based Jili had infringed Toyota's trademark by using a very similar trademark design to that of Toyota. Jili is among the most successful of China's automotive makers, and has a leading market position for two of its consumer cars. Jili Chairman Li Shufu is one of China's best-known entrepreneurial success stories, and in part the high-profile case has been portrayed by Li as a struggle between China's budding entrepreneurial class and private enterprises against international big business with deep pockets.
Shanghai firm Haworth & Lexon, one of China's numerous local law firms with anglicized names, is strong in corporate and commercial practice, dispute resolution and intellectual property. Partner Bailey Xu echoes similar opinions to those of Kangxin's Samson Yu, stating that economic growth and high levels of foreign investment have created a heightened demand for IP protection from both foreign investors and domestic parties that are seeking to protect their brands.
Haworth & Lexon in January 2003 won a trademark infringement case for its client Nippon Paint Co. The Higher People's Court in Hubei province ruled in favour of Nippon, confirming that the defendant had illegally used Nippon's trademark, which the court additionally recognized as a "well-known" trademark. Although China has enacted legislation that does recognize well-known status for trademarks, it has been rare that a court has actually ruled in favour of a plaintiff's claim that its trademark is well known. Nippon launched cases in several cities around China in August 2002, and the Hubei ruling was the first final judgement that has been delivered.
UK intellectual property specialist Rouse & Co. International has a well-represented China practice, with offices and associations in Hong Kong, Guangzhou, Beijing and Shanghai. In Beijing the firm operates through its local associate, Beijing Jeiding Consulting.
Rouse & Co. has been active representing international pharmaceutical firms in China. The firm's Guangzhou office recently coordinated the prosecution of two individuals who had sought to manufacture and export more than US$1 million in counterfeit brand name pharmaceutical drugs. The firm liased on this case with the international pharmaceutical companies, the Public Security Bureaux of five provinces and the Public Prosecutor's Office.
Tim Browning in Rouse & Co.'s Guangzhou office says that with the central government's renewed interest in criminalizing counterfeit activities, the country's courts have been spurred to impose criminal penalties for piracy and counterfeit production. Further, as with many other veterans of the fight to protect IP in countries around the world, Browning echoes the opinion that as China's domestic industries develop unique and well-known brands of their own, IP protection will become much higher profile, with ever larger sections of society demanding an adequate protection framework.
Rouse & Co.'s Shanghai office recently won an important victory for its client Burberry, in which Rouse helped to force the Trademark Review and Adjudication Board (TRAB) to provide a hearing on a Trademark Office refusal of appeal and force the TRAB to expedite procedures on a case of trademark violation in China. Burberry has had its trademark registered in China for 10 years.
Shipping and Maritime
Shanghai is the centre of China's shipping industry. Many local Shanghai law firms are leaders in shipping and maritime issues, including: Richard Wang; Rolmax; Shanghai United; and Sloma. Pu Dong Law Office in Shanghai and Global Law Office in Beijing also have considerable maritime expertise.
UK firms Holman, Fenwick & Willan, Ince & Co. and Sinclair Roche & Temperley all have first-class international shipping and maritime practices that are active in China. Sinclair Roche & Temperley is now in an association with Stephenson Harwood, which operates in Guangzhou and Hong Kong as Stephenson Harwood & Lo.
Holman Fenwick & Willan, is a leader in shipping and maritime casualty cases. Recently it has been active for a Danish-based client in drafting and negotiating the documentation for construction and management of a multimillion US dollar container terminal in Waigaoqiao, and has advised the same client on construction and operation of a container terminal in Qingdao.
The firm has also been representing owners and their P&I club in a defence against a US$36.5 million environmental pollution claim stemming from a major marine accident in China. In a separate case, Holman Fenwick & Willan has been assisting a client in a US$15 million case involving a chemical leakage resulting in environmental damage, including to fishery resources.
Dispute Resolution
The China International Economic and Trade Arbitration Commission (CIETAC) is the busiest arbitration centre in the world, and now handles nearly 700 cases per year. In the early years of China's reform period, local officials were quite willing and effective in mediating disputes involving foreign parties to China investments. Today, due to the overall growth of foreign investment and the complexity of the range of industries and issues involved, CIETAC has become the favoured settlement mechanism.
Sales, joint venture contract disputes, construction project disputes, technology transfer issues and maritime issues all regularly appear before CIETAC arbitrators. Although there have been some outspoken international legal experts who have criticized CIETAC's impartiality, many international lawyers and businesspeople who have been extensively involved in CIETAC arbitrations are positive that CIETAC arbitrations are fair and expeditious.
The PRC court system is steadily improving. Not surprisingly, judgments rendered by courts in the major cities that have experience with foreign-invested issues are seen as the most impartial. Enforcement of judgments is another matter, but again this is generally much better in the major coastal cities than in interior provinces. The Beijing court's decision in the Interlego case discussed above was seen as a major landmark in the maturation of the court system, as well as in the general attitude towards intellectual property protection in China.
All major local law firms discussed above have important dispute resolution practices (see Intellectual Property section above for details on some important recent cases involving local firms). As foreign law firms are not allowed to practice Chinese law, they cannot appear as counsel in PRC courts and hence cannot really compete with local law firms directly for dispute cases. The major international law firms generally have some type of cooperative relationship with local firms, working with them on major dispute cases involving their international clients in Chinese courts.
Many foreign law firms have lawyers with extensive CIETAC arbitration experience. Deacons is handling one CIETAC arbitration in a JV hotel project dispute in Beijing, and another involving a shareholder dispute in Shenzhen.
Freshfields Bruckhaus Deringer is currently involved in several CIETAC arbitrations. One centres on a dispute involving a global power generation company in a Chinese power purchase agreement. The dispute amount totals US$750 million. Another is a US$750 million dispute over a JV ports construction project in the PRC, with the main issues in dispute being rights of first refusal and throughput obligations.
White & Case has been involved in some major disputes, including representing a US power generation company in a JV contrac
作者：dontbesocute 在 海归商务 发贴, 来自【海归网】 http://www.haiguinet.com
|
|
|
| 返回顶端 |
|
 |
|
-
 [资料备查]《Law Firms in Greater China 2003》-International Law Firms and Other Info. -- dontbesocute - (65742 Byte) 2004-8-26 周四, 17:57 (3535 reads)
|
|
|
|
您不能在本论坛发表新主题, 不能回复主题, 不能编辑自己的文章, 不能删除自己的文章, 不能发表投票, 您 不可以 发表活动帖子在本论坛, 不能添加附件不能下载文件, |
|
|
