Asian Legal Business (SE Asia) Jun 2009

ALB Japan Law AwardsAll the winners from Tokyo

ALB Special Report: Vietnam 09Lawyers helping the country fulfil its potential

China outbound M&AWill the hunger for overseas energy & resources assets continue?

ISS

UE

9.6

The who’s who of intellectual property law firms and lawyers this year

Asia’s Leading IP Firms 2009

www.legalbusinessonline.com

MARKET AnALysis LATERAL MOVEs DEALs ROUnDUP REGiOn-WiDE PERsPECTiVEs UK, Us REPORTs

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ALB ASIAN LEGAL BUSINESS

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EDiTORiAL EnqUiRiEsJoshua Scott

T (65) 6423 4631; F (65) 6423 [email protected]

ALB enjoys alliances with the following organisations

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Employment law

Freehills’ strong reputation for delivering the best commercial legal advice has been developed over more than 150 years, becoming one of the largest and most respected law firms in Australia and Southeast Asia. Freehills has offices in Sydney, Melbourne, Perth and Brisbane. It was one of the first Australian firms to establish an Asian practice and has an office in Singapore and correspondent offices in Hanoi, Ho Chi Minh City and Jakarta.

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

Philippines

Founded in 1945, SyCip Salazar Hernandez & Gatmaitan is one of the most-established law firms, and the largest, in the Philippines. Principally based in Makati City, the country’s financial and business center, the firm also has offices in Cebu City, Davao City and the Subic Bay Freeport. SyCip’s practice covers all fields of law and the broad range of the firm’s expertise is reflected in its client base, which includes top local and foreign corporations, international organizations and governments. SyCip combines traditions of professional integrity and excellence with a time-tested ability to break new ground.

China

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

Malaysia

Tay & Partners is a Malaysian law firm established in 1989 with offices in Kuala Lumpur and Johor Bahru. It is a full-service commercial law firm, advising a varied portfolio of clients across a broad spectrum of industry sectors. The firm’s vision is to be the law firm of choice to businesses investing or operating in Malaysia.

Vietnam

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

indonesia

BT Partnership is a dynamic and result oriented law firm specialized in corporate-financial restructuring and litigation practices with full-length and great detailed of experiences in safeguarding multinational clients from complex legal issues including for their M&A, FDI, Funds and Structured Finance transactions. In 2007, the firm has been awarded as Dispute Resolution Firm of the Year and further, Employer’s of Choice for Indonesia jurisdiction while its Partner has been inaugurated as one of the Asia Hot Lawyers of the Year 2008.

singapore

Loo & Partners was founded in 1985 as a niche practice, handling mainly banking, corporate, securities and commercial work. With the support of a comprehensive network of correspondent law firms, the firm serves its clients in their regional needs. The firm has been regularly noted for its IPO, M&A and general corporate work.

Competition / intellectual property

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

Practice area and industry editors The Regulatory Updates section is sponsored by the following firms:

international tax

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

ToronTo100 Adelaide Street West

Suite 300, Canada M5H 1S3T (0011 1 416) 644 8740 F (0011 1 416) 203 8940

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Hong KongUnit 2706 - 08, 27/F,

118 Connaught Road West, Hong Kong

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Singapore121, Telok Ayer Street

#02-01, Singapore 068590T (65) 6423 4631 F (65) 6423 4632

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SydneyLevel 10, 1 Chandos Street,

St Leonards, NSW 2065 Australia

T (612) 9439 4566 F (612) 9439 4599

www.keymedia.com.au

general managerLucinda Maguire

aSia-pacific managing direcTorRichard Curzon

deSign managerJacqui Alexander

deSignerSWeiyah Chiang Raymond Ohanesian

pHoTograpHer

Thilo Pulch, Ji Junfeng, Xing Qunkai

BuSineSS developmenT managerSVivian Cheah (Singapore) Brenda Lau (Hong Kong)Yvonne Cheung (China)Benn Sykes (Australia)

Traffic managerS Patsy Ang (Singapore) Stacey Rudd (Australia)Gloria Ng (Hong Kong)

regional managing ediTor

George Walmsley

aSia marKeTing manager – legalChris See

aSia ediTorJoshua Scott

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auSTraliaBenn Sykes

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EVEnT EnqUiRiEsSingaporeVivian Cheah

T (65) 6423 4631F (65) 6423 4632

[email protected]

Hong KongAmanda Ho

T (852) 3520 1359F (852) 2815 5225

[email protected]

Joel UlbrichtT (852) 2850 4496F (852) 2815 [email protected]

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

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internation Arbitration

Established in 1889, Drew & Napier is one of Singapore’s leading law firms. Consistently rated top tier in dispute resolution, the firm has 7 senior counsel, the largest number of any Singapore law firm. The firm is headed by CEO, Davinder Singh, SC, one of Singapore’s foremost lawyers. Drew & Napier is also highly rated in Insolvency & Restructuring, IP, Tax, Banking & Corporate, Competition Law, TMT, and Shipping.

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Maxwell Chambers

Housing best-of-class hearing facilities as well as top international Alternative Dispute Resolution (ADR) institutions, Maxwell Chambers offers you a one-stop, full-shop services for ADR activities in Singapore. Our facilities can be used for meetings, seminars and conferences. Call us at 6332 1030 or visit www.maxwell-chambers.com for more information

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EDITORIal >>

Asian Legal Business ISSUE 9.622

in THE FiRsT PERsOn

The special relevance of relevant specialists

The question of whether or not boutique law firms are an endangered species is one of those issues that provides regular grist for the mill. Last year, it seemed the outlook couldn’t have been brighter for specialist firms across the region. They were inundated with work, their charge-out

rates were lower than their full-service competitors and their lawyers reported record levels of job satisfaction.

But this year has proved to be a different story. Boutique firms face ever-increasing competition from full-service law firms, their partners have begun to make noises about the lack of opportunities available for their professional development and lawyers have started to defect to full-service competitors in droves. It appears that boutiques are being bypassed as clients make the ‘flight to quality’ during the current financial crisis. This much is evident from ALB’s survey of in-house lawyers and corporate leaders for our second annual guide to Asia’s leading intellectual property (IP) firms.

The survey shows that where specialist practices once led the way on IP advice, it is full-service corporate firms that have recently gained ground. In-house lawyers ALB talked to suggested that these firms are beginning to find the right mix between the ‘one-stop-shop’ concept and the technical experience and know-how that is so crucial in an increasingly savvy industry. They have begun to realise just how important IP is, as evidenced by the increasingly high-profile nature of some of their clients and work. Tellingly, all the in-house lawyers and corporate leaders surveyed said that they could see themselves using full-service law firms more rather than less over the coming years.

But, as always, there is still room for improvement. Timeliness, attention to detail and costs continue to be the most important issues raised, and the unanimous conclusion is that no firm has got the mix right just yet. The door it seems is open for specialist law firms to reaffirm their market relevance and depth of expertise, but on bigger transactions competition from larger firms is intense. “They are extremely commercial, which is often the biggest thing in IP, but they don’t have the critical mass or internal structure to compete,” said the general counsel of a Fortune 500 company. “Size is not everything but when you can’t offer seamless advice across multiple practice areas it is an important factor. I’m probably speaking for many of my in-house colleagues when I say that we need the quick turn-around, all-encompassing advice that full-service firms can offer now more than ever before.”

“Antitrust is a brand new practice area for all PRC firms. It is a complicated area and sets a high threshold for lawyers to enter, but it offers local firms great prospects for growth”Zhan Hao, Grandall (p14)

“Global piracy and counterfeiting must be stopped or significantly reduced for the economies of developed and developing nations to thrive”Kelsey Zahourek, Property Rights Alliance (p38)

“In many ways, closing deals at the moment in Vietnam is about returning to the basics… Clients are proceeding more cautiously and being more selective”Dao Nguyen, Mayer Brown (p61)

All the in-house lawyers… surveyed said that they can see themselves using full-service law firms more rather than less over the coming years

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4

NEws | deals >>


27 International arbitrationDrew & Napier

28 EmploymentFreehills

29 Islamic financeazmi & associates

32 REGIONAL UPDATES China•paul weiss Philippines•sycip salazar herNaNDez & GatmaitaN

Malaysia•tay & partNers

Singapore•loo & partNers

Indonesia•BtpartNership

Vietnam•iNDochiNe couNsel

PROFiLEs

54 Stephenson Harwood

59 Thomson Elite

63 Indochine Counsel

CONTENTs >>

contents

Copyright is reserved throughout. No part of this publication can be reproduced in whole or part without the express permission of the editor. Contributions are invited, but copies of work should be kept, as Asian Legal Business can accept no responsibility for loss.

AnALysis

12 M&A: The new gold rushThesheersizeofChinesecompanies’acquisitivepoweriscreatingahealthyflowofoutboundtransactionsforlawfirmstoacton

14 Coca-Cola-Huiyuan: The falloutHowthelandmarkdecisionmarksacomingofageforChina’santi-monopolylaw

FEATUREs50 ALB Managing Partner Series

Lovells’CrispinRapinettellsALBhowheensuresthefirmperformsaswellinthebadtimesasitdoesinthegood

56 Knowledge ManagementThreeofAsia’sleadingknowledgemanagementpracticesrevealhowtheystayaheadofthegame

60 ALB Special Report: Vietnam 2009BoomingindustriesandstrongexportsarethebrightspotsforlawyersinVietnamthisyear

64 ALB Japan Law Awards 2009Allthewinnersfromthisyear’sceremony

67 IPBA ConferenceTopoftheagendainManilawashowtodealwiththechallengesoftheglobalfinancialcrisis

REGULARs

6 Deals

16 NEWS EvershedsentersSaudiArabia•SalansopensHongKongoffice•UAEtotranslatelawsintoEnglish•ZhongwangIPOsuffersswineflueffect•SingaporeBarrestrictionseased•MaherexitsMayerBrownafterleadershipsnub•SkaddenlaunchesAsiaarbitrationoutpost•DuotoastKirin-LionNathandeal•Simmonslooksatoutsourcingwork•Dubailawyersgetcodeofconduct•

16 UK report

18 US report

30 Mergermarket M&A update

72 Sign off

20 International taxazure

21 Financial serviceshorwath

22 Intellectual propertyatmD BirD & BirD

23 ITGuiDaNce soFtware

26 EnvironmentatmD

ALB ISSUE 9.6

14

60

COVER sTORy36 ALB’s Leading Asia iP Firms

The who’s who of intellectual property law firms and lawyers this year as voted for by lawyers across the Asia-Pacific region

36

50

http://www.recruit-legal.com

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Changyou.com•andSohu.comlistingof7.5millionAmericandepositaryshares

CreditSuisse•Securities(USA)LLCandMerrillLynch,Pierce,Fenner&Smithwerejointbookrunnersandrepresentativesofunderwriters

FirstIPOonNasdaqandsecondIPO•intheUSthisyear

LargestIPOinUSbyChinese•companysinceJuly2008

| CHINA/US |

ChAnGyou.Com IPo And ►nAsdAq LIstInG Value: us$138m

Firm: CampbellsClient:Changyou

Firm: Commerce & Finance Law Offices Client:Changyou

Firm: Goulston & Storrs Client:Changyou

Firm: Davis Polk & Wardwell Client:JointbookrunnersLead lawyer:WilliamBarron

Firm: King & Wood Client:Underwriters

deals in brief

William BarronDavis Polk & Wardwell

| CHINA/CANADA |

CnPC InteRnAtIonAL ►- VeRenex eneRGy ACquIsItIon Value: us$350m

Firm: Dewey & LeBoeuf Client:CNPCInternationalLead lawyer:IngridZhu-Clark

CNPCInternational,subsidiary•ofChinaNationalPetroleum,hasacquiredCanada’sVerenexEnergy

TheacquisitionofVerenex,which•holdsoilassetsinLibya,willgiveCNPCastakeinapromisingLibyanoilconcession

| HONG KONG/TAIWAN |

PRomos ConVeRtIbLe bond ►Issue tendeR oFFeR Value: us$350m

Firm: Baker & McKenzie Client:ProMos

Firm: Davis Polk & Wardwell Client:CitigroupGlobalMarketsLead lawyer:WilliamBarron

Firm: Lovells Lee & Lee Client:BankofNewYorkMellon

ProMOSTechnologiescashtender•offertopurchaseoutstandingconvertiblebondsdue2012

Dealstructuredtobalance•internationaldebtholdersanddomesticlenders’collectiveinterest

| CHINA/INDIA |

PwC - beARInGPoInt ►ACquIsItIonValue: us$25m

Firm: Davis Polk & Wardwell Client:BearingPointLead lawyers:KirteeKapoo,MarkLehmkuhler,HowardZhang

Firm: Jun He Law Offices Client:BearingPoint

Firm: Singhania & Co Client:BearingPoint

| CHINA/HONG KONG |

ChInA ZhonGwAnG IPo ►Value: us$1.3bn

Firm: Richards Butler Client:ChinaZhongwangLead lawyer:KCMok

Firm: Conyers Dill & PearmanClient:ChinaZhongwang

Firm: Commerce & Finance Client:ChinaZhongwang

Firm: Latham & Watkins Client:ChinaZhongwang

Ven Tan Morrison & Foerster

HEADLINEDEAL

Lead lawyer:DavidZhang

Firm: Jingtian & Gongcheng Client:UnderwritersLead lawyer:FuSiqi

Firm: Morrison & Foerster Client:UnderwritersLead lawyer:VenTan

IPOislargestworldwidesofar•thisyear,breakingtheeight-monthdroughtonbillion-dollarIPOssinceChinaSouthLocomotiveraisedUS$1.6bninAugust2008

ChinaZhongwangisoneofAsia’s•largestextruded-aluminiumproductmakers

“The listing is significant not only for its size but its role in raising investor confidence in the IPO market in Hong Kong. This is the second Hong Kong IPO that Morrison & Foerster has advised on since the start of the global financial crisis, and both listings have overcome extreme market volatility and uncertainty. While the market still has a long way to recover to its pre-2008 activity, the listing indicates a positive turning point in the market”

Ven Tan, Morrison & FoersTer

NEws | deals >>

7www.legalbusinessonline.com

Firm: LinklatersClient:PricewaterhouseCoopers

Firm: Talwar Thakore & Dayal & Associates Client:PricewaterhouseCoopers

Firm: Wilmer Hale Client:PricewaterhouseCoopers

PwCisacquiringasignificant•portionofBearingPoint’sNorthAmericancommercialservicesbusinessandassociatedglobaldeliverycentresinChinaandIndiaforUS$25m

| HONG KONG/KOreA |

AnheuseR-busCh InbeV - ►oRIentAL bReweRy sALeValue: us$1.8bn

Firm: Sullivan & Cromwell Client:Anheuser-BuschInBevLead lawyers:MichaelDeSombre,UrsFankhauser

Firm: Kim & Chang Client:Anheuser-BuschInBev

Firm: Bae Kim & LeeClient:OrientalBrewery

Firm: Simpson Thacher & BartlettClient:OrientalBrewery

Anheuser-BuschInBevsoldshares•inOrientalBrewerytoentityestablishedbyUSprivateequityfirmKKR

| AUSTrALIA/CHINA |

CnooC - bG GRouP LnG ►AGReementValue: undisc

Firm: Fulbright & Jaworski Client:BGGroup

Firm: Herbert Smith Client:CNOOCLead lawyer:AnnaHowell

DealinvolvesChinaNational•OffshoreOilCorporationandaffiliatesinprojectdevelopmentagreementwithBGGrouptosellliquefiednaturalgasfromBGGroup’sQueenslandCurtiscoalbedmethaneLNGProjectinAustralia

Agreementwassignedon12May•

CNOOCtopurchase3.6million•tonnesperannumofLNGforaperiodof20yearsfromthestart-upofQCLNG

youR month At A GLAnCe ►Firm Jurisdiction Deal name Value

(US$m)Deal type

Allen&Gledhill Singapore FrasersCentrepointTrustMulticurrencyMediumTermNoteProgramme.

342 Equitymarket

Singapore KCCCorporationbondsissuancedue2014 58.3 Equitymarket

Singapore/China OverseaChineseBankingCorporation-CKTacquisitionproposal

Undisc Finance

India SuzlonEnergyconvertiblebondsissuance 500 Equitymarket

Allen&Overy Indonesia RepublicofIndonesiaglobalsukukissuance 650 Finance

Singapore HutchisonWhampoabondoffering 1,000 Equitymarket

Indonesia JakartaTankTerminalprojectfinancing 60 Projectfinance

AmarchandMangaldas

India IndiabullsRealEstateQIPsharesale Undisc Equitymarket


AssegafHamzah&Partners

Indonesia RepublicofIndonesiaglobalsukukissuance 650 Finance

AZB&Partners India SuzlonEnergyconvertiblebondsissuance 500 Equitymarket

Bae,Kim&Lee HongKong/Korea Anheuser-BuschInBev-OrientalBreweryCosale

1,800 M&A

Baker&McKenzie HongKong ITOCHUCorporation-TingHsinHoldingCorpshareacquisition

170 M&A

HongKong/Taiwan ProMOSconvertiblebondissuetenderoffer 350 Equitymarket

Campbells China/US Changyou.comIPOandNasdaqlisting 138 Equitymarket

ClearyGottlieb HongKong HutchisonTelecommunicationsHongKongHoldingsHongKongStockExchangelisting

Undisc Equitymarket

CliffordChance India SuzlonEnergyconvertiblebondsissuance 500 Equitymarket

Korea KookminBankbondissuance 1,000 Equitymarket

China IFC-KoYoEcologicalAgrotechstakeacquisition

Undisc M&A

Commerce&Finance China/HongKong ChinaZhongWangIPO 1,300 Equitymarket

China/US Changyou.comIPOandNasdaqlisting 138 Equitymarket

ConyersDill&Pearman

China/HongKong ChinaZhongWangIPO 1,300 Equitymarket

DavisPolk&Wardwell

China/US Changyou.comIPOandNasdaqlisting 138 Equitymarket

China/India PwC-BearingPointacquisition 25 M&A

HongKong/Taiwan ProMOSconvertiblebondissuetenderoffer 350 EquityMarket

Dewey&LeBoeuf China/Canada CNPCInternational-VerenexEnergyacquisition

350 M&A

Freshfields China GrandPointInvestment-TianjinPortCompanystakeacquisition

1,800 M&A

China/HongKong CITICBankacquisitionofstakeinCIFH 1,700 M&A

China ChinaCITICBank-CITICInternationalFinancialHoldingsacquisition

1,750 M&A

Fulbright&Jaworski Australia/China CNOOC-BGGroupLNGagreement Undisc Finance,Construction

GlobalLawOffice China GrandPointInvestment-TianjinPortCompanystakeacquisition

1,800 M&A

Goulston&Storrs China/US Changyou.comIPOandNasdaqlisting 138 Equitymarket

HarryEliasPartnership

Singapore AscentPharmahealth-GreenCrossPharmaacquisition

Undisc M&A

8

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| INDONeSIA |

RePubLIC oF IndonesIA ►GLobAL sukuk IssuAnCeValue: us$650m

Firm: Allen & Overy Client:RepublicofIndonesiaLead lawyers:DavidJohnson,HoomanSabeti-Rahmati,KenAboud

Firm: Assegaf Hamzah & Partners Client:RepublicofIndonesia

RepublicofIndonesiaissuedfirst•globalShariah-compliantbondorsukuk

Sukukstructuredaroundsaletoa•specialpurposevehicle,PerusahaanPenerbitSBSNIndonesiaI,andlease-backof66state-ownedpropertiesinJakartaandBandung

Theissuancewasseveraltimes•oversubscribed

Jointleadmanagersforissuance•wereBarclays,HSBCandStandardCharteredBank

| CHINA/HONG KONG |

CItIC bAnk - CIFh stAke ►ACquIsItIon Value:us$1.7bn

Firm: Richards Butler (in Association with Reed Smith)Client:CITICGroupLead lawyer:DeniseJong

Firm: Freshfields Client:ChinaCITICBankLead lawyer:ChristopherWong

ChinaCITICBankhasagreedto•acquirea70%interestinCITICInternationalFinancialHoldings(CIFH)forUS$1.7bnfromCITICGroupandGloryshareInvestments

CIFHpreviouslylistedonMainBoard•ofHongKongStockExchange

AcquisitionwillallowCITICBank•toexpandbranchnetworkandestablishstrongerpresenceinHongKong

| HONG KONG |

hutChIson ►teLeCommunICAtIons honG konG hoLdInGs honG konG stoCk exChAnGe LIstInG Value: undisc

Firm: Herbert Smith Client:GoldmanSachsLead lawyer:JohnMoore,MattEmsley

Firm: Cleary Gottlieb Client:HutchisonTelecommunicationsInternational

HutchisonTelecommunications•HongKongHoldingslistingonMainBoardofHongKongStockExchange

Waspreviouslyawholly-•ownedsubsidiaryofHutchisonTelecommunicationsInternational(HTIL)

DealdidnotinvolveIPOofshares•butspin-offbywayofadistributionofentiresharecapitaltoqualifyingshareholdersofHTIL

| CHINA |

CPIC LIFe - ChAnGjIAnG ►PensIon shARes ACquIsItIonValue: us$73m

Firm: King & WoodClient:ChinaPacificLifeInsurance

Firm: Zhong LunClient:ChangjiangPensionLead lawyers:JeremyDai,GongLefan

ChinaPacificInsurance(Group)•announcedthatitssubsidiaryChinaPacificLifeInsurance(CPICLife)willacquiresharesofChangjiangPensionInsurance(ChangjiangPension)forapproximatelyUS$73m

King&Woodhasbeenalong-•standinglegaladvisortoChinaPacificInsurancehavingadvisedonthegroup’sIPOin2007andontheinvestmentbyCarlylein2005

| CHINA/US |

CtRIP - home Inn shARe ►ACquIsItIonValue: us$50m

Firm: Latham & WatkinsClient:HomeInn

Lead lawyer:DavidZhang

Firm: Maples and CalderClient:HomeInn

Firm: Shearman & SterlingClient:Ctrip

HomeInns•&HotelsManagementsoldUS$50mequitysharestoCtrip.comInternational

Ctrip.comislargestsingle•shareholderofHomeInns,dealincreasesinterestfrom10%to18%

| TAIWAN/CHINA |

ARRAy netwoRks IPo ►Value: us$79m

Firm: Jade & Fountain Client:ArrayNetworksLead lawyers:ScottGuan,StevenHuang

ArrayNetworksUS$79mIPOon•TaiwanGreTaiSecuritiesMarket

MakesArrayNetworksfirstforeign•companytobelistedinTaiwan

Firsttimeacompanywithmain•

Matt EmsleyHerbert Smith

David ZhangL&W

Ken AboudAllen & Overy

Denise JongRichards Butler

NEws | deals >>


businessoperationsinmainlandChinalistedinTaiwanstockmarket

LeadinvestmentbankwasChinaTrust•CommercialBankfromTaiwan

| INDIA |

suZLon eneRGy ConVeRtIbLe ►bonds IssuAnCeValue: us$500m

Firm: Clifford Chance Client: JPMorganSecurities,MacquarieCapitalSecuritiesLead lawyers:RahulGuptan,ConnieHeng,AlexLloyd

Firm: AZB & Partners Client:Banks

Firm: LinklatersClient:SuzlonEnergy

Firm: Amarchand & MangaldasClient:SuzlonEnergy

Firm: Allen & GledhillClient:SuzlonEnergy

Involvedconsentsolicitation,cash•tenderofferandexchangeoffertoholdersoftwoseriesofSuzlon'sconvertiblebondsdue2012

FirstIndia-relatedtransactiontobe•managedthroughCC'sIndiaCapitalMarketsUnit

Rahul GuptanClifford Chance

Alex LloydClifford Chance

“The deal was the first of its kind from India and involved a thorough understanding of the unique Indian regulatory requirements coupled with international legal expertise, which was demonstrated by Clifford Chance using a combined team of lawyers from the firm’s Singapore based India Unit and its Hong Kong offices”

rahul GupTan, CliFFord ChanCe

youR month At A GLAnCe (Cont) ►Firm Jurisdiction Deal name Value

(US$m)Deal type

HerbertSmith Australia/China CNOOC-BGGroupLNGagreement Undisc Finance,Construction

HongKong HutchisonTelecommunicationsHongKongHoldingsHongKongStockExchangelisting

Undisc EquityMarket

Jade&Fountain Taiwan/China ArrayNetworksIPO 79 EquityMarket

Jingtian&Gongcheng China/HongKong ChinaZhongWangIPO 1,300 Equitymarket

JunHe China/India PwC-BearingPointacquisition 25 M&A

K&LGates China GrandPointInvestment-TianjinPortCompanystakeacquisition

1,800 M&A

Kim&Chang Korea DramaxCo-CUMediamerger Undisc M&A

Korea Aleph-UljincountyJV Undisc Corporate

Korea LGTelecomConotesissuance 120 EquityMarket

HongKong/Korea Anheuser-BuschInBev-OrientalBreweryCosale

1,800 M&A

King&Wood China/US Changyou.comIPOandNasdaqListing 138 Equitymarket

China CPICLife-ChangjiangPensionsharesacquisition

73 M&A

Latham&Watkins China/US Ctrip-HomeInnsharesacquisition 50 M&A


China Ctrip.comInternational-HomeInns&HotelsManagementacquisition

50 M&A

Linklaters China/India PwC-BearingPointacquisition 25 M&A


LovellsLee&Lee HongKong/Taiwan ProMOSconvertiblebondissuertenderoffer 350 EquityMarket

MaplesandCalder China Ctrip.comInternational-HomeInns&HotelsManagementacquisition

50 M&A

MayerBrownJSM HongKong Li&Fungcapitalraising 346 EquityMarket

Morrison&Foerster China/HongKong ChinaZhongWangIPO 1,300 Equitymarket

China WorldofWarcraftlicencing Undisc Corporate

RichardsButler China/HongKong CITICBank-CIFHstakeacquisition 1,700 M&A


China ChinaCITICBank-CITICInternationalFinancialHoldingsacquisition

1,750 M&A

RunMing China AirbusA340aircraftsale 87 Finance

Shearman&Sterling China Ctrip.comInternational-HomeInns&HotelsManagementacquisition

50 M&A

SimpsonThacher&Bartlett

HongKong/Korea Anheuser-BuschInBev-OrientalBreweryCosale

1,800 M&A

Sullivan&Cromwell HongKong/Korea Anheuser-BuschInBev-OrientalBreweryCosale

1,800 M&A

WilmerHale China/India PwC-BearingPointacquisition 25 M&A

ZhongLun China CPICLife-ChangjiangPensionsharesacquisition

73 M&A

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

http://www.bmwasia.com

http://www.bmwasia.com

12

NEws | analysis >>


The numbers are staggering. While M&A activity dropped significantly in the Asia-Pacific region for the first

quarter of this year, the value of M&A transactions in Australia increased from US$17bn to US$25bn on the same period last year, according to Bloomberg; outbound investment from Chinese companies accounts for 70% of all M&A activity in Australia. And Australia’s legal industry has reaped the benefits of this dramatic increase in the levels of Chinese investment.

Partner Barry Irwin, who is the co-head of Australian top-tier firm Clayton Utz’s national energy & resources practice and the leader of its China practice, recalls that as little as four years ago there were only occasional instructions from

Chinese investors looking to move into Australia, but about two years ago it all started to change and the M&A activity

driven by Chinese buyers has become exceptional over the past 12 months.

“We have seen a marked increase in the flow of instructions from Chinese companies, as well as an extraordinary number of enquiries – on average

at least two a week somewhere into the firm,” Irwin says.

Although Clayton Utz has been involved in investment projects of Chinese companies in other sectors, the energy & resources sector is the firm’s main focus, and is where the majority of the workflow comes from (it accounts for more than 75% in one

form or another). “My two managerial roles used to have very different responsibilities. Now they are just like one and the same thing – that’s how things have changed,” Irwin says.

Major China outbound M&A transactions in Australia have been almost exclusively in the resources sector. Recent headline deals include Hunan Valin’s A$1.2bn investment in Fortescue Metals, China Minmetals’ US$1.7bn offer for Oz Minerals and Chinalco’s US$19.5bn courting of Rio Tinto.

“Certainly the outbound work is a lot more significant than it was even a year ago, and the importance of resources [for China] and the decline in prices has made Australian assets more attractive,” says Stephen Minns, a partner in the Melbourne

Australia lies directly in the path of the outbound China investment tidal wave and the size of Chinese companies’ acquisitive power is creating a healthy flow of transactions for law firms Down Under

Outbound M&A: The new gold rush

Barry irwin, Clayton Utz

AnAlysis >>

NEws | analysis >>


office of leading Australian firm Mallesons Stephen Jaques, the firm acting for Chinalco on its bid for a stake in Rio Tinto.

Blake Dawson is another Australian firm that has advised on a growing number of M&A transactions in Australia involving Chinese purchasers. It recently expanded its Shanghai office by hiring partner Michael Wadley to head up its China practice.

Prior to joining Blake Dawson, Wadley was the principle of Wadley Business Consulting in Shanghai, a firm he established in 2003. He notes that Chinese companies’ rising demand for legal advice and assistance on outbound investment in Australia motivated him to make the move.

“Blake Dawson sees China as an important market and has recognised that China outbound M&A offers great opportunities,” Wadley says. “I decided to join Blake Dawson also due to the fact that it requires comprehensive geographical coverage, resources and expertise to handle large deals and be able to provide high-level of legal advice to Chinese clients investing into Australia.”

sources of referralsAs some Chinese companies become more familiar with the Australian market and legal environment, they will increasingly approach local Australian firms to assist their acquisitions in the country. However, for the time being, referrals remain the main source of new clients and business at Australian firms.

There are many different sources of referrals: from Chinese law firms, international firms with offices in China, investment banks,

accounting firms and other business service providers.

For firms like Clayton Utz, which does not have a physical presence in China, referrals are particularly important. “We feel that even if it

is nice to have an office in China, it’s a luxury we can live without. One of the reasons for that is because of the two international associations that Clayton Utz belongs to – Lex Mundi [PRC member – Jun He] and PRAC [PRC member – King & Wood]. That

means Clayton Utz has an association with the two top-tier law firms in China,” Irwin says.

Another reason he cites is that opening an office in China means that a firm would end up targeting FDI into China and doing work for whoever comes through the door, and Clayton Utz has decided that it doesn’t want to do that. “It is extremely difficult to identify prospective clients in China, so you have to have a focus,” Irwin says.

According to Irwin, 20–30% of the firm’s referrals come from the two law firms in the same associations and Clayton Utz also receives referrals through other PRC firms and international firms that have offices in China. “Because we don’t have an office in China, we don’t compete against other international firms there. So we are in a better position to receive referrals from them when their Chinese clients want to do deals in Australia,” he says.

So far, nine Australian firms have established a presence in mainland China, including top-tier firms Allens Arthur Robinson (AAR), Blake Dawson, Mallesons Stephen Jaques, and Minter Ellison.

Most of these offices were set up to service investment into China and they are now reinventing themselves to target outbound investment, performing a support role for offices in Australia.

“Four years ago, around 90% of the work done in Shanghai was related to money flowing into China. We set ourself up to service that business. In the last few years, we have recognised that China’s outbound investment, particular into Australia and Southeast Asia, is a proven growth area. So we are looking to grow our China practice in that direction and become more integrated into China’s business community,” said Seamus

Cornelius, a partner with AAR in Shanghai.

“The vast majority of the legal work relating to China outbound investment is done in Australian offices. Our role up here is more to assist in the early stage of transactions and provide a convenient service point in China for Chinese clients. We clearly think it is important to have an office in China. It gives us much better ability to service clients.”

AAR accesses work through both direct marketing and referrals. It identifies clients it can approach directly and tries to work directly with them, while at the same time developing new clients through the PRC firms it has worked with on inbound investment. The firm has also entered into a ‘best friends’ relationship with leading UK law firm Slaughter and May to work together in the region (excluding Japan).

Maturing acquirors, desirable clientsAlthough the valuations of assets in Australia are at a more reasonable level than a year ago, Chinese investors are still not rushing into making deals. “There are strong interests from SOEs and large PRC companies in making investment in Australia’s energy & resources sector, but they are also very interested in making sensible investment,” Cornelius says. “In the downturn, when the market is not hot, there is an opportunity for companies to do deals more sensibly and within a better timeframe. For every deal that gets done, there is a good chance for them to learn how to do deals more efficiently in Australia.”

He also points out that many Chinese investors now see regulatory requirements – particularly obtaining the regulatory approval from Australian treasurer Wayne Swan and the Foreign

stephen Minns, Mallesons

AustRALIAn FIRms In ChInA ►Australian firm Office(s) in PRC

MallesonsStephenJaques Beijing,Shanghai

LinTang&Co Beijing

AllensArthurRobinson Beijing,Shanghai

GrayandPerkins Beijing

Ausino Shanghai

BlakeDawson Shanghai

Hunt&Hunt Shanghai

MinterEllison Shanghai

“We have seen a marked increase in the flow of instructions from Chinese companies, as well as an extraordinary number of enquiries – on average at least two a week” BARRy IRWIN, CLAyTON UTZ

14

NEws | analysis >>


Investment Review Board (FIRB) – as a natural part of the dealmaking process, and they are relying on legal advisors to navigate them through this potentially tricky process.

And as more Chinese companies begin to use local expertise in Australia, the competition between Australian firms will inevitably also increase. “As Australian firms’ conventional client base is shrinking because of the global financial crisis, more firms will start to tool up and prepare themselves to service China outbound investment. Competition in this area is huge and is getting bigger,” Irwin says.

“Chinese companies have opaque methods of selecting law firms and there are not just one or two top-tier Australian firms leading the pack. The energy & resources sector is not the exclusive domain of the big firms at all and in many deals, Chinese companies will use all sorts of law firms.”

However, Irwin, like many other Australian lawyers, is bullish when asked about the growth prospects of China outbound investment in Australia. “The global financial crisis is affecting China, but it will be relatively short lived there. It gives a perfect opportunity for China to establish energy & resources security for itself,” he says.

“The deal flow will remain at the same level as it is now, which is reasonably good, for the rest of this year. And in the absence of what I call ‘inappropriate decisions’ from the FIRB, it will increase substantially.”

Australia provides the resources China needs so urgently for its economic miracle and, in return, China provides Australia with cooking pots, washing machines and cars it manufactures from the metal it has purchased

And Australian firms look set to prosper as Chinese investors flood the market in the 2009 gold rush. ALB

Few transactions have been as widely debated and talked about in the legal sector as the failed acquisition of China Huiyuan Juice Group

by the Coca-Cola Company. If it had been approved, the proposed US$2.4bn acquisition would have been the largest takeover of a domestic company by a foreign entity. However, it in fact became the first transaction blocked under the new Anti-Monopoly Law (AML).

“This is the first time MOFCOM has denied antitrust approval of an acquisition, so naturally it has raised a lot of attention from the public and business community,” says Zhan Hao, managing partner of Grandall’s Beijing office. “There are grave concerns about this decision, mainly because the reasonings in it were very general, and the transaction involved a well-known multinational company and a famous national brand.”

Despite these concerns, the majority of AML and competition lawyers believe the decision marks the coming of age of the AML practice in China.

Defending the decisionRegardless of the final outcome, lawyers have noted the beneficial results of the procedure and the process of MOFCOM’s review.

“In reviewing this transaction, MOFCOM has followed the rules they set up, in terms of the procedure. The process is more transparent and involved more communication. To me, that’s one good sign,” says David Blumental, a partner with Vinson & Elkins in Shanghai. “Antitrust is a very complicated

Merger reviews: the results ALB looks at the repercussions of the first deal to be blocked under the Anti-Monopoly Law – the Coca-Cola Company’s failed multi-billion dollar takeover of China Huiyuan Juice Group

area of the law, involving detailed economic analysis, so a high level of communication is required in order to ensure that the regulators can review a transaction properly.”

Some media reports said the decision indicated the country was closing the door to foreign investment, but DLA Piper’s Asia head of competition practice, David Cox, says it is difficult to be absolutely sure because the decision was very brief and certain things are still not clear.

“Many of the comments made in the press are either being misconceived or are unfair. To be able to make fair comments, one has to be very reserved,” Cox says, pointing out that the rulings adopted by MOFCOM on Coca-Cola’s acquisition of Huiyuan

look very similar to a decision made previously by Australia’s competition authority. In 2003, the Australian Competition and Consumer Commission (ACCC) opposed the acquisition of Berri Limited by Coca-Cola Amatil, the Australian Coca-Cola bottler and partly-owned affiliate of The Coca-Cola Company.

In both cases, a major concern of the regulators was that Coca-Cola

“Antitrust is a brand new practice area for all PRC firms. It is a complicated area and sets a high threshold for lawyers to enter, but it offers… great prospects for growth”ZHAN HAO, GRANDALL

AnAlysis >>

“There are strong interests from SOEs and large PRC companies in making investment in Australia’s energy & resources sector, but they are also very interested in making sensible investment” SEAMUS CORNELIUS, AAR

NEws | analysis >>


would have gained the ability to leverage a dominant position in the carbonated soft drinks market into the juice market.

“Whether the ruling is valid or not is impossible to see at the moment, due to the short nature of the decision,” Cox says. “However, this type of merger… is the type of situation that has raised difficult competition issues in other jurisdictions, such as in Australia and the EU. This will always be a difficult case and the reasonings adopted by MOFCOM are classic reasonings of competition authorities with similar cases around the world.

“It clearly shows that AML and competition law in China has come of age. MOFCOM is acting very much in a way the ACCC would act in Australia, the European Commission in the EU and the FTC in the US. They all have extensive powers and they are using them,” he adds.

In addition, the decision indicates that solutions or remedies were discussed between Coca-Cola and MOFCOM. Although the remedies proposed by Coca-Cola were considered by MOFCOM as insufficient, some industry observers have suggested it was pragmatic to try to find solutions – an encouraging sign for foreign investors.

not a bad thingWhile lawyers are confident that the Coca-Cola/Huiyuan ruling will not directly affect future M&A, in terms of foreign investors’ interest in making acquisitions in China, the unpredictability of the AML enforcement may make it difficult for legal advisors to provide precise advice and consel to clients.

“As MOFCOM only needs to publish decisions of rejection and conditioned approval, we don’t know much about the approved deals. So we can’t study them

and understand the implementation of the new law better, in order to help clients accordingly,” says Peter Wang, a partner at Jones Day in Shanghai.

Nevertheless, many said the lessons that can be drawn from both the Coca-Cola/Huiyuan and InBev/Anheuser-Busch decisions would help to stimulate more legal work.

“Foreign investors won’t give up their plans to acquire companies in China due to this ruling or [the] increasingly sophisticated legal environment. But they will think twice before starting a deal, particularly for multinationals, who have large market share in certain markets or have important brand names that are well-known in China and worldwide,” Wang says.

“Potential acquirors will seriously consider if it is worth trying to do M&A deals in China in related product areas. From now on, multinationals and other investors will have to look more seriously into the AML and competition issues before they start a deal, and need to be prepared for different possibilities – such as no antitrust approval or delays in approving – in the planning a transaction.”

With the emergence of AML and competition legal practices in China, international firms have geared up to make a mark in the new market. They are increasing their capabilities by relocating experienced lawyers from UK or US offices and promoting local talent to partner.

“Antitrust is a brand new practice area for all PRC firms. It is a complicated area and sets a high threshold for lawyers to enter, but it offers local firms great prospects for growth,” Zhan says. Although international firms have natural advantages in this area at the moment, he believes PRC firms will play an increasingly important role in advising on merger control matters in China. Zhan also noted that PRC firms can provide a wider range of antitrust and competition legal services in China than their international counterparts.

“Advising on matters related to merger control will be only one part of the antitrust practices at PRC firms. We are also developing expertise and resources in private antitrust litigation, dominance and abusive conduct inquiries and IP-related unfair competition cases,” Zhan says. ALB

16

NEws | news >>


ukreport

DLA’sredundancyconsultationconcludedwith124jobsslashed,including24lawyers,whileBerwinLeightonPaisnerhaslaunchedasimilarprogram,settoaffect85people–30lawyersand55supportstaff–initsLondonoffice.CMSCameronMcKennahaslauncheditsfirst

fullredundancyconsultationalongwithaflexibleworkingscheme–dubbed‘Flex’–forremainingemployeeswhichallowsstafftotakepart-paidsecondments,sabbaticalsandfour-dayweeks.Theredundanciesarelikelytoaffectapproximately20lawyersand60supportstaff.Simmons&Simmons,Baker&McKenzieand

MilbankTweedHadley&McCloyhavealsofinalisedredundancyconsultations,layingoff91,70and49peoplerespectively.Shoosmithslaunchedaredundancyconsultation

inMaythatislikelytosee69jobscut,whileBlakeLapthornhaslauncheditsthirdredundancyconsultationinninemonths,with33positionsontheline.

A&O delays trainee start dates Allen&OveryisthelatestMagicCirclefirmtorequestitsfuturetraineesolicitorspushbacktheirstartdates.Thefirmisofferingagrantof£9,000fordeferrals

of12monthsand£4,500forsixmonthstoitsfuturejoiners,whoareduetostartbetweenSeptember2009andSeptember2011.Anadditional“goodcausesaward”of£2,000

for12monthsor£1,000forsixmonthsmayalsobeofferedtothosewhotakepartinprobonoworkorfurtherstudy.

ROUNDUPAndrewLilleyissettosucceedformerTraversSmithmanagingpartnerChrisCarroll•MarkKirsch,globalheadofCliffordChance’slitigationteam,hasresignedfromthefirminthemidstof•itpartnershiprestructuring.ThereshufflewillalterthefocusoftheUSlitigationpracticetoregulatorymatters,investigationsandwhitecollarcrime,commerciallitigation,antitrust,andarbitrationTaylorWessinghasformedanalliancewithseven-partnerPolishlawfirmBSJP.Theexclusivealliance•formalisesafive-year-oldreferralrelationshipwiththeWarsaw-basedfirmAfour-partnerlitigationteamfromCliffordChance’sNewYorkofficerecentlylefttheMagicCirclefirmto•launchChaffetzLindsey–aboutiquethatspecialisesinarbitration,reinsuranceandlitigationworkLinklatershasnamedFabricedeLaMorandiereasthefirm’snewParisheadofcorporate.Hetakesover•fromMarcLoyKarenAbbotthassucceededLondonseniorpartnerSeanConnollyasMayerBrown’snewheadof•insuranceandreinsuranceinLondon

‘New World’ may cost Linklaters millionsRecentreportssuggestLinklatersmayhavetodishoutapproximately£50mincompensationtopartnerswhowillbeleavingthefirmaspartofthe‘NewWorld’restructure.Themovewillseethefirmstreamlinedintoa

smaller,moreprofitablebusiness,butwillseearound50partners–nearly10%oftheglobalpartnership–shownthedoor,albeitwithanexitpackagerumouredtobeoneyear’spay.Withaverageearningsperpartneraround£1.1min2008,thefirmcouldhaveaheftybillonitshands.

Addleshaws implements four-day weekAddleshawGoddardrecentlyaskeditsfee-earnerstocutdowntoafour-dayweekon85%pay,asthefirmstrugglestostayafloatamidtheeconomicturmoil.Theproposedarrangementwilloperatefora

12-monthperiodfrom1July,pendingapprovalfromthemajorityoflawyersatthefirm.Inaddition,thefirmisrequestingfee-earnersto

volunteertotakeadditionalleaveon30%ofsalaryinblocksoffour,eight,12and26weeks.Flexi-workingschemesandasalaryfreezeat

2008-09levelsforallfee-earnersandbusinessservicesstaffuntil2010havealsobeenintroducedinanattempttominimiseredundancies.Credit crisis continue to bite UKfirmscontinuetocrumbleundertheweightofthecreditcrunch,withDLAPiper,BerwinLeightonPaisner,CMSCameronMcKennaandSimmons&Simmonsjustsomeofthefirmstoreportredundanciesrecently.

Salans opens office one year after hiring Hong Kong chief

hong kong >>

salans has finally opened a Hong Kong

office, almost a year after recruiting Andrew Lui from rival Pinsent Masons to head up the office. The firm recently confirmed that it had finally secured the government approvals neccessary to open in the special administrative region.

The move means the firm now had three offices in the region – Hong Kong, Shanghai (where it opened in 2003) and Beijing. The firm said that although it has a comparatively large footprint in Asia already, the Hong Kong office would become the hub of its operations in the region.

“[The Hong Kong office] will act as a hub for Salans’ future growth in other parts of Asia,” Lui said. “[It] will provide a gateway for foreign

investment into mainland China and will focus on corporate, capital markets and institutional real estate transactions.”

He added that the firm has already brought on a number of new lawyers for the office and was looking to bring on more in the near future. “[The firm] has already recruited a strong team in Hong Kong, and will be announcing more appointments shortly,” Lui added.

The firm’s strengths lie in former USSR countries, with offices in Ukraine, Kazakhstan and Azerbaijan. ALB

Andrew Lui Salans

“[The Hong Kong office] will act as a hub for Salans’ future growth in other parts of Asia. [It] will provide a gateway for foreign investment into mainland China”ANDREW LUI, SALANS

NEws | news >>


FOUR NEW PARTNERS FOR NORTON ROSE ASIA NortonRose’sAsiaofficeshasseenfournewpartnersaddedaspartofthefirm’sglobalpartnershippromotions,raisingitsfirm-widepartnershipnumbersto276.ThethreeAsia-basedassociatespresentedtothe

partnershipareHongKong-baseddisputeresolutionlawyerRuthCowley,Beijing-basedprojectslawyerTomLuckockandSingapore-basedbankinglawyerBenRose.London-basedcorporatefinancelawyerJonPerryhasalsobeenmadepartnerandwilltransfertotheHongKongoffice.Thefirm’schiefexecutive,PeterMartyr,saidinthe

currentmarketconditionsthefirm-widepromotions–totalling12newpartnersglobally–reflectthefirm’sinvestmentintheinternationalpractice.NortonRosehassevenAsiaoffices–inBangkok,

Beijing,HongKong,Jakarta,Shanghai,SingaporeandTokyo–withatotalof100lawyersacrosstheregion.

FIJI LAW SOCIETy STRIPPED OF POWERLawyersinFijilooksettolosetheirpractisingcertificatesaftertheinterimregimeinvalidatedtheFijiLawSociety’s(FLS’s)authoritytoissuethem.Thenewmeasureshavebeencriticisedforpotentiallyloweringthestandardofqualityinthelegalprofession.Undertheregime’srecentLegalPractitioners

Decree,existingpractisingcertificateswillexpireby30Juneandalllocallawyerswillhavetoreapplyforacertificatetopractiselawby15June.Fiji’sAttorney-General,AiyazSayed-Khaiyum,

saidthemeasureswouldrestorethesystempriortothe1987coup,wherecertificateswereissuedbyagovernment-instatedChiefRegistrar,nottheFLS.WhilemembershiptotheFLSwillnowbevoluntary,Sayed-Khaiyumdeniedthatitwasdeliberatelybeingmaderedundant.“TheFijiLawSocietyisstillfunctioning.Ithasnotbeenremoved,itisnotdefunct,”hesaid.

REORGANISATION FOR WHITE & CASE White&CaseisreorganisingitsAsiaarbitrationanddisputeresolutionspractices.Theheadofthefirm’sHongKongdisputespractice,

KimRooney,willdepartinSeptemberthisyeartojointheHongKongBarAssociation.Thefirmdeclinedtocommentfurtherastowhetherareplacementhasbeenorganisedyet.ThefirmisalsotransferringpartnerAlokeRay

fromtheinternationalarbitrationpracticeinLondontoitsnewSingaporeoffice.HewilljoinfellowrestructuringpartnerKateAllchurch,whowasalsotransferredfromLondonearlierthismonthtobuilduptheSingaporeoffice.

newsinbrief >>

Eversheds ventures into Jeddah and Riyadh with local tie-up

middle eAst >>

Eversheds has expanded its footprint in the Gulf region after

announcing it will open in Saudi Arabia through a tie-up with local firm Hani Qurashi Law Firm (HQ) and will have a physical presence in both Jeddah and Riyadh.

The joint venture will be managed by Amjad Hussain, Eversheds’ head of Islamic banking in the Middle East, and Christopher Jobson, the firm’s managing partner for the Middle East. The duo will have access to HQ’s team of more than 20 legal advisors and will work closely with the local firm’s founding partner, Hani Al Qurashi, and executive partner Hany Kassem. Eversheds said the choice of HQ as its joint venture partner was an easy one as the two had built up a strong working relationship over the past few years.

“Eversheds and Hani Qurashi Law Firm have worked together on banking, real estate, commercial and corporate matters. In particular, the firms recently collaborated in connection with a number of Islamic finance-based matters. Eversheds already has a number of clients and work in Saudi, including advising on banking and Islamic finance matters, corporate M&A transactions and in connection with an IPO on the Saudi stock exchange, the Tadawul,” the firm said in a statement.

Al Qurashi said the new operation would look to capitalise on the opportunities on offer in the Saudi market – opportunities which, despite the devastating effects that the global financial crisis and the vastly depreciated price of oil are having on Saudi Arabia, are still evident.

“The Kingdom of Saudi Arabia is the biggest country and economy in the Gulf Cooperation Council. The government has hugely ambitious plans for the development and diversification of the country including the health, education and science and technology sectors,” he said. “Infrastructure plans are the biggest in the region and all this together offers enormous opportunities for international, and local businesses and their advisors. The present downturn in the demand and price of oil is no impediment to the realisation of these plans given the reserves available to the Kingdom following the prudent management of the economy by the government.”

In addition to the new offices in Jeddah and Riyadh, Eversheds already has offices in Abu Dhabi and Doha in the region. News of the tie-up comes as Clyde & Co also announced its alliance with Riyadh-based Abdulaziz A Al-Bosaily. ALB

18

NEws | news >>


The anticipation was rife – China Zhongwang’s IPO was expected

to unleash pent-up demand for Asian listings – but after sweeping across the globe, swine flu may have also infected investor confidence.

While Zhongwang’s IPO, which broke the global eight-month drought of billion-dollar IPOs by raising US$1.26bn, was the largest this year, it is still significantly short of the initial expectations of US$1.6bn. The law firms advising on the deal were Morrison & Foerster, Latham & Watkins, Richards Butler, Jingtian & Gongcheng, Commerce & Finance and Conyers.

Prior to the advent of swine flu, confidence was high that Zhongwang’s IPO could lead to further activity and Mallesons Stephen Jaques Hong Kong-based partner Conrad Chan said that while growing market confidence has pushed more IPO and equity markets deals into the pipeline, much uncertainty remains – mostly due to the virus. “The outbreak of the swine flu might further complicate the already uncertain market conditions. We’ll have to wait and see if this will result in a global outbreak and whether new opportunities will present themselves for some industries, which could have an effect on capital markets activity,” he said.

Davis Polk & Wardwell’s James Lin added: “Until we understand more fully the transmission and mortality rates of the swine flu, it is hard to predict how this will affect the capital markets.” ALB

Zhongwang’s IPO hit by swine flu outbreak

usreport

ROUNDUPUSfirmKilpatrickStocktonhascloseditsLondonoffice,followingseveralpartnerdeparturesfromtheCity•officeoverthepastfiveyearsPaulMaher,co-vice-chairofMayerBrown,hasofficiallyresignedfromthefirmfollowinganannouncement•inAprilthathewouldbetakingaleaveofabsencetoconsiderhisoptions(seestoryp20)FollowinganannouncementinMay,CliffordChancehascutitsUSlitigationgroup,withjustsixpartners•remainingatthefirm’sNewYorkofficeandseveninWashingtonDCClearyGottliebSteen&HamiltonhasjoinedCliffordChanceintakingtheleadroleontheBankofAmerica’s•(BoA’s)US$7.3bnsaleofa16%stakeinChinaConstructionBank(CCB).BoArecentlyannouncedthatitwouldsellits3.5billionsharesofCCBinabidtoraisenearlyUS$35bnincapitalDechertissettolaunchinMoscow,followingthehireofafive-partnerteamfromUSrivalChadbourne&•Parke.Thehiresincludethefirm’sformerMoscowandStPetersburgmanagingpartnerLauraBrankMayerBrownhaselectedthefinalfivepartnerstoits12-memberpartnershipboard,completingthe•managementteamrestructure.Thequintetare:NewYorkpartnerJeffreyGordon;HoustonpartnerBobGray;ChicagopartnerBarryMachlin;andNicholasHunsworthandPatrickWongfromHongKong

ReedSmithalsorevealedthismonththatitwillbedecreasingthepayofincomingfirst-yearassociates(whosestartdateshavebeendeferreduntilJanuary2010)toapproximately10%lessthancurrentlevels.

Hunton makes 2% of lawyers redundantHunton&Williamsrecentlysawredundancieswhichaffected2%ofthefirm’slawyersand6%ofitsstaffacrossallpracticeareasandoffices.Twenty-threeassociatesandcounseland64

staffintotalwerelaidoffinaneffortbythefirmto“betteralignitselfwithclients’needs”.Huntonreporteda2.2%increaseinrevenuein

2008,butprofitsperpartnerdropped3%.

Akin Gump eyes London expansionFollowingoneofthestrongestfinancialresultsofanyUSfirm,AkinGumpStraussHauer&FeldisreportedlylookingataLondonlitigationlaunchlaterthisyear.TheTexasfirmenjoyedanincreaseof16%

inPEPtoUS$1.4manda4%revenuerisetoUS$780.5mandhassuggestedthatthemovetocementitselfaspartoftheUKlegallanscapeispartofawiderinternationalpushforAkinGump.ThefirmhasofficesinLondon,AbuDhabi,Moscow,BeijingandacrosstheUnitedStates.

Dechert partners to take pay cut DechertchairmanBartonWinokur,alongwth36otherDechertpartners,issettoslashhisownwages,accordingtoreports.Thepaycutsfollowafifthroundofjobcutsthat

wereannouncedinMarch,with125lawyersandstaffmemberslaid-offworldwide.Thefirmalsosufferedarevenuefallof2%last

yeartoUS$816m,alongwithadecreaseinprofitsperequitypartner(down9%fromUS$2.35min2007toUS$2.14min2008).

Wage cuts and compensation change at DLADLAPiperhasannounceditwillbecuttingthesalariesof550ofitsUS-basedassociatesandshiftingcompensationtoamoremerit-basedsystem.Thechangesaretocomeintoplayaround

Juneandwillseesalariesforfirst-yearassociatesalariesinmajormarketscutfromUS$160,000toUS$145,000,whilefirst-yearsalariesinsecond-tiercitieswilldropfromUS$145,000toUS$130,000.Paycutsforallotherassociateswillreportedly

bemadeonacase-by-casebasis,dependingonperformanceandclassyear.DLAfollowsahandfulofUSfirmstohave

cutassociatesalariesrecently,includingBaker&McKenzie,Chadbourne&ParkeandNixonPeabody.

chinA >>

NEws | news >>


SIx DIAL UP HUTCHISON LISTING WORK Linklaters,HerbertSmith,ClearyGottlieb,Freshfields,ConyersDill&PearmanandKing&WoodhavehelpedHutchisonTelecommunicationsHongKongHoldings(HTHKH)initslistingbywayofintroductiononthemainboardoftheHongKongStockExchange.Priortothedeal,HTHKHwasawholly-

ownedsubsidiaryofglobalTelcoHutchisonTelecommunicationsInternational(HTI)andwasindirectlyownedbyHutchisonWhampoa(HW).Theintroduction,whichwasnotanIPOofsharesofHTHKH,involvedaspin-offwhichwaseffectedbywayofadistributioninspecieoftheentiresharecapitalofHTHKHtoqualifyingshareholdersofHTI.Linklaters,ConyersDill&PearmanandKing

&WoodadvisedHTHKHonHongKong,CaymanIslandsandPRClawrespectively,whileJohnMooreandMattEmsleyofHerbertSmithadvisedthesolesponsortothetransaction,GoldmanSachs(Asia).ClearyGottliebwasretainedbyHTIforUSlawadvice.FreshfieldscontinuedadvisedbothHWandHTIonHongKonglawelementsofthedeal.

M&A FALLS SHARPLy ACROSS MIDDLE EAST WhilethelatestfiguresshowM&AdealsintheMiddleEasthavefallenby66%comparedtothesameperiodlastyear,dealgrowthintheregionmaybedrivenbyinvestorslookingtoacquirecheaperassetsinthedownturn.Arecentreportcompiledbyfinancialservices

firmErnst&Youngfoundthatonly47dealswereannouncedinthefirstquarterof2009,astaggeringdropof66%from2008’s140deals.“Itisworthnotingthatinboundandoutbound

dealsintoandfromMENA[MiddleEastandNorthAfrica]havefalleninexcessof70%,showingthatinvestorsarelookinginwardsandaremorecautiouswhenitcomestocross-bordersdeals,”saidAzharZafar,Ernst&Young’sregionalheadofM&A.

MALLESONS TAKES A BITE OUT OF KRISPy KREME Australiantop-tierfirmMallesonsStephenJaquesrecentlysentaletteronbehalfofclientArnott’s,threateninglegalactionagainstthelocalarmofUS-baseddonutcompanyKrispyKreme,aftera‘limitededition’donutnamed‘IcedDough-Vo’wasclaimedtobea“blatantinfringement”ofanArnotts’biscuitbrand.“Arnott’sisextremelyconcernedbythisblatant

infringementofitsVo-Votrademarks,”readtheletterissuedbyMallesons.AspokespersonforKrispyKremedeclinedto

commentbeyondadefenceofitsproducts,butthepartieshavesincesettledtheirdispute.

newsinbrief >>

in an effort to increase the transparency of the legal system,

the UAE Ministry of Justice has announced that all laws passed since the founding of the emirate in 1971 will soon be translated into English and be made available online.

As part of the move, some 1,500 federal court decisions, 500 international treaties ratified by the UAE and nearly 2,000 official fatwas issued by UAE muftis will be translated, yielding a centralised and easily accessible body of case law and statutes in both Arabic, and English.

Abdullah Al Majid, a Ministry of Justice advisor and the director of the translation project, said translating and consolidating UAE law in this way will not only help improve understanding of the emirate’s legal system internationally, but will also help increase the confidence international companies have in investing in the country. “There are more people that speak English than Arabic in the UAE and our goal is to make the laws available to them,” he said.

All the documents will be posted online at www.elaws.gov.ae. The website will initially be free for public

UAE to translate laws into Englishmiddle eAst >>

access, after which the government is reportedly considering asking users for a subscription fee.

Ashley Painter, a Dubai-based partner with Clyde & Co, was happy with the move and said it would make the job of international lawyers working in the UAE easier. “Any move which seeks to translate laws from Arabic into English is a good one. It will make our job here much easier and will only serve to increase the

confidence of foreign investors coming into the region. It will certainly increase transparency,” he said.

“The more interesting thing, which has not been addressed to my knowledge in the current program, is whether the translations become official translations, whether they can actually be relied on in court,” Painter added. ALB

“There are more people that speak English than Arabic in the UAE and our goal is to make the laws available to them”ABDULLAH AL MAJID, MINISTRy OF JUSTICE

20

NEws | news >>


singapore wants its lawyers back.

That is the message the Singapore Government wants to send by again simplifying the bar admission process for foreign lawyers. Following a number of changes to the legal education system announced earlier this year, the government has now made further revisions.

In February, it announced that lawyers overseas wishing to be admitted to the Singapore Bar no longer had to obtain a one-year diploma. The Diploma in Singapore Law (Dip Sing) was scrapped in favour of a three-stage process – two bar exams (Part A based on knowledge of Singapore law, Part B around a practise law course) and a 12-month training contract with a local firm.

Now, however, lawyers qualified from a common law jurisdiction with at least two years’ work experience no longer have to do Part B – they will be admitted to practise after completing Part A. Also, graduates from any jurisdiction with at least six months’ work experience can immediately begin part C, the training contract with a local firm, after passing Part A, instead of after Part B.

The new qualification framework comes in response to the arrival of six QFLP (Qualifying Foreign Law Practice) firms and to meet an expected shortfall of lawyers in the coming years.

“We have an opportunity to enhance our position in the global competition for talent and these changes enable us to take full advantage of the

window of opportunity,” said Singapore’s Law Minister, K Shanmugam. “The return of our experienced lawyers will augment our talent pool and make our legal sector more vibrant.”

Drew & Napier’s Kelvin Tan agreed that this was good news for local law firms. “It will help us because these are experienced and

skilled people,” he said. “These people previously thought twice about working for local firms here as they

singAPoRe >>

Bar restrictions eased further

“We have an opportunity to enhance our position in the global competition for talent and these changes enable us to take full advantage”K SHANMUGAM, SINGAPORE LAW MINISTER

uPdAte >>

International tax

Foreign-registered companies face China tax scrutiny

Companies operating in China using foreign-registered structures to minimise onshore tax should be braced for more aggressive scrutiny from mainland authorities.

Thousands of companies, from state-owned industrial giants to small foreign investment vehicles, which conduct most of their business in China, are incorporated or registered overseas for tax reasons.

However, a series of recent rulings and guidelines issued by central and provincial authorities show foreign-registered vehicles are now coming under unprecedented scrutiny as overseas governments adopt international standards to help boost PRC tax revenue; following the G20 episode between French President Sarkozy and Chinese Premier Hu Jin Tao.

As a result, scores of foreign private equity and hedge funds could face larger Chinese tax bills. China typically levies a 10 per cent capital gains tax on restructurings.

A trio of recent rulings by provincial tax bureaus in Chongqing, Xinjiang and Jiangxi have implications for overseas special purpose vehicles used by foreign investors. In the Xinjiang case, the tax authority ruled that a company registered in Barbados should be liable for capital gains tax for an onshore disposal because it could not prove it and its directors were based in the Caribbean country and thus could not utilise a China-Barbados double taxation exemption.

Such tax rulings show that PRC provincial tax authorities have become more alert to potential abuses of the tax system. Many observe that China’s tax practices are drawing closer to international practice.

PRC 10% withholding taxes on dividends Overseas shareholders in some of China’s biggest companies also face paying a new dividend withholding tax. China’s State Administration of Taxation last month ruled that a 10 per cent dividend withholding tax would apply to all overseas-listed companies that have their major business operations concentrated in China and whose senior management is primarily based on the mainland.

The new rules retroactively took effect on 1 January 2008 and tax experts said the country’s biggest companies would be affected.

Dozens of “red chip” companies – based in China but incorporated and listed overseas – and institutional investors will have to make special arrangements to try and avoid the tax. The withholding tax will not apply to individual investors.

The Hong Kong-listed shares of China Mobile were suspended last week for technical reasons relating to the new tax.

Analysts believe some foreign investors, such as pension funds reliant on dividend payouts, would become more cautious about investing in red chips.

By 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 | news >>


Bar restrictions eased further

would have been held back many months before they could actually start work. Now because they’re free of that impediment, they can join us straight away and that’s a good thing for us because they know their way around law and have experience overseas.”

However, Tan had doubts over whether the long-term aim to increase the number of lawyers would be effective. “There’s a good chance of getting back certain types of lawyers, particularly those who always intended to resume their careers in Singapore at a later stage. But it obviously won’t apply to everyone – some obligations may deter others,” he said. “It’s left to be seen how many lawyers we’ll have in terms of absolute numbers, but overall these are practical and good measures because Singapore is seeing a rise in legal

work and more of it of an international nature.”

The National University of Singapore (NUS), one of the main bodies facilitating and handling admissions, said that interest from lawyers had been good. “We’ve received many email and telephone enquiries in the past few days, and we expect the Part A intake to increase as a result,” said Alan Tan, an associate professor at NUS. “There has been very strong interest, judging from the number of applications that we’ve received so far.”

Tan added that with the abolishment of the Dip Sing, NUS expected enquiries to increase. “We’re expecting at least 50% more candidates enrolling in the Part A course [since last year],” he said.

Several QFLP licensed firms, such as White & Case, have recently transferred a number of foreign-qualified lawyers to their new Singapore offices. ALB

uPdAte >>

Financial

Is hong kong property such a good investment?

So many Hong Kongers, both locals and expatriates, have made money by investing in Hong Kong property over the years. However, is Hong Kong property such a good investment after all?

Timing is the keyAccording to Zeppelin Real Estate Analysis, Hong Kong was the worst performer during the period 1994 through 2008 – compared with London, New York, Vancouver, Beijing and Shanghai! During this period an investor would have gained about 264% buying a home in New York, 247% in London, 111% in Shanghai, 105% in Beijing and 97% in Vancouver. Hong Kong would have turned in a loss of 15%! Interesting.

However, there have been a few opportunities where Hong Kong properties have produced exceptional returns – two years before the 1997 market crash and after SARS in 2003. Timing is the key.

Eggs in one basketI was recently approached by clients John and Jodie Smith (not their real names), both highly paid real estate executives, seeking advice on investment diversification. They both happen to believe Hong Kong property is not attractive at present. Prices are still too high. Whilst they strongly believe in real estate as an investment, they also appreciate they should not put all of their eggs in one basket.

seek investments that outperformRoughly three quarters of all equity funds underperform their benchmark indices. Positive returns are important, irrespective of market conditions. Therefore, at Horwath we seek to identify (1) funds that outperform their benchmark indices consistently and (2) funds that display minimal correlation with equity markets – in other words, funds that can appreciate in value even when equity markets fall.

At the end of the day though it is a matter of balance; diversification amongst assets classes, fund managers, risk levels, currencies, and so on is necessary if one is to achieve an acceptable return overall, over time, in a controlled manner.

ConclusionAt Horwath Financial Services we have been managing money for clients since 1996 and our success as a money manager is reflected in our client testimonials. Please visit our website www.hfs.com.hk to see what our clients have to say about us – and if you would like to arrange an exploratory meeting – no charge or obligation – please contact me now.

David R. Bojan, Managing Director Horwath Financial Services Ltd. Tel: (852) 2511 8337 Fax: (852) 2802 7613 Email: [email protected] | Website: www.hfs.com.hk

David R. Bojan

22

NEws | news >>


globAl >>

Maher snubbed at Mayer BrownPaul Maher, the

man credited with masterminding Mayer Brown’s merger with Hong Kong powerhouse Johnson Stokes & Masters, has left the firm after being overlooked in the new global management team.

London-based Maher, who was the firm’s co-vice chairman, officially quit as of 15 May following a brief sabbatical from the firm. He had reportedly notified fellow partners of the possibility that he would leave the firm in late April.

“I can say at this stage that [my future plans] are still being formulated but it would be wrong of me not to make it clear that it is likely that it may include my leaving Mayer Brown. Should this happen, I will be very sad because I have spent 19 years here and made many many friends,” Maher had written in a memo to fellow partners.

Maher’s resignation follows news of the firm’s management revamp, which will create both a new six-member management committee and a 12-member partnership board. As part of the restructure, Herbert Krueger was voted in as the firm’s new chairman and Kenneth Geller was chosen by his peers as firm-wide managing partner.

Maher did not go so far as to suggest where his next stop would be; saying only that no other members of his

immediate team would follow him out the door. “In recent days I have been approached about several interesting opportunities. To give them careful consideration, which I am sure you will understand I must do, I have requested and been granted a short sabbatical leave from the

firm. Whatever my ultimate decision may be, it will involve me alone,” he said

Sources close to the firm said this development was due to differing opinions as to the global strategic direction of the firm. The cracks were already apparent, sources said, when the firm announced that three lawyers – Maher, Chicago-based James Holzhauer and Washington-based Geller – would become joint chairmen after the position was vacated by long-time incumbent Tyrone Fahner.

“Having three lawyers share the chairman’s post was never going to work,” said one Asia-based partner at Mayer Brown. “It was seen then, and should also be seen now, as a move to help broaden the firm’s global vision but all it did was create divisions in the partnership.” ALB

“I can say at this stage that [my future plans] are still being formulated”PAUL MAHER, MAyER BROWN

uPdAte >>

Intellectual Property

Court of Appeal issues decision on well known trade marks

In Novelty Pte Ltd v Amanresorts Ltd & Ors [2009] SGCA 13, a landmark decision delivered on 31 March 2009, the Singapore Court of Appeal considered whether a modest cluster housing project in Singapore should be allowed to

use the same name as an exclusive luxury resort in Bali.Novelty Pte Ltd was a local property developer who had

successfully obtained authorization from the Street and Building Names Board to use the name “Amanusa” for its cluster housing project. The Respondents (“Amanresorts”) were members of the Amanresorts group, known for its chain of ultra-luxurious resorts around the world. Amanusa was the name of one of its resorts in Bali. Amanresorts had sought to restrain Novelty’s use of the word “Amanusa” by alleging passing-off and infringement of a well-known trade mark (pursuant to Section 55(3)(a) of the Trade Marks Act).

On appeal, the Court of Appeal held that Amanresorts had established the “classic trinity of passing off” - namely, goodwill, misrepresentation and damage. The court recognized that Amanresorts had goodwill in the word “Aman” as well as in the names of Amanresorts’ various resorts and hotels (the “Aman” names). This goodwill existed among extremely well heeled individuals who formed Amanresorts’ core clientele, ‘once-in-a-lifetime’ guests and visitors who aspired to stay at the resorts. These persons would have been exposed to and likely confused by Novelty’s use of “Amanusa”, which constituted a misrepresentation that its project had the same source as the Respondents’ resorts or that the two were somehow connected. As there was a likelihood of damage in the form of (1) tarnishment of Amanresorts’ goodwill due to the difference in quality of the project and the Respondents’ resorts, and (2) restriction of Amanresorts’ expansion into the residential accommodation business in Singapore, the court upheld the passing off claim.

The court went on to examine Amanresorts’ alternative claim under Section 55(3)(a) of the Trade Marks Act, and took the view that marks which were merely “well known in Singapore” (i.e. recognized or known by any relevant sector of the public in Singapore) should not be protected against the use of similar or identical marks on dissimilar goods or services where such use did not give rise to confusion. Only marks which were “well known to the public at large in Singapore” would be entitled to protection against the use of similar or identical marks on dissimilar goods or services where there was no likelihood of confusion.

Further, the court held that the tests to be adopted for the purposes of the “connection” and “likely to damage the [claimant’s] interests” requirements in Section 55(3)(a) of the Trade Marks Act were substantively similar to those relating to misrepresentation and damage under passing off, with one important distinction: the passing off tests concern a claimant’s goodwill whereas the tests under Section 55(3)(a) concern the claimant’s interests.

Based on its findings under the passing off claim, the court found that the “Aman” names were well known in Singapore and that the claim under Section 55(3)(a) had been made out.

Ang Kai Ksiang, Associate Intellectual Property & Technology Group ATMD Bird & Bird LLP 39 Robinson Road #07-01 Robinson Point, Singapore 068911 Phone: +65 6428 9874 Email: [email protected]

Ang Kai Hsiang

NEws | news >>


vietnAm >>

hong kong >>

Politicians look to lawyers to help spur the economy

Skadden opens up new Asia litigation outpost

The Vietnamese Government has helped

establish a body to oversee the nation’s legal industry as part of a broader plan to drive the country’s economic growth.

Vietnamese President Nguyen Minh Triet met with members of the legal industry to inaugurate the Vietnam Lawyers Federation (VLF) at a congress in Hanoi last month. The VLF will represent the nation’s legal industry, protecting lawyers’ rights and their professional development. It is also part of the government’s broader strategy on judicial reform, to be completed by 2020, to drive economic development.

During the congress, Triet praised local lawyers and said the growth of the economy has increased the demand for legal services. The elected VLF chairman, Le Thuc Anh, emphasised the importance of the legal industry to Vietnam’s development and global impact. “More and more foreign law firms are coming to Vietnam… and attracting a lot of investment,” Anh said. “To be able to compete… Vietnamese lawyers must improve themselves. As for the VLF, we will organise training courses for lawyers as well as programs to enable them to serve the country’s economic integration [with the world].” ALB• Vietnam Special Report p56

skadden has launched a new Asian arbitration

and litigation practice based in Hong Kong, to be headed by partner Paul Mitchard QC who has been transferred from the firm’s London office.

The firm has already begun building up the practice by transferring two other London-based lawyers – counsel Mark Mangan and associate Calvin Chan – along with the lateral hire of Alan Tsang from Pinsent Masons in Hong Kong.

Mitchard is to head both the European and Asian arbitration & litigation practices from Hong Kong.

“My move here is quite timely given the changes in Hong Kong,” Mitchard said. “We assessed whether it’s worth setting up here as we’ve had quite a lot of Asian cases over the last few years. There are a number of factors which have made Hong Kong a more attractive centre for arbitration and therefore a more attractive option for Skadden to base its Asian arbitration practice.” ALB

Paul Mitchard Skadden

uPdAte >>

It column TM

Auditing and Investigating Corporate Information

There are four key areas that need to be addressed when reviewing, or protecting corporate information, or data.1. Securing a corporations sensitive information

2. Understanding the threats to that information3. Setting alerts or red flags of intrusions or misuse4. Defining a clear plan to respond to incidents

Firstly, securing your corporations primary asset, its information (or sensitive data) which includes Personally Identifiable Information (PII) - means being able to find it easily, using targeted searches, collecting and or removing it, when not in protected environments, and running regular audits to ensure data leakage strategies are working.

In other words, knowing where your information is, and being able to get at it !

Secondly, understanding the potential threats to this information is numerous. The realization that the average perimeter network defense is never enough, coupled with the fact that, the majority of threats come from within an organization, added to the sophistication of hackers today, can leave IT professionals with sleepless nights.

The threats today are great, numerous, and growing along with technology defense.

Setting alerts to these threats must be done from a network wide view, instead of the old fashion “one machine at a time” auditing. This means you must have clear visibility to your network. You must run regular audits against file, and email servers, laptops, desktops, and set parameters or warnings that can be automatically flagged.

Lastly, it is critical to have a response plan, once a breach has occurred. This is often overlooked or misunderstood in large corporations. A simple overview plan could be-

1. Determine the exact scope of the incident (to limit cost damage)

2. Secure PII within that scope of damage3. Locate the source of the breach4. Remediate/erase the malicious files or processes5. Run regular scans, to ensure the clean up has been effective6. Preserve all actions (or audit) for any potential future

legal actions.

The auditing and investigating of corporate information comes down to ensuring PII resides in authorized areas of the network, determining the scope of any breaches, and implementing proactive measures to minimize risk or exposure.

For more information, please contact: Carl Kimball, General Manager, Asia Pacific Guidance Software, Inc Phone: +65 6248 4527 Email: [email protected]

Carl Kimball

24

NEws | news >>


simmons & Simmons has become the latest in a long line of firms to

consider outsourcing a proportion of its low-end legal work to India in an effort to cut overheads.

A successful vote on the proposal could see the firm send both litigation support and corporate due diligence to India, South Africa, and even Australia.

The firm’s managing partner, Mark Dawkins, said the move was all about maximising efficiency and refused to rule out the possibility that the scheme could cost jobs within the firm, saying instead that it may be a way for the firm to increase its market share.

“We want to be at the forefront of delivering value through new ways of working at the top end of the market,”

he said. “We’re not going to defend a business model that clients don’t want to have to pay for. We could get more work from clients and grow.”

A similar rationale was cited for the legal outsourcing programs at Clifford Chance, Lovells, Eversheds and Cadwalader, all of whom moved a percentage of their legal work offshore as early as last year.

Allen & Overy is also considering outsourcing more work, including due diligence and e-discovery, as part of the firm’s continued cost-cutting measures. ALB

Mallesons Stephen Jaques and Blake Dawson have played

a hand in helping Japanese brewer Kirin finalise its acquisition of Australian-based Lion Nathan.

The deal, which will be effected by a scheme of arrangement and has the unanimous support of Lion Nathan’s independent directors, will see Kirin acquire the 54% of the Australian company it does not already own. It will cost A$2.5bn in cash and amounts to A$12.22 ($8.72) per share – a premium of 47.1% to Lion Nathan’s closing share price of A$8.31 on the ASX on April 22. The deal is the company’s second largest acquisition in Australia (marginally smaller than its A$2.9bn acquisition of National Foods in 2008), meaning that the Mitsubishi-owned group now owns more than A$8bn worth of assets in Australia.

A Mallesons team led by Meredith Paynter, Greg Golding, Sharon Henrick, Judy Sullivan and Nuncio D’Angelo acted for Lion Nathan on the deal; while Ian Williams, Carl Della-

Bosca, David Ryan and Vivian Chang from Blake Dawson represented Kirin.

Blake Dawson’s lead partner, Ian Williams, said the deal would help Kirin fulfill its regional ambitions.

“Full ownership of Lion Nathan is consistent with Kirin’s long-term growth strategy of becoming a market leader in the beverages, food

and health food categories across Asia and Oceania,” he said. “Together with Kirin’s ownership of National Foods and Dairy Farmers and its major shareholding in San Miguel Corporation, the acquisition of Lion Nathan will provide a strong base for Kirin’s regional aspirations.” ALB

Simmons to decide whether to outsource low-end work overseas

Duo toast Kirin-Lion Nathan deal

indiA >>

AustRAliA >>

Mark DawkinsSimmons

LAWyER FOUND DEAD AFTER LAy-OFFS AKilpatrickStocktonlawyerandformerClintonadministrationofficialwasfounddeadatthefirm’sWashingtonDCofficelastmonth,twodaysafterthefirmannouncedaroundofredundancies.MarkLevy,aformerdeputyassistantattorney

generalduringtheClintonadministrationandchairofthefirm’sSupremeCourtandappellateadvocacypractice,wasdiscoveredinhisofficewithagunshotwoundinwhatinvestigatorsaretreatingasanapparentsuicide.PolicesaidLevyhadbeenoneof24lawyers

affectedbyredundanciesinMay.“WithsadnessweconfirmthatKilpatrickStockton

attorneyMarkLevydiedthismorning,”saidBillDorris,thefirm’sco-managingpartner.“MarkLevywaswellknownandhighlyrespected…Weofferourdeepestcondolencestohisfamily,friendsandcolleagues.Outofrespectforhisfamily,wecannotofferadditionalcommentsatthistime.”

LOVELLS PARTNER COMPLETES CHARITy TREKLovellsBeijingpartnerFredChangrecentlycompletedthegruelling,six-day250kmAtacamaCrossing,partofRacingThePlanet’s4Desertsseries,whichencompassestheGobiDesertinChina,theAtacamaDesertofChile,theSaharaDesertinEgyptandAntarctica.Thereisalsoafiftheventwhichmovestoanewlocationeachyear.Around100competitorsfrom25countriestook

partintherace.ChangraisedfundsfortheEsquelYLYangEducationFoundation,whichprovidesbooksforunderprivilegedchildreninXinjiangProvince.

CoRReCtIon ►‘QFLPs:Singaporelegalmarketliberalisationbegins’(Issue9.2,pages44–47).Undertheheading,‘Furtherliberalisationinsix

months’(pg47),itwasincorrectlystatedthat“whatcouldbemoreimmediateisalaunchingofand(sic)enhancedJLV(EJLV)scheme,thepossibilityofwhichwasfirstraisedsomesixmonthsagobytheMinistryofLaw”.Infact,theenhancedJointLawVentureschemehasalreadybeenlaunchedandnecessarylegislativechangescameintoeffectinSeptember2008.AlllawfirmscurrentlyinJointLawVentures(JLVs)automaticallyenjoytheadditionalprivilegesprovidedundertheenhancedJLVstructure.FirmsnotpresentlywithinaJointLawVenturewhowishtoapplyfortheenhancedstructuremaywritetotheAttorney-General.ALBapologisesforthiserror.

newsinbrief >>

“Full ownership of Lion Nathan is consistent with Kirin’s long-term growth strategy of becoming a market leader…across Asia”IAN WILLIAMS, BLAKE DAWSON

NEws | news >>


The Dubai International Financial Centre (DIFC) courts have

published a draft code of conduct for lawyers, which is considered to be the first of its kind in the Middle East.

Lawyers registered with the DIFC courts must now comply with the rules or face sanctions.

The code was established to harmonise standards across various jurisdictions. “Lawyers with varying qualifications and professional backgrounds, from a mix of up to 94 different nationalities are representing clients in UAE courts,” said Mark Beer, a DIFC Court registrar. “The code will guarantee that all practitioners dealing with the DIFC Courts operate to the highest standards to ensure transparent, swift and accessible justice.”

The draft code – which outlines guidelines on professional conduct owed to the court, clients and other practitioners – is currently pending consultation with the legal community.

Philip Punwar, from Al Tamimi & Co, assisted in the drafting of the code and said that a number of issues

were taken into consideration during the process of drafting the code, including rules recognised across common law jurisdictions.

“Although the drafters had access

to a range of previously published Codes of Legal Conduct, the present draft is wholly original and specific to practise before the DIFC Court,” he said. ALB

Middle East law firms are being inundated with litigation work

as the global financial crisis triggers a flood of disputes between cash-strapped property clients.

The weakening state of the region’s once thriving real estate sector has resulted in a number of actions being launched by clients in the construction and property sectors, on issues relating to non-payment, cancelled projects and declining asset valuations.

Clyde & Co Middle East-based partners Ashley Painter and Peter Hodgins, speaking at a summit in Dubai, said the firm was currently dealing with “dozens” of these cases.

“The level of litigation we are seeing, especially in the construction sector, suggests that there are bills that are

not being paid,” Hodgins said. Similarly, Al Tamimi & Co said

that there had been a “huge upturn” in litigation and arbitration work. “In addition [to litigation] we are experiencing a significant rise in arbitration work across a variety of sectors. Presently we are dealing with a range of claims worth from hundreds of millions of dirhams to hundreds of millions of US dollars,” said senior associate Raza Mithani. “We are dealing with a number of truly massive claims, which we believe to probably be some of the largest ever arbitrated in the UAE.”

Hadef & Partners partner Richard Briggs said the shipping industry has also been affected.

A lack of liquidity has forced the

cancellation of property projects that were launched prior to advent of the GFC. Among the most prominent cases is Dubai-based Arabtec Holding and Malaysia-based firm WCT Bhf’s dispute with developers Meydan over the cancellation of a deal to build a racecourse in Dubai

The declining value of assets is also another cause for the rise in work. “A number of companies that, particularly last year, invested in corporate targets or the real estate sector have seen the value of their investments drop significantly in the global financial crisis,” said DLA Piper partner Tom Canning. “There is, therefore, an obvious incentive to look for ways – perfectly proper ways – of reversing their way out of the deal.” ALB

Dubai lawyers issued with code of conduct

Litigation on the rise as real estate disputes increase

middle eAst >>

middle eAst >>

26

NEws | Appointments >>


PRomotIons ►name Firm Promotion Location

Michelle Chan HerbertSmith Partner HongKong

Brian Scott HerbertSmith Partner Jakarta

Betty Tam HerbertSmith Partner Shanghai

Judith Watson HerbertSmith Partner Dubai

Kening Li PinsentMasons Partner Shanghai

Peter Borg PinsentMasons Partner HongKong

Song Liwei ShanghaiJade&Fountain Partner Shanghai

Henry xiao ShanghaiJade&Fountain Partner Shanghai

Jeffery yang ShanghaiJade&Fountain Partner

Ben Giaretta Ashurst Partner Singapore

Matthew Hooton Ashurst Partner Abu-Dhabi

Chen yimin Jingtian&Gongcheng Partner Shanghai

Chen Jiaze Jingtian&Gongcheng Partner Shanghai

Fu Siqi Jingtian&Gongcheng Partner Beijing

Lang yuanpeng Jingtian&Gongcheng Partner Beijing

xu Bangwei Jingtian&Gongcheng Partner Beijing

xie Peng Jingtian&Gongcheng Partner Beijing

David Wang PaulHastings Managingpartner Shanghai

Marcus Gordon WatsonFarley&Williams Partner Singapore

Nicholas Hanna WatsonFarley&Williams Partner Singapore

Jody Glenn Waugh AlTamimi&Company Partner Dubai

Khalid Al Hamrani AlTamimi&Company Partner Dubai

Mohamed Khodeir AlTamimi&Company Partner Dubai

Marcus Wallman AlTamimi&Company Partner Dubai

ReLoCAtIons ►Partner Firm From to

Kate Allchurch White&Case London Singapore

APPOINTMENTS

LAteRAL hIRes ►name Leaving Going to Practice Location

James Morrison

InternationalCourtofArbitration

Bae,Kim&Lee Arbitration Seoul

Soo Bin Kim DLAPiper Bae,Kim&Lee M&A Seoul

Rajeev Duggal Citibank Skadden Singapore

Alison Smith MinterEllison DLAPiper Employment HongKong

Pattie Walsh MinterEllison DLAPiper Employment HongKong

Kent Woo Kingson Guangda Corporate Guangzhou

Andy Liao Linklaters HHPAttorneysAtLaw

Corporate Shanghai

Prabjot Singh Bhullar

AZB&Partners Khaitan&Co Corporate NewDelhi

Tushar Mavani Mulla&Mulla Amarchand&Mangaldas

Corporate NewDelhi

Ashish Jejurkar

Luthra&Luthra Amarchand&Mangaldas

Corporate NewDelhi

Harris Chan MallesonsStephenJaques

DLAPiper Asialitigation&regulatory

GreaterChina

May Ng MallesonsStephenJaques

DLAPiper Asialitigation&regulatory

GreaterChina

Tomohiko Makino

FujiLawPatentOffice

BinghamMcCutchen

IP Tokyo

uPdAte >>

environmentalLaw

Going Green – singapore’s blueprint for sustainable development

A S$1 billion sustainable development blueprint was unveiled by the Inter-Ministerial Committee for Sustainable Development (IMCSD) on 27 April 2009, after a year of extensive consultations with business

and community leaders, as well as members of the public. The blueprint aims to improve resource efficiency, enhance the physical environment, develop capabilities and build an environmentally responsible community in the context of emerging domestic and global challenges.

new Goals and initiativesThe IMCSD has set the following goals to be achieved by 2030:-1. Reduce energy intensity by 35% from 2005 levels.2. Reduce domestic water consumption to 140 litres per

person per day.3. Increase overall recycling rate to 70%.4. Increase public transport modal share to 70% by

doubling the rail network and developing a more integrated public transport system.

5. Improve air quality by reducing the level of fine particles in the air to an annual mean of 12 ug/m³ and capping sulphur dioxide levels at an annual mean of 15 ug/m³ by 2020.

6. Reach a park provision of 0.8ha per 1000 persons and increase skyrise greenery by 50ha. Lengthen park connectors from 100km to 360km.

7. Open up 900ha of reservoirs and 100km of waterways for recreational activities.

8. Improve accessibility for pedestrians and cyclists by expanding covered linkways and cycling networks.

9. Invest in building new capabilities and testing new technologies to transform Singapore into an international knowledge hub in sustainable development solutions.

10. Achieve an environmentally responsible community in Singapore.

s$1 billion will also be allocated over the next 5 years for 10 key initiatives:-1. More energy efficient buildings with the S$100 million

Green Mark Incentive Scheme.2. Eco-friendly public housing by piloting solar technology

at 30 housing precincts and reducing energy use of HDB common areas by 20% to 30%.

3. Minimum energy performance standards for household air-conditioners and refrigerators by 2011.

4. Protect natural heritage and biodiversity with the National Biodiversity Strategy and Action Plan.

5. Conducting clean transport technology trials and implementing cycling networks in selected HDB towns.

6. Promoting and funding skyrise greenery.7. Building business parks/clusters for clean technology and

urban solutions.8. Developing Marina Bay and Jurong Lake District as

sustainable high-density districts.9. Implementing District Sustainability Programmes.10. Adoption of sustainable development

initiatives by the public sector.

The blueprint is expected to add S$3.4 billion to economic output and create 18,000 more jobs by 2015.

Dawn Chang, Associate Corporate / Commercial Group ATMD Bird & Bird LLP 39 Robinson Road #07-01 Robinson Point, Singapore 068911 Direct +65 6428 9875 | Fax +65 6223 8762 Email [email protected]

Dawn Chang



Bae, Kim & Lee snares Aussie ICC counsel Inwhatisbeingbilledasanunprecedentedmove,formerInternationalCourtofArbitrationSecretariatcounselJamesMorrisonhasmovedtoKoreanfirmBae,Kim&Lee(BKL).MorrisonsaidthatwhiletheappointmentofanICCcounsel

toadomesticAsianfirmmaybeconsideredunprecedentedfornow,thelikelihoodofthisremainingtobethecaseislow.“I’msureinthefuturemorelawyersworkinginthemajorinternationalarbitrationinstitutionswillmovetoemergingmarketsinAsia,LatinAmericaandtheMiddleEast,ratherthanremaininginthe[usual]destinationsofchoicelikeEuropeorNorthAmerica,”hesaid.PriortohisrolewiththeICC,MorrisonwasasolicitorintheSydney-based

disputeresolutionpracticeofthenow-dissolvedinternationalfirmCoudertBrothers.MorrisonconsiderstheICCanidealtraininggroundforyounglawyers.“MytimeattheICCexceededmyexpectations…andprovidedauniqueopportunitytoparticipateinanumberofdiversearbitrationsaroundtheworld,”hesaid.“Asacounsel,you’repositionedatanexcellentplacetogainaninsider’sviewofthemechanicsofinternationalarbitration-intersectingbetweentheICCCourt,thearbitraltribunalandtheparties.”

Morgan Stanley Paul Hastings

Paul Hastings appointee makes capital markets connections count AnybuddinglawyerlookingforexamplesonhownetworkingcanprovebeneficialneedlooknofurtherthanformerMorganStanleyexecutiveSammyLi.LiwasrecentlyappointedtoPaulHastings’HongKong

officefollowingastintwithMorganStanleyAsia,arolehewasintroducedtobyhisformerLovellsbossandcolleagueGregTerry,MorganStanley’sSoutheastAsiachairmanatthetime.Terryalsorecentlymovedbacktoprivatepractice,joiningBlakeDawsoninMarch.“GregwasthepersonwhofirstintroducedmetoMorganStanley,”Li

said.“IwasaseniorassociateatLovellsandhemovedtoheadtheMorganStanleylegalteam.HeaskedwhetherIwasinterestedinastintandIwentonasecondmentforaroundninemonths.AfterthatIwentbacktoLovellsandcompletedafewdeals,andwhenaprominentpositionwasopenedupatMorganStanley,Iwent.”ThecapitalmarketsspecialisthasalreadyhitthegroundrunninginPaul

Hastings’corporatepractice,advisingChinesedevelopersShimaoPropertyHoldingsonitsUS$240mrightsissuetwoweeksafterhisappointment.Notably,thedealwasareferralbyhiscolleaguesatMorganStanley,whichwasactingasjointbookrunner.

James Morrison

sammy Li

Pinsent Masons

Pinsent promotes two in AsiaPinsentMasonshaspromotedtwolawyerstopartnershipinAsiaaspartofitsworldwidepartnerpromotionprogram.Shanghai-basedKeningLiwillbecomeapartnerinthefirm’sIPpracticewhileHongKong-basedPeterBorgwillbecomeapartnerinPinsentsinternationalconstruction&engineeringdisputesteam.Therestofthefirm’snewpartnersareallUK-based,with

twoinLondonandoneeachinGlasgow,Birmingham,Leeds,andBristol.Inadditiontomakingupeightnewpartners,thefirmhasalsopromoteda

numberofitsjuniorlawyerstotheassociateandseniorassociateranks.MichelleLiandNicholasTurnerwillbothbecomeseniorassociatesinthefirm’sShanghaiandHongKongoffices,respectively,whileBrookeHoldenandAlexMoray,whoarebothbasedinHongKong,arethenewassociates.InHongKong,thefirmalsoelevatedcorporatelawyerNormanLeungfromseniorassociatetolegaldirector.

Kening Li

ICC Bae, Kim & Lee uPdAte >>

International Arbitration

specialist arbitrators and the rules of natural justice

The advantages of using an adjudicator with expertise in the subject of dispute have long been recognised. In the middle ages, disputes were submitted to merchant guilds for resolution as an

alternative to formal court processes.In present day arbitrations, this practice finds expression

in the appointment of specialist arbitrators. In Soh Beng Tee & Co Pte Ltd v Fairmount Development

Pte Ltd [2007] 3 SLR 86, the Singapore Court of Appeal recognised that parties who engage specialist arbitrators intend to rely on their expertise “to obtain a sound and expeditious judgment” and held that “[i]t would therefore be wrong for the courts to blindly and/or willy-nilly mechanically apply the rules of natural justice so as to require every conclusion that the arbitrator intends to make to be put to or raised with the parties.”

The Court upheld the policy of minimal curial intervention that is underpinned by the need to recognise the autonomy of the arbitral process by encouraging finality and by the fact that parties must, by opting for arbitration, be taken to have accepted the attendant risks of having only a very limited right of recourse to the courts. In fulfilling its function of ensuring that the rules of natural justice are complied with, the court will generally not consider intervention unless there is “a real basis for alleging that the arbitrator has conducted the arbitral process either irrationally or capriciously. …[T]he overriding burden on the applicant is to show that a reasonable litigant in his shoes could not have foreseen the possibility of reasoning of the type revealed in the award.”

The Court held that the arbitrator is entitled to make inferences based on the facts presented, even if the inferences constituted findings that the parties had not asked the arbitrator to make. The dicta of the Court also suggests that, if the inferences related to firmly established concepts and arose from the facts presented, the arbitrator’s use of expert knowledge that had not been addressed by the parties might not amount to a breach of natural justice.

In light of the high threshold for establishing a breach of natural justice and judicial recognition of the use of the specialist arbitrator’s own knowledge in making an award, parties would be prudent to ensure that all relevant issues arising from the facts presented are fully addressed.

Mr Chenthil Kumarasingam is a Director of Drew & Napier’s International Arbitration Group. His areas of practice are in litigation, covering Civil and Commercial Litigation, Banking and Corporate Litigation, Employment, Securities, Defamation, Trusts, Landlord and Tenant, Probate and Tort. He can be contacted at +65 6531 2334 or [email protected]. Visit www.drewnapier.com/directors.html for his full CV.

Chenthil Kumarasingam

28



DLA Minter Ellison

DLA takes employment head from Minters DLAPiperwillhaveanewheadofitsAsiaemploymentpracticefromAugust.PattieWalsh,aspecialistincomplexandsensitive

employment-relatedmatters,joinsthefirmasapartnerfromMinterEllisoninHongKongwhereshewasheadofemploymentforGreaterChina.Inhernewrole,Walshwillhaveasimilarfocusonmulti-jurisdictionalemploymentwork,aswellasstaffingissuesarisingfromM&A,otherreorganisationsandoutsourcingacrossAsia.AlisonSmith,alsoofMinterEllison,willjointhefirmalongsideWalshasa

seniorassociate.

Pattie Walsh

Paul Hastings

Paul Hastings names new Shanghai chair VeteraninternationallawyerMitchellDudekhassteppeddownaftersixyearsasthechairofPaulHastings’Shanghaioffice.DudekjoinedPaulHastingsin2003fromJonesDay,wherehewasthepartnerinchargeinShanghai,andhelpedbuildupPaulHastings’practicesinShanghaisinceitsinception.PaulHastingshadexperiencedstronggrowthinShanghai

undertheleadershipofDudekuntiltheglobalfinancialcrisiseruptedlastyear.AlthoughthefirmhasmadelayoffsinitsChinaoffices,itwasvotedoneoftheEmployerofChoicefirmsamonginternationallawfirmsinChinainALB’s2009EmployerofChoicesurvey.DudekhasbeensucceededbyShanghaicorporatepartnerDavidWang,who

joinedPaulHastingsin2000andwasadmittedtothepartnershipin2006.

David Wang

Amarchand & Mangaldas/Khaitan & Co

Indian firms continue with lateral hires IndianlawfirmsAmarchand&MangaldasandKhaitan&Cohavebolsteredtheirpartnershipwithnewhires.Khaitan&CohasrecruitedinfrastructurespecialistPrabjot

SinghBhullarasapartnerinitsNewDelhioffice.AspokesmanfromthefirmsaidthattheappointmentisamonganumberofexpansionmovestheDelhiofficehasundergone,theothersbeingmovingtoanewofficeand“revampingoperations.”Meanwhile,thefirm’sDelhi-basedrival,Amarchand&

Mangaldas,hashiredtwonewpartners.CorporatelawyersTusharMavanihasmovedfromMulla&Mulla,andAshishJejurkarfromLuthra&Luthra.

Prabjot singh Bhullar

Al Tamimi

Al Tamimi promotes quartet to partnership GulflawfirmAlTamimi&CompanyhasappointedfourlawyerstoitspartnershipinDubai.Banking&financelawyerJodyGlennWaugh,specialprojectslawyersKhalidAlHamraniandMohamedKhodeir,andcorporate&commercialpartnerMarcusWallmanwereallpromotedeffectivefrom1June.Thefirm’smanagingpartner,HodaBarakat,saidthatwhileconditionswere

toughforlawyersintheGulf,investinginbusinessdevelopmentwasthekeytoemergingfromthecrisisinastrongerposition.“Yes,thesearechallengingtimesforeveryone,butwewillnotholdbackonrewardingthosewhodeservetoberecognisedfortheirefforts.Addingthemtothepartnershipisapositivestepforthefutureofthefirm,”shesaid.

uPdAte >>

employment

Changes to paid parental leave in Australia and taiwan

The Australian government recently announced the introduction of a government-funded paid parental leave scheme from 1 January 2011.

Currently there is no statutory paid parental leave in Australia. Some statutory workplace agreements contain provision for paid parental leave. In addition, some employers provide paid or partly paid parental leave as a matter of contract and/or company policy.

The proposed new scheme will see the primary caregiver receive 18 weeks’ pay at the statutory minimum wage (currently AUD$543.78). The scheme will be available to primary carers earning less than AUD$150,000 who have worked continuously for at least 10 of the 13 months prior to the birth/adoption for at least 330 hours (ie about one day per week). The introduction of the scheme complements the enhanced unpaid parental leave benefits for parents which will commence in January 2010 (ie up to 24 months shared between the parents).

The announcement of the new scheme has generated significant media attention in Australia. While many have welcomed the changes, some employer groups have expressed concerns about the administrative costs and cashflow burden that the largely employer-administered scheme will create for businesses.

International observers might be surprised at the level of resistance that the paid parental scheme has attracted in Australia. Currently, of all the world’s advanced economies, Australia and the United States are the only countries that do not offer statutory paid maternity leave.

A comparison with recent changes to paid parental leave in Taiwan might place the Australian changes in some context. Female employees in Taiwan have since 1985 had access to 8 weeks’ employer-funded maternity leave, on full pay for employees with 6 months’ service.

In 2002, an entitlement to parental leave was introduced in Taiwan, which allowed male and female employees to take up to 2 years’ unpaid parental leave shared between the parents. Parental leave is separate from and additional to maternity leave.

From 1 May 2009, male or female employees who take parental leave in Taiwan will receive up to 6 months’ pay each, or a total of 12 months altogether, at 60% of their pre-parental leave salary. It is proposed that this will eventually be extended to cover monthly payments at 60% of salary for up to the full 2 year period. Payments are made out of Taiwan’s compulsory labour insurance program.

Employers in Australia will need to prepare for the new paid parental leave entitlements by considering how the scheme fits in with existing benefits, and ensuring that the necessary systems are put in place to administer the scheme.

George Cooper, Practice Leader Workplace Law & Advisory – Asia Freehills Direct +65 6236 9941 Telephone +65 6236 9939 Facsimile +65 6538 2575 http://www.freehills.com

George Cooper



Jade & Fountain

Jade & Fountain appoints new partners Jade&FountainhasstrengtheneditsmarketpositioninShanghaibymakingthreepartnerappointments.Thenewadditionstoitspartnership,SongLiwei,Henry

XiaoandJefferyYang,willhelpexpandthefirm’scorporate,disputeresolution,internationaltradeandcapitalmarketspracticeandtakethetotalnumberofitspartnersto15.NewpartnerLiweijoinsfromGideLoyretteNouel,Xiao,

wasformerlyapartnerwithZhongLunandYangpractisedwithFreshfields,HerbertSmithandHaiwen&PartnerspriortojoiningJade&Fountain.

song Liwei

Fuji Law Patent Office Bingham McCutchen

Bingham brings in IP specialist BinghamMcCutchenhasappointedIPlawyerTomohikoMakinoasapartnerinitsTokyooffice.Theappointmentwillexpandthefirm’sglobalintellectual

propertylitigationpractice,whichissupportedbyaround100lawyersacrossofficesintheUSandJapan.MakinojoinsthefirmfromTokyo-basedFujiLawPatent

Office,whereheworkedforJapanesecorporationsonIPlitigationcases,licensingandcontractmatters.• Asia’s leading IP firms p36

Tomohiko Makino

Barlow Lyde & Gilbert

Barlow appoints new China managing partner FollowingthedepartureofanumberofpartnersinLondonearlierthisyear,UKfirmBarlowLyde&Gilbert(BLG)hasappointedanewmanagingpartnerforHongKongandChina.Long-timeHongKonglitigationpartnerDavidSmythhasbeenpromotedtotherole,succeedingCamilleJojo,whohasheldthepositionsince1995.PriortoSmyth’sappointment,thefirmrelocatedtwo

Londonpartners,JohnHansonandMertHifzi,toitsSingaporeoffice.ThefirmalsorecentlyhiredLisaFoleyinHongKongtobeitsfirsteverchiefoperatingofficerforAsia.

David smyth

Ashurst

Ashurst adds to Asia practices AshursthaselevatedSingapore-basedBenGiarettaandAbuDhabi-basedMatthewHootontoitsworldwidepartnership.Hooton,headofthefirm’srealestatepracticeintheMiddle

East,advisesinallareasacrosstherealestatesector,whileGiarettaisanarbitrationlawyerwhowasrecentlyrelocatedfromthefirm’sLondonofficetolaunchadisputespracticeintheregion.InadditiontothepromotionofGiarettaandHooton,the

firmalsomadeupeightotherlawyerstoitspartnership–fivefromLondon,twofromMilanandonefromFrankfurt.Lastyear,thefirmelevated17lawyerstoitspartnershipandthefirm’sseniorpartner,CharlieGeffen,saidthedecreasethisyearissimplyareflectionoftheeconomiccrisis.“Clearlytimesaretough,butit’snotreallyjustanumbersgame.Yougetthecandidatesyougetcomingthrough,thoughattimeslikethisthebargoesup.Butnobodysitsdownandsays:‘We’reonlygoingtomakeupXpartnersthisyear’,”hesaid.

Ben Giaretta

Matthew Hooton

uPdAte >>

Alternative dispute Resoution (AdR)

Part 1: Comparisons between the arbitration laws in malaysia

Considered as one form of alternative dispute resolution, arbitration is a favored method of resolving disputes especially so for commercial matters.

Over the recent years, arbitration in the Malaysian setting has been given more emphasis by legislators, judicial bodies, and legal practitioners. Given such increasing popularity, arbitration is considered to be the main alternative to litigation for commercial and trade practitioners.

The laws concerning arbitration in Malaysia are as set out in the Malaysian Arbitration Act 2005, the Kuala Lumpur Regional Centre for Arbitration Rules and the United Nations Commission on International Trade Law Rules 1976.

In an effort to comprehend the general usage and applicability of the principal legal provisions governing arbitration, a comparison between the arbitration laws applied in Malaysia is discussed below.

The LawsMalaysia has originally enacted the Arbitration Act 1952, which followed the old English Arbitration Act 1950. The Arbitration Act 1952 was later amended in 2005 by the Arbitration Act 2005 (“the Act”) adopting the UNCITRAL Model Law and the New Zealand Arbitration Act 1966.

Apart from the Act, the Kuala Lumpur Regional Centre for Arbitration (“KLRCA”) had enacted the KLRCA Rules, which also implements the UNCITRAL Model Law on International Commercial Arbitration Rules 1976 (“UNCITRAL Rules”) adopted by the United Nations Commission on International Trade Law in 1995.1

The Parties and Application of the LawsThe Act applies to arbitrations held in Malaysia involving both domestic and international parties.2

The KLRCA Rules would apply upon the designation and agreement of parties (either in a domestic or international proceeding) to be bound by the KLRCA Rules.3

Similar to the KLRCA Rules, The UNCITRAL Rules would apply if the parties have agreed in writing to adhere to the UNCITRAL Rules in their arbitration proceedings.4

subject MatterThe Act has jurisdiction to govern any subject matter that is not considered as contrary to public policy5. In contrast, the KLRCA Rules would only govern commercial or trade disputes, likewise the UNICTRAL Rules6.

1 WSW Davidson and Sundra Rajoo; Arbitration Act 2005:Malaysia Joins the Model Law Arbitration Community; The Law Review 2006.2 Section 2 of the Malaysian Arbitration Act 20053 Rule 1(1) of the KLRCA Rules4 Article 8 of the UNCITRAL Rules5 Section 4 of the Malaysian Arbitration Act 20056 www.klrcakl.org.com; retrieved 01.01.2009; Article 1 of the UNCITRAL Rules

Siti Munirah Maarof, Associate Corporate Commercial / Intellectual Property Practice Group Azmi & Associates 14th Floor, Menara Keck Seng, 203 Jalan Bukit Bintang, 55100 Kuala Lumpur, Malaysia Tel: +6 03 2118 5000 ext 5065 Fax: +6 03 2118 5111 www.azmilaw.com E-mail: [email protected]

siti Munirah Maarof

30

NEws | deals update >>


mergermarket M&A deals update

NEws | deals update >>


32

NEws | regional update >>


CHINAPaul Weiss

PHILIPPINESSyCip Salazar Hernandez & Gatmaitan

MALAYSIATay & Partners

INDONESIABT Partnership

SINGAPORELoo & Partners

VIETNAMIndochine Counsel

Reg

ional

updat

es

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

Chinese publishers are encouraged to •invest in, or cooperate with, overseas publishers of Chinese-language newspapers and periodicals and printing companies.GAPP officials have indicated that

transactions under the Opinion must comply with currently existing law. Accordingly, Chinese publishers have to rely on State-owned enterprises if they seek to attract investment in their editorial operations, and foreign investment remains confined to advertising, printing and distribution businesses. However, this distinction is to some extent theoretical: Investment in the revenue generating parts of a media operation inevitably gives outside investors a measure of influence over major editorial decisions, and investors try to maximize this influence. By putting pressure on publishing houses to consolidate, compete and offer better content across multiple media platforms, GAPP further incites Chinese publishers to seek potential partners with relevant expertise, such as foreign strategic investors.

Written by Hans-Günther Herrmann, counsel Peter Davies, associatePaul, Weiss, Rifkind, Wharton & Garrison

Hong Kong Club Building, 12th Floor 3A Chater Road, Central Hong Kong Email: [email protected] [email protected] Ph: (852) 2536-9933

In 2003, the Chinese government embarked upon the restructuring of the print media industry. Publishing houses were encouraged to separate their operational functions from editorial functions. While the editorial functions had to remain wholly State-controlled, domestic and foreign private investment in the printing, advertising and distribution functions of print publications was encouraged. Several domestic and overseas listings and Chinese-foreign joint venture projects were implemented under this policy, but it did not fundamentally change the face of China’s media industry.

On April 6, 2009, the General Administration of Press and Publication (“GAPP”) commenced a new phase of reforms by issuing the Guidance Opinion to Promote Further Reform of the Press and Publication System (the “Opinion”). In the Opinion, GAPP articulates its vision for creating large, financially strong and innovative publishing and media groups that can satisfy the public’s need for richer content and compete in the worldwide Chinese-language media market.

The GAPP’s strategy includes the following key restructuring measures:

Publishers of books, audio-video •products and electronic publications are to convert into corporations by the end of 2010, with publishers of periodicals to follow gradually.Large publishing groups will be created •by combining existing publishing houses with comparable businesses. Publishing and media companies with nationwide operations may become publicly listed, and large State-owned enterprises are encouraged to become investors in or prior to the initial public offering. Private and foreign capital may be •used to strengthen the operational functions of print media.

CHINA

New guidelines may herald consolidation

wave for PRC publishers

PHILIPPINES

Multi-year Capital and Trust Fund Build-up

for Philippine Pre-need Companies

Recognizing that the economic crisis has hampered the capacity of pre-need



On 22 April 2009, the Malaysian Government announced the removal of the 30% bumiputra equity requirement in 27 services sub-sectors. The services have been generally classified as computer and related services, health and social services, tourism, transport, sporting and recreational, business, rental/leasing (without operators), supporting and auxiliary transport services and the 27 sub-sectors relate to activities carrying out under these services. Accordingly, no equity condition will be imposed with immediate effect on any of the 27 services sub-sectors.

The services sector is an important new growth sector for the Malaysian economy. The services sector contributed approximately 55% to the gross domestic product in 2008 and

MALAYSIA

accounted for approximately 57% of the country’s total employment. With the liberalization of the services sector, it is expected that there will be greater inflow of foreign investment.

On 27 April 2009, the Malaysian Government further announced the liberalization of the financial sector. Under the liberalization plan for the financial sector, foreigners will now be allowed to own up to 70% (from the previous 49%) of equity in investment banks, Islamic banks, insurance companies and takaful operators. Such alliances through increased participation of international expertise and the global networks of foreign shareholders will strengthen the business potential and enhance the growth prospect of the financial sector. However, the foreign equity limit for commercial banks still remains at the current 30%.

The financial sector liberalization package further includes the issuance of new licences. In 2009, up to 2 new Islamic banking licences will be offered to foreign players to establish new Islamic banks with paid-up capital of at least USD1 billion to help reinforce Malaysia’s position as an international financial hub. Up to 2 new commercial banking licences will also be offered in 2009 to foreign players that will bring in specialized expertise to address gaps in the financial sector. In addition, up to 2 new family takaful (Islamic insurance) licences will further be granted to any players that can contribute to help spur the development of the takaful industry. Later in 2011, up to 3 new commercial banking licences will be offered to world-class banks that can offer significant value proposition to Malaysia. To further develop Malaysia as an international Islamic financial hub, the legal profession would be liberalized to allow up to 5 international law firms with expertise in international Islamic finance to practice in Malaysia.

To enhance operational flexibilities, locally incorporated foreign commercial banks that operate in Malaysia will be allowed to establish 4 new branches in 2010 and 10 microfinance branches with effect from 2009. To further provide a more flexible operating business environment, offshore banking institutions and offshore insurance companies licensed by the Labuan Offshore Financial Services Authority (LOFSA) that meet the pre-determined criteria will be accorded

Liberalisation of the Services and Financial

Sector

companies are prohibited from declaring dividends, stock options or warrants and from awarding benefits and compensation to directors, executors and officers during the effectivity of the multi-year funding scheme.

The measures mentioned are just some of the efforts taken by the SEC to aid and assist the struggling pre-need industry and at the same time secure the clients of the pre-need companies and the Philippine Government from fraud.

Written by Michael P. Garcia

Sycip Salazar Hernandez and Gatmaitan SSHG Law Centre, 105 Paseo de Roxas Makati City, Manila, Philippines Tel: +63-2-817-98-11 loc. 361 Fax: +63-2-817-38-96 E-mail: [email protected], [email protected] Website: www.syciplaw.com

companies to address their capital and trust fund deficiencies, the Securities and Exchange Commission (“SEC”) devised a multi-year funding scheme, the Multi-year Capital and Trust Fund Build-up, to give financial assistance to chosen pre-need companies.

Under SEC Memorandum Circular No. 01-2009, the SEC extended the period for application of pre-need companies for the twenty-four (24) slots allotted in the multi-year funding scheme. The SEC will only consider the applications of pre-need companies that have been granted Dealer’s Licenses for 2009 as of February 25, 2009 and need to strengthen their capital and trust fund in order to comply with the requirements of the SEC.

Pre-need companies chosen for the multi-year funding scheme are required to immediately address their respective trust fund deficiencies and capital impairments. Under the multi-year funding scheme, it is mandatory for pre-need companies to fund the entire trust fund deficiency by the year 2012 and to eliminate capital impairment by the year 2010.

Pre-need companies chosen for the multi-year funding scheme are allowed to make the investments in real estate in excess of fifteen percent (15%) of the total trust fund equity, investments in unlisted shares of stock of companies, and investments in the form of planholder loans exceeding the five percent (5%) but not exceeding ten percent (10%) of the total trust fund equity. The said investments, though prohibited under SEC Memorandum Circular No. 04-2007, are allowed, provided, the pre-need companies comply with the conditions provided in SEC Memorandum Circular No. 01-2009.

Pre-need companies chosen for the multi-year funding scheme are subject to the disclosure and reportorial requirements of the SEC and are likewise required to maintain the twenty percent (20%) liquidity reserve requirement.

The SEC designated a separate schedule for filing of the Audited Financial Statements and Actuarial Validation/Valuation of Report of pre-need companies under the multi-year funding scheme in order to monitor their financial activities. As a deterrent to possible incidents of fraud, pre-need

34



flexibility to have a physical presence onshore with effect from 2010 and 2011 respectively. Greater flexibility will also be accorded for employment of expatriates in specialized areas that can contribute to the development of the financial sector.

The liberalization measures are primarily aimed to enhance Malaysia’s linkages with international economies and promote greater economic regional integration. By introducing and implementing the numerous liberalization measures, the Malaysian Government is determined to transform Malaysia to its next phase of development and to achieve its long term vision of a resilient, diversified and efficient financial sector.

Written by Chang Hong Yun PartnerHead of Banking and Property

Tay & Partners 6th Floor, Plaza See Hoy Chan Jalan Raja Chulan 50200 Kuala Lumpur, Malaysia Phone: +603-2050 1888 DID : +603 20501882 Fax: +603-2031 8618 Email: [email protected]

MAS will update the Guidelines, where appropriate, to incorporate comments received on the Consultation Paper on “Review of the Regulatory Regime Governing the Sale and Marketing of Unlisted Investment Products,” as well as industry developments in Singapore and other jurisdictions.

Please refer to www.mas.gov.sg for full details.

Written by Ms Wong Joy Ling and Mr Nicholas Chang

Ms Wong Joy LingForeign CounselLegal Associate (Corporate Practice)Ph: (65) 6322-2234Fax: (65) 6534-0833E-mail: [email protected]

and Mr Nicholas ChangCorporate Finance ExecutivePh: (65) 6322-2236Fax: (65) 6534-0833E-mail: [email protected]

Loo & Partners LLP 88 Amoy Street, Level Three Singapore 069907

deliver fair dealing outcomes to customers. The Guidelines are applicable to: (i) the selection, marketing and distribution of investment products; (ii) the provision of advice for these products to customers; and (iii) the provision of after-sales services and complaints handling. Although the Guidelines have been written with retail customers and investment products in mind, financial institutions are strongly encouraged to apply the principles in the Guidelines to their other customers and products. The Guidelines are to be read together with the Financial Adviser Act, its subsidiary legislation, written directions, notices, codes and other guidelines.

The five fair dealing outcomes set out in the Guidelines are as follows:(1) Customers have confidence that

they deal with financial institutions where fair dealing is central to corporate culture;

(2) Financial institutions offer products and services that are suitable for their target customer segments;

(3) Financial institutions have competent representatives who provide customers with quality advice and appropriate recommendations;

(4) Customers receive clear, relevant and timely information to make informed financial decisions; and

(5) Financial institutions handle customer complaints in an independent, effective and prompt manner.

There is a deliberate focus on outcomes in the Guidelines as customers are concerned about their experiences when dealing with financial institutions, and whether the investment products and services they buy provide real value. The five outcomes provide a clear benchmark for MAS and the industry to access the performance and success of financial institutions in promoting good market conduct practices. In addition, the Guidelines expect the Board and Senior Management to be able to clearly demonstrate that their strategies, policies, systems and processes to support these five outcomes. MAS will take into account a financial institution’s ability or failure to observe the Guidelines in assessing whether it continues to be fit and proper to conduct regulated activities. Where the failures relate to obligation under the relevant legislation, MAS will exercise supervisory or enforcement action on the financial institution.

On 3 April 2009, the Monetary Authority of Singapore (“MAS”) issued the Guidelines on Fair Dealing – Board and Senior Management Responsibilities for Delivering Fair Dealing Outcomes to Customers (the “Guidelines”) to promote fair dealing by financial institutions when they conduct business with their customers.

The Guidelines underline the responsibilities of the Board and Senior Management of financial institutions to

Guidelines On Fair Dealing For Financial

Institutions

SINGAPORE

A mere recognition is not sufficient to enforce the foreign arbitral award. Subsequent to the foreign arbitral award’s recognition by the Chief of the District Court of Central Jakarta, he/she will issue an exequatur to grant the execution of the said foreign arbitral award in Indonesia.

In short, exequatur means an execution order or a title of execution attached to the foreign arbitral award. An exequatur issued by the Chief of the District Court of Central Jakarta is considered as final and binding. There is no further legal action can be invoked against this exequatur. However in the event that the Chief of the District Court of Central Jakarta refuses to issue an

Enforcement Of Foreign Arbitral Award

In Indonesia (Part 2)

INDONESIA



exequatur, a party can submit the refusal to the Supreme Court for Cassation.

Basically, a further legal action can be brought against the decision of Supreme Court. However, for the purpose of recognition and enforcement of foreign arbitral award, there is no further legal action can be invoked against the refusal delivered by Indonesian Supreme Court. This is since the Supreme Court in this stage only examines the formalities of the award, not its substance. In other words, in this stage the Supreme Court does not examine the legal facts ( judex factie) but it only examines the formalities set forth in Article 66 of Law No 30/1999. This is in line with Article 60 of Law No 30/1999 which recognized that an arbitral award is deemed final and binding. Consequently, there is no substantial examination can be conducted towards foreign arbitral award.

The procedures of foreign arbitral award’s execution are regulated under the Civil Procedural Law. Under this Law, following the issuance of exequatur, the execution of foreign arbitral award subsequently will be transferred to the Chief of any District Court who is relatively authorized to so conduct (Article 69 (1) Law No 30/1999; Article 3777 of Het Herziene Indonesisch Reglement (HIR); Article 705 of Reglemen voor Buiten gewesten (RBg)).

For example, the Defendant’s asset is located in North Jakarta therefore the Chief of the District Court of North Jakarta is authorized to conduct and control the execution. The authorized Chief of District Court will summon a warning (Aanmaning) to the Defendant and order it to voluntarily fulfill its obligation within 8 (eight) days. If subsequent to the time limit the Defendant still has not fulfilled its obligation, the Chief of the District Court will order the Defendant’s assets to be confiscated, bearing in mind that the exequatur also empowers the party to confiscate Defendant’s assets. This confiscation shall be conducted by a bailiff and confiscator supervised by the Chief of the District Court.

Written by Tyana Asri Martianti

BT PARTNERSHIP BRI Tower II, 19th Floor Jl. Jend. Sudirman No.45 Jakarta 10210, Indonesia Tel. 62 21 5700 777 Fax. 62 21 5700 877 Email: [email protected] Web: http//www.btpartnership.com

VIETNAM

Overview of Franchising Rules in Vietnam

As a member of the World Trade Organization (WTO), Vietnam started opening its retailing market for foreign traders from 1 January 2008. Such market opening has positive impacts on the franchising activities in Vietnam, both from abroad into Vietnam and vice versa. As reported by the International Franchising Association, more than 70 business systems are currently under franchise contracts and developing in Vietnam, with the presence of leading brands such as KFC, Lotteria, Jollibee, Gloria Jean, Louis Vuitton and Gucci. Local brands also entered into the growing franchising market, to name a few: Trung Nguyen Coffee, Highland Coffee, Pho 24 (beef noodles), T&T Shoes, Qualitea, NinoMax, Kinh Do Bakery. With the major local market of about 86 million people, Vietnam remains potential for foreign franchisors.

Currently, franchising activities in Vietnam are governed by the 2005 Commercial Law and its implementing regulations, particularly Decree No. 35/2006/ND-CP dated 31 March 2006 providing the guiding rules for franchising activities (“Decree 35”) and Circular No. 09/2006/TT-BTM dated 25 May 2006 (“Circular 09”).

Under Decree 35, to be involved in franchising operations, the franchisor and the franchisee must satisfy the following conditions:

Goods and services which are the •subject of the business system to be franchised are not those included in list of goods and services in which the business is prohibited under the applicable laws of Vietnam; The business system to be franchised •must be in operation at least one year. If a foreign franchisor grants a franchise to a primary (master) franchisee in Vietnam, then such

Vietnamese primary franchisee must operate the franchise business for at least one year before sub-franchising; A franchisee receiving a franchise •must be licensed to be engaged in those lines of business which are appropriate to the subject of the franchise (according to its business registration certificate or investment certificate); and Franchising activity must be registered •with the relevant authority in Vietnam as mentioned below.

The franchising rules mandate that a franchise contract must be in written form, and in case of an overseas franchise to be granted into Vietnam, then the contract must be made in Vietnamese (in addition to the foreign language such as English).

All franchising activities are required to be registered with the Ministry of Industry and Trade (MOIT) or the local Department of Industry and Trade (DOIT), depending on the type of franchises. In particular, pursuant to Decree 35 and Circular 09, franchising activities from (a) overseas into Vietnam and (b) from Vietnam to overseas must be registered with the MOIT, while the DOIT of the province or city under central authority where the proposed franchisor registers its operations shall carry out registration of all domestic franchising activities.

With the legal framework for franchising activities and the opening of the Vietnam retailing market, it is anticipated that the franchising market in Vietnam will be developed in the years ahead, especially in such areas as fast food, education, healthcare. More and more foreign companies are interested to enter into Vietnamese market via franchising or licensing arrangements.

By Nguyen Thi Hong Anh, Head of IP & Technology Group Indochine Counsel Unit 4A2, 4th Floor, Han Nam Office Bldg. 65 Nguyen Du, District 1 Ho Chi Minh City, Vietnam (Tel) +848 3823 9640 (Fax) +848 3823 9641 [email protected] www.indochinecounsel.com

36

FEaTURE | Asian IP firms >>


ChInA ►Domestic: CCPITPatent&Trademark;FangdaPartners;Hylands;King&Wood;Lifang&Partners;Liu,Shen&Associates;Longan;Peksung;Watson&Band;Zhongzi

International: Baker&McKenzie;Bird&Bird;JonesDay;Lovells;Rouse&Co

IndonesIA ►Amroos&Partners;BiroOktroiRoosseno;Hadiputranto,Hadinoto&Partners;LubisSantosa&Maulana;Soemadipradja&Taher

mALAysIA ►HenryGoh&Co;Tay&Partners;Wong&Partners;WongJinNee&Teo

PhILIPPInes ►ACCRALawOffices;HechanovaBugay&Vilchez;QuisumbingTorres;RomuloMabantaBuenaventuraSayoc&DeLosAngeles;SycipSalazarHernandez&Gatmaitan;VillarazaCruzMarcelo&Angangco

sInGAPoRe ►AmicaLaw;ATMDBird&Bird;Baker&McKenzie.Wong&Leow;Drew&Napier;Lee&Lee;Rodyk&Davidson

GuLF ►Abu-GhazalehIntellectualProperty;AlTamimi&Company;Clyde&Co;Saba&Co;NassirKadasa&Partners

thAILAnd ►Baker&McKenzie;ChavalitFinch&Partners;DomnernSomgiat&Boonma;Rouse&Co;Satyapon&Partners;Tilleke&Gibbins


methodoLoGy ►Nowinitssecondyear,ALBpresentsAsia’sLeadingIPfirmsasvotedbyin-houselawyersacrosstheAsia-Pacificregion.Inthepreparationofthisreport,ALBconductedtelephoneinterviewswith,andinvitedsubmissionsfrom,corporatesandin-housecounselacrosstheregion.TherecommendationsputforwardbyfirmsaspartoftheALBLawAwardsseriesofeventswerealsoconsidered.TheinformationgatheredwasthencollatedandtalliedtoproduceALB’sLeadingAsia0IPfirms.Notethattherecommendationsofin-housecounselandcorporateswereweightedagainsttherecommendationsoffirmsbyaratioof2:1.Firmsarelistedalphabeticallyundereachjurisdiction.

honG konG ►Domestic: EllaCheong;Eccles&Lee;Deacons;ONCLawyers;RebeccaLo&Co;Sit,Fung,Kwong&Shum;SoKeungYip&Sin;VivienChan&Co;Wilkinson&Grist

International: Baker&McKenzie;Bird&Bird;JonesDay;Lovells;Simmons&Simmons;MayerBrownJSM

IndIA ►Amarjit&Associates;Amarchand&Mangaldas;Anand&Anand;ChandrakantM.JoshiPatentandTrademark;DPAhuja&Co;K&SPartners;Kan&Krishme;Lall&Sethi;Lexorbis;SubramaniamNataraj&Associates

VIetnAm ►Lovells;InvestConsult;Pham&Associates;Tilleke&Gibbins;Vision&Associates



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tAIwAn ►Chen&Lin;Deep&FarAttorneys;LeeandLi;Tsar&Tsai;WinklerPartners

ALB’s leading Asia IP firmsThe practice of intellectual property law is constantly changing as regimes throughout the world realise its importance. Here, ALB looks at the top IP firms and practitioners across the region

The rapidly evolving world of intellectual property (IP) has seen some significant changes in the past year, as the subsequent country market summaries demonstrate. However, a

more important issue to emerge in the global financial crisis is whether IP protection may be a factor that can drive Asia’s economic growth.

This was the argument put forward in a recent study published by the Property Rights Alliance, stating that countries which protect intellectual property have a per capita GDP around nine times greater than those without proper IP legal systems… Ample reason to believe that economic development and IP protection benefit from each other. “Intellectual property rights can boost trade and foreign investment

koReA ►Bae,Kim&Lee;DaraeLaw&Patent;Kim&Chang;Lee&Ko;YPLee,Mock&Partners

jAPAn ►Domestic: Abe&Matsutome;Abe,Ikubo&Katayama;AndersonMori&Tomotsune;H.Okada;Momo-o,Matsuo&Namba;MoriHamada&Matsumoto;Nakamura&Partners;SeiwaPatent&Law;TMIAssociates;Yuasa&Hara

International: Baker&McKenzie;Finnegan;Lovells;Morrison&Foerster;Ropes&Gray

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38



Gordon Gao, Fangda

dramatically, but first global piracy and counterfeiting must be stopped or significantly reduced for the economies of developed and developing nations to thrive,” says Kelsey Zahourek, executive director of Property Rights Alliance. This argument arrives on the back of what many deem Asia’s growing understanding of the importance of IP protection, as businesses shift stance and begin to view IP as more of a potentially profit-making enterprise.

In researching ALB’s Leading Asia IP Firms, the two foremost issues for clients doing business in Asia were the security of a country’s IP regime and, of course, legal costs. In the current economic climate, it was no surprise that costs came up as a major dividing issue. One respondent mentioned the exhaustive number of counsel needed in IP litigation, meaning fees can quickly rack up when billed hourly. However, not all clients felt the same, with some noting that IP litigation costs in Asia were relatively low compared to other jurisdictions.

Asia is arguably the world’s manufacturing hub and ensuring IP assets were protected was the primary concern for foreign companies outsourcing work to Asia. In essence, where a company decided to do business was significantly based on the strength of IP laws in a particular country, coupled with the success rate of filing patents and trademarks there. As one general counsel at a global tech company said, there is ample opportunity for lawyers to serve

clients better by doing more to ensure a patent is registered successfully and by focusing on ways to facilitate improvements to IP regimes. However, in light of the IP developments (or in some cases the lack of) outlined here in each country, whether that’s achievable is another matter entirely.

ChinaMarketChina wants to show the world it is serious about IP protection. The amendments to the country’s Patent Law passed in December last year include revisions and clarifications on double patenting standards, and penalties for foreign filing without a licence. But despite these assurances, companies still deem China to be the most risky country in the world for IP infringement, according to recent research. It is a worrying finding, which could see companies that rely significantly on the profits gained from IP protection simply ignore China and move their business elsewhere.

Nevertheless, as Chinese brands’ prominence rises globally, law firms should be gearing up for growth of business in the coming years, as companies aim to ensure trademarks and copyrights are protected. “The volume of IP litigation has increased in recent years,” said Fangda Partners’ Gordon Gao. “And more importantly, the damage awards in infringement cases are rising and increasingly punitive.”

This year, China also rose from eighth to seventh place in the World Brand Laboratories’ list of the countries with the highest number of influential brands – which included brands such as Haier, Lenovo, State Grid and Bank of China. As these brands rise in value and Chinese companies capture more of the global market (as deals involving Chinese energy and mining companies with

http://www.cmjoshi.us



interests in Australia, and Singapore demonstrate), law firms’ IP practices will remain stable, if not buoyant. “National industrial development policy, IPR strategy, the prosecution and enforcement of IPRs of both Chinese enterprises, and individuals, will continue and create more work for law firms,” said , Lian Yunze, lead IP partner at Hylands.

IndustryAmong the highly praised domestic firms were Watson & Band, whose managing partner George Fu was well regarded, having served as a presiding judge of Shanghai High People’s Court and head of the Intellectual Property Research Committee of the Shanghai Bar Association. Unsurprisingly, Zhongzi’s IP practice was also highly rated, as it handles around 70% of the firm’s work and is serviced by more than 100 lawyers and patent agents. In the international ranks, Jones Day’s patent litigation experts emerged for “depth of specialisation,” with partner Anthony Chen from the Shanghai

office particularly noted. Lovells’ work on the Quallcom-Nokia dispute garnered it industry accolades, and peers took special note of IP head Douglas Clark for his expertise. Also mentioned was Hylands, which recently bolstered its capabilities with the appointment of IP lawyer Zhengfa Wang. Fangda Partners was praised by clients from the technology and software industries, one noting that the firm’s strength in litigation helped it ensure the security of its business interests.

Hong KongMarketHong Kong’s IP lawyers seem to have embraced the electronic world. Electronic patent filing is up according to Hong Kong’s Intellectual Property Department, which found that around 60% of applications for trademarks last

Douglas Clark, Lovells “Intellectual property

rights can boost trade and foreign investment dramatically, but first global piracy and counterfeiting must be stopped or significantly reduced for the economies of developed and developing nations to thrive”

Kelsey ZahoureK, ProPerty rights alliance

legalbusinessonline.com

ASIA AUSTRALIA / Nz MIDDLE EAST

Want to receive ALB weekly?Sign up to our free e-newsletterStay informed with breaking legal news, events and developments direct to your inbox

http://www.legalbusinessonline.com

40



year were filed online. The department has also been busy over the past year surveying the population’s sentiments on IP matters. It found that a vast majority of businesses (93%) considered IP as a valuable asset and as a tool to enhance local industry and create new opportunities (84%). Ninety-two per cent stressed the need to be aware that IP rights encompasses copyright, trademark and patents. All of which is good news for law firms during the economic downturn. It is also beneficial for the government to demonstrate to the world that Hong Kong has IP firmly in their list of issues for review. “We are planning to put out a series of TV announcements featuring different scenarios in the protection of IP and bringing out the right concepts and co-organise seminars with professional business bodies,” said Stephen Selby, director of the Hong Kong Intellectual Property Department.

IndustryBaker & McKenzie was widely mentioned by clients, not just in

Hong Kong but pretty much across the board. “Baker & McKenzie has been supporting us in respect of IP protection globally for a number of years. Due to its expertise we see no reason to use anyone else,” was one comment made by a loyal Bakers client. The firm has acted for some of the world’s largest companies, from luxury brands to technology companies, recently representing global technology firm Intel. Deacons also garnered favour for maintaining good relationships with clients, with the firm’s top work gaining recognition from clients. Boutique firm Ella Cheong & Co was mentioned for

establishing a solid local reputation and for patent filing work for its US clients. Deacons’ Christopher Britton was acknowledged as a “fantastic and proactive” advisor, and Anthony Eccles of Eccles & Lee was also described as “attentive”.

South KoreaMarketSouth Korea could have plenty to celebrate this year, with FTAs signed with the US and Europe likely to mean more foreign businesses will be keen to establish a local presence. However, with this comes the burden of responsibility to ensure those businesses and their IP interests are protected. The US has now removed Korea from its priority watch list of IP rights violators, and for the local IP industry this was recognition of the country’s efforts over the past decade to protect IP rights and practise to international standards. “We will not remain complacent, but will

RIsInG IP LItIGAtIon In ChInA ►Trial in 2008Case type:CaseshandledbyallChinesecourtsnumber of cases:10,710,000Compared to 2007:up11%

Case type: Intellectual property right infringement casesnumber of cases: 27,876Compared to 2007: up 32.6%

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40 Asian Legal Business ISSUE 9.6



continue to make efforts to turn the nation into a more business-friendly and law-abiding place,” said one government official. But the domestic market is far from immune from IP violations – incurring an estimated sales loss of around US$25bn last year.

So what do companies in Korea want in their IP lawyers? “Familiarity with issues and multidisciplinary skills,” said one in-house counsel, which was not far from their firms’ understanding. As one lawyer commented: “A multinational company’s IP needs in Korea often require services from not just one but multiple attorneys who are knowledgeable and experienced in diverse fields of practice – eg a strong patent prosecution attorney who not only knows Korean patent practice but also is familiar with prosecution practices of other countries; and a litigator who understands the impact of Korean litigation on related foreign proceedings and takes that into account as they formulates the Korean litigation strategy.”

http://www.leeko.com

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IndustryIn South Korea’s legal industry, Kim & Chang received the most accolades for its “all-round expertise in IP”. The firm’s “long-standing relationship, responsiveness, strong understanding of issues that are critical to Western and multinational companies” garnered praise from one GC at a major automotive company. Jay Young-June Yang was singled out as a “highly competent lawyer”, and US patent senior attorney Chun Yang was also noted by peers. The firm has acted for major companies such as Sharp, Sanofi-Aventis and Hermes on various patent litigation matters. Darae Law & Patent’s Yong-Sig Cho and Yoon Yang Kim Shin & Yu’s Duck-Soon Chang were also mentioned for their

contributions to the local IP industry, as was Bae Kim & Lee’s range and depth of service.

GULFMarketSince the region’s economic boom, the Gulf has lured a number of prominent global brands and IP related cases have naturally grown from this. However, governments in the Middle East aren’t stopping there – the UAE is looking to amend its patent laws to lure more foreign investors, which will include drafting new legislations concerning the biotechnology, electronics and pharmaceuticals industries. The amendments may also harmonise inconsistencies between the UAE and GCC patent application and documents procedures, which will make life a lot easier for law firms. Firms can also look forward to new laws being proposed by the Dubai International Financial Centre (DIFC), which will

look into the problems enforcing “unclear” IP laws. The DIFC is considering introducing stand-alone IP laws and making UAE IP laws consistent within the DIFC as well.

IndustryOne of the firms assisting the DIFC to draft its new IP laws is Al Tamimi & Co, whose IP department has grown from a sole lawyer in 1995 to 17 consultants and 18 trademarks and patents staff today. The firm has also been active in assisting various government departments to draft IP laws consistent with international laws, organising IP seminars and training officials. Unsurpisingly, the firm was considered the region’s foremost top-tier IP firm and managing partner Hoda Barakat, who also heads the IP practice, was noted by both peers and clients for her expertise, which has been gained over the years by working on several landmark IP cases.

Jay yang, Kim & Chang

Hoda Barakat, Al Tamimi & Co

Chun yang, Kim & Chang

http://www.drewnapier.com



Its competitor, Abu Ghazeleh Intellectual Property, was also widely mentioned for a number of prominent cases it has helped clients with in the region. The firm’s 26 offices provide “specialised services”, said one client. Clyde & Co has also established a good reputation in the region, and boutique IP firm Saba & Co’s expertise in litigation was commended. Nassir Kadasa & Partners’ three decades in the region has also gained it a number of faithful clients.

IndiaMarket/Industry India has a lot to boast about this year. The country has been lauded by an advocacy body for having the world’s most consumer-friendly IP laws, even if the award did come with the acknowledgment that copyright infringement was still prevalent in the country. The manufacture of counterfeit pharmaceuticals, movies, films, ring tones, games and scanned

Al Tamimi & Co managing partner Hoda Barakat, who also heads the IP practice, was noted by both peers and clients for her expertise, which has been gained working on several landmark IP cases

http://www.maharajas.com.sg

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books landed India on the US’s list of IP rights violators. The country has also been noted as in need of improvement of patent protection regime, copyright laws and enforcement system. On the positive side however, Indian law firms will be at the forefront of these changes as they are adopted. Indian firms are well positioned to capture any potential rise in IP work. Clients mentioned heavyweight firm Amarchand & Mangaldas as the “leader in this field”, and Anand & Anand was also noted for its work with multinational clients. Amajit & Associates was highly regarded for its patent and trademark work.

JapanMarket/IndustryWhile the economic crisis may have impacted on the number of IP litigation cases in Japan, firms largely remained active and resilient. One case in point is Mori Hamada & Matsumoto, which received the

most votes from clients in Japan, the firm’s strength in litigation often being cited. The firm itself noted that the nature of its IP practice, which works alongside other practices on due diligence, contract negotiation and M&A, has helped buffer it against the economic climate. The firm was noted by clients for its long history serving contentious IP cases, particularly on cross-border work, for instance, the firm recently successfully reversed the judgment on a product litigation case for a US pharmaceutical client. Meanwhile, international firm Lovells, which has merged with Kubota Law & Patent Office, has firmly cemented its position in the country. Lloyd Parker and Kensaku Takase were both mentioned by peers and clients who were “impressed” by the firm. Also

noted was Kazuko Matsuo of Nakamura & Partners, while Abe, Ikubo & Katayama was mentioned for its good work alongside other firms. Anderson Mori & Tomotsune received accolades for maintaining good client relations.

Singapore MarketThe government’s ambitious plan to push Singapore further into the global economy has certainly cemented it as a jurisdiction of choice for many foreign companies – but it isn’t stopping there. Following moves to liberalise the legal services sector further, which saw six foreign firms granted licences to practise local law, the government also announced that it would be developing Singapore as Asia’s hub for IP education and training. It aims to do this by reviewing existing laws and regimes, training IP professionals, and luring more IP firms into the country. However, attracting more IP firms may

Ken Takase, Lovells

Lloyd Parker, Lovells

http://www.andersonmoritomotsune.com



have a lot to do with the popularity of the existing IP regime. As one local lawyer put it: “Businesses in Singapore are reasonably honest and they do not abuse the IP rights of others. Singapore has a good reputation and the business people here are honest and efficient. The kind of infringement cases you see here are small retailers who import products unaware that the products are copyrighted, but once they get a letter they stop. The cases that do exist are big businesses who genuinely believe they are not infringing the patent or trademark of others, or that those should be revoked as it doesn’t stand up to scrutiny,” said Drew Napier’s head of IP Morris John, one of Singapore’s peer-recommended lawyers.

IndustrySome of the firms noted as among the ‘top-tier’ servicing IP matters were ATMD Bird & Bird, Lee & Lee and Drew & Napier. The latter’s

expertise in litigation was singled out by one client, and peers regarded the firm’s lawyers, particularly Dedar Singh Gill, very highly for their industry presence. ATMD’s Alban Kang was highly regarded by peers, as was Lee & Lee’s Tan Tee Jim. IP head Lee Ai Ming was regarded as a “highly knowledgeable lawyer”. Rodyk & Davidson was once again commended, with one client mentioning the firm’s “commercial approach”.

Thailand, Taiwan, Vietnam

MarketsTaiwan’s economy is arguably driven by the manufacturing industries, even though many of the factories themselves are located in mainland China. It is no surprise that IP protection is now, amid the financial crisis, on the government’s

agenda. Last July, Taiwan established an IP court which is said to simplify the processing of litigation cases for law firms and their clients. Thailand has also aimed to improve enforcement of its IP laws, as the country joined the Paris Convention for the Protection of Industrial Property last year. Although it remains on the US’s Priority Watch List, the government has said that Thailand will ensure IP laws are enforced and any violations prosecuted. However, there was no indication that amendments or introduction of new IP laws would occur, despite a number of IP issues in need of review presented to the IP department recently.

IndustryIn Taiwan, Deep & Far received recognition for handling complex legal issues and establishing a good local presence, with the firm handling the ‘Knife-Free Adhesive Tape’ case. Baker & McKenzie and Lee and Li were also noted by peers and clients for their work representing both local and international matters. Bakers was

Alban Kang, ATMD

http://www.tillekeandgibbins.com

46



recently engaged by L’Oreal and The Body Shop against distributors of counterfeit products on a case worth in excess of THB100m – a case considered one of Thailand’s major actions against cosmetic counterfeiters. Newcomers to ALB’s Leading IP Firms this year, InvestConsult were Vietnam’s IP firm of choice for a number of clients, with one client saying it provided “sound legal advice”. Lovells was also highly praised and recommended as was stand-alone lawyer Thomas Treutler. Vision & Associates’ IP head Le Thi Kim Dzung was also highly thought of.

MalaysiaMarketAs with Korea, Malaysian firms will undoubtedly feel the impact of FTAs soon. Unsurprisingly, 2009 also marked the first year that the Intellectual Property Corporation of Malaysia launched a nationwide campaign to raise awareness of the importance of IP rights. More

broadly, however, Malaysia will review the full gamut of its IP laws – the Trade Marks Act, Patents Act, Copyright Act, Industrial Designs Act, Layout Designs of Integrated Circuits Act and Geographical Indications Act – and firms will be bracing themselves for the impact of those changes.

IndustryWong & Partners’ Chew Kirk Ying was mentioned as a top-tier IP lawyer and Wong Jin Nee & Teo’s IP specialist Teo Bong Kwang also gained peer recognition. Henry Goh & Co were “impressive” and Tay & Partners were described as “professionals”.

IndonesiaMarketAnother Asian country listed on the US’s Priority Watch List, Indonesia was noted because “there has been little progress [in Indonesia] on IPR protection and enforcement since

2006… and the government appears to be moving backward from some previous advances”. While Indonesia has said it will not remain passive amid calls for better enforcement, no substantial developments have been earmarked. This potentially affects economic growth and the number of foreign investment into the country – and judging by the World Bank’s ranking of Indonesia as 123rd out 178 countries for ease of doing business, it is an issue that will significantly impact on local law firms who are competing with higher profile counterparts. As one lawyer mentioned, if Indonesia is to compete with regional neighbours such as Singapore and Malaysia, it must lift its game and ensure that IP rights are enforced to attract investment. Locally, companies are also frustrated by the difficulty and time-consuming process of filing patents, but commentators note that IP issues are among a very long line of steps to further economic development.

A Malaysian Law Firm with an International PerspectiveWong & Partners is a Malaysian law firm that is dedicated to providing high quality solution-orientated legal services to its clients. Founded in 1998, the Firm combines the practice of law with a global outlook, the innovative use of technology and a proactive firm culture.

Wong & Partners is a member firm of Baker & McKenzie, and as such collaborates with the global network of Baker & McKenzie on matters relating to Malaysian law and cross-border issues. Wong & Partners is able to access Baker & McKenzie’s global network of legal expertise and resources in multi-jurisdictional transactions.

Our Firm is committed to providing legal services to the standard of quality, professionalism and timeliness essential to supporting the business complexities of sophisticated clients both locally and internationally.

Our Firm’s Principal Areas of Practice Intellectual Property, Corporate & Commercial, Mergers & Acquisitions, Banking, Finance & Major Projects, Tax, Real Estate, Insurance, Venture Capital/Private Equity, Customs, Customs Disputes, Dispute Resolution, Securities, Entertainment & Media, Competition/ Antitrust & Trade, Employment & Benefits, Information Technology & Communications, Islamic Finance, Global Financial Restructuring & Insolvency.

Contact partner for Intellectual Property Chew Kherk Ying [email protected]

Managing PartnerBrian Chia

Partners:Adeline WongAndre GanAzizul Azmi AdnanChew Kherk Ying Elaine Yap

Wong & PartnersSuite 21.01, Level 21The Gardens South TowerMid Valley City Lingkaran Syed Putra59200 Kuala LumpurTel : +603 2298 7888Fax: +603 2282 [email protected]

Munir Abdul AzizWong Kien KeongWoo Wei Kwang Yong Hsian Siong

www.wongpartners.comWong & Partners is a member of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm.

http://www.bakernet.com/BakerNet/Locations/Asia+Pacific/Offices/Kuala+Lumpur/default.htm



IndustryIndonesia’s Hadiputranto, Hadinoto & Partners, Lubis Santosa & Maulana and Amroos & Partners all received praise from clients. Clients and peers described Hadiputranto’s Daru Lukiantono as a “capable and highly recommended lawyer,” while Lubis Santosa’s head of IP, Insan Budi Maulana was singled out by peers and clients for having a “sound business acumen,” and knowledge of the industry. Soemadipradja’s IP partner, Justisiari Kusumah was described as “a good lawyer especially in relation to litigation.”

PhilippinesMarketPiracy of copyrighted goods and internet piracy (eg. peer to peer) worsened in the Philippines last year. While “the Philippine Anti-Piracy

Team (PAPT) provided support for anti-piracy activities upon industry request, too few investigations led to arrests and prosecutions”, a report noted. “The establishment of new intellectual property courts shows promise, but copyright cases still languish or conclude badly, some due to onerous search warrant rulings. Judicial corruption has become a serious concern. Only a handful of criminal convictions in copyright cases have ever been handed down in the Philippines, with even fewer achieving deterrent sentences, or sentences that were carried out in practice.”

In response, the Philippines’ IP office announced that it would facilitate the improvement of IP litigation cases working with the Supreme Court. It aims to train judges and promote the importance of IP among the wider population. The developments follow an increase in the number of applications for patents and trademarks registration. According to the IP office, a total

of 139 applications were recorded last year, while 2009 has already witnesses around 120 applications.

These developments will undoubtedly keep law firms on their feet over the next year.

IndustryQuisumbing Torres was highly commended by clients for maintaining a venerable practice and reputation in the IP industry. Some of the 14-strong team of lawyers at ACCRA Law Offices were also mentioned for having good communication skills throughout a matter for one client, while the knowledge and expertise of the IP team at Sycip Salazar Hernandez & Gatmaitan was the reason the firm gained credit for one particular loyal client. Respondents also mentioned Villaraza Cruz Marcelo & Angangco, and Romulo Mabanta Buenaventura Sayoc & De Los Angeles and Hechanova Bugay & Vilchez were also noted by peers in the industry. ALB

Daru Lukiantono, Hadiputranto

http://www.lsmlaw.co.id

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FEaTURE | Employment law >>


Prior to the downturn, the prevalence of companies either moving into Asia for the first time or expanding in the region meant that business was investing a significant amount of time and money in attracting and retaining the best talent. Today, while there are still some companies that are expanding, the pervasive theme over the past six months has been companies reducing their employment-related costs

Asia’s changing employment landscape

Many companies, particularly multinational corporations, have acted swiftly to implement downsizing

initiatives. This has been a particularly challenging time for regional HR personnel charged with implementing head office directives, as employment laws and regulations vary considerably throughout the Asia-Pacific.

Employers have needed to consider applicable employment contracts, company policies and staff handbooks, as well as the legal framework in the relevant jurisdictions, to see how these all affect downsizing initiatives.

While retrenchments can be reasonably straightforward to implement in countries such as Singapore and Hong Kong, other countries are much more complex. For example, in Indonesia, the prior approval of the Industrial Relations Court is required before an employer can unilaterally terminate employment

and this may take many months to obtain. In Malaysia, employers generally must apply the “last in, first out” rule to redundancy selection. And in the PRC, certain categories of employee are protected from redundancy, such as employees at risk of or incapacitated through work-related disease or injury, employees on medical leave, pregnant/maternity leave employees and those with more than 15 years’ service who are less than five years from retirement.

In some cases local regulations have made downsizing difficult, if not prohibitive and this has led a number of employers to consider creative ways in which to avoid redundancies.

Alternatives to redundancyGovernments throughout the region are also encouraging employers to consider alternatives to redundancy, and have even offered direct incentives and assistance to employers. The Jobs




Credit Scheme and Skills Program for Upgrading and Resilience (SPUR) in Singapore are examples.

Of course, local rules and regulations also have a significant impact upon whether redundancy alternatives can be implemented by an employer. In most jurisdictions, terms and conditions of employment cannot be unilaterally reduced by the employer. Consent is generally required, whether by agreement with each individual, or through a collective agreement with the workforce.

Some options that employers have considered implementing in their operations include requiring or encouraging employees to take paid, partly paid, or unpaid leave; and reducing employee hours of work and/or wages

Where employee consent is required, employers are considering how to provide incentives to agree to proposals, such as by offering employees training

and education opportunities during periods of unpaid leave. Or employers might seek to promote work-life balance initiatives to encourage employees to consider moving to part-time working arrangements.

Another option is to offer voluntary redundancy arrangements. Typically, this will involve employees being given the opportunity to apply for a redundancy in exchange for a reasonably generous severance payment.

impact on expatriatesIt seems that many expatriates in the region have been hit hard by the strategies adopted by employers to deal with the downturn. Expatriates are often at the top of the list in a downsizing situation, as their employment costs are typically higher than those of local staff. Often, governmental policies (and sometimes laws) promote retention of local labour over foreign labour.

The increasing number of expatriates being “sent home” has provided fertile ground for disputes – it is often at the pointy end of the relationship that the parties look back and find that the contractual documentation establishing the expatriate assignment was not as clear as it could have been. As a result, employers throughout the region are facing risks of potential claims in multiple jurisdictions for both home and host country employment benefits.

Another emerging trend concerning expatriates is the move to adjust salary packages so that expatriates are on the same terms and conditions as locals. In the current environment, employers have added leverage to obtain an expatriate’s agreement to adjust their package downwards in this manner, as it is likely that job prospects are weak for the expatriate in both the host and the home country.

Recession-proofing strategiesFor employers who are still hiring in the region, certain “recession-proofing” techniques may prove valuable. Indeed, employers who had the foresight to implement such measures during boom times are now better placed to see through the downturn. For example, engaging employees on fixed-term or

RetRenChment RuLes ►Companieslookingtodownsizetheirworkforceneedtoaskthemselvessomeimportantquestionsonlocallawissueswhichwillvarybycountry,including:1.Isretrenchmentpermittedandinwhatcircumstances?2.Shouldthecompanycomplywithanyobligationstoconsultagovernmentauthorityorcourt,employees,oraunion?3.Ifemployeesarebeingselectedfromapoolofpotentialcandidatesforretrenchment,howwilltheybeselected?4.Areanyemployeesprotectedfromretrenchment?5.Whatpaymentsmustbemadetoemployeeswhoareretrenched?6.Doanypost-retrenchmentobligationsapply,suchasanobligationtogivepreferencetoretrenchedemployeesiftheemployerhiresnewemployeeswithinacertainperiod?

part-time contracts, where permitted to do so by local laws, can increase flexibility. Using variable employee pay structures is another technique, as discretionary bonus payments and sales commission payments can be kept low during the downturn period. Also, another technique is to build flexibility into terms and conditions of employment, for example, expressly allowing for employment mobility and making clear that annual payrises are not guaranteed.

Looking to the futureWhile downsizing and cost-cutting are difficult for all involved, the current economic situation does present opportunities for employers. Throughout the region employers are closely examining ways to improve efficiency, reduce unnecessary costs, and tidy up their employment arrangements and documentation in order to reduce risks of disputes with employees.

Furthermore, downsizing activities across many industries have meant that companies now have better opportunities to attract the best talent and to develop their team and workplace culture in preparation for better economic times.

This article was written by George Cooper and Celia Yuen of Freehills Workplace Law & Advisory – Asia. They are both based in Freehills’ Singapore office.

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pROFIlE | Managing partner >>




Where the end of financial year may have been cause for the popping of many a champagne

cork in years past, it seems things are decidedly more subdued for many law firms across the region this year – a time to take stock and pinpoint just where the financial wheels fell off. But whereas many managing partners are approaching financial-year end with a measure of trepidation, Crispin Rapinet tells ALB he is looking forward to the vindication of what, in his mind and others’, has been a successful year.

“2008 was a year of tremendous growth across Asia and the Middle East by every measure,” he says. “We saw increases in fee-earner numbers across the board, our partner ranks increased and although things tailed off for us and other firms from November onwards, Asia proved resilient,” he says.

As ALB went to press, Rapinet found the financial vindication he was looking. Worldwide, Lovells saw modest increases in its fee income, reaping £531m for the financial year 08/09 compared to £479m in 07/08 – an increase of just over 1% after forex fluctuations are accounted for. And although PEP went down from £661,000 to £585,000, just which practice areas brought in most revenue is telling, as is the financial growth of the firm’s Asia and Middle East practices.

According to the figures, dispute resolution accounts for a third of total

billing when disputes in activity in areas such as tax, real estate, IP and employment are taken into account, while the firm also says that the revenue generated by its Asia and Middle East practice now accounts for 10% of its global revenue figure – a 30% increase on last year, according to Lovells.

“Asia and the Middle East have always been important in the firm’s global strategy and just how important they are can be seen not only in financial terms but also in terms of resourcing,” Rapinet says, noting that an increasing number

of partners are now located outside the firm’s UK headquarters.

new world importanceHowever, despite the firm’s financial success, he concedes that building the importance of Asia and Middle East within Lovells has not been easy to achieve – for several reasons.

“There may have been an attitude in the past where operations outside the law firms’ traditional heartland, the

Ensuring a law firm performs as well in the good times as it does in the bad is a hard task, but Crispin Rapinet seems to have pulled it off. He tells ALB about how his firm is riding the counter-cyclical wave

US or UK, were considered secondary to the strategy of the firm,” Rapinet says. “Ten or 15 years ago the rationale for the Asian or Middle East model was: ‘Well, our big client wants to do business in Asia so we need to have an office there’. But while the region will always be client-led, there is more of a whole-hearted focus on the region now, a developed domestic client base, more investment in people and resources; a proven commitment to the region.”

It is hard to question Lovells’ commitment to the region. The firm was among the first international

firms to enter liberalised legal services sectors across the region. Its China presence spans some 30 years; it was one of the first international firms into Japan and various markets in Southeast Asia and the Gulf region. All of which begs the question, will Lovells open an office in the subcontinent once the legal market there is prized open? Rapinet says unequivocally that it’s not a question of ‘if ’ but a question of ‘how quickly.’

Alb 2009 MAnAging pArTnerS SerieS

A balancing actCrispin rapinet, lovells

“Asia and the Middle East have always been important in the firm’s global strategy and just how important they are can be seen not only in financial terms but also in terms of resourcing”

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“We have been working in India for a long time and the developments pertaining to the legal sector are being closely monitored by the firm,” Rapinet says. “If and when the market opens, we will be there. It’s just a question of when that will happen and how long before clients tell us: ‘You need to be in India’.”

A question of culture Instrumental to integrating Asia and the Gulf regions into the global operations of any firm is the issue of firm culture and Rapinet is adamant about its importance to Lovells. But just what is firm culture? He has a clear concept of what it is – and what it’s not.

“It’s about making sure everyone is on the same page, ensuring partners – whether they are in London, China, Vietnam or Dubai – know what the firm’s goals are and have a commitment to working together as a team towards these ends,” he says. “But this cannot be forced. Building a sound and effective culture in a law firm is a never-ending process. It starts with bringing the right people on board and extends as far as business and financial models. There are no single-office cultures at the firm. We are financially integrated, have a global partnership and a number of our partners joined

Lovells soon after graduating – these are the foundations on which we build our firm culture.”

Pro bono is not just PRAn indispensable aspect of the firm’s culture is its pro bono efforts. Lovells is among just a handful of international firms to have appointed a full-time pro bono officer to drive its efforts in the area (the firm established this post 11 years ago). Rapinet is all too aware of the more cynical views surrounding the

pro-bono efforts of law firms, but says it’s about much more than PR.

“Pro bono is an important theme in the key values of our firm and we will be stepping up the work we do here regardless of what happens with the financial crisis,” he says. “It is not a question of it being good for the brand of the firm. We don’t do it to see our name in the papers or for any other

of these cynical reasons. We do it because we know we need to. We have a responsibility to give back to society by offering legal advice to people who would otherwise not have access to it.”

The internal benefits that the firm is reaping from its pro bono initiatives are just as manifold, with Rapinet saying that levels of workplace satisfaction, motivation and staff morale have all noticeably increased. “Our pro bono initiatives play a role internally in making sure that staff

continue to be engaged in their work and the real world,” he says. “From associates to partners, the view of the world you get from toiling away in large corporate transactions or in a courtroom is not necessarily always accurate. We like to see these initiatives as giving back as well as helping all of our lawyers to stay switched in to the real world.” ALB

“Pro bono is an important theme in the key values of our firm and we will be stepping up the work we do here regardless of what happens with the financial crisis. It is not a question of it being good for the brand of the firm”

http://ibanet.org/conferences/madrid2009

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NEws | news >>


Stephenson Harwood: A tale of growthThere’s much more to Stephenson Harwood than just shipping. ALB sat down with two of the firm’s newest hires, Steven Dewhurst and Paul Ng to discuss the market, trends and what lies ahead for their rapidly growing firm


specialty we are top-tier,” says Green. “Our lawyers, whether we are talking about Steven [Dewhurst], Paul [Ng], Asheesh [Das] or Durai [Shunmugam] or any other are focussed on the industry. They are the first choice for clients because they leverage their industry knowledge and bring this to bear in deals.”

insurance & re-insuranceWhen Steven Dewhurst joined Stephenson Harwood as a partner from the Hong Kong office of DLA Piper in January this year it was seen both as a perfect example of the ambitions of the firm to bolster its burgeoning South East Asian corporate practice and its pragmatic yet effective expansion model—one premised on branching out into new areas which complement its existing offering.

Dewhurst, widely considered to be among only a handful of non-contentious insurance experts in Asia, will be responsible for moulding an insurance and re-insurance practice with an emphasis on advisory work and his arrival couldn’t have been timed better with the balance of power in the insurance industry shifting away from Hong Kong and towards Singapore.

“About 5 years ago Hong Kong was by far and away a larger market but now the latest industry estimate is of Singapore being about 30 percent larger by premium,” according to Dewhurst, who says the growth has been affected by both the big players setting up in the Lion City as well as by a booming re-insurance industry. “Re-insurance in particular is big business here. The large insurers have focussed their strategy on re-insuring domestic insurers across South East Asia with an outward emphasis; there is real, tangible skills transfer taking place and it’s in no small part thanks to the proactive attitude of the Singapore government.”

shadowing your clientsDewhurst goes on to note that just as Singapore has quickly established itself as a regional economic and legal hub, so too are insurers operating here using Singapore as a hub for their operations throughout the region. Adopting a regional approach, as opposed to a country-based one, says Dewhurst, is the key to the firm’s strategy in the industry.

“Few insurers operate on a country specific basis,” he says. “Insurers and re-insurers operate out of hubs and to succeed you have to map your insurance clients’ organisation structure—that is a large part of the reason I came to Singapore. My goal here is to develop Stephenson Harwood’s capability to track this regional emphasis.”

The stephenson Harwood advantage Dewhurst’s practice is split 50/50 between insurance advisory and professional liability, the latter of which includes work on D&O claims, bank claims and fraud investigations. And, while he notes that the insurance advisory end of the practice—particularly advice on product distribution arrangements—is ‘busier than normal’, it is the work in the latter where he is noticing the biggest upswing from depressed levels of activity.

“The global financial crisis has really brought a number of firsts to the surface in Asia. The issue of mini-bonds for example, this is the first time that we are seeing the issue of mis-selling arise across the region’s different regulatory environments and it will produce a steady stream of business for the firm’s corporate and insurance practices.

The other area Dewhurst tips to take off is D&O claims, with far more policies now in existence compared to the Asian financial crisis (AFC) and companies in the region struggling to

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Stephenson Harwood’s growth over the past 12 months is impressive by even the most conservative of measures. In January, the firm secured the services

of insurance and reinsurance specialist Steven Dewhurst from the Hong Kong office of DLA Piper and more recently brought asset finance “heavy hitter” Paul Ng on board as its global head of aviation from, magic circle firm, Freshfields Bruckhaus Deringer, where he was a partner. In addition, towards the end of 2008, the Singapore office also added to its number renowned maritime expert Timothy Elsworth. The moves bring its partner count in Singapore to nine (and means that nearly 60 percent of its partners worldwide are now located in Asia) but, as Martin Green, managing partner of the firm’s Singapore office says, expansion isn’t necessarily all about size.

“The last six months have been very busy for us,” he says. “What has been driving our expansion is the larger time frame of 3-5 years and beyond. When we talk about expansion and we go about implementing our plans it’s not reactionary— we are shaping the future of our business.”

A difficult task at the best of times and one that is no easier in the midst of a global economic crisis. But Green says that growth can be made a little easier ditching the ‘expansion timetable’ and maintaining a focussed market approach—both of which have been pivotal in Stephenson Harwood’s impressive growth story over the last 12 months.

“When you talk about expansion for some firms there is sometimes a tendency to overdo it,” says Green. “In reality, growth should not be driven by timetables but by opportunities and synergies when they arise. If we look at the people we have brought on board over the last six to seven months we didn’t take them on just because we had vacancies to fill but because they suit our plans and they offer us industry specialisation.”

And, industry specialisation is just what Green got when he recruited both Dewhurst and Ng earlier this year. Both are recognised as leaders in their respective fields admired as much for the high calibre of their legal advice as their knowledge of the ins and outs of their industries.

“We are a medium sized firm but have a well-developed international profile and the goal is to make sure that in our areas of

L-R: steven Dewhurst, Paul ng, Martin Green

NEws | news >>


Firm Profile Stephenson Harwood


refinance debt acquired during a credit bubble. “Broadly speaking, D&O insurance is a

relatively new concept in Asia. It only emerged as a product in Asia in the last 10 years and this will be the first time that its true value is put to the test here. The end result of the depressed economic climate will be some mega claims against directors and there is probably five years worth of solid work there,” he says.

“On the D&O front all you have to do is look at the numbers to get an indication of the amount of work on offer,” he says. “There is an estimated US1trn worth of debt that needs to be refinanced in emerging markets alone in 2009 and in global terms that may not be a lot, but in Asia, where debt is typically short-term and bank financed, some borrowers who are not investment grade are going to find refinancing extremely difficult.”

Dewhurst says that this paves the way for a raft of insolvencies and restructurings, drawing a comparison with the AFC a decade earlier but suggesting that this time around there will be more of a focus on the role of directors and officers and, particularly, the CFO, in the whole process.

The task for Dewhurst is clear: maintain an industry-focussed approach and stay as close as possible to clients and their business.

“I have been in the industry for over 16 years now and the trick is to identify problems and trends before they become apparent to the competition” says Dewhurst. “Insurance is a needs business and while you have to stay close to your clients’ needs, you must also recognise that these needs evolve and change. Stephenson Harwood can offer this to clients and we are already seeing very positive demand for our broader range of specialist services.”

Aviation: taking off at stephenson Harwood “Stephenson Harwood ticked all the boxes,” says Paul Ng speaking of his move to the firm in March this year. “Leaving Freshfields, where I had been for 10 years and was also their Asian head of Asset Finance was not an easy decision. It had to be a firm that had demonstrated its commitment to Asia, had offices and operations across the region and was looking to grow in my core area of business—transportation.”

“Five years ago it may have been difficult for Stephenson Harwood to lure away partners from Magic Circle or Wall Street firms, but this is certainly not the case now. The market view is that the firm is up and coming and is one to watch coming out of the global financial crisis with a younger, focussed, nimble and market-orientated leadership team.”

In an unprecedented move for the firm, Ng,

joins as global head of aviation, reinforcing its commitment to the Asian practice by stationing a practice global head outside London, something which no other international firm has done thus far.

The stephenson Harwood differenceAviation, just like Dewhurst’s non-marine insurance practice, is a fiercely contested practice area in Asia but one that is dominated by only a few specialist players. What separates Stephenson Harwood from the rest, according to Ng, is its “non-factory line production” approach to legal service and its unique personal focus provided by true industry specialists.

Many of the large aviation firms have suffered from both a marginalisation by their management of their aviation businesses in favour of the then lucrative leverage/corporate practices. Ng says “A few have also suffered key personnel losses and retirements of late. As a result, these have affected their reputation in a detrimental way and is an opportunity for smaller focussed players to expand their market share because when it comes to aviation across the whole region you’re only talking about around a dozen lawyers who can do it well, he added.

‘Doing it well,’ says Ng, requires not only skilled specialist lawyers but staying close to clients in good times and in bad times. For Stephenson Harwood, this means a devotion to the core market players, including the large leasing companies, the big transportation banks and the airlines. In particular, the low cost carrier (LCC) segment of the industry, a topic which Ng is passionate about.

“I believe they can make and have made a real difference to people’s lives,” says Ng. “The leaders of these LCCs have catholic belief in what they are doing—making international travel accessible to the masses.” “They also have a business model which is helping them weather the current economic downturn much better than their legacy carrier cousins—as, amongst other things, they are masters at extracting the best value from every situation”. Ng declares “I feel committed to help them succeed ... and I believe that they understand this.”

Ng counts as clients some of the largest LCCs in the region (for example, AirAsia, Asia’s largest LCC; Lion Air, the largest carrier in Indonesia, Air Deccan, India’s largest LCC, and Spring Airlines, the first LCC in China), so much so he has been acknowledged by many of his peers as “King of low cost carriers.”

Qualified to practice English law, New York law and Singapore (his home jurisdiction) law, Paul has acted on major aviation debt restructurings for banks and governments including the US billion dollar restructuring of Air Canada’s export credit support loans

during the last aviation downturn and also, more recently, the US billion dollar acquisition of Singapore Aircraft Leasing Enterprise by the Bank of China creating the largest aircraft leasing company based in Asia, BOC Aviation. Ng foresees more corporate consolidation along the way and possibly a few restructurings as the aviation industry continues to struggle in 2009.

The marketDespite the inclement economic conditions Ng is optimistic about Asia

“The aviation industry in Asia is undoubtedly contracting, however it is doing so at a rate slower than other areas,” he says, suggesting also that any recovery is likely to happen here in Asia first. “Over the next five years, Asia is going to see the most number of new aircraft deliveries with China having the single most number of aircraft deliveries amongst the countries in Asia. These aircraft will need to be paid for by either debt and/or equity financing. It is going to be an interesting time and we are staffed and here to help the industry players through it,” Ng says.

“Furthermore, some of the most innovative financings have happened in Asia. It’s such a competitive market that bankers, and lawyers, for that matter, have to be creative in how they approach deals especially when margins are squeezed and liquidity is scarce,” says Ng, citing AirAsia’s multi-award winning Islamic-compliant French tax lease, where he was lead counsel, as an example of this.

The teamNg says that the Stephenson Harwood aviation team is currently fully engaged in transactions but that the next 3-5 years will see the team increase its regional and international practice even more as they continue to look to bring on board the right resources to work with his existing team.

“We have tremendous regional and international reach already, with an unrivalled network in China, and the goal is to expand that through hiring senior-level lawyers,” says Ng. “Ash Das (a banking and asset finance partner in the firm’s Singapore office) has built a great practice from scratch working closely with partners in London and our associate offices in Europe and the Middle East and we will be looking to leverage our track records as we build our team and our business. Stephenson Harwood has, in some ways, been one of the best kept secrets in the legal business ... but it’s secret no more.”

Contact: Stephenson Harwood 1 Raffles Place #49-00 OUB Centre Singapore 048616. Telephone + 65 6226 1600. Fax + 65 6226 1661. Email [email protected] | Website: www.shlegal.com

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FEaTURE | IT >>


In the knowHow do law firms make sure that all their practitioners have access to as much relevant information as possible now that they are spread right across the globe? ALB talks to the people who make sure it happens

Today’s information society functions around buying and selling knowledge. Nowhere is this better illustrated than in the modern day law firm where knowledge is disseminated, new talent is developed

and trained and intellectual capital built on a daily basis. In managing a firms’ most vital resource – information – knowledge management (KM) departments are becoming increasingly important.

ALB investigates how three of Asia’s leading law firms’ KM departments operate, and the technologies they use to make this happen.

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FEaTURE | IT >>


FEaTURE | IT >>


q: How does the KM department organise information in the firm?The KM team assists in developing, updating and maintaining Drew & Napier’s know-how and information resources, such as the firm’s knowledge databases and library. We also manage the firm’s online legal systems.

These documents are stored on customised databases and are retrievable through search engines. Where appropriate, these are supplemented by on-line resources from specialist know-how providers to cater to the requirements of niche practice groups.

q: What role does technology play?We’re careful to acquire and use only those technologies that meet our specific needs. Our experience has shown that knowledge within the firm is best captured and transferred using a variety of processes – some technology-oriented, others based on human interfacing and the rest falling within the spectrum in between.

q. How is the firm’s KM department structured? While we have several people involved in the department, the structure is purposefully kept fluid to utilise different skills required at different stages. I head strategy and conceptualisation and our IT director heads the implementation of technologies. Our HR director looks after the integration of work processes with KM processes and training. Plus, all associates are involved in the development and build up of knowledge base.

We’ve established a program where every morning a senior associate briefs others in the firm on a complex project, practice sub-area or new regulation. In this way, the KM department helps extract essential knowledge gained by a team of lawyers and transfers it to another team working similar projects.

q. How does the technology or software program assist the KM department?We are in the process of installing

nisHiTH DEsAi AssOCiATEs, inDiAMihir Parikh, head of KM, and Milind Mundankar, chief technology officer

DREW & nAPiER, sinGAPORELoh Hsiu Lien, head of KM and training

iManage Worksite, a document management system, which integrates with our already-installed Elite 3E. iManage Worksite will provide the platform to provide a seamless access to various knowledge repositories across all of our offices as well as integration with work processes.

When we adopted Elite 3E, we needed a more flexible and integrated system that could produce customised and sophisticated management reports. The firm had been successfully billing clients using a legacy system for the past 10 years and we were looking for a system that would centralise the time billing and accounting functions. Fee-earners have been delighted with the way it allows them to check details and enter their time remotely. Partners are finding that reports can be generated quickly, and that the software allows them to generate complex industry-wide and practice-area reports.

Overall, information technology assists us in many ways. It provides

the platform for not only generating, acquiring, and organising knowledge within the firm, but also distributing and applying it from various resources. Some of these resources include general internal content – such as precedents, forms, practice statements, practice presentations, research articles – and external technical content, such as pending legislation, regulations, judgments, case law and tax treaties.

q: How can the KM department assist with cost-saving measures? KM for us provides more strategic value than pure cost-savings. Law firms are pure knowledge enterprises. Through our approach to research and KM, we expect it to create intellectual assets that will help us develop more innovative products; build a learning organisation by tightly integrating individual and organizational mental models; and develop systems thinking to provide rational, systemic approach to client work.

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FEaTURE | IT >>


q: How does the local team work with the firm’s external base?Our Hong Kong know-how team provides on-the-ground support and information management strategy for the practice groups operating in our Hong Kong and Shanghai offices. However, the team is also integrated with our national team, which is located in our Australian offices. Together we function as an international team servicing the needs of lawyers across all our offices and generating value from the firm’s intellectual, and knowledge-based resources.

This structure allows our offices outside Australia – including our Hong Kong, London and Shanghai offices – to capitalise on the economies of scale that already exist in our Australian offices and we can leverage off their information architecture and resources. It also facilitates knowledge sharing between all lawyers in our firm,

which helps to drive value for us and our clients. It also allows us to meet our objective of providing the same information and KM services to lawyers and also clients, regardless of which office they are located in.

q: How important is technology to the department?First rate IT systems integrated between all of our international offices facilitate the retrieval and instantaneous transfer of information across borders. Research can be done in any office for any office. Consistency in our information systems across the jurisdictions also makes access to information readily available in all locations. This makes our lawyers readily transportable to meet client needs, which is critical in today’s global marketplace.

Our know-how team works closely with our

IT team to find the best information solutions available for our lawyers to gain rapid access to our collective know-how. To this end, we have recently enhanced our internal information retrieval capability by implementing Interwoven ‘Search’, a sophisticated, user-friendly enterprise wide search engine that searches across multiple databases and work spaces. We believe this will maximise the speed at which people within the firm can access the information they require. ALB

MinTER ELLisOn, HOnG KOnGKate Wholley, know-how manager

http://www.maxwell-chambers.com

FEaTURE | IT >>


Firm Profile ELITE®


In these testing times, building and maintaining client relationships is paramount to ensure your firm’s stability. Technological advantage has helped some

of the world’s leading law firms and in-house divisions to better manage multiple demands—from client needs to the endless barrage of information. Managing these crucial factors may just be the advantage your firm needs to ensure its place in the global legal industry.

The world’s leading law firms have turned to ELITE 3E® for the flexibility to leverage strengths, improve processes, and boost profitability.

As the industry’s leading and most trusted information solutions provider, Elite has equipped more than 60% of the Global 100 law firms and almost 30% of top CPA firms with the tools they need to maintain their expertise and competitive advantage. ELITE 3E is the law firms’ answer to all its financial and practice management issues – integrated as one high-performance system. The 3E platform allows firms to manage practices, workflow, performance goals, and finances. Here’s how:

Crunching the numbersManaging firm finances is simplified through 3E’s comprehensive Financial Management system which serves the full range of financial duties—from accounts payable, invoice management, electronic billing, to collections, trust accounting, and general ledgers. You can reduce billing cycles and bad debt, and increase profitability using 3E Invoice Management. For firms grappling with multiple offices, 3E Accounts Payable enables firms to switch between multiple currencies, tax structures and languages across offices. Billing is simplified to meet client needs by standardising and customising electronic bills for specific clients, while payment issues are effectively resolved, through 3E Collections.

Practice makes perfectIf you need assistance with case management, conflicts search, and records management, then 3E Practice Management is the solution, which is integrated with 3E Financial Management allowing your firm to easily access financial transactions and statistics. You can track and manage cases through the entire lifecycle, and search for conflicts of interest when taking up new clients and business opportunities. Managing the endless flow of electronic and hard copy documents, emails and attachments is simplified in a single user interface. You can distribute files quickly to clients, firms or lawyers, while maintaining data security through user access rights.

Performance rating How is your business performing? Performance goals can be managed using 3E Performance Management which provides powerful and flexible monitoring capabilities, which enable firms to manage performance in complete alignment with defined business objectives. You can create customised reports with the Report Designer Tool, metrics tables that store crucial calculations and information, business plans and new financial targets that are facilitated by software specifically designed for the legal industry.

Realise the promise Reduce firm expenses and time. The combination of 3E’s Practice Management, Financial Management and Performance Management ensures that your firm will operate seamlessly across various departments. The innovation behind ELITE 3E certifies that your firm is equipped with the latest technologies to meet your client needs and of course, taking into consideration the bottom line. To see the difference 3E can make to your firm, contact your Elite representative by completing the Information Request Form online at www.elite.com, or by telephone.

Your competition has technological advantage. What do you do?

For more information please call Mark Gower, Regional Sales Manager, Asia on: +852 9537 4035 Hong Kong 10F Cityplaza 3, Taikoo Shing Hong Kong Phone +852 2147 3201 Fax +852 2520 6646 Email [email protected] Singapore 80 Robinson Road, #15-00 Singapore 068898 Phone +65 9651 3262 Email [email protected] Malaysia No 17, Jalan PJS 7/19, Bandar Sunway, 46150 Petaling Jaya, Selangor Darul Ehsan, Kuala Lumpur, Malaysia Phone +603 5633 0622 Email [email protected] Sydney Level 10, 60 Margaret Street Sydney, NSW 2000 Australia Phone +61 2 9373 1278 Fax +61 2 9373 1693 Email [email protected]

60

alB spECIal REpORT | Vietnam >>


VIETNAM 2009

The World Bank estimates that by the end of the second quarter of this year Vietnam will have posted GDP growth

of 3.5–3.8% (almost 0.4–0.7% higher than the first quarter of this year) and will achieve an annual GDP growth of 4.5–5%. Infrastructure, power and the oil & gas sectors are all noted by the World Bank as exhibiting positive signs and stand as classic examples of how the government’s efforts to stimulate its command economy have proved effective. But where these sectors remain busy, activity in some of Vietnam’s once staple sectors – real estate, FDI and projects – have come to a grinding halt, lending credence to the assertion that such favourable economic indicators are evidence of only one thing: that Vietnam is yet to experience the full effects of the global financial crisis. However, rather than being pessimistic, lawyers are taking a philosophical approach to the downturn, relishing Vietnam’s isolation from the world economy instead of lamenting it.

Positive outlook“Vietnam is probably behind the rest of the world in terms of feeling the impact of the financial crisis,” says Dao Nguyen, managing partner of Mayer Brown JSM in Vietnam. “There is still reasonable activity in some sectors – power in particular remains

busy – but in others that you would expect to have dropped off there has been only minimal impact.”

It is a trend noticed by the country’s domestic law firms as well. However, Truong Quang, managing partner of local player YKVN, remains optimistic, saying that, while it appears as if things are in a ‘sit and wait’ mode, the economy continues to exhibit strong fundamentals. The World Bank and

the IMF both agree that the country’s industrial production, exports and services sectors will continue to drive macroeconomic development, and their projections reveal that within three years the country’s export performance

VIetnAm’s LAwyeRs to ►dRIVe eConomIC GRowth

TheVietnameseGovernmenthashelpedestablishabodytooverseethenation’slegalindustryaspartofabroaderplantodrivethecountry’seconomicgrowth.VietnamesePresidentNguyenMinhTrietmet

withmembersofthelegalindustrytoinauguratetheVietnamLawyersFederation(VLF)atacongressinHanoiearlierthisyear.TheVLFwillrepresentthenation’slegalindustry,protectinglawyers’rightsandtheirprofessionaldevelopment.Itisalsopartofthegovernment’sbroaderstrategyonjudicialreform,tobecompletedby2020,todriveeconomicdevelopment.Duringthecongress,Trietpraisedlocal

lawyersandsaidthegrowthoftheeconomyhasincreasedthedemandforlegalservices.TheelectedVLFchairman,LeThucAnh,lastyearspokeoutaboutthestateofthelocallegalindustryandsaidVietnam’sratioofonelawyerto20,000peoplewasnotenoughtosustainthecountry’seconomicdevelopment.“AsVietnam’seconomyhaschanged,itneedsmorelawyers,”Anhsaid.“TheMinistryofJusticeisworkingonadevelopmentstrategyforVietnameselawyers,whichexpectstohave8,000lawyersby2010andabout20,000by2020.”Healsoemphasisedtheimportanceofthe

legalindustrytoVietnam’sdevelopmentandglobalimpact.“NowthatVietnamhasbeenintegratedintotheworld,moreandmoreforeignlawfirmsarecomingtoVietnam…andattractingalotofinvestment,”Anhsaid.“Tobeabletocompetewithforeignpartners,Vietnameselawyersmustimprovethemselves.AsfortheVLF,wewillorganisetrainingcoursesforlawyersaswellasprogramstoenablethemtoservethecountry’seconomicintegration[withtheworld].”

Favourable economic indicators, booming energy and oil & gas industries, and a strong export sector are the leading lights for lawyers in Vietnam as they look for the country to fulfil its potential

Delivering on promise

Dao nguyen, Mayer Brown JsM

“I think the reason [Vietnam] is doing better than other economies in the region at the moment is because it is slightly more diversified and not integrated into the global economy to the extent that others in the region are”

truong Quang, yKVn



will rival, perhaps even supersede, that of Indonesia and Thailand.

“The basics of the economy are quite strong. I think the reason [Vietnam] is doing better than other economies in the region at the moment is because it is slightly more diversified and not integrated into the global economy to the extent that others in the region are,” Quang says. “This is a good thing. It means that we are buffered from the effects of worldwide economic problems and also means that domestic stimulus packages offered by the government have more room to be effective. The real hope, I feel, is that banking & finance and capital markets bounce back, although this is more dependent on world trends then domestic stimulus.”

Depressed deal flowIt is in the most ‘international’ sectors of the Vietnamese economy – those that depend on FDI and FII inflows – where deal flow has been most affected. All the law firms that spoke to ALB claim that the mega-deals that were so commonplace over the past two years (such as GTEL Mobile’s US$1.8bn JV and partial acquisition of Russian-owned Vimpel Communications, and the US$237m financing for the Cai Mep-Thi Vai port complex) have dissipated almost overnight.

This doesn’t mean deals are not being struck; it is just that they are not the type of deals many lawyers have grown used to working on. “The real estate bubble that was driving huge investment over the past few years has well and truly burst and has affected the type of deals going through,” says Tim Fletcher, the partner in charge of Lovells’ Vietnam operation.

“Energy, oil & gas and infrastructure remain busy… but it’s a different type of busy. There are fresh investments coming in but these are deals with no crème on top, they are strategic investments. The exciting FDI and M&A deals that were in the pipeline for 2009 have stalled or been put on ice. There is enough work to go around and new instructions keep coming in but the really big projects that make it interesting as opposed to just ‘good’ have disappeared.”

Back to basicsNguyen says that where deals are being pushed through clients now have

a completely different set of demands. From deal structure and acquisition financing to the actual selection of deals, clients are now proceeding with a great deal more caution.

“In many ways, closing deals at the moment in Vietnam is about returning to the basics, it’s a return to how things were done in the past. Clients are proceeding more cautiously and being more selective in the deals they go ahead with,” he says.

What is particularly novel is the expanded role that lawyers are being expected to play on deals, with clients seeking more ‘value-add’ advice around the quality of deals and their commercial ramifications. Dang The Duc, managing partner of local firm Indochine Counsel, says that while some lawyers may equate this change in the role of lawyers directly with the global financial crisis, it has been ongoing through the last decade.

“When our clients come to us with a deal, they now expect us to give them whatever industry and market knowledge we have in addition to the usual legal advice we provide,” he says. “It’s more evident now because of the financial crisis but has been happening a lot over the last five years and has always been an important aspect of instructing international clients.”

He believes the ability to offer this type of advice will only increase in importance. “This may become a prerequisite for closing deals as the global financial crisis worsens. I think it’s local law firms who are best able to do this – they have been here the longest and know the market probably better than international firms,” The Duc says.

VIetnAm: key eConomIC IndICAtoRs ►Key indicators 2008 2009e 2010e 2011e 2012e

RealGDPgrowth(%) 6.2 5.0 5.1 6.2 6.3

Consumerpriceinflation(av;%) 24.4 5.4 4.0 5.8 7.3

Budgetbalance(%ofGDP) -5.9 -8.5 -8.2 -6.4 -5.8

Current-accountbalance(%ofGDP) -13.0 -0.5 -2.0 -1.9 -0.4

Commercialbanks’primerate(av;%) 15.6 8.9 8.3 9.1 9.5

ExchangerateD:US$(av) 16,440 17,898 18,463 18,298 17,906

ExchangerateD:¥100(av) 15,905 18,595 19,486 19,728 19,520

Source: Economist Intelligence Unit

Foreign firms tread carefullyDang’s views are by no means isolated. All the domestic firms interviewed by ALB are bullish about their growth prospects for the remainder of the year and are equally as assertive in their assumption that if things get worse for law firms in Vietnam, it will be the country’s 25 international players that will be the hardest hit.

“Local law firms here are all-rounders,” Quang says. “We can handle all types of work and we are compact enough to move with trends without having to lay off staff. This cannot be said of some foreign law firms in the country, as management influence from the US or UK often extends to their operations here.”

Dang agrees, saying that the downturn in staple projects and infrastructure work could make foreign firms among the first casualties in Vietnam. “International law firms will be the first affected, since larger projects and cross-border work will be reduced. In the last six months, foreign law firms have seen a decrease in the volume of work and new inquiries,” he says.

Foreign law firms, Dang says, can no longer be as selective as work becomes more scarce. “The downturn will up the ante between law firms for work,” he says. But are foreign firms in Vietnam in such dire straits? Times are tough, foreign lawyers roundly concede, but not tough enough for them to throw the towel in.

Sai Ree Yun and Eric Eunyong Yang, the partners charged with overseeing Korean law firm Yulchon’s Vietnam practice, say that although there has been a drop off in work over the past six months,

Eric Eunyong yang, yulchon

Dang The Duc, indochine Counsel

62



Korean interest in Vietnam remains strong. Among Korean firms, Yulchon has the largest Vietnamese operation, while Horizon Jisung, Logos and Justice MP have a smaller presence.

“In my experience, it is the larger companies who remain most active in the downturn – the smaller companies are the ones that suffer the most. Korea remains one of the largest investors in Vietnam, particularly in construction, real estate development and project financing,” says Yun, whose firm has acted for Lotte – the largest retail business in Korea – on its recent expansion in the Vietnamese retail sector.

The strength of some of Vietnam’s domestic companies means that Korean interest in the country is unlikely to abate despite the economic climate. “The majority of our work is for Korean companies looking to enter the Vietnamese market, but as companies in Vietnam mature they are appealing as well and I think over the next two years there will be more activity here,” Yang says. “We are working with clients now to prepare them for these opportunities as they arise.”

Lovells’ Fletcher says that his firm’s international clients also haven’t lost interest in Vietnam – even though it may appear that way to outsiders. “What we have seen is constant interest from Japanese, German and British companies, but their focus has changed from the FDI grab to oil & gas and utilities, which tends to be less in terms of dollar value but has a higher churn. This would suggest why some claim that things have dropped off,” he says.

ChallengesStriking deals in a depressed economic climate presents its own set of unique challenges, especially given the Vietnamese economy is still in the process of marketing its economy and erecting effective regulatory frameworks.

Dealing with the legal issues here is where foreign lawyers can rightly claim to have the upper hand on their Vietnamese counterparts. “There are some hurdles with M&A transactions that remain difficult to negotiate,” says Yulchon’s Yang. “The typical purchaser in Vietnam usually goes after assets and not necessarily shares in acquisitions, but there are measures in place which means achieving this is permitted only

in limited circumstances,” he adds, pointing out that this has only been allowed by the Vietnamese Government on a handful of occasions.

The choice of governing law is another challenge, Yun says, and has the potential to make dealing with disputes arising from transactions a hard task for even the most astute lawyer. “It is very difficult to obtain a judgment and have it enforced in Vietnamese courts when a contract’s governing law is not Vietnamese,” he says. “The court system in Vietnam is improving but still relatively underdeveloped. We advise our clients to use Vietnam law as the governing law in contracts just in case disputes arise, but this is limiting on some occasions.”

Although the system is far from ideal at the moment, international lawyers roundly applaud the government’s recent efforts to revamp regulation in these areas and activity here is set to speed up as bold measures, including stimulus packages and the acceleration of the disbursement of capital for construction projects, are introduced to curb any further slowing of the economy.

The task facing the business of firms is just as pressing. The Duc says that just as clients are proceeding with caution and being selective in terms of the deals they work on, so too will law firms need to make difficult decisions about growth and development over the coming months.

“Firms will have to be more careful with expansion plans and more flexible in the way they operate. They may find it necessary to adjust their plans, the types of work they take on, recruitment strategies, office expansion, and even fee structure and rates,” he says. ALB

sai Ree yun, yulchon

“The majority of our work is for Korean companies looking to enter the Vietnamese market, but as companies in Vietnam mature they are appealing as well and I think over the next two years there will be more activity here”

eric eunyong yang, yulchon

Firm Profile Indochine Counsel

As the world financial crisis is spreading, Vietnam is not an exception. The country’s economy is in recession and affected by

the world financial crisis. The flow of foreign direct investment and portfolio investment has suffered. Earlier this year, to support the economy and to stimulate domestic demand, the government of Vietnam introduced a US$6 billion economic stimulus package, of which US$1 billion is used to support local companies to seek lower interest financing from banks

On the securities market front, recently the Ministry of Finance (MOF) and the State Securities Commission (SSC) have introduced a range of new measures to attract foreign investment. This article summarizes these changes.

new regulations on investment activities of foreign investors in the securities marketTo attract foreign investment in the securities market, the MOF has issued Decision 121/2008/QD-BTC dated 24 December 2008 providing the Regulations on Activities of Foreign Investors in Vietnam's Securities Market (Decision 121).

Under Decision 121, foreign investors include: foreign citizens, including Viet Kieu (i.e. overseas Vietnamese); organizations established offshore, including their branch offices in Vietnam; 100% foreign-owned enterprises incorporated in Vietnam; offshore investment funds; and Vietnam domiciled investment funds with 100% foreign ownership.

Foreign investors who invest in listed and unlisted securities or participate in securities auctions in Vietnam must:(i) obtain and register a securities trading

code with the Vietnam Security Depository. One foreign investor may have only one code; and

(ii) open an indirect investment capital account at any bank authorized to provide custody and foreign exchange services in Vietnam.

These mean that the foreign investors are required to obtain a trading code, to maintain a bank account in Vietnam and to use money on that onshore account for securities investment.

Decision 121 sets out four ways for a foreign investor to make a securities investment in Vietnam. These are:(i) The foreign investor directly carries out

the transaction;(ii) The foreign investor instructs a securities

company to place the order pursuant to a standard form investment authorization agreement;

(iii) The foreign investor appoints a transaction representative to place the order for the foreign investor; or

(iv) The foreign investor engages a local fund manager to manage the foreign investor's securities investment.

A foreign investor may appoint only one individual in Vietnam under a standard form power of attorney to carry out permitted securities transactions. The attorney can be a foreign individual. The attorney must hold a securities business practising certificate issued by the SSC, and must not be an employee of any local securities company, fund management company or custodian bank. In addition, the attorney may only place orders for the foreign investor but must not make any investment decisions or manage the investment for the foreign investor.

Based on agreed investment scope and policies set out in an investment management agreement, a foreign investor may choose to engage a local fund manager, and not any individual or other organization, to carry out portfolio and asset management and make investment decisions for the foreign investor (including decisions relating to the type of securities, volume, price and trading date).

In summary, by providing clearer rules and more convenient ways to conduct investments, Decision 121 removes certain obstacles to foreign investment in the securities market. Decision 121 came into effect as of 18 February 2009.

new regulations to relax the foreign ownership cap in the securities marketThe Prime Minister of Vietnam has issued Decision 55/2009/QD-TTg (Decision 55) dated 15 April 2009 on foreign investors’ maximum participation ratio in the Vietnamese securities market (Room).

Of note, for the purpose of Decision 55, foreign investors include:(i) organisations established and operating

under foreign laws with subsidiaries in foreign countries and in Vietnam;

(ii) organisations established and operating in Vietnam with over 49% foreign ownership;

(iii) Investment funds and securities investment companies with over 49% foreign ownership;

(iv) Foreign individuals without Vietnamese

nationality residing in foreign countries or in Vietnam.

Under Decision 55, the Room is 49% in all public companies, both listed and unlisted. The following limits apply to foreign investors purchasing and selling shares in Vietnam's securities market: (i) No more than 49% of the total number

of shares of a public joint stock company. Unless it is expressly provided in the specialized laws, the provisions of the specialized laws prevail. If the Rooms are classified according to the list of specific business lines, then such Rooms in the list of classification apply;

(ii) No more than 49% of the total investment fund certificates of a public securities investment fund;

(iii) No more than 49% of the charter capital of a public securities investment company; and

(iv) For bonds, other limits which bond issuers may set.

Regarding the establishment of a securities company or a fund management company in Vietnam, Decision 55 stipulates that only foreign securities business institutions are permitted to contribute capital and purchase shareholding to establish a securities company in Vietnam. And that only foreign securities business institutions with the professional operation of managing securities investment funds and foreign insurance business institutions are permitted to contribute capital and purchase shareholding to establish a fund management company in Vietnam. In both cases, the room of foreign parties shall be 49% of the charter capital of such companies.

Decision 55 shall take effect as of 01 June 2009, replacing Decision 238/2005/QD-TTg dated 29 September 2005, under which that the Room was also set at 49% but for listed companies only.

By Dang The Duc & Truong Hoai Nam Indochine Counsel Unit 4A2, 4th Floor, Han Nam Office Bldg. 65 Nguyen Du, District 1 Ho Chi Minh City, Vietnam t +848 3823 9640 f +848 3823 9641 w www.indochinecounsel.com

New measures to attract foreign investment in Vietnam securities market


Truong Hoai nam

Dang The Duc


EVENTs | Japan Law Awards >>

the bIG wInneRs ►

Firm:Mori Hamada & MatsumotoNumbeofawards:7Awards:EquityMarketDealoftheYearJapanDealoftheYearJapaneseDealTeamoftheYearM&ADealoftheYearRealEstateDealoftheYearIPLawFirmoftheYearJapaneseDealFirmoftheYear

Firm:Nikko CitigroupNumberofawards:6Awards:EquityMarketDealoftheYearRealEstateDealoftheYearTMTDealoftheYearBanking&FinancialServicesIn-HouseTeamoftheYear

JapanIn-HouseLawyeroftheYearZenshoAwardJapanIn-HouseTeamoftheYear

Firm:Morgan StanleyNumberofawards:5Awards:DebtMarketDealoftheYearEquityMarketDealoftheYearJapanDealoftheYearM&ADealoftheYearTMTDealoftheYear

Firm:Nagashima Ohno & TsunematsuNumberofawards:4Awards:EquityMarketDealoftheYearRealEstateDealoftheYearTMTDealoftheYear

DebtMarketDealoftheYear

Firm:Anderson Mori & TomotsuneNumberofawards:4Awards:DisputeResolutionLawFirmoftheYearEquityMarketDealoftheYearJapaneseDealmakeroftheYearJapaneseDealFirmoftheYear

Firm:Davis Polk & WardwellNumberofawards:4Awards:TokyoAmericanClubAwardInternationalDealFirmoftheYearJapanDealoftheYearM&ADealoftheYearInternationalDealmakeroftheYear

Despite the tough economic climate, a range of domestic and international players have graced the

Japanese market this year with a wealth of experience, capacity and expertise. Hence a large number of high-profile, innovative and complex deals were nominated and short-listed for this year’s Japan awards.

The MUFJ-Morgan Stanley Stake Acquisition was the biggest winner on the night, taking home not just M&A Deal of the Year but also Japan Deal of the Year as well.

Nikko Citigroup was a triple winner in the in-house awards category, taking the award for Japan In-House Lawyer of the Year (Akiko Yamahara), Banking & Financial Services In-House Team of the Year and Japan In-House Team of the Year.

Mori Hamada & Matsumoto, however, was the big winner overall, taking home seven trophies across a range of categories, followed closely by Nikko Citigroup and Morgan Stanley, who claimed six and five awards respectively, and fellow Big Four firms Anderson Mori and Nagashima Ohno with four awards apiece.

Takashi Ejiri of Nishimura & Asahi, meanwhile, received the Lifetime Achievement Award for his years of dedication to the legal practice.

The finalists in each deal category were assessed against a range of criteria – size, complexity, breadth and innovation – while law firms and in-house teams were recognised for their work on transactions as well as excellence in serving clients.

Japan Law Awards 2009

The Ritz Carlton Tokyo played host to the brightest and best the Japanese legal industry has to offer as the ALB Japan Law Awards 2009 showcased the country’s most outstanding firms, lawyers and deals

Deal awardsDebt MarketGECapitalCorporationSamuraiBondSeriesEquity MarketMUFJFinancialGroupGlobalOfferingM&AMUFJ-MorganStanleyStakeAcquisitionReal EstateMitsuiFudosan-FrontierRealEstateInvestmentCorporationAcquisitionTMTBainCapital-D&MHoldingsAcquisitionInternational DealmakerTheodoreParadise,DavisPolk&WardwellJapanese DealmakerAkikoKimura,AndersonMori&TomotsuneJapanese Deal TeamM&A/CorporateTeam,MoriHamada&MatsumotoTokyo American Club Award International Deal FirmDavisPolk&WardwellJapanese Deal FirmMoriHamada&Matsumoto;AndersonMori&TomotsuneJapan Deal of the yearMUFJ-MorganStanleyStakeAcquisition

In-house awardsBanking & Financial ServicesNikkoCitigroupTMTSonyJapanese Investment BankNomuraSecuritiesInternational Investment BankGoldmanSachsTrading CompanyMitsubishiIn-house Lawyer of the yearAkikoYamahara,NikkoCitigroupZensho Award Japan In-house Team of the yearNikkoCitigroup

Firm awardsDispute ResolutionAndersonMori&TomotsuneInsolvencyNishimura&AsahiIPMoriHamada&MatsumotoOffshoreMaplesandCalderOsakaOh-EbashiLifetime AchievementTakashiEjiri,Nishimura&Asahi

the ComPLete LIst oF wInneRs ►



TMT DEAL OF THE YEARWinnER

bAIn CAPItAL-d&m hoLdInGs ►ACquIsItIon

Firms: Cravath; Clifford Chance; Freshfields Bruckhaus Deringer; Nagashima Ohno & Tsunematsu; Ropes & Gray; TMI Associatesbanks:GoldmanSachs;MorganStanley;NikkoCitigroup

FinalistsBERTELSMANNSTAKESALE

JUPITERTELECOMMUNICATIONS-MEDIATTICOMMUNICATIONSACQUISITION

NTTDOCOMO-TMINTERNATIONALACQUISITION

INTERNATIONAL DEALMAKER OF THE YEARWinnER

theodoRe PARAdIse, dAVIs PoLk ►& wARdweLL

FinalistsHIROYAYAMAZAKI,LINKLATERSKAYEYOSHINO,PAUL,WEISSALANCANNON,SIMPSONTHACHERSTANLEYFARRAR,SULLIVAN&CROMWELL

JAPANESE DEALMAKER OF THE YEARWinnER

AkIko kImuRA, AndeRson ►moRI & tomotsune

FinalistsGAKUISHIWATA,MORIHAMADA&MATSUMOTO

KAZUYAOGAWA,NAGASHIMAOHNO&TSUNEMATSU

TATSUYATANIGAWA,NISHIMURA&ASAHI

M&A DEAL OF THE YEARWinnER

muFj-moRGAn stAnLey ►stAke ACquIsItIon

Firms: Clifford Chance; Cravath; Davis Polk & Wardwell; Mori Hamada & Matsumoto; Sullivan & Cromwell; Wachtellbanks:MitsubishiUFJSecurities;MorganStanley

FinalistsEISAI-MGIPHARMACEUTICALSACQUISITION

MUFJ-UNIONBANCALCORPORATIONACQUISITION

RICOH-IKONACQUISITION

SHINSEIBANK-GECONSUMERFINANCEACQUISITION

TAKEDA-MILLENNIUMACQUISITION

TOKIOMARINEHOLDINGS-PHILADELPHIACONSOLIDATEDHOLDINGSACQUISITION

REAL ESTATE DEAL OF THE YEARWinnER

mItsuI FudosAn-FRontIeR ReAL ►estAte InVestment CoRPoRAtIon ACquIsItIon

Firms: Mori Hamada & Matsumoto; Nagashima Ohno & Tsunematsubanks:DaiwaSecuritiesSMBC;NikkoCitigroup;UBSSecurities

FinalistsDAVINCIADVISORS-TORANOMONPASTORALACQUISITION

J-REPCOREALESTATEFUNDESTABLISHMENT

MORLEYFUNDMANAGEMENTPROPERTYACQUISITION

OCMNETHERLANDSOPPORTUNITIESCOOPERATIFUA-RE-PLUSRESIDENTIALSTAKEACQUISITION

DEBT MARKET DEAL OF THE YEARWinnER

Ge CAPItAL CoRPoRAtIon ►sAmuRAI bond seRIes

Firms: Cleary Gottlieb; Linklaters; Nagashima Ohno & Tsunematsu; Nishimura & Asahibanks: DaiwaSecuritiesSMBC;MizuhoSecurities;MorganStanley

FinalistsJAPANBANKFORINTERNATIONALCOOPERATIONSCHEDULEBOFFERING

RABOBANKPUBLICSAMURAIBONDOFFERING

ROYALBANKOFSCOTLANDSAMURAIBONDSERIES

SUMITOMOLIFEINSURANCECOMPANYMEDIUMTERMNOTEPROGRAM

SUMITOMOMITSUIFINANCIALGROUPPERPETUALPREFERREDSECURITIESOFFERING

YAMADADENKICONVERTIBLEBONDOFFERING

EQUITY MARKET DEAL OF THE YEARWinnER

muFj FInAnCIAL GRouP ►GLobAL oFFeRInG

Firms: Anderson Mori & Tomotsune; Paul, Weiss; Mori Hamada & Matsumoto; Nagashima Ohno & Tsunematsu; Simpson Thacher & Bartlettbanks:JPMorgan;MitsubishiUFJSecurities;MorganStanley;NikkoCitigroup;NomuraSecuritiesAccountants:DeloitteToucheTohmatsu

FinalistsCHUOMITSUITRUSTHOLDINGSCOMMONSTOCKGLOBALOFFERING

MITSUILIFEINSURANCEPREFERREDSHARESOFFERING

SEVENBANKIPO

VISAIPO

deal awardsJAPANESE DEAL TEAM OF THE YEARWinnER

m&A/CoRPoRAte teAm, moRI ►hAmAdA & mAtsumoto

FinalistsCAPITALMARKETSTEAM,ANDERSONMORI&TOMOTSUNE

M&A/CORPORATETEAM,NAGASHIMAOHNO&TSUNEMATSU

BANKING&FINANCETEAM,NISHIMURA&ASAHI

TOKYO AMERICAN CLUB AwARD INTERNATIONAL DEAL FIRM OF THE YEARWinnER

dAVIs PoLk & wARdweLL ►

FinalistsLINKLATERSMILBANKSIMPSONTHACHER&BARTLETTSKADDENSULLIVAN&CROMWELL

JAPANESE DEAL FIRM OF THE YEARJOinT WinnERs

moRI hAmAdA & mAtsumoto; ►AndeRson moRI & tomotsune

FinalistsATSUMI&PARTNERSNAGASHIMAOHNO&TSUNEMATSUNISHIMURA&ASAHI

JAPAN DEAL OF THE YEARWinnER

muFj-moRGAn stAnLey ►stAke ACquIsItIon



DISPUTE RESOLUTION LAw FIRM OF THE YEARWinnER

AndeRson moRI & tomotsune ►

FinalistsMORRISON&FOERSTERNAGASHIMAOHNO&TSUNEMATSUNISHIMURA&ASAHI

INSOLVENCY LAw FIRM OF THE YEARWinnER

nIshImuRA & AsAhI ►

FinalistsANDERSONMORI&TOMOTSUNEBINGHAMMCCUTCHENMIYAKEIMAI&IKEDAMOMO-O,MATSUO&NAMBAMORIHAMADA&MATSUMOTO

IP LAw FIRM OF THE YEARWinnER

moRI hAmAdA & mAtsumoto ►

FinalistsNAKAMURA&PARTNERSSEIWAPATENT&LAWTMIASSOCIATESYUASA&HARA

TOKyO AMERICAN CLUBFoundedin1928,TokyoAmericanClubisaprivatemembers’clubandnon-profitorganization(shadanhojin).Withinexcessof3,500membersfrommorethan50countries,theClub’sfiverestaurants,recreationfacilities,spaandhostoffitnessandculturalprogramsandclassesoffermembersacommunitywithinwhichtorelax,enjoytimewiththeirfamilies,forgelastingrelationshipsandlearnaboutJapan.Throughitsfundraisingactivities,theClub’sWomen’sGrouphelpssupportanumberofcharitiesintheTokyoarea.TheClubiscurrentlylocatedatits

leafyTakanawasurroundsuntilitsplannedreturntoitsnewAzabudaifacilitiesin2011.

ContactDetails:TokyoAmericanClub4-25-46Takanawa,Minato-kuTokyo108-0074,JapanP:03-4588-0381|F:03-4588-0703E:[email protected]

firm awards

in-house awardsBANKING & FINANCIAL SERVICES IN-HOUSE TEAM OF THE YEARWinnER

nIkko CItIGRouP ►

FinalistsAOZORABANKJAPANBANKFORINTERNATIONALCOOPERATIONSHINSEIBANK

TMT IN-HOUSE TEAM OF THE YEARWinnER

sony ►

FinalistsCANONHITACHIIBMJAPANNTTDOCOMOTOSHIBA

JAPANESE INVESTMENT BANK TEAM OF THE YEARWinnER

nomuRA seCuRItIes ►

FinalistsDAIWASECURITIESSMBCMITSUBISHIUFJSECURITIESMIZUHOSECURITIES

INTERNATIONAL INVESTMENT BANK TEAM OF THE YEARWinnER

GoLdmAn sAChs ►

FinalistsDEUTSCHEBANKAGTOKYOJPMORGANMERRILLLYNCHMORGANSTANLEYUBSSECURITIES

ZENSHOAslegalprofessionexecutivesearchspecialists,Zenshoisproudtosponsorthisyear’sawardforJapan’sIn-HouseTeamoftheYear.AtZensho,webelieveexecutivesearchwithinJapan’slegalprofessionrequireslocalmarketspecialization,long-termcommitment,personalattention,discretion,initiativeandasincereintentiontohelp.Oursuccessdependsuponourconsistentabilitytoquicklymakeconnections,produceresultsandmaintainstrong,lastingrelationshipswithinthelegalandbusinesscommunity.Wehopeourcontinuedeffortstobeatrustedadvisorandproviderofaccurateandtimelyinformationwillmakeusthemarket’sproviderofchoice.

Contactdetails:P: 81-03-5575-5091E:[email protected] [email protected]

award sponsorsOFFSHORE LAw FIRM OF THE YEARWinnER

mAPLes And CALdeR ►

FinalistsAPPLEBYCONYERSDILL&PEARMANDILLONEUSTACEOGIERWALKERS

OSAKA LAw FIRM OF THE YEARWinnER

oh-ebAshI ►

FinalistsHOKADAKIKKAWAKITAHAMAGROUPNAKANOSHIMACHUOLAWOFFICE

LIFETIME ACHIEVEMENT AwARDWinnER

tAkAshI ejIRI, nIshImuRA & AsAhI ►

FinalistsTSUYOSHINAGAHAMA,ANDERSONMORI&TOMOTSUNE

HIROOATSUMI,ATSUMI&PARTNERS

SHIGEAKIMOMO-O,MOMO-O,MATSUO&NAMBA

TORUISHIGURO,MORIHAMADA&MATSUMOTO

TRADING COMPANY IN-HOUSE TEAM OF THE YEARWinnER

mItsubIshI ►

FinalistsITOCHUCORPORATIONMITSUI&COSUMITOMO

JAPAN IN-HOUSE LAwYER OF THE YEARWinnER

AkIko yAmAhARA, nIkko CItIGRouP ►

FinalistsAARONEDDINGTON,UBSSECURITIESCHIKARAMOMOTA,NIKKOCITIHOLDINGSSEBASTIANGRUSON,BOEHRINGERINGLEHEIMJAPANTOMOHIKOOSHIKAWA,JPMORGAN

ZENSHO AwARD JAPAN IN-HOUSE TEAM OF THE YEARWinnER

nIkko CItIGRouP ►

FinalistsGOLDMANSACHSJPMORGANMITSUBISHIMORGANSTANLEYNOMURASECURITIESSONY

EVENTs | IPBA conference >>

67www.asianlegalonline.com

In 2006, it was the sunny, sandy shores of Sydney, Australia. A year later, it was off to the heart of Asia’s fastest growing

economy, in Beijing. In 2008 the IPBA returned to the sand, surf and sun – this time LA. This year, however, the IPBA ventured to the tropical Philippines, where it held its annual conference in 1996. In many ways, the choice of the venue for the 19th annual IPBA conference is fitting: just as the Philippines has grown and developed exponentially since 1996, so too has the IPBA – its member ranks have grown, as has its influence on the legal sector across Asia. That importance and influence will only continue to increase as the region starts to come to grips with one of the worst economic crises the world has seen.

The theme of this year’s conference – Legal practice: coping with diversity and change – was evidence that lawyers recognise the fact that while challenges lie ahead, opportunities abound as well.

Delegates were treated to some interesting, engaging, information-packed and commercially relevant seminars and sessions throughout the conference. From the keynote address delivered by President Gloria Arroyo and seminars on the pertinent issues in marine, aviation and Islamic banking law to updates in areas such as anti-corruption, intellectual property, international

At this year’s IPBA conference in the Philippines lawyers discussed how to deal with the many challenges thrown up by the global financial crisis

whAt Is the IPbA? ►TheInter-PacificBarAssociation(IPBA)isaninternationalassociationofbusinessandcommerciallawyerswithafocusontheAsia-Pacificregion.MembersareeitherAsia-Pacificresidentsorhaveastronginterestinthispartoftheworld.TheIPBAwasfoundedinApril1991atan

organisingconferenceheldinTokyoandattendedbymorethan500lawyers.Sincethenithasgrowntobecomeapre-eminentorganisationintheareaofAsianlawandbusiness,withamembershipofover1,800lawyersfrommorethan67jurisdictionsaroundtheworld.ThegrowthoftheIPBAhasbeenspurredby

thetremendousgrowthoftheAsianeconomiesascompaniesthroughouttheregionbecomepartoftheglobaleconomy,andrequireadditionalassistancefromlawyersbothintheirhomecountryandthroughouttheregion.OneoftheIPBA’sgoalsistohelplawyersstayabreastofdevelopmentsthataffecttheirclients.Anotheristoprovideanopportunityforbusinessandcommerciallawyersthroughouttheregiontonetworkwithlawyersofsimilarinterestsandfieldsofpractice.Supportedbymajorbarassociations,law

societiesandotherorganisations,theIPBAisplayingasignificantroleinfosteringtiesamongmembersofthelegalprofessionwithaninterestintheregion.Source:IPBA

Mabuhay! The IPBA hits Manilaarbitration, litigation, insolvency and e-discovery, all workshops were designed to keep lawyers firmly abreast of the major legal developments throughout the region. The latter was also at the heart of a thought provoking and interactive session on law firm management. Topics such as the need to constantly evaluate approaches to client relations and client management were grappled with and methods on the best way forward suggested.

Virtually all of the IPBA’s members are business lawyers in a private law practice involved in the Asia-Pacific region to a significant extent. As a result, the IPBA aims to be an indispensable resource for individual business lawyers interested in the Asia-Pacific region. “In addition, participation in IPBA activities is an unsurpassed way for lawyers to establish and develop professional relationships with like-minded colleagues in the region,” says the president-elect of the IPBA Rafael Morales.

And there was certainly plenty of opportunity for lawyers to do just this at lunch sessions, cocktails and a sumptuous gala dinner. Next year’s event promises to be just as big, as the IPBA annual conference returns to Singapore with environmental crusader and former US Vice-president Al Gore already confirmed as the event’s keynote speaker. ALB

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hmaBlaze117205

Talent2 International Limited, an Australian-Listed entity, is Asia-Pacific's first end-to-end Human Resources Outsourcing (HRO) solutions business and one of the leading recruiters of choice for a growing number of businesses across the region. Led by the hugely successful and visionary Geoff Morgan and Andrew Banks (formerly of Morgan & Banks), Talent2 combines a contemporary and ethical approach to recruitment with a lineage stretching back more than 20 years.

Singapore – LegalSenior Legal Counsel (Oil & Gas) > 5 PQE

Our client, a Houston based Oil & Gas company is seeking a regional »legal counsel based in Singapore. This role reports to a General Counsel based in Houston.Ideally, you would have substantial corporate and commercial legal »experience either in-house or within practice. You would be familiar with the oil & gas industry especially jack-up rigs, FPSOS and semi-submersible rigs.You will have very strong communication skills conjoined with »a consensus-building approach to negotiations Candidates with experience in JV/M&A and business integration experience are encouraged to apply.

Ref: ALB 23799/PJ

Legal Counsel, Banking > 3 PQE Our client, one of Asia’s top investment banks is presently seeking a legal »counsel to join a growing regional legal function based in Singapore.The role involves supporting a corporate legal function focusing on »merchant banking, commercial issues and general corporate legal matters.Candidates with prior banking experience are advantaged for this role, »however, Candidates with excellent academic credentials and general corporate experience would also be strongly considered.

Ref: ALB 22525/PJ

Legal Counsel (Private Banking/Derivatives) > 3 PQEOur client, a renowned private and investment bank is currently »seeking a qualified lawyer to join their regional legal function supporting the private bank.The coverage of the role will include structured products, funds and f/x. In »this role you’ll be responsible for drafting and reviewing legal forms and agreements, dealing with complex cross-border legal questions on the execution and settlement of structured products and investment funds. You will ideally have private banking expertise, but barring that, »candidates with knowledge of derivatives (OTC or otherwise), exotic Options and Forward Strategies are encouraged to apply.

Ref: ALB 20009/PJ

Senior Legal Counsel (Insurance) > 5 PQEOur client, a global international insurance giant, is presently seeking to »build up their regional (APAC) legal function.You will ideally have a mix of insurance litigation and corporate/ »commercial experience within an in-house function. You would also leverage experience dealing with regional financial regulatory issues as there is also significant funds (both mutual and alternative) exposure.You will have key business responsibilities for managing the product »development teams from a legal and regulatory perspective in regional markets.

Ref: ALB 20007/PJ

Senior Legal Manager, (Property & Real-Estate) > 5 PQE Our client, one of Asia’s largest property giants is seeking a legal counsel »for their group legal function. Primary responsibilities include transactional advice on diverse matters »such as structured lending, DCM-related work as well as advice on existing REIT structures.This is a great opportunity to move into one of the most highly-regarded »corporate legal teams in Singapore. The ideal candidate will have top-tier law firm exposure as well as excellent academic credentials.

Ref: ALB 23458/PJ

Legal Counsel (Private Banking/Derivatives) > 3 PQEOur client, a renowned private and investment bank is currently seeking »a qualified lawyer to join their regional legal function supporting the private bank.The coverage of the role will include structured products, funds and f/x. In »this role you’ll be responsible for drafting and reviewing legal forms and agreements, dealing with complex cross-border legal questions on the execution and settlement of structured products and investment funds. You will ideally have private banking expertise, but barring that, »candidates with knowledge of derivatives (OTC or otherwise), exotic Options and Forward Strategies are encouraged to apply.

Ref: ALB 22365/PJ

Senior Legal Counsel, US IT MNC > 5 PQEOur client, an international business consulting MNC, is presently »seeking a senior technology lawyer to join their regional in-house function based in Singapore.This role would revolve around the review, drafting and negotiating »medium to complex client transactions. You’ll be tasked with identifying and advising senior management on legal and commercial risks associated with such transactions, assessing their potential impact and to provide proactive and creative solutions.Transaction experience within an IT environment is essential for this »role. Ideally, you would hail from an IT services vendor environment and understand the industry from a holistic view.

Ref: ALB 20011/PJ

Senior Legal Counsel, US IT MNC > 5 PQEOur client, an international business consulting MNC, is presently »seeking a senior technology lawyer to join their regional in-house function based in Singapore.This role would revolve around the review, drafting and negotiating »medium to complex client transactions. You’ll be tasked with identifying and advising senior management on legal and commercial risks associated with such transactions, assessing their potential impact and to provide proactive and creative solutions.Transaction experience within an IT environment is essential for this »role. Ideally, you would hail from an IT services vendor environment and understand the industry from a holistic view.

Ref: ALB 22456/PJ

Corporate Attorney, Technology & Internet > 5 PQEThis globally recognised ‘brand-name’ needs a commercial, creative, »detail-oriented attorney to join their regional operations in Singapore.Ideally, you would be well-versed with technology and financial services »with a critical eye towards risk and regulatory issues. You would have a broad range of experience ideally with financial services and/or technology backgroundYou will be working closely with the risk, product, marketing, »compliance and business development teams regionally and report to a regional legal director.

Ref: ALB 20014/PJ

Legal Opportunities – Singapore

For a confidential discussion of any of these roles or if you’re considering a move, please contact Prem John at Talent2 on (65) – 6511 8555 or e-mail him [email protected]

Please visit: www.talent2.com

http://www.talent2.com

72

Sign off >>


ts and Se

Eversheds senior partner Cornelius Medvei recently showcased the firm’s

London headquarters on Wood Street in a CoreNet Global New York presentation at Manhattan’s Time-Life Building.

The presentation, entitled ‘Workplace Innovation: Changing the Rules in the Legal and Banking Industries’, heralded the firm for being successful in fostering a flexible workplace culture through what could prove to be potentially revolutionary architecture, design and technology.

In addition to encouraging workplace flexibility, Evershed’s London headquarters reportedly minimises environmental impact and promotes sustainability through the use of green roofing; chilled beam air conditioning; sustainable and recyclable building materials – which include recyclable carpet; certified timber veneer; intelligent lighting; recyclable furniture; and locally sourced products and finishes.

The building also has a BREEAM (Building Research Establishment Environmental Assessment Method) “excellent” rating and won the 2009 British Council for Offices regional award for Best Corporate Workplace in April. ALB

Taylor Wessing recently unveiled a handful of cost-cutting initiatives,

in an effort to brave the financial crisis – and found a few new measures with a difference.

In addition to making up to 20 redundancies, and offering sabbaticals and voluntary redundancy to all staff, the firm has also offered all employees an extra two weeks of holiday in return for a 3.85% reduction in salary.

The sabbaticals suggested are on 10% pay, with client secondments and the transfer of lawyers between practice groups also an option for practitioners to consider.

The firm has also followed the lead of other UK firms and will be freezing staff salaries at current levels until the end of the 2010 financial year, culminating in a reduction in salary bands across the firm. ALB

Eversheds chief shows off firm’s green credentials

Taylor Wessing gets creative

Japanese mid-market M&A industry volume by target sector

energy and power

Healthcare

Telecommunications

Media and entertainment

retail

Consumer products and Servrv

icic

ee

ss

Consumer Staples

industrials

Materials

Financials

High Technology

real estat

e

12.2%13%

19.1%

19.9%

9.6%

8.8%

6.9%

5%3.4%

1.1% 0.4% 0.4%

Source: Thomson Reuters

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Documents

Asian Legal Business (SE Asia) Jun 2009