Nevertheless, external lawyers should not be surprised if an invoice is returned to them marked with a ‘please explain’. “What irritates me the most is when I get an e-mail from a law firm and about 60 other lawyers at that firm are cc’d in. You can bet that the other 59 lawyers will charge for receiving, opening and reading the email. When I get a bill like this I send it back straight away. Firms that are not flexible here and more generally snotty about reducing fees wear my patience; we can take our work elsewhere,” says the regional general counsel of a US-based investment bank.
And the consensus is that despite the more flexible approach being adopted by firms, the charge-out rates at some international firms operating in the region remain too high, disproportionately so according to Flavell.
“The fees being charged in Hong Kong and China are still excessive. Just because a firm is a ‘Magic Circle/ Wall Street’ firm in the UK or US does not mean they justify the same fees in HK and China. Some firms and lawyers are excellent and may justify these fees, but many of these firms significant amounts of the time cannot,” he says.
Is this the window through which those firms outside the Magic Circle may attract more work from the region’s largest multi-nationals? The consensus is that this is a distinct possibility.
“There are various second-tier UK and US firms or first-tier Australian firms with offices of similar size to Magic Circle firms in the various parts of the region with experienced partners who have been working in the region for long periods and offer much cheaper rates. If I can obtain the services of a very good partner at the same rate as a mid-experienced associate from a Magic Circle firm, why use the more expensive firm?” Flavell asks.
His question is one currently being asked by in-house teams across the region. All of the lawyers ALB spoke to agreed that the answer isn’t likely to result in legal departments cutting the number of external firms they use or – as is the case in the US – see the end of the legal panel.
“The very point of the legal panel is that it offers companies who have operations in different locations around the globe access to knowledgeable local legal advice,” says Ingram, who uses one US-based international firm for most of his external legal counsel.
It seems that many companies are likely to retain their legal panels in the near future, if for no other reason than the size of the region means limiting external counsel to one or two firms is not practicable. Nevertheless, as the ALB In-house survey 2009 indicates, there is no guarantee that the size or composition of such panels will remain the same.
“I think it is fair to say that we are looking at the number of firms we use in the APAC region and looking to reduce the number and build stronger relationships with a smaller number of firms. Of course the size of the region means it is impossible to use the same one or two firms across the region,” Flavell says.
May 29, 2010
ALB In-house Survey 2009. Part 4
Good news for law firms, perhaps. But as always, a review of the relationships between in-house departments and external counsel is a process likely to dredge up ageold issues. These issues, according to many of the region’s top in-house lawyers, are yet to be to satisfactorily addressed by law firms, with legal fees (or, more accurately, billing practices) top of the agenda.
Failure to be clear and concise
All the in-house lawyers interviewed by ALB note that it is the ability of firms to offer quality and commercial results that will dictate who gets legal work from companies. The survey reveals that firms who can guarantee high quality work, meet deadlines and be proactive in the running of projects have a good chance of continuing to receive work from in-house clients.
Nonetheless, the consensus opinion is that most law firms struggle to deliver these apparently basic demands. “What law firms need to understand is, compared to when I was a partner at a law firm, I now receive 10 times more e-mails, am looking after 10 times more matters and can be working on projects in four or five different countries at the same time with only a small in-house team. I do not appreciate having to proof read documents and correct typos, major drafting mistakes – this happens all too often,” Flavell says.
Elliot cites similar experiences and notes that some of his external lawyers never fail to disappoint. “Some of them have problems with the basics. I don’t want my external counsel to just play lawyers. I give them work and I get the impression that they give me advice with one eye on their cost agreement. I don’t want wishy-washy advice; I can’t take that to my board.”
In essence, in-house lawyers are looking for their external lawyers to be proactive, to be a step (or two) ahead of the game – but not too far ahead.
“The APAC region can be very difficult and the legal position is often unclear. However, a lawyer who gives me advice along those lines is of no use. I expect firms to give me their ‘best call’ on how they think we should proceed and give me reasons to back up their view – I’m sorry to say this does not happen very often,” Flavell says. “On major projects I want my lawyers to be three or four steps ahead of us taking charge to ensure we get where we need to be. I have found only a couple of lawyers that do this.”
But external advisors need to find the balance between being proactive and doing more than was asked, explains the general counsel at the US-based investment bank. “I really just want lawyers we use to do what we ask – nothing more, nothing less. They shouldn’t do work we haven’t briefed them on, they should just provide the advice.”
Be flexible
The efforts of law firms that have been trying hard in this area have not gone unnoticed. One area in which this is most apparent is in relation to fee arrangements where flexibility has become the order of the day. Having said that, all in-house lawyers ALB interviewed noted that there is still some way to go but this does not necessarily mean a massive reduction in fees. Rather, it is the little things that count.
In-house lawyers want some uniformity. “Our external lawyers have been very flexible in terms of offering fee reductions, extended payment terms and holding back on some work,” Ingram says. “They have shown they are willing to be flexible and – this is perhaps most important – they have an understanding that we must work together through this difficult time.”
Failure to be clear and concise
All the in-house lawyers interviewed by ALB note that it is the ability of firms to offer quality and commercial results that will dictate who gets legal work from companies. The survey reveals that firms who can guarantee high quality work, meet deadlines and be proactive in the running of projects have a good chance of continuing to receive work from in-house clients.
Nonetheless, the consensus opinion is that most law firms struggle to deliver these apparently basic demands. “What law firms need to understand is, compared to when I was a partner at a law firm, I now receive 10 times more e-mails, am looking after 10 times more matters and can be working on projects in four or five different countries at the same time with only a small in-house team. I do not appreciate having to proof read documents and correct typos, major drafting mistakes – this happens all too often,” Flavell says.
Elliot cites similar experiences and notes that some of his external lawyers never fail to disappoint. “Some of them have problems with the basics. I don’t want my external counsel to just play lawyers. I give them work and I get the impression that they give me advice with one eye on their cost agreement. I don’t want wishy-washy advice; I can’t take that to my board.”
In essence, in-house lawyers are looking for their external lawyers to be proactive, to be a step (or two) ahead of the game – but not too far ahead.
“The APAC region can be very difficult and the legal position is often unclear. However, a lawyer who gives me advice along those lines is of no use. I expect firms to give me their ‘best call’ on how they think we should proceed and give me reasons to back up their view – I’m sorry to say this does not happen very often,” Flavell says. “On major projects I want my lawyers to be three or four steps ahead of us taking charge to ensure we get where we need to be. I have found only a couple of lawyers that do this.”
But external advisors need to find the balance between being proactive and doing more than was asked, explains the general counsel at the US-based investment bank. “I really just want lawyers we use to do what we ask – nothing more, nothing less. They shouldn’t do work we haven’t briefed them on, they should just provide the advice.”
“I think it is fair to say that we are looking to reduce the number of firms we use in the APAC region and build stronger relationships with a smaller number of firms”David Flavell, Danone Asia
Be flexible
The efforts of law firms that have been trying hard in this area have not gone unnoticed. One area in which this is most apparent is in relation to fee arrangements where flexibility has become the order of the day. Having said that, all in-house lawyers ALB interviewed noted that there is still some way to go but this does not necessarily mean a massive reduction in fees. Rather, it is the little things that count.
In-house lawyers want some uniformity. “Our external lawyers have been very flexible in terms of offering fee reductions, extended payment terms and holding back on some work,” Ingram says. “They have shown they are willing to be flexible and – this is perhaps most important – they have an understanding that we must work together through this difficult time.”
ALB In-house Survey 2009. Part 3
“What irritates me most is when I get an e-mail from a law firm and about 60 other lawyers are cc’d in. You can bet the other 59 lawyers will charge for receiving, opening and reading the e-mail. When I get a bill like this, I send it back straight away”US-based investment bank regional general counsel
The extent to which these issues are wholly new is a different question. In-house lawyers across the region readily admit that increasing the amount of work handled in-house, slashing internal and external budgets, and squeezing more out of inhouse teams have been goals towards which they have been working for the best part of 20 years. It has only been the recent onset of the global economic crisis that has made attaining these goals more pressing. “Maximising efficiency, reducing costs and better serving broader company objectives are things that many in-house departments have been trying to do for the last 20 years,” Ingram says. “But now the economic climate has added urgency to this goal.”
But just how is this being achieved?
Slash and burn
As the results of the ALB In-house Survey 2009 indicate, when in-house teams look to minimise costs they do not only look to pare their teams or cut travel budgets; they also look long and hard at their largest liability – the amount of money spent on retaining outside counsel. “Companies across the region are looking to do this now more than ever,” Elliot says. “Some, I hear, are slashing the amount by ridiculous amounts and really concentrating their efforts on keeping the figure as close to zero as possible, but there are other things that will come out of this process.”
The “other things” to which Elliot refers involve analysing spending patterns for outside counsel, the frequency with which they are used and the typical matters on which their advice is sought. In addition, internal reviews are now under way at many of the region’s top companies which seek to “streamline” (read: centralise) the decision-making process. “We have just updated our guidelines for retaining in-house counsel. And we uncovered a number of things. Firstly, we have found that we use them on some matters for which we don’t need them and, secondly, that the decision to use them is sometimes a little all over the place. We have now put measures in place to reduce costs here and make sure we can monitor what stays inhouse and what goes out more closely,” says the general counsel at the USbased investment bank.
The same general counsel goes on to note that he had heard of similar companies undertaking the same task and coming to similar conclusions, but was quick to point out that the exercise need not only result in the cutting of external budgets or a decrease in the amount of work sent outside. “Such reviews are about setting up legal departments postglobal financial crisis and normalising relationships with external legal providers. The latter especially may have become a little too fluid to manage of late.”
ALB In-house Survey 2009. Part 2
“Some of them have problems with the basics. I don’t want my external counsel to just play lawyers. I give them work and I get the impression they give me advice with one eye on their cost agreement”Peter Elliot, Fitness First
But it is not only the flow of work that has increased. The types of matters that in-house lawyers are handling has also become increasingly diverse.
“The flavour of work has shifted. In the upturn we were looking more at acquisitions and fresh investments, but now the focus is more on meeting the individual needs of the business. Now we are looking more at receivables and the deferral of projects and, of course, litigation as well.”
While the work that Ingram and his team are handling now may be categorically different than in the past, the work being done by the in-house team at one of the world’s largest investment banks follows the flow of the international economic environment. “The work now has a different spin to it. Market volatility has created different issues in matters that were going since before the global financial crisis took hold,” says the regional general counsel at a US-based investment bank, who declined to be named. “Some of our lawyers who were previously doing CDO originations and advising on the front end of M&A transactions are now following on with back-end work, litigation, private bank work and similar things.”
But whether the work is completely different or more focused on the back end of transactions, the role of corporate counsel across the region remains the same: to assist their company in realising its commercial objective – staying afloat in troubled times. “The key point for in-house lawyers is to be extra conscious of providing commercial outcomes for business units to help their companies reach their objectives,” says David Flavell, Asia-Pacific general counsel for Danone Asia. “It is a crucial time for in-house lawyers to ensure they are closer than ever to the business and understand the business environment.”
The pace at which this business environment is changing has implications for the timeframes in which in-house lawyers are expected to resolve matters. All in-house lawyers interviewed by ALB noted that deadlines for matters had been cut – and cut drastically. “One of the most visible manifestations of this crisis is that our deadlines have been shaved,” says Peter Elliot, general counsel for Fitness First Australia. “In a sense, this is similar to what private practice lawyers are experiencing. A matter will land on my desk and I will be expected to provide my board with an answer in a very, very short timeframe.”
Ingram adds. “The churn is a relatively new phenomenon. Increases in the amount of work being handled in-house and even the types of matters we are taking on have been themes rolling through the past decade, but turnaround times have been pressurised by the current economic situation.”
Multi-tasking
At this point one might assume that more work, different types of work and quicker delivery would mean the region’s general counsel are afforded a cast of many to help them. This, however, is not the case, with in-house lawyers remarking that the size of their in-house teams had shrunk over the past 12 months and they had received edicts from above to not fill some vacant positions. “My team has been cut by about 30% over the last few months,” Elliot says. “We have vacancies that can be filled but we won’t bring any new staff on until we have a clearer indication of where the market is headed.”
This, of course, means using what one already has in a more ‘flexible’ manner. As the general counsel at the US-based investment bank explains: “What we are doing now is making full use of the existing talent we have. We are looking to double-hat and triple-hat more. The first thing we do when someone leaves is not to look for a replacement but to see how their work can be split among other people.”
ALB In-house Survey 2009. Part 1
For law firms, there is nothing more frightening than the prospect of in-house legal teams scaling back the amount of work they outsource. Due to the financial crisis everyone is now getting edgy…
The press has had something of field day reporting on the woes of private-practice lawyers over the past year or so. From layoffs to salary freezes, law firm collapses to more ridiculous measures such as the strict enforcement of stationery quotas, it seems many firms have felt the pinch of cost-cutting measures. But how are the region’s in-house lawyers faring in the economic crisis? Are they facing the same pressures, and in what areas are these most apparent?
The results of the ALB In-house survey confirm that in-house lawyers, like their private-practice counterparts, are under the pump; facing cost-cutting measures left, right and centre. But when in-house teams want to cut costs they do not necessarily look to the same areas as law firms do. Rather, they look to their single largest liability: the amount of money they spend on outside counsel. And while this is by no means a new phenomenon, it is a concern which has taken on new meaning in the second worst financial crisis in living memory.
Pressure
While in-house lawyers may not have to deal with the prospect of salary freezes, equity contributions or the possibility of a law firm collapse, life in-house, it seems, has never been tougher. Shrinking legal teams, dwindling internal and external budgets, and the ever-intrusive hand of company management are just a few of the hurdles that most in-house lawyers across the region have to negotiate on a daily basis. One should not mistake these for new occurrences – they have been happening, in one form or another, for much of the past 20 years. However, they are now being given greater attention.
The extent to which these issues have become the focal point for many in-house departments may be gauged by tracking the change in the amount of work in-house lawyers are handling themselves, the complexity of this work and the speed with which they are expected to complete it, says Gavin Ingram, corporate counsel for Asia with BlueScope Steel. “An economic downturn doesn’t equate to a downturn in one’s legal obligations. We are much busier now than we have been over the last 12 months and handling maybe twice as many matters than we were in the last quarter of 2007. Matters come across my desk with a regularity I have not seen for a long time,” he says.
The press has had something of field day reporting on the woes of private-practice lawyers over the past year or so. From layoffs to salary freezes, law firm collapses to more ridiculous measures such as the strict enforcement of stationery quotas, it seems many firms have felt the pinch of cost-cutting measures. But how are the region’s in-house lawyers faring in the economic crisis? Are they facing the same pressures, and in what areas are these most apparent?
The results of the ALB In-house survey confirm that in-house lawyers, like their private-practice counterparts, are under the pump; facing cost-cutting measures left, right and centre. But when in-house teams want to cut costs they do not necessarily look to the same areas as law firms do. Rather, they look to their single largest liability: the amount of money they spend on outside counsel. And while this is by no means a new phenomenon, it is a concern which has taken on new meaning in the second worst financial crisis in living memory.
Pressure
While in-house lawyers may not have to deal with the prospect of salary freezes, equity contributions or the possibility of a law firm collapse, life in-house, it seems, has never been tougher. Shrinking legal teams, dwindling internal and external budgets, and the ever-intrusive hand of company management are just a few of the hurdles that most in-house lawyers across the region have to negotiate on a daily basis. One should not mistake these for new occurrences – they have been happening, in one form or another, for much of the past 20 years. However, they are now being given greater attention.
“An economic downturn doesn’t equate to a downturn in one’s legal obligations. We are much busier now than we have been over the last 12 months… handling twice as many matters than we were in the last quarter of 2007”Gavin Ingram
The extent to which these issues have become the focal point for many in-house departments may be gauged by tracking the change in the amount of work in-house lawyers are handling themselves, the complexity of this work and the speed with which they are expected to complete it, says Gavin Ingram, corporate counsel for Asia with BlueScope Steel. “An economic downturn doesn’t equate to a downturn in one’s legal obligations. We are much busier now than we have been over the last 12 months and handling maybe twice as many matters than we were in the last quarter of 2007. Matters come across my desk with a regularity I have not seen for a long time,” he says.
Indian. Deals of the Year 2009
Judged by a panel of leading in-house counsel, ALB presents the best Indian deals of the past year.
At first glance, one could be forgiven for asserting that things came together nicely for India in 2008. In the first half of the year there was the continuation of a four-year bull run that yielded stock market returns of more than 40%, a strong rupee, readily available and easily accessible credit, and a corporate sector seemingly awash with cash.
However, the second half of 2008 was tough going for all economies in the region and India was no exception. Its benchmark SENSEX fell 20%; the rupee lost a quarter of its value in a little less than three months and by the end of the year was down by almost 16% on the same period in 2007.
On top of this, the number of deals and their total value fell to levels not seen for quite some time. Grant Thornton statistics reveal India saw only 454 M&A deals yielding US$30.95bn in 2008, compared to 676 deals with a value of US$51.11bn just a year earlier.
“Things didn’t grind to a complete halt in 2008, but we came quite close,” said one of our judges. “You only need to look at the M&A statistics to see how much things dropped off – we didn’t have a Hutchison-Essar type deal this year.” But this isn’t to say to that India didn’t see any big ticket deals in 2008 – a look at the deals shortlisted in the inaugural ALB Indian Deals of the Year is proof enough that the country still saw its fair share of transactional activity.
But in many ways it wasn’t so much about the number of deals or their value. From GMR’s mega acquisition of Intergen to Dish TV’s innovative capital raising and HDIL’s unique structured slum rehabilitation project, all of the deals which claimed top spot this year did so because they provided a blueprint for how to close complex deals in the most inclement of economic conditions.
“If you look at the deals that were voted as the best this year it is clear that it’s not just the biggest deal that won by default. The most creative, the most innovative and the most unique deals won… deals in which lawyers and other advisors had to think outside the box,” said one in-house counsel. “The vanilla deals didn’t win, but the deals that lay out some sort of precedent were successful. I think we can expect to see some of the structures used here becoming standard in deals closed throughout both this year and the next.”
At first glance, one could be forgiven for asserting that things came together nicely for India in 2008. In the first half of the year there was the continuation of a four-year bull run that yielded stock market returns of more than 40%, a strong rupee, readily available and easily accessible credit, and a corporate sector seemingly awash with cash.
However, the second half of 2008 was tough going for all economies in the region and India was no exception. Its benchmark SENSEX fell 20%; the rupee lost a quarter of its value in a little less than three months and by the end of the year was down by almost 16% on the same period in 2007.
On top of this, the number of deals and their total value fell to levels not seen for quite some time. Grant Thornton statistics reveal India saw only 454 M&A deals yielding US$30.95bn in 2008, compared to 676 deals with a value of US$51.11bn just a year earlier.
“Things didn’t grind to a complete halt in 2008, but we came quite close,” said one of our judges. “You only need to look at the M&A statistics to see how much things dropped off – we didn’t have a Hutchison-Essar type deal this year.” But this isn’t to say to that India didn’t see any big ticket deals in 2008 – a look at the deals shortlisted in the inaugural ALB Indian Deals of the Year is proof enough that the country still saw its fair share of transactional activity.
But in many ways it wasn’t so much about the number of deals or their value. From GMR’s mega acquisition of Intergen to Dish TV’s innovative capital raising and HDIL’s unique structured slum rehabilitation project, all of the deals which claimed top spot this year did so because they provided a blueprint for how to close complex deals in the most inclement of economic conditions.
“If you look at the deals that were voted as the best this year it is clear that it’s not just the biggest deal that won by default. The most creative, the most innovative and the most unique deals won… deals in which lawyers and other advisors had to think outside the box,” said one in-house counsel. “The vanilla deals didn’t win, but the deals that lay out some sort of precedent were successful. I think we can expect to see some of the structures used here becoming standard in deals closed throughout both this year and the next.”
“If you look at the deals that were voted as the best this year it is clear that it’s not just the biggest deal that won by default. The most creative, the most innovative and the most unique deals won”
May 25, 2010
Vietnam. Indochine Counsel
SBV to issue the detailed guidelines on implementation of the pm’s interest rate support policy.
On 03 February 2009, the State Bank of Vietnam (SBV) has issued Circular No. 02/2009/TT-NHNN (Circular 02) providing the detailed implementation of the interest rate support to individuals and enterprises borrowing loans from banks for trading and manufacturing purposes as provided for under Decision No. 31/QD-TTg (Decision 31) dated 23 January 2009 of the Prime Minister of Vietnam (PM).
According to Circular 02, individuals and enterprises who have short term VND loans (term of loan up to 12 months) with credit institutions, commercial banks (including foreign owned banks and branches of foreign banks in Vietnam) operating in Vietnam for trading and manufacturing purposes according to the loan agreements which are entered into and drawn down from 1 February to 31 December 2009 are eligible to this policy. Particularly, eligible individuals and enterprises shall be supported an anum interest rate of 4% of the outstanding loans within 08 months from the date of drawdown and the actual term of loan is from 01 February to 31 December 2009. When the term of collecting loan interests becomes due, the commercial banks shall directly deduct the amount of interests payable of customers which is equal to amount of loan interest entitled to the interest rate support. The SBV shall transfer the loan interests already used for interest rate support on the basis of the report on amount of interest rate support by commercial banks.
To be entitled to the interest rate support policy, the borrower, upon arising the first loan at the lending commercial banks within the time from 1 February to 31 December 2009, shall submit an application for the interest rate support to that commercial bank and request it to carry out the interest rate support policy. Commercial banks are required to implement the interest rate support in line with the provisions of Decision 31 and of Circular 02; to ensure the public, clear disclosure of the amount of interest rate support to borrowers.
Chairman of the BOM and the GD of commercial banks shall be responsible before the laws of Vietnam for implementation of the interest rate support policy not complying with the provisions of the applicable laws. With regards to the borrowers, if failing to use the loan funds for the right purpose, he shall not be entitled to the interest rate support and shall be required to refund the amount of previously supported loan interest to the commercial bank.
In addition, he shall also be responsible before the laws of Vietnam for his wrongful usage purpose of the loan. This interest rate support policy aims to reduce the cost of commodities and create new jobs in a move to alleviate the negative impact of the global recession.
On 03 February 2009, the State Bank of Vietnam (SBV) has issued Circular No. 02/2009/TT-NHNN (Circular 02) providing the detailed implementation of the interest rate support to individuals and enterprises borrowing loans from banks for trading and manufacturing purposes as provided for under Decision No. 31/QD-TTg (Decision 31) dated 23 January 2009 of the Prime Minister of Vietnam (PM).
According to Circular 02, individuals and enterprises who have short term VND loans (term of loan up to 12 months) with credit institutions, commercial banks (including foreign owned banks and branches of foreign banks in Vietnam) operating in Vietnam for trading and manufacturing purposes according to the loan agreements which are entered into and drawn down from 1 February to 31 December 2009 are eligible to this policy. Particularly, eligible individuals and enterprises shall be supported an anum interest rate of 4% of the outstanding loans within 08 months from the date of drawdown and the actual term of loan is from 01 February to 31 December 2009. When the term of collecting loan interests becomes due, the commercial banks shall directly deduct the amount of interests payable of customers which is equal to amount of loan interest entitled to the interest rate support. The SBV shall transfer the loan interests already used for interest rate support on the basis of the report on amount of interest rate support by commercial banks.
To be entitled to the interest rate support policy, the borrower, upon arising the first loan at the lending commercial banks within the time from 1 February to 31 December 2009, shall submit an application for the interest rate support to that commercial bank and request it to carry out the interest rate support policy. Commercial banks are required to implement the interest rate support in line with the provisions of Decision 31 and of Circular 02; to ensure the public, clear disclosure of the amount of interest rate support to borrowers.
Chairman of the BOM and the GD of commercial banks shall be responsible before the laws of Vietnam for implementation of the interest rate support policy not complying with the provisions of the applicable laws. With regards to the borrowers, if failing to use the loan funds for the right purpose, he shall not be entitled to the interest rate support and shall be required to refund the amount of previously supported loan interest to the commercial bank.
In addition, he shall also be responsible before the laws of Vietnam for his wrongful usage purpose of the loan. This interest rate support policy aims to reduce the cost of commodities and create new jobs in a move to alleviate the negative impact of the global recession.
Indonesia. BT Partnership
Warehouse Receipt as Alternative Trade Structured Financing.
In order to facilitate smoothness of production and distribution of goods, it is necessary to have warehouse receipt system as one of financing instrument. Considering these, Law No. 9/2006 regarding Warehouse Receipt System (or WR Law) was promulgated on 14 July 2006 and followed with promulgation of Government Regulation No. 36/2007 as the implementing regulation.
A warehouse receipt is a document of title issued by a warehouse manager covering commodities that are stored in a warehouse. The warehouse manager has a right to issue warehouse receipt and operates warehouse owned by them or other party, as well as performs storing and maintenance and supervision of commodities that are stored in such warehouses. In Indonesia, the warehouse manager must at least obtain license from Badan Pengawas Perdagangan Berjangka Komoditi (or Bappebti).
Warehouse receipt can be issued as script warehouse receipt or scriptless warehouse receipt. Scriptless warehouse receipt shall be recorded electronically and the holder shall receive proof of title registration from Lembaga Kliring Berjangka as the Registration Centre under WR Law.
Script warehouse receipt can be issued in 2 forms i.e. (i) Negotiable Warehouse Receipt (Resi Gudang Atas Perintah) which contains order/instruction of a party that has a right to receive delivery of the commodities; and (ii) Non-negotiable Warehouse Receipt (Resi Gudang Atas Nama) which states the name of a party that has a right to receive delivery of the commodities. Warehouse receipt may be transferred, used as delivery of commodities document, used to settle expiring future contract and eligible as collateral without requiring any other collateral.
After enactment of WR Law and its implementing regulation, many small size and mid size agribusiness owner have been getting financing from local and or foreign banks with warehouse receipt financing scheme. The scheme can be summarized as follows:
In order to facilitate smoothness of production and distribution of goods, it is necessary to have warehouse receipt system as one of financing instrument. Considering these, Law No. 9/2006 regarding Warehouse Receipt System (or WR Law) was promulgated on 14 July 2006 and followed with promulgation of Government Regulation No. 36/2007 as the implementing regulation.
A warehouse receipt is a document of title issued by a warehouse manager covering commodities that are stored in a warehouse. The warehouse manager has a right to issue warehouse receipt and operates warehouse owned by them or other party, as well as performs storing and maintenance and supervision of commodities that are stored in such warehouses. In Indonesia, the warehouse manager must at least obtain license from Badan Pengawas Perdagangan Berjangka Komoditi (or Bappebti).
Warehouse receipt can be issued as script warehouse receipt or scriptless warehouse receipt. Scriptless warehouse receipt shall be recorded electronically and the holder shall receive proof of title registration from Lembaga Kliring Berjangka as the Registration Centre under WR Law.
Script warehouse receipt can be issued in 2 forms i.e. (i) Negotiable Warehouse Receipt (Resi Gudang Atas Perintah) which contains order/instruction of a party that has a right to receive delivery of the commodities; and (ii) Non-negotiable Warehouse Receipt (Resi Gudang Atas Nama) which states the name of a party that has a right to receive delivery of the commodities. Warehouse receipt may be transferred, used as delivery of commodities document, used to settle expiring future contract and eligible as collateral without requiring any other collateral.
After enactment of WR Law and its implementing regulation, many small size and mid size agribusiness owner have been getting financing from local and or foreign banks with warehouse receipt financing scheme. The scheme can be summarized as follows:
- Agribusiness owner and the bank sign Financing Facility Agreement;
- Agribusiness owner, the bank and the warehouse manager sign Collateral Management Agreement;
- Commodities received in the warehouse by the warehouse manager under the terms of Collateral Management Agreement;
- Upon receipt of commodities, checking of quality and quantity of commodities, the warehouse manager shall issue warehouse receipt to the bank;
- Upon receipt of the warehouse receipt, the bank shall disburse the fund to pay the purchase of commodities from supplier;
- Agribusiness owner must repay all fund disbursed by the bank plus interest, penalties (if any), fees, expenses to the bank under the terms of Financing Facility Agreement;
- During the period of such financing, any release of commodities to buyer shall be performed under instruction of the bank;
- The warehouse manager shall release the commodities for delivery to buyer and upon receipt thereof, the buyer shall pay the commodities to the bank. If the agribusiness owner (debtor) breached the agreements and/or an event of default occurred, the bank shall have a right to sell the commodities in its own authority through public auction or direct sale.
Singapore. Loo & Partners
New Securities Listing Rules To Heighten Market Efficiency.
In July 2008, Singapore Exchange Limited (“SGX”) invited public comment on its proposed changes to securities listing rules. The proposed new rules, inter alia, introducing the listings of Life Science Companies (“LSC”) with no financial track record and revision of IPO distribution requirements, will allow for more alternatives that will widen the range of companies and product types listed on SGX. Following the public consultation, SGX had finalised the new listing rules and changes to securities listing rules. These changes will take effect on 24 March 2009. Some of the key new listing rules and requirements are: (1) removal of limit on capital structure; (2) revision of IPO distribution requirements; (3) introduction of new listing rules for LSC; (4) disclosure of details relating to profit guarantees or profit forecasts; and (5) disclosure of use of proceeds. The limit on the number of new shares from the exercise/conversion of outstanding convertibles will be removed to allow companies greater flexibility in determining their capital structure. At least 500 public shareholders shall be required for primary listings on the Mainboard. In the case of a secondary listing, the company shall be required to have at least either 500 shareholders in Singapore or 1,000 shareholders worldwide. SGX is introducing new admission rules and continuing listing requirements for LSC without financial track record. LSC wishing to list on the Mainboard will be required to demonstrate adequate working capital for its present requirements and for at least 12 months after listing. Companies are required to make immediate disclosure when the guaranteed profit level has, or has not, been met including material variations to the terms of agreement. Companies are also required to immediately announce the use of proceeds from fund raising exercises as and when they are materially disbursed, and whether the use is in accordance with what was previously announced.
In July 2008, Singapore Exchange Limited (“SGX”) invited public comment on its proposed changes to securities listing rules. The proposed new rules, inter alia, introducing the listings of Life Science Companies (“LSC”) with no financial track record and revision of IPO distribution requirements, will allow for more alternatives that will widen the range of companies and product types listed on SGX. Following the public consultation, SGX had finalised the new listing rules and changes to securities listing rules. These changes will take effect on 24 March 2009. Some of the key new listing rules and requirements are: (1) removal of limit on capital structure; (2) revision of IPO distribution requirements; (3) introduction of new listing rules for LSC; (4) disclosure of details relating to profit guarantees or profit forecasts; and (5) disclosure of use of proceeds. The limit on the number of new shares from the exercise/conversion of outstanding convertibles will be removed to allow companies greater flexibility in determining their capital structure. At least 500 public shareholders shall be required for primary listings on the Mainboard. In the case of a secondary listing, the company shall be required to have at least either 500 shareholders in Singapore or 1,000 shareholders worldwide. SGX is introducing new admission rules and continuing listing requirements for LSC without financial track record. LSC wishing to list on the Mainboard will be required to demonstrate adequate working capital for its present requirements and for at least 12 months after listing. Companies are required to make immediate disclosure when the guaranteed profit level has, or has not, been met including material variations to the terms of agreement. Companies are also required to immediately announce the use of proceeds from fund raising exercises as and when they are materially disbursed, and whether the use is in accordance with what was previously announced.
Malaysia. Tay & Partners
Stimulating Fund Raising
The Government recently announced an economic stimulus package to help Malaysia weather the current global economic crisis. Taking cognisance that more than half of the major world economies are in recession and experiencing possibly the worst crisis in 70 years, the Government unveiled a mini budget of RM60 billion, which accounts for almost 9% of Malaysia’s Gross Domestic Product.
Besides declaring fiscal as well as non fiscal policies, the Minister of Finance announced the liberalisation of regulatory policies and requirement. Primarily geared towards providing corporations with efficient and cost effective ways to raise funds in the capital market, dispensation from statutory and regulatory compliance was decreed. Rights issue by public companies listed on the stock exchange will no longer be subject to any prior approval from the Securities Commission (“SC”). Listed public companies are not free to raise capital from its existing shareholders once their proposed scheme is in place. Public companies not listed on the stock exchange and private companies received some cheer too. Previously, unlisted public companies were not spared from the requirement to obtain prior approval from SC before they offer any shares for subscription. Now, they are free to do so without SC’s prior approval. As for private limited companies, any proposed takeover is now free from the requirement enshrined in the Malaysian Code of Takeovers and Mergers 1998. Previously, mandatory or voluntary general offers must be made if the private limited company has a paid up share capital or shareholders’ fund of RM10 million or more and the consideration for the takeover is RM20 million or more. Issuers and intending issuers of bonds, Islamic and non Islamic ones, were also jumping with joy for 2 reasons. First, bondholders’ approved revision of terms and conditions governing the issuance of bonds and sukuk is no longer subject to any green light from SC. Instead, SC merely needs to be notified of such revision. Secondly, convertible and exchangeable bonds are no longer required to be rated by any rating house prior to issuance.
In the light of the uncertain future for capital markets globally, the recent liberalisation may not be the one and only this year. It may just be a matter of time that more liberalisation announcements are made, unless, of course, the global economy recovers swiftly.
The Government recently announced an economic stimulus package to help Malaysia weather the current global economic crisis. Taking cognisance that more than half of the major world economies are in recession and experiencing possibly the worst crisis in 70 years, the Government unveiled a mini budget of RM60 billion, which accounts for almost 9% of Malaysia’s Gross Domestic Product.
Besides declaring fiscal as well as non fiscal policies, the Minister of Finance announced the liberalisation of regulatory policies and requirement. Primarily geared towards providing corporations with efficient and cost effective ways to raise funds in the capital market, dispensation from statutory and regulatory compliance was decreed. Rights issue by public companies listed on the stock exchange will no longer be subject to any prior approval from the Securities Commission (“SC”). Listed public companies are not free to raise capital from its existing shareholders once their proposed scheme is in place. Public companies not listed on the stock exchange and private companies received some cheer too. Previously, unlisted public companies were not spared from the requirement to obtain prior approval from SC before they offer any shares for subscription. Now, they are free to do so without SC’s prior approval. As for private limited companies, any proposed takeover is now free from the requirement enshrined in the Malaysian Code of Takeovers and Mergers 1998. Previously, mandatory or voluntary general offers must be made if the private limited company has a paid up share capital or shareholders’ fund of RM10 million or more and the consideration for the takeover is RM20 million or more. Issuers and intending issuers of bonds, Islamic and non Islamic ones, were also jumping with joy for 2 reasons. First, bondholders’ approved revision of terms and conditions governing the issuance of bonds and sukuk is no longer subject to any green light from SC. Instead, SC merely needs to be notified of such revision. Secondly, convertible and exchangeable bonds are no longer required to be rated by any rating house prior to issuance.
In the light of the uncertain future for capital markets globally, the recent liberalisation may not be the one and only this year. It may just be a matter of time that more liberalisation announcements are made, unless, of course, the global economy recovers swiftly.
Philippines. SyCip Salazar Hernandez & Gatmaitan
Formulating a National Environmentally Sustainable Transport Program for the Philippines.
In an effort to further strengthen the policy on climate change, President Arroyo signed Administrative Order No. 254 on January 30, 2009. AO No. 254 was issued to supplement Executive Order No. 774 dated December 26, 2008. The latter reorganized the Philippine Task Force on Climate Change and mandated the Department of Transportation and Communication to lead a Task Group on Fossil Fuel (“TGFF”) for reformation of the transportation sector.
Under the Administrative Order, the functions of the TGFF were expounded. It shall act as the body primarily responsible for the effective coordination by various agencies of the government, international organizations, and the private sector pertaining to the formulation of the National Environmentally Sustainable Transport (“EST”) Strategy. Principally, the TGFF is tasked to reform the transport sector to reduce the consumption of fossil fuel. This is in line with the principle advocated nowadays that “Those who have less in wheels must have more in road”. For this purpose, the group shall establish a system which shall favor non-motorized locomotion and collective transportation system such as walking, bicycling, and the man-powered mini-train.
Pursuant to its principal function, the TGFF shall, among others, immediately transform roads using the abovestated principle; review the conformity of existing laws and regulations with established EST standards and provisions; identify, classify and prioritize programs toward realizing EST; identify and establish institutional and technical infrastructure requirement for the implementation of National EST Strategy; and coordinate and consult with Local Government Units, other government agencies, and the private sector for facilitation of the National EST Strategy. Through its program, the TGFF expects to bring down by fifty percent (50%) the consumption of fossil fuels within two (2) years from the issuance of EO 774.
The enactment of the Order is in line with the Philippines’ ratification of the United Nations Framework Convention on Climate Change (“UNFCCC”) and the Kyoto Protocol on August 2, 1994 and November 20, 2003, respectively. The UNFCCC is an international environmental treaty produced at the United Nations Conference on Environment and Development, informally known as the Earth Summit. It is aimed at stabilizing greenhouse gas (“GHG”) concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. The Kyoto Protocol, on the other hand, has set binding targets and committed thirty-seven (37) industrialized countries and the European community into reducing GHG emissions. These international agreements direct parties to report on the steps they are taking or envisage undertaking to implement the Convention. The Philippines submitted its first national declaration on May 19, 2000.
In an effort to further strengthen the policy on climate change, President Arroyo signed Administrative Order No. 254 on January 30, 2009. AO No. 254 was issued to supplement Executive Order No. 774 dated December 26, 2008. The latter reorganized the Philippine Task Force on Climate Change and mandated the Department of Transportation and Communication to lead a Task Group on Fossil Fuel (“TGFF”) for reformation of the transportation sector.
Under the Administrative Order, the functions of the TGFF were expounded. It shall act as the body primarily responsible for the effective coordination by various agencies of the government, international organizations, and the private sector pertaining to the formulation of the National Environmentally Sustainable Transport (“EST”) Strategy. Principally, the TGFF is tasked to reform the transport sector to reduce the consumption of fossil fuel. This is in line with the principle advocated nowadays that “Those who have less in wheels must have more in road”. For this purpose, the group shall establish a system which shall favor non-motorized locomotion and collective transportation system such as walking, bicycling, and the man-powered mini-train.
Pursuant to its principal function, the TGFF shall, among others, immediately transform roads using the abovestated principle; review the conformity of existing laws and regulations with established EST standards and provisions; identify, classify and prioritize programs toward realizing EST; identify and establish institutional and technical infrastructure requirement for the implementation of National EST Strategy; and coordinate and consult with Local Government Units, other government agencies, and the private sector for facilitation of the National EST Strategy. Through its program, the TGFF expects to bring down by fifty percent (50%) the consumption of fossil fuels within two (2) years from the issuance of EO 774.
The enactment of the Order is in line with the Philippines’ ratification of the United Nations Framework Convention on Climate Change (“UNFCCC”) and the Kyoto Protocol on August 2, 1994 and November 20, 2003, respectively. The UNFCCC is an international environmental treaty produced at the United Nations Conference on Environment and Development, informally known as the Earth Summit. It is aimed at stabilizing greenhouse gas (“GHG”) concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. The Kyoto Protocol, on the other hand, has set binding targets and committed thirty-seven (37) industrialized countries and the European community into reducing GHG emissions. These international agreements direct parties to report on the steps they are taking or envisage undertaking to implement the Convention. The Philippines submitted its first national declaration on May 19, 2000.
China. Paul Weiss
Amended Telecoms Permit Regulations Reduce Market Entry Requirements but Increase Responsibilities for Basic Telecommunications Services Operators.
On March 1, 2009, China’s Ministry of Information and Industry Technology (“MIIT”) issued the amended Measures on the Administration of Telecommunications Business Operating Permits (the “Amended Measures”). The Amended Measures entered into effect on April 1, 2009, and replaced the original Measures issued on December 2, 2001 (the “2001 Measures”).
The 2001 Measures detailed the requirements to engage in telecommunications services (“TS”) in China and were one of the first regulations issued by the Chinese government after China acceded to the World Trade Organization (“WTO”). The Amended Measures reflect the Chinese government’s experience in administering the TS industry for the past eight years and commitment to lowering market entry thresholds for basic telecommunications services (“BTS”) providers and protecting consumers.
PRC telecommunications services are divided into two major categories: BTS and value-added telecommunications services (“VATS”). The Amended Measures lower the capital requirement for operating BTS locally from RMB200 million to RMB100 million and for operating BTS nationally from RMB2 billion to RMB1 billion. The capital requirements under the 2001 Measures have long been viewed as unreasonably high and a barrier to entry for the BTS industry. The reduction in capital requirement will promote greater investment and competition in the BTS industry. In addition, the capital requirements for operating BTS under the Amended Measures are now consistent with those under the 2008 amended Regulations for the Administration of Foreign-Invested Telecommunications Enterprises (the “FITE Regulations”). Currently, despite China’s commitment to open up the BTS industry pursuant to China’s accession to the WTO, MIIT does not accept applications from foreign investors to engage in BTS in China, and this could partly be due to the inconsistency between the capital requirements under the Measures and the FITE Regulations. Once the Amended Measures enter into effect, MIIT might start accepting applications from foreign investors for BTS permits.
Under the Amended Measures, a BTS operator is required to supervise and manage the content and fees for the services provided by the VATS operators which cooperate with, or engage the services of, such BTS operator and to establish a system to monitor VATS operators’ conduct. In the Chinese TS industry, it is common for BTS operators to operate the infrastructure (e.g., network) on which the VATS operators provide their services. Hence, a VATS operator generally needs to cooperate with, or engage the services of, a BTS operator. During the past few years, the number of VATS operators increased dramatically, and many VATS operators resorted to business practices that are harmful to consumers in order to survive in this highly competitive industry. This resulted in wide-spread consumer dissatisfaction in China. In the past, MIIT was the official regulator of VATS operators, with BTS operators generally only supporting MIIT’s efforts unofficially and verifying whether the relevant VATS operators using its services are properly licensed. With the Amended Measures, MIIT would officially be shifting some of the burden of monitoring VATS operators to BTS operators, who are closer to the VATS operators.
Even though the Amended Measures do not introduce major changes, they should satisfy both proponents of relaxing entry barriers for BTS and proponents of consumer protection.
On March 1, 2009, China’s Ministry of Information and Industry Technology (“MIIT”) issued the amended Measures on the Administration of Telecommunications Business Operating Permits (the “Amended Measures”). The Amended Measures entered into effect on April 1, 2009, and replaced the original Measures issued on December 2, 2001 (the “2001 Measures”).
The 2001 Measures detailed the requirements to engage in telecommunications services (“TS”) in China and were one of the first regulations issued by the Chinese government after China acceded to the World Trade Organization (“WTO”). The Amended Measures reflect the Chinese government’s experience in administering the TS industry for the past eight years and commitment to lowering market entry thresholds for basic telecommunications services (“BTS”) providers and protecting consumers.
PRC telecommunications services are divided into two major categories: BTS and value-added telecommunications services (“VATS”). The Amended Measures lower the capital requirement for operating BTS locally from RMB200 million to RMB100 million and for operating BTS nationally from RMB2 billion to RMB1 billion. The capital requirements under the 2001 Measures have long been viewed as unreasonably high and a barrier to entry for the BTS industry. The reduction in capital requirement will promote greater investment and competition in the BTS industry. In addition, the capital requirements for operating BTS under the Amended Measures are now consistent with those under the 2008 amended Regulations for the Administration of Foreign-Invested Telecommunications Enterprises (the “FITE Regulations”). Currently, despite China’s commitment to open up the BTS industry pursuant to China’s accession to the WTO, MIIT does not accept applications from foreign investors to engage in BTS in China, and this could partly be due to the inconsistency between the capital requirements under the Measures and the FITE Regulations. Once the Amended Measures enter into effect, MIIT might start accepting applications from foreign investors for BTS permits.
Under the Amended Measures, a BTS operator is required to supervise and manage the content and fees for the services provided by the VATS operators which cooperate with, or engage the services of, such BTS operator and to establish a system to monitor VATS operators’ conduct. In the Chinese TS industry, it is common for BTS operators to operate the infrastructure (e.g., network) on which the VATS operators provide their services. Hence, a VATS operator generally needs to cooperate with, or engage the services of, a BTS operator. During the past few years, the number of VATS operators increased dramatically, and many VATS operators resorted to business practices that are harmful to consumers in order to survive in this highly competitive industry. This resulted in wide-spread consumer dissatisfaction in China. In the past, MIIT was the official regulator of VATS operators, with BTS operators generally only supporting MIIT’s efforts unofficially and verifying whether the relevant VATS operators using its services are properly licensed. With the Amended Measures, MIIT would officially be shifting some of the burden of monitoring VATS operators to BTS operators, who are closer to the VATS operators.
Even though the Amended Measures do not introduce major changes, they should satisfy both proponents of relaxing entry barriers for BTS and proponents of consumer protection.
May 22, 2010
DLA Piper builds up Abu Dhabi expertise
DLA Piper has recruited former Allen & Overy project finance and Islamic finance expert Shehzaad Sacranie as a partner in the firm’s Abu Dhabi office.
The move is a welcome enhancement of the Islamic finance practice following the departure of former global Islamic finance head Oliver Agha last year.
It is the third addition to Abu Dhabi in recent times, following the moves of technology and sourcing partner Hinal Patel and immigration specialist Kerry Scott-Patel.
The move is a welcome enhancement of the Islamic finance practice following the departure of former global Islamic finance head Oliver Agha last year.
It is the third addition to Abu Dhabi in recent times, following the moves of technology and sourcing partner Hinal Patel and immigration specialist Kerry Scott-Patel.
Bae, Kim & Lee appoints former judges
Korea-based Bae, Kim & Lee says that a rush of work has been flooding into the firm since February, and has made a number of appointments to meet its needs in its litigation, international arbitration and white collar crime practices.
Three former judges – Ki Dong Joo, Jun Mo Kim and Hyun Chul Koh – have joined the firm, as have former Jisung Horizon M&A lawyer Byoung Ki Lee, and magna cum laude graduate from the Judicial Research and Training Institute Byoung Pil Kim.
Unlike in other regions, Korean lawyers may begin their careers as judges before moving into private practice.
Three former judges – Ki Dong Joo, Jun Mo Kim and Hyun Chul Koh – have joined the firm, as have former Jisung Horizon M&A lawyer Byoung Ki Lee, and magna cum laude graduate from the Judicial Research and Training Institute Byoung Pil Kim.
Unlike in other regions, Korean lawyers may begin their careers as judges before moving into private practice.
Linklaters lawyer on board as Etihad GC
Former Linklaters lawyer Jim Callaghan has been appointed general counsel of airline Etihad.
Before joining Etihad, Callaghan specialised in European and competition law while based in Linklaters’ Brussels office and later moved to European budget airline, Ryanair as director of legal affairs in 2000. He has also worked with US firms Balzarini Carey & Watson and Buchanan Ingersoll & Rooney.
Callaghan will be based in Abu Dhabi reporting to Etihad CEO James Hogan.
Before joining Etihad, Callaghan specialised in European and competition law while based in Linklaters’ Brussels office and later moved to European budget airline, Ryanair as director of legal affairs in 2000. He has also worked with US firms Balzarini Carey & Watson and Buchanan Ingersoll & Rooney.
Callaghan will be based in Abu Dhabi reporting to Etihad CEO James Hogan.
Walkers boosts Singapore office
Offshore law firm Walkers has transferred senior funds lawyer Laura Rogers from Hong Kong to the Singapore office in anticipation of an increase in legal work in the corporate restructuring and funds practices.
Singapore managing partner Ashley Gunning said the firm expects a rise in funds work in line with other Walkers offices. “Our offices in the Cayman Islands and more recently Hong Kong have experienced an increase in hedge funds restructuring work related to the illiquidity in the market and the difficulties in valuation. We anticipate more work of that nature in Singapore.”
The appointment will bring the number of lawyers in the office to three, but the firm expects to make more appointments by the end of the year.
Singapore managing partner Ashley Gunning said the firm expects a rise in funds work in line with other Walkers offices. “Our offices in the Cayman Islands and more recently Hong Kong have experienced an increase in hedge funds restructuring work related to the illiquidity in the market and the difficulties in valuation. We anticipate more work of that nature in Singapore.”
The appointment will bring the number of lawyers in the office to three, but the firm expects to make more appointments by the end of the year.
Morgan Stanley appointee enhances Blake Dawson’s Asia connections
Blake Dawson has achieved a significant coup with the appointment of well-connected lawyer Greg Terry, who will be based in the firm's Indonesia office. Terry joins the firm from Morgan Stanley Asia, where he was initially general counsel and then Southeast Asia chairman.
Blake Dawson’s boost to the Jakarta office was a strategic move to meet an anticipated rise in energy and resources work. “There’s a lot more activity happening in Indonesia in the cross-border M&A field than there is in most other countries in the region. So there are still opportunities even in a difficult market, especially in Jakarta,” Terry said.
“Being in this region for the better part of 40 years I’ve got to meet most of the major families in Asia and those running corporations. I hope I’ll be able to attract into the firm friends and others in the region who have been involved in the global legal market.”
Blake Dawson’s boost to the Jakarta office was a strategic move to meet an anticipated rise in energy and resources work. “There’s a lot more activity happening in Indonesia in the cross-border M&A field than there is in most other countries in the region. So there are still opportunities even in a difficult market, especially in Jakarta,” Terry said.
“Being in this region for the better part of 40 years I’ve got to meet most of the major families in Asia and those running corporations. I hope I’ll be able to attract into the firm friends and others in the region who have been involved in the global legal market.”
Fulbright promotes two partners in Hong Kong
Fulbright & Jaworski has elevated nine senior associates and four senior counsel from core practice areas to join the firm’s global partnership.
Two of the new partners are based in Hong Kong, Zhang Jie of the corporate group and Ben McQuhae of the energy & real estate group.
Both have experience in advising multinational clients in oil & gas-related transactions and projects. However, Zhang handles M&A transactions, joint ventures, cross-border investments and structured finance, primarily involving the People’s Republic of China, while McQuhae’s practice has a clear focus on oil & gas, coal and other energy-related transactions in Asia.
Two of the new partners are based in Hong Kong, Zhang Jie of the corporate group and Ben McQuhae of the energy & real estate group.
Both have experience in advising multinational clients in oil & gas-related transactions and projects. However, Zhang handles M&A transactions, joint ventures, cross-border investments and structured finance, primarily involving the People’s Republic of China, while McQuhae’s practice has a clear focus on oil & gas, coal and other energy-related transactions in Asia.
Galaxy GC joins Proskauer Rose in Hong Kong
Proskauer Rose has announced that Jim Chapman will join the firm as a partner in its lodging and gaming practice group.
Before joining Proskauer, Chapman was the general counsel of Galaxy Entertainment Group, one of Asia’s leading gaming and entertainment companies. Chapman has been involved in some of the most high-profile gaming, hotel and resort development transactions in the region, including the 44-hectare mixed-use Galaxy Macau project currently underway in Cotai, Macau. Chapman was also previously a partner at JSM.
The addition of Chapman will mean the firm now has four partners (including office managing partner Yuval Tal) and one associate (Sara Shen) on the ground in Hong Kong.
Before joining Proskauer, Chapman was the general counsel of Galaxy Entertainment Group, one of Asia’s leading gaming and entertainment companies. Chapman has been involved in some of the most high-profile gaming, hotel and resort development transactions in the region, including the 44-hectare mixed-use Galaxy Macau project currently underway in Cotai, Macau. Chapman was also previously a partner at JSM.
The addition of Chapman will mean the firm now has four partners (including office managing partner Yuval Tal) and one associate (Sara Shen) on the ground in Hong Kong.
Clyde & Co adds two to Gulf offices
Clyde & Co has added two new Middle East-based partners, Peter Hodgins in the area of Islamic insurance (Takaful) and Scott Aitken in property.
Hodgins is the latest in a succession of departures from DLA Piper, where he was involved in the establishment of the firm’s affiliated office in Riyadh. Before this, he worked in the insurance practices of Clifford Chance and UK firm Reynold Porter Chamberlain. He will join a Clyde & Co insurance group that has six partners and 12 lawyers.
Aitken will head the firm’s four-lawyer real estate practice in Abu Dhabi. Before joining Clyde & Co, Aitken spent five years working for Australian firms Mallesons Stephen Jaques and Clayton Utz.
Hodgins is the latest in a succession of departures from DLA Piper, where he was involved in the establishment of the firm’s affiliated office in Riyadh. Before this, he worked in the insurance practices of Clifford Chance and UK firm Reynold Porter Chamberlain. He will join a Clyde & Co insurance group that has six partners and 12 lawyers.
Aitken will head the firm’s four-lawyer real estate practice in Abu Dhabi. Before joining Clyde & Co, Aitken spent five years working for Australian firms Mallesons Stephen Jaques and Clayton Utz.
Freshfields fills top Asia post after three years
Freshfields has appointed partner Simon Marchant as its new Asia managing partner, a position which has been left vacant for three years.
Marchant, a London-based M&A specialist, will transfer to the Hong Kong office later this year. He will take over the role that was vacated after partner Perry Noble stepped down from the position in 2006. “Recently the emphasis for us in Asia has been on building the business on a country-bycountry basis – focusing on the dynamics of the local markets,” he said. “That has been hugely successful. But our clients are increasingly looking to us to help them across the region, and indeed inter-regionally. That, combined with the increasing size of our business in Asia, has led us to conclude that now was the right time to reinstate the regional role.”
Marchant, a London-based M&A specialist, will transfer to the Hong Kong office later this year. He will take over the role that was vacated after partner Perry Noble stepped down from the position in 2006. “Recently the emphasis for us in Asia has been on building the business on a country-bycountry basis – focusing on the dynamics of the local markets,” he said. “That has been hugely successful. But our clients are increasingly looking to us to help them across the region, and indeed inter-regionally. That, combined with the increasing size of our business in Asia, has led us to conclude that now was the right time to reinstate the regional role.”
Latham transfers partner to Middle East
Latham & Watkins has moved partner Philip von Randow to its Doha office from Frankfurt as finance and restructuring work increases in the Middle East.
Corporate transactions lawyer Von Randow said his relocation to the Middle East is timely, since Latham & Watkins is capitalising on the rising number of Europe/Middle East cross-border finance opportunities. “We are already involved in very major restructuring efforts in the region and have also provided assistance to major cross-border investment/finance transactions regarding financial institutions,” Von Randow said.
Corporate transactions lawyer Von Randow said his relocation to the Middle East is timely, since Latham & Watkins is capitalising on the rising number of Europe/Middle East cross-border finance opportunities. “We are already involved in very major restructuring efforts in the region and have also provided assistance to major cross-border investment/finance transactions regarding financial institutions,” Von Randow said.
KhattarWong picks up former DLA Piper lawyer
KhattarWong has announced the appointment of former DLA Piper lawyer Tan Choon Leng to its corporate & securities laws department.
Tan’s practice includes advising MNCs, funds and banks on their Southeast Asian matters, with an emphasis on distressed situations, restructurings, work-outs and M&A transactions, in what is a clear sign of where KhattarWong’s priorities lie at the moment.
Tan’s practice includes advising MNCs, funds and banks on their Southeast Asian matters, with an emphasis on distressed situations, restructurings, work-outs and M&A transactions, in what is a clear sign of where KhattarWong’s priorities lie at the moment.
May 19, 2010
Deheng raids US firm for international chief
Qingdao-headquartered Deheng Law Firm has welcomed Liu Jiqing, former resident partner and chief representative of Baker & Daniels Beijing representative office, to lead its international team.
Liu is the first foreign lawyer to be hired by Deheng, and is licensed to practise in Washington, Michigan and Indiana. He will be based in the Beijing office and plans to start a new IP team. Deheng plans to move its headquarters from Qingdao to Beijing in a series of staged transitions.
Liu is the first foreign lawyer to be hired by Deheng, and is licensed to practise in Washington, Michigan and Indiana. He will be based in the Beijing office and plans to start a new IP team. Deheng plans to move its headquarters from Qingdao to Beijing in a series of staged transitions.
’Law village’ quickly turning into city
Yulchon may literally mean ‘Law village’, but judging from the scale of recent lateral hires it looks set to become a ‘Law city’ rather quickly. The firm has announced the addition of six high-profile senior lawyers, including three former public prosecutors and two former judges. Tae Hyeon Kim, Jeong Yeol Choe, Jeong Cheol Cho, Kum Ju Son, Su Jae Lee and foreign legal consultant John KJ Kim have all joined with immediate effect.
Tae Hyeon Kim, Jeong Cheol Cho and Su Jae Lee are all former public prosecutors. Kim previously served as chief public prosecutor at the Busan District Public Prosecutor’s Office and president of the Legal Research and Training Institute, while Lee was formerly a public prosecutor at both the Seoul Nambu and Yeongwol Prosecutor’s Offices. Cho has also served as a superintendent public prosecutor.
Jeong Yeol Choe and Kum Ju Son are the former judges. Choe has served in several district courts in addition to serving as a patent court judge, while Son has served in several courts. John KJ Kim joins as a senior foreign counsel. Kim joins from Kim & Chang in Seoul.
Tae Hyeon Kim, Jeong Cheol Cho and Su Jae Lee are all former public prosecutors. Kim previously served as chief public prosecutor at the Busan District Public Prosecutor’s Office and president of the Legal Research and Training Institute, while Lee was formerly a public prosecutor at both the Seoul Nambu and Yeongwol Prosecutor’s Offices. Cho has also served as a superintendent public prosecutor.
Jeong Yeol Choe and Kum Ju Son are the former judges. Choe has served in several district courts in addition to serving as a patent court judge, while Son has served in several courts. John KJ Kim joins as a senior foreign counsel. Kim joins from Kim & Chang in Seoul.
K&L Gates acquires DLA Piper partner for Singapore launch
K&L Gates has launched an office in Singapore and appointed former DLA Piper partner Kevin J Murphy to head the corporate practice.
Murphy will manage the new office’s corporate and restructuring practice, and bring his longstanding clients to the firm. Murphy said that despite the impact of the financial crisis in Singapore, the new office had long been on the cards. “The firm had been planning to open a Singapore office for some time and did not believe the recent economic crisis should change those plans. Unlike many firms, 2008 was a good year for K&L Gates and I anticipate 2009 to be a very good year for the Singapore office,” he said.
In addition to Murphy, the office will also employ corporate partners James Chen, Sin Khai Tan and Choo Lye Tan, who will be supported by lawyers from the firms’ London office on transactions.
Murphy will manage the new office’s corporate and restructuring practice, and bring his longstanding clients to the firm. Murphy said that despite the impact of the financial crisis in Singapore, the new office had long been on the cards. “The firm had been planning to open a Singapore office for some time and did not believe the recent economic crisis should change those plans. Unlike many firms, 2008 was a good year for K&L Gates and I anticipate 2009 to be a very good year for the Singapore office,” he said.
In addition to Murphy, the office will also employ corporate partners James Chen, Sin Khai Tan and Choo Lye Tan, who will be supported by lawyers from the firms’ London office on transactions.
Recent developments in arbitration law
Party autonomy is one of the important guiding principles in arbitration. It is common for parties to specify in the dispute resolution clause of a contract how the arbitral tribunal is to be constituted and the manner in which the arbitration proper should be conducted etc. What happens, however, when an arbitration agreement provides for the arbitration to be administered by one arbitral institution, yet provides for the arbitration to be governed by the rules of another?
In the recent case of Insigma Technology Co Ltd v. Alstom Technology [2009] 1 SLR 23, the Singapore High Court dealt with this issue. A dispute arose under a license agreement which provided for disputes to be resolved by arbitration before the Singapore International Arbitration Centre (“SIAC”) in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) then in effect. The Tribunal was constituted according to the SIAC Rules, and ruled (on a preliminary issue) that there was a valid arbitration agreement and that the reference could be administered by the SIAC, applying the ICC Rules.
On appeal, the High Court held that parties had not bargained for an ICC institutional arbitration, but rather, an SIAC-administered ad hoc arbitration which applied the rules of the ICC. The Court observed that there was in principle, no problem with one institution administering arbitration proceedings in accordance with another set of rules chosen by the parties. The supervising or administering authority and the procedural rules do not have to be from the same institution, so long as the choices made do not result in significant inconsistency. On the facts of the case, there was no inconsistency as the SIAC confirmed that it would be able to follow the ICC Rules by substituting the appropriate corresponding actors to perform the functions of or match the apparatus of the ICC Secretariat, Secretary-General and the Court.
The decision yet again shows that the Court’s approach is to give effect, as far as possible, to the intention of the parties as expressed in the language of the arbitration agreement.
In the recent case of Insigma Technology Co Ltd v. Alstom Technology [2009] 1 SLR 23, the Singapore High Court dealt with this issue. A dispute arose under a license agreement which provided for disputes to be resolved by arbitration before the Singapore International Arbitration Centre (“SIAC”) in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) then in effect. The Tribunal was constituted according to the SIAC Rules, and ruled (on a preliminary issue) that there was a valid arbitration agreement and that the reference could be administered by the SIAC, applying the ICC Rules.
On appeal, the High Court held that parties had not bargained for an ICC institutional arbitration, but rather, an SIAC-administered ad hoc arbitration which applied the rules of the ICC. The Court observed that there was in principle, no problem with one institution administering arbitration proceedings in accordance with another set of rules chosen by the parties. The supervising or administering authority and the procedural rules do not have to be from the same institution, so long as the choices made do not result in significant inconsistency. On the facts of the case, there was no inconsistency as the SIAC confirmed that it would be able to follow the ICC Rules by substituting the appropriate corresponding actors to perform the functions of or match the apparatus of the ICC Secretariat, Secretary-General and the Court.
The decision yet again shows that the Court’s approach is to give effect, as far as possible, to the intention of the parties as expressed in the language of the arbitration agreement.
May 15, 2010
Vietnam – IPR enforcement
Vietnam’s phenomenal economic growth in recent years resulted in a larger base for consumer and business products. While the economic growth has spurred the development and commercialization of intellectual property rights, Vietnam has also witnessed steady increases in intellectual property infringement and counterfeiting. Competitive labour cost and a large population pool creates an ideal environment for counterfeiters to use Vietnam as a manufacturing base.
The Enforcement Regime
The responsibility of anti-counterfeiting falls mainly on the Market Management Board and the Economic Police. Both government agencies are given the powers to conduct raids against suppliers of counterfeit products. While there is overlapping authority, the Economic Police generally targets their actions against large counterfeiters while the Market Management Board focuses on retail counterfeiting.
The Vietnam Customs also play a pivotal role in preventing the entry of counterfeit products into the country. Counterfeit products are commonly smuggled into Vietnam from the China-Vietnam border as well as key ports like Hai Phong and Da Nang. In 2007 and 2008, the Vietnam Customs have successful stopped the entry of counterfeit Nokia accessories into the country. The Customs’ powers to conduct raids and seizures exceeds beyond the port area. Unlike some countries in Southeast Asia, where the Customs jurisdiction is generally limited to detention of products in the ports, the Vietnam Customs is empowered to conduct investigations against import related offences. Hence, their powers include conducting raids against distributors in key cities if the matter arises from a Customs investigation.
The penalties for counterfeiting include fines and imprisonment. However, in practice, fines are much more common. Such fines range from a few hundred US dollars for retail counterfeiters to a few thousand for larger distributors and manufacturers.
The Role of the IPR Owners
Most IPR owners with endemic counterfeiting problems in Vietnam usually have an anti-counterfeiting programme. Such programmes usually entail aggressive anticounterfeiting raids against manufacturers, importers and key distributors. IPR owners would engage legal counsels and investigators, which would work in cooperation with the Economic Police and Market Management Board to ensure the successful prosecution of counterfeiters.
The Enforcement Regime
The responsibility of anti-counterfeiting falls mainly on the Market Management Board and the Economic Police. Both government agencies are given the powers to conduct raids against suppliers of counterfeit products. While there is overlapping authority, the Economic Police generally targets their actions against large counterfeiters while the Market Management Board focuses on retail counterfeiting.
The Vietnam Customs also play a pivotal role in preventing the entry of counterfeit products into the country. Counterfeit products are commonly smuggled into Vietnam from the China-Vietnam border as well as key ports like Hai Phong and Da Nang. In 2007 and 2008, the Vietnam Customs have successful stopped the entry of counterfeit Nokia accessories into the country. The Customs’ powers to conduct raids and seizures exceeds beyond the port area. Unlike some countries in Southeast Asia, where the Customs jurisdiction is generally limited to detention of products in the ports, the Vietnam Customs is empowered to conduct investigations against import related offences. Hence, their powers include conducting raids against distributors in key cities if the matter arises from a Customs investigation.
The penalties for counterfeiting include fines and imprisonment. However, in practice, fines are much more common. Such fines range from a few hundred US dollars for retail counterfeiters to a few thousand for larger distributors and manufacturers.
The Role of the IPR Owners
Most IPR owners with endemic counterfeiting problems in Vietnam usually have an anti-counterfeiting programme. Such programmes usually entail aggressive anticounterfeiting raids against manufacturers, importers and key distributors. IPR owners would engage legal counsels and investigators, which would work in cooperation with the Economic Police and Market Management Board to ensure the successful prosecution of counterfeiters.
New exchange set up to aid Chinese trading
China’s growing appetite for energy and resources has led to the set up of the Hong Kong Mercantile Exchange (HKMEx) to bridge the gap between the international commodities markets and China.
It provides an efficient and transparent pricing platform for end-users and the global trading community to trade tailor-made contracts, hedge pricing risks in China and across the region, lower transactions costs and increase participation by Chinese and international commodities traders.
To ensure its smooth and efficient operation, and the implementation of its future growth strategy, the new exchange has appointed Ann Cresce as general counsel and head of compliance.
“Ann’s appointment adds more depth to our team as we continue building Hong Kong’s commodities exchange,” said HKMEx chairman Barry Cheung. “Compliance is a critical element to ensure the integrity of the exchange and we are extremely pleased to have someone of Ann’s calibre join us.”
Cresce is responsible for managing all legal and regulatory functions for HKMEx. She joined from the Chicago Climate Exchange, where she was senior vice president and general counsel, overseeing all legal affairs pertaining to domestic and foreign business development, corporate matters, regulatory issues, intellectual property, and human resource issues.
“Nothing better anticipates the future in the exchange industry than the establishment of a commodities marketplace in Hong Kong. I am very excited about the prospects for HKMEx,” Cresce said.
It provides an efficient and transparent pricing platform for end-users and the global trading community to trade tailor-made contracts, hedge pricing risks in China and across the region, lower transactions costs and increase participation by Chinese and international commodities traders.
To ensure its smooth and efficient operation, and the implementation of its future growth strategy, the new exchange has appointed Ann Cresce as general counsel and head of compliance.
“Ann’s appointment adds more depth to our team as we continue building Hong Kong’s commodities exchange,” said HKMEx chairman Barry Cheung. “Compliance is a critical element to ensure the integrity of the exchange and we are extremely pleased to have someone of Ann’s calibre join us.”
Cresce is responsible for managing all legal and regulatory functions for HKMEx. She joined from the Chicago Climate Exchange, where she was senior vice president and general counsel, overseeing all legal affairs pertaining to domestic and foreign business development, corporate matters, regulatory issues, intellectual property, and human resource issues.
“Nothing better anticipates the future in the exchange industry than the establishment of a commodities marketplace in Hong Kong. I am very excited about the prospects for HKMEx,” Cresce said.
Japanese still shop overseas
Japanese conglomerates remain relatively strong, with a number boasting the cash and appetite for overseas acquisitions.
This is evident in the US$211m investment by Japan Uranium Management (JUM) in Uranium One, a Canadian-listed producer and marketer of uranium. JUM is a consortium established by three Japanese companies – Toshiba Corporation, Tokyo Electric Power Company and the Japan Bank for International Cooperation – as a special purpose entity in British Columbia, Canada.
The group has agreed to subscribe to a new share issue of 117 million shares in Uranium One, a holding of about 19.95%. Upon completion, Tokyo Electric and Toshiba will each hold 40% of JUM’s shares, and the Japan Bank for International Cooperation 20%. Baker & McKenzie partners Anne Hung (Tokyo), Roslyn Tom (New York) and Nurhan Aycan (Toronto) acted for JUM.
Stephen Bohrer, a counsel at Japanese ‘Big Four’ firm Nishimura & Asahi, said the scene is set for more of the same throughout 2009.
“The huge inbound investment in Japan… means that there are a number of Japanese companies with a lot of cash on their balance sheets,” he said. “They are realising that now is perhaps a once-in-a-business-cycle opportunity to snap up some companies that otherwise would have been prohibitively expensive.”
However, price is not the only issue. The relative strength of the yen coupled with limited opportunities for growth in Japan mean that such deals are a viable way to diversify their interests globally.
“A lot of the transactional activity we’re seeing at the moment is a result of Japanese companies wanting to extend overseas and this is about them being able to support their growth going forward,” Bohrer said. “There may be no comparative cost advantage for them going overseas but, strategically, it’s vital for their survival.”
This is evident in the US$211m investment by Japan Uranium Management (JUM) in Uranium One, a Canadian-listed producer and marketer of uranium. JUM is a consortium established by three Japanese companies – Toshiba Corporation, Tokyo Electric Power Company and the Japan Bank for International Cooperation – as a special purpose entity in British Columbia, Canada.
The group has agreed to subscribe to a new share issue of 117 million shares in Uranium One, a holding of about 19.95%. Upon completion, Tokyo Electric and Toshiba will each hold 40% of JUM’s shares, and the Japan Bank for International Cooperation 20%. Baker & McKenzie partners Anne Hung (Tokyo), Roslyn Tom (New York) and Nurhan Aycan (Toronto) acted for JUM.
Stephen Bohrer, a counsel at Japanese ‘Big Four’ firm Nishimura & Asahi, said the scene is set for more of the same throughout 2009.
“The huge inbound investment in Japan… means that there are a number of Japanese companies with a lot of cash on their balance sheets,” he said. “They are realising that now is perhaps a once-in-a-business-cycle opportunity to snap up some companies that otherwise would have been prohibitively expensive.”
However, price is not the only issue. The relative strength of the yen coupled with limited opportunities for growth in Japan mean that such deals are a viable way to diversify their interests globally.
“A lot of the transactional activity we’re seeing at the moment is a result of Japanese companies wanting to extend overseas and this is about them being able to support their growth going forward,” Bohrer said. “There may be no comparative cost advantage for them going overseas but, strategically, it’s vital for their survival.”
“There are a number of Japanese companies with a lot of cash on their balance sheets”Stephen Bohrer, Nishimura & Asahi
May 7, 2010
In-House Legal Counsel and Corporate IT
It has long been recognized, the importance of corporate IT services, to the success of the in house corporate legal function, and the criticality for timeliness, and accuracy to in-house legal departments, and indeed external corporate legal requests.
Requests for information, evidence and data audit results, have typically been a reactive, urgent matter, for internal IT resources “as we need the information yesterday”, and possible litigation and corporate risk are imminent.
IT professionals, network specialists, digital investigators are continually being asked to provide information, urgently, and typically, involving the acquisition and collection of information from near ancient IT infrastructures, where a myriad of independent information silos, operating systems, access rights, ensure the task is arduous at best.
Many corporations, however, are taking a much more proactive position, and in fact deploying an investigative infrastructure that, with minimal cost, or maintenance, can address up to 90% of in house legal requests, in less than half the time, while dramatically reducing existing legal corporate costs.
The key component to an investigative infrastructure, is a scalable, network enabled technology, which is purpose built, specifically for evidence and data collection functions. The very same infrastructure can also drive network data audits, data leakage identification and the remediation or erasure of unauthorized data.
In reality, Asian corporations are not faced with the same degree of litigious actions as counterparts in, say the US, or Europe, but nonetheless still require equivalent levels of defensible, accurate, and timely information collection. Multinational corporations are also required to adhere to there corporate head office requests, such as eDiscovery.
IT professionals, together with Security Administrators, are fast deploying infrastructures whereby investigations and evidence collection can be done network wide from a single end point, or computer, to a regional multi machine search and evidence collection process that does not cause disruption, or downtime to computers or servers. This infrastructure can be pushed out to existing IT networks, and do not require IT overhauls, nor significant capital expenditures.
Everything from fraud investigations, or digital forensics, to legal discovery or “eDiscovery” can be performed across entire networks, at lightning speed, freeing in house counsels to concentrate on the legal review process.
Requests for information, evidence and data audit results, have typically been a reactive, urgent matter, for internal IT resources “as we need the information yesterday”, and possible litigation and corporate risk are imminent.
IT professionals, network specialists, digital investigators are continually being asked to provide information, urgently, and typically, involving the acquisition and collection of information from near ancient IT infrastructures, where a myriad of independent information silos, operating systems, access rights, ensure the task is arduous at best.
Many corporations, however, are taking a much more proactive position, and in fact deploying an investigative infrastructure that, with minimal cost, or maintenance, can address up to 90% of in house legal requests, in less than half the time, while dramatically reducing existing legal corporate costs.
The key component to an investigative infrastructure, is a scalable, network enabled technology, which is purpose built, specifically for evidence and data collection functions. The very same infrastructure can also drive network data audits, data leakage identification and the remediation or erasure of unauthorized data.
In reality, Asian corporations are not faced with the same degree of litigious actions as counterparts in, say the US, or Europe, but nonetheless still require equivalent levels of defensible, accurate, and timely information collection. Multinational corporations are also required to adhere to there corporate head office requests, such as eDiscovery.
IT professionals, together with Security Administrators, are fast deploying infrastructures whereby investigations and evidence collection can be done network wide from a single end point, or computer, to a regional multi machine search and evidence collection process that does not cause disruption, or downtime to computers or servers. This infrastructure can be pushed out to existing IT networks, and do not require IT overhauls, nor significant capital expenditures.
Everything from fraud investigations, or digital forensics, to legal discovery or “eDiscovery” can be performed across entire networks, at lightning speed, freeing in house counsels to concentrate on the legal review process.
Trio work on offering first
Simpson Thacher & Bartlett, Lee & Li and Baker and McKenzie were called in to act on Gintech Energy Corporation’s US$52.8m GDS offering.
Goldman Sachs International was the initial purchaser in the deal, which was the first GDS offering by an Asian issuer in 2009 and the first to make use of new Taiwanese regulations allowing equity follow-on offerings to be priced at no less than 80% of the local share trading price.
The global offering consisted of an international offering led by Goldman Sachs as global coordinator and sole book runner and an offering to existing shareholders of Gintech, led by FSC Asia Investment. The global offering was conducted in reliance upon Rule 144A and Regulation S under the Securities Act of 1933.
A Simpson Thacher and Bartlett team led by Chris Lin, Blake Dunlap, David Lee, Rob Holo, Jeffrey Graff and Amie Broder advised Goldman Sachs International on US law, Baker & McKenzie advised on Taiwan law, while Lee & Li advised Gintech.
Goldman Sachs was the initial purchaser in the deal, which was the first GDS offering by an Asian issuer in 2009.
Goldman Sachs International was the initial purchaser in the deal, which was the first GDS offering by an Asian issuer in 2009 and the first to make use of new Taiwanese regulations allowing equity follow-on offerings to be priced at no less than 80% of the local share trading price.
The global offering consisted of an international offering led by Goldman Sachs as global coordinator and sole book runner and an offering to existing shareholders of Gintech, led by FSC Asia Investment. The global offering was conducted in reliance upon Rule 144A and Regulation S under the Securities Act of 1933.
A Simpson Thacher and Bartlett team led by Chris Lin, Blake Dunlap, David Lee, Rob Holo, Jeffrey Graff and Amie Broder advised Goldman Sachs International on US law, Baker & McKenzie advised on Taiwan law, while Lee & Li advised Gintech.
Goldman Sachs was the initial purchaser in the deal, which was the first GDS offering by an Asian issuer in 2009.
Sweet deal for Clifford Chance, White & Case
White & Case and Clifford Chance were called in on a deal that saw Barry Callebaut Asia Pacific (Singapore) sell its Asiabased consumer company, Van Houten (Singapore) to Hershey Singapore.
Barry Callebaut Asia Pacific (Singapore) is a subsidiary of Barry Callebaut AG, a Zurich-based manufacturer of high-quality cocoa and chocolate brands such as Sarotti, Jacques and Alprose. The value of the transaction was not disclosed.
As part of the deal, Barry Callebaut will grant the Hershey Company an exclusive licence to use the Van Houten brand name and related trademarks in Asia- Pacific, the Middle East and Australia & New Zealand for its consumer products. Barry Callebaut will retain ownership of the Van Houten brand and will continue to use it in its gourmet and vending businesses worldwide.
“The successful completion of this deal will allow Barry Callebaut to focus entirely on its core business in the industrial and gourmet food market in Asia and the Middle East,” said Hamburgbased Christian Jacobs, who was White & Case’s lead partner on the deal. William Kirschner, an M&A partner based in Singapore also acted on the deal.
Clifford Chance, led by Valerie Kong, acted for Hershey on the deal.
Barry Callebaut Asia Pacific (Singapore) is a subsidiary of Barry Callebaut AG, a Zurich-based manufacturer of high-quality cocoa and chocolate brands such as Sarotti, Jacques and Alprose. The value of the transaction was not disclosed.
As part of the deal, Barry Callebaut will grant the Hershey Company an exclusive licence to use the Van Houten brand name and related trademarks in Asia- Pacific, the Middle East and Australia & New Zealand for its consumer products. Barry Callebaut will retain ownership of the Van Houten brand and will continue to use it in its gourmet and vending businesses worldwide.
“The successful completion of this deal will allow Barry Callebaut to focus entirely on its core business in the industrial and gourmet food market in Asia and the Middle East,” said Hamburgbased Christian Jacobs, who was White & Case’s lead partner on the deal. William Kirschner, an M&A partner based in Singapore also acted on the deal.
Clifford Chance, led by Valerie Kong, acted for Hershey on the deal.
May 3, 2010
China Chengtong appoints new general counsel
China Chengtong Group, a large logistics conglomerate, has announced the appointment of Wang Yonghai as the general counsel of China Asset Management Corporation (CAMC) – an important wholly owned subsidiary of the group.
Wang will remain a vice-president of CAMC while he serves as general counsel. With 17 years’ experience, both in-house and in private practice, he is responsible for all the legal affairs of the company, which manages more than RMB10bn in assets, and reports directly to the president. A dedicated legal affairs department has also been set up.
Dacheng partner Tuo Mingzhong, the company's long-term external counsel who has been on a retainer basis since 2000, will continue to provide legal support and advice.
As part of Chengtong Group’s plans to improve its legal risk management and corporate governance, it aims to appoint general counsel for another four important subsidiaries by 2010. The group's general counsel, Tang Mingyi, was appointed in early 2008 through public recruitment of senior executives for the central SOEs, which was organised by the State Assets Supervision and Administration Commission of the State Council.
Before joining Chengtong Group, Tang served as the manager of the law and regulatory department at the Civil Aviation Administration of China.
Wang will remain a vice-president of CAMC while he serves as general counsel. With 17 years’ experience, both in-house and in private practice, he is responsible for all the legal affairs of the company, which manages more than RMB10bn in assets, and reports directly to the president. A dedicated legal affairs department has also been set up.
Dacheng partner Tuo Mingzhong, the company's long-term external counsel who has been on a retainer basis since 2000, will continue to provide legal support and advice.
As part of Chengtong Group’s plans to improve its legal risk management and corporate governance, it aims to appoint general counsel for another four important subsidiaries by 2010. The group's general counsel, Tang Mingyi, was appointed in early 2008 through public recruitment of senior executives for the central SOEs, which was organised by the State Assets Supervision and Administration Commission of the State Council.
Before joining Chengtong Group, Tang served as the manager of the law and regulatory department at the Civil Aviation Administration of China.
Firm moves back into Baghdad
Middle East-based firm Al Tamimi & Co has reopened its Baghdad office, citing improved security conditions in the war-torn country.
“The security situation is improving day by day,” said Hadeel Hassan, a Baghdad-based associate. “Also, the government is encouraging investment in Iraq and making things easier for foreign investors to come [here].”
While the office was never officially closed, the firm had to relocate its lawyers due to the worsening security conditions in 2006. Matters from the Baghdad office were coordinated through the firm’s Qatar office.
“Most Iraqi lawyers found themselves working from home [post 2006] and our attorneys were no exception,” said office head Nadia Salem. “However, [while] we’ve always kept a physical office presence, because the security situation is improving in Iraq, we’ve relocated our office and are reopening our doors, so to speak.”
The reopened office will now act on par with other Al Tamimi offices as a full service operation, hoping to capture clients through a two-fold approach, with Salem to boost its international exposure through conferences and client updates and Hadeel promoting the firm domestically. The office currently has four attorneys and is looking to expand this year with at least one addition. But while it had seemingly overcome the security problem, the firm was still left with one significant hurdle: choosing a suitable location.
“Did we want it in the Green Zone or the Baghdad International Airport? Both areas house most of our clients,” Salem said. “But much of our work is done outside of those zones as the ministries and court houses are not located in the Green Zone or the airport. In the end, we chose a very secure location, midway between those two areas.”
The firm expects work to arrive shortly, as the military presence will bring in foreign companies, while recent developments will encourage existing and future companies to seek legal advice.
“Clients [should] know that in Iraq this year, they need to set up a company if they want to be legally present, whereas in the past few years they didn’t need to be incorporated, they had immunity,” Salem said. “Now we’re looking at the US-Iraq SOFA [Status of Forces Agreement] and its impact on US contractors and [as a result] we’re seeing that all foreign companies really have to become incorporated.”
“The security situation is improving day by day,” said Hadeel Hassan, a Baghdad-based associate. “Also, the government is encouraging investment in Iraq and making things easier for foreign investors to come [here].”
While the office was never officially closed, the firm had to relocate its lawyers due to the worsening security conditions in 2006. Matters from the Baghdad office were coordinated through the firm’s Qatar office.
“Most Iraqi lawyers found themselves working from home [post 2006] and our attorneys were no exception,” said office head Nadia Salem. “However, [while] we’ve always kept a physical office presence, because the security situation is improving in Iraq, we’ve relocated our office and are reopening our doors, so to speak.”
The reopened office will now act on par with other Al Tamimi offices as a full service operation, hoping to capture clients through a two-fold approach, with Salem to boost its international exposure through conferences and client updates and Hadeel promoting the firm domestically. The office currently has four attorneys and is looking to expand this year with at least one addition. But while it had seemingly overcome the security problem, the firm was still left with one significant hurdle: choosing a suitable location.
“Did we want it in the Green Zone or the Baghdad International Airport? Both areas house most of our clients,” Salem said. “But much of our work is done outside of those zones as the ministries and court houses are not located in the Green Zone or the airport. In the end, we chose a very secure location, midway between those two areas.”
The firm expects work to arrive shortly, as the military presence will bring in foreign companies, while recent developments will encourage existing and future companies to seek legal advice.
“Clients [should] know that in Iraq this year, they need to set up a company if they want to be legally present, whereas in the past few years they didn’t need to be incorporated, they had immunity,” Salem said. “Now we’re looking at the US-Iraq SOFA [Status of Forces Agreement] and its impact on US contractors and [as a result] we’re seeing that all foreign companies really have to become incorporated.”
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