HKALB December 2012

M y a n M a r I n v e s t M e n t : N e w l a w r a i s e s h o p e s b u t q u e s t i o N s l i N g e r

deceMber2012NORTH ASIA EDITION

clearIng the cloudstaiwan and China sign investor protection deal

Page 32

FreshFIelds Q&aKey insight from Freshfields’ managing partner

Page 40

asIa callInginside the booming telecom industry in asia

Page 46

InsIde

n sundrIes

04

06

12

59

n the bIg story

n league tables

n deals sPotlIght

Largest Law firms50Top

MAXWELL CHAMBERS

Maxwell Chambers@Centennial | 3 Temasek Avenue #16-01, Singapore 039190 | +65 6595 9010 | [email protected] Chambers Premier | 32 Maxwell Road #03-01, Singapore 069115 | +65 6595 9011 | [email protected]

SPONSORED ARTICLE

An intersection of legal talent has found a home at Maxwell Chambers, forging a legal community focused on dispute resolution issues that is unique in Asia and offers a one-stop suite of services for clients worldwide.

Professor Lawrence Boo David Mildon QC David Williams QC David Barnes Roderick Noble Gerard Forlin QC

Home to a number of arbitrators, barristers and international alternative dispute resolution institutions, Maxwell Chambers is about people dedicated to creating a professional and cordial setting to handle thorny legal issues, said Chief Executive, Ban Jiun Ean, adding that the mix took time and deep thought to assemble.

“We looked at which sets were considered among the best in their respective fields, and were also active in Singapore and the region. Over time, as space became available, we looked at who had registered interest in our facility and brought more on board gradually.”

Two of Singapore’s leading arbitrators were among the earliest to take up space at Maxwell Chambers. Senior Counsel Christopher Lau, who opened his office in September 2009, said that his practice had benefited from “Maxwell Chambers being recognised as the situs of all the major institutional arbitrations both domestic and international and for arbitration hearings in Singapore.”

For Professor Lawrence Boo, a founding resident of The Arbitration Chambers and former deputy chairman of the Singapore International Arbitration Centre (SIAC), meeting other legal minds from around the world on a nearly daily basis has been fantastic. “An unexpected bonus is the constant stream of visitors, mainly foreign lawyers and arbitrators, who drop by whenever they are involved in cases or attending seminars here,” Professor Boo said.

As for the London sets, barristers from Essex Court Chambers and 20 Essex Street were the first to set up at Maxwell Chambers. David Mildon QC of Essex Court Chambers said, “Those like myself who have the advantage of private practice rooms within Maxwell Chambers are both committed to Singapore as a world class arbitration centre and able to provide a better service when we are appearing in arbitrations in Singapore.”

The London barristers were followed by New Zealand set Bankside Chambers which opened shop at Maxwell Chambers in February 2011, and

Belgian firm Hanotiau & van den Berg in January this year. For David Williams QC of Bankside Chambers, “It is trite to say that Singapore is now a leading international arbitration venue in the Asia-Pacific region. We can only see further continued development in that direction so the future of Maxwell Chambers is assured.”

The arbitration community at Maxwell Chambers will soon be welcoming new members into the fold.

Thirty Nine Essex Street is slated to open its Singapore office in January 2013. David Barnes, Chief Executive and Director of Clerking, and Roderick Noble, Director of Asian Business, expect the rapid investment in emerging and developed economies in the region to grow sharply in the coming years, bringing strong demand for dispute resolution services.

“With Singapore now widely regarded as a leading legal hub in Asia, in addition to being well positioned geographically, it was the natural choice for us as the location of our new international office,” Barnes and Noble said. “The scale of the commercial activities being carried out there, the extent of the arbitration facilities and the professionalism of staff was unmatched by any other location and we were happy to wait for an office to materialise.”

One Essex Court is launching its Singapore office this month. Ian Glick QC said the set’s presence at Maxwell Chambers sends a message to clients. “Not only would it enable us to operate quickly and efficiently in the same time zone as those seeking our services, but a presence here at Maxwell Chambers would demonstrate that we are serious about pursuing relationships with professional clients in the region.”

As for Gerard Forlin QC, opening an office at Maxwell Chambers this month is imbued with special significance. “I feel extremely fortunate to be a new tenant at Maxwell Chambers,” he said. “Having spent part of my childhood years in Singapore, Maxwell Chambers represents, in my view, all that

is excellent in Singapore – highly prestigious, efficient, helpful, charming, and in every sense global.”

Ban said Maxwell Chambers and its tenants have found a good equilibrium. “Our relationship with the institutions, arbitrators and barristers at Maxwell Chambers is one of great mutual benefit,” Ban said. “They bring the cases and help to give us visibility in their markets and sectors, and in return, we provide them with world class hearing facilities and conveniently located office space.”

Although all the office space at Maxwell Chambers has now been taken up, Ban says that going forward, “We will be looking at integrating our services even more with the surrounding buildings, which can provide more office space, covered car parking and hotel rooms.”

Clearing the clouds?A newly signed investor protection agreement between Beijing and Taipei is forging closer economic ties between the two nations, but questions remain. Kanishk Verghese reports.

View from the top: Freshfields Bruckhaus Deringer’s managing partner Robert Ashworth sits down with Candice Mak to share his insights on the challenges and joys of managing the Magic Circle firm widely recognised as the leader in corporate practice within Greater China.

Asia CallingIn a moribund global market, telecom transactions have remained a bright light for those stymied by the slowdown in the U.S. and Europe. Seher Hussain investigates recent developments in this closely watched sector.

FEATURES

COVER STORY

Top 50 largest law firmsALB reveals which law firms have continued to ramp up their practices in the growing Asian legal market, in the face of the wider global economic crisis.

NEWS

BRIEFS

DEALS

LEAGUE TABLES

APPOINTMENTS

INDEX

SPONSORED REGIONAL UPDATES— China

Paul, Weiss

— Singapore

Loo & Partners

— Philippines

SyCip Salazar Hernandez &

Gatmaitan

SPONSORED UPDATES— Emerging Markets

Kelvin Chia Partnership

04

06

12

15

60

54

55

56

54

SUNDRIES 59

16

33

42

CONTENTS 1WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

32 40 46

“PEOPLE NEEd tO BE trEAtEd LIkE PEOPLE. YOU CAN’t dEAL WIth EvErYBOdY BY E-MAIL Or EvEN thrOUGh tELEPhONE CALLS; YOU NEEd tO SPENd tIME fACE tO fACE ENCOUrAGING, GUIdING, ANd LIStENING.”

ROBERT AShwORTh, Freshfields Bruckhaus Deringer

MAXWELL CHAMBERS

Maxwell Chambers@Centennial | 3 Temasek Avenue #16-01, Singapore 039190 | +65 6595 9010 | [email protected] Chambers Premier | 32 Maxwell Road #03-01, Singapore 069115 | +65 6595 9011 | [email protected]

SPONSORED ARTICLE

An intersection of legal talent has found a home at Maxwell Chambers, forging a legal community focused on dispute resolution issues that is unique in Asia and offers a one-stop suite of services for clients worldwide.

Professor Lawrence Boo David Mildon QC David Williams QC David Barnes Roderick Noble Gerard Forlin QC

Home to a number of arbitrators, barristers and international alternative dispute resolution institutions, Maxwell Chambers is about people dedicated to creating a professional and cordial setting to handle thorny legal issues, said Chief Executive, Ban Jiun Ean, adding that the mix took time and deep thought to assemble.

“We looked at which sets were considered among the best in their respective fields, and were also active in Singapore and the region. Over time, as space became available, we looked at who had registered interest in our facility and brought more on board gradually.”

Two of Singapore’s leading arbitrators were among the earliest to take up space at Maxwell Chambers. Senior Counsel Christopher Lau, who opened his office in September 2009, said that his practice had benefited from “Maxwell Chambers being recognised as the situs of all the major institutional arbitrations both domestic and international and for arbitration hearings in Singapore.”

For Professor Lawrence Boo, a founding resident of The Arbitration Chambers and former deputy chairman of the Singapore International Arbitration Centre (SIAC), meeting other legal minds from around the world on a nearly daily basis has been fantastic. “An unexpected bonus is the constant stream of visitors, mainly foreign lawyers and arbitrators, who drop by whenever they are involved in cases or attending seminars here,” Professor Boo said.

As for the London sets, barristers from Essex Court Chambers and 20 Essex Street were the first to set up at Maxwell Chambers. David Mildon QC of Essex Court Chambers said, “Those like myself who have the advantage of private practice rooms within Maxwell Chambers are both committed to Singapore as a world class arbitration centre and able to provide a better service when we are appearing in arbitrations in Singapore.”

The London barristers were followed by New Zealand set Bankside Chambers which opened shop at Maxwell Chambers in February 2011, and

Belgian firm Hanotiau & van den Berg in January this year. For David Williams QC of Bankside Chambers, “It is trite to say that Singapore is now a leading international arbitration venue in the Asia-Pacific region. We can only see further continued development in that direction so the future of Maxwell Chambers is assured.”

The arbitration community at Maxwell Chambers will soon be welcoming new members into the fold.

Thirty Nine Essex Street is slated to open its Singapore office in January 2013. David Barnes, Chief Executive and Director of Clerking, and Roderick Noble, Director of Asian Business, expect the rapid investment in emerging and developed economies in the region to grow sharply in the coming years, bringing strong demand for dispute resolution services.

“With Singapore now widely regarded as a leading legal hub in Asia, in addition to being well positioned geographically, it was the natural choice for us as the location of our new international office,” Barnes and Noble said. “The scale of the commercial activities being carried out there, the extent of the arbitration facilities and the professionalism of staff was unmatched by any other location and we were happy to wait for an office to materialise.”

One Essex Court is launching its Singapore office this month. Ian Glick QC said the set’s presence at Maxwell Chambers sends a message to clients. “Not only would it enable us to operate quickly and efficiently in the same time zone as those seeking our services, but a presence here at Maxwell Chambers would demonstrate that we are serious about pursuing relationships with professional clients in the region.”

As for Gerard Forlin QC, opening an office at Maxwell Chambers this month is imbued with special significance. “I feel extremely fortunate to be a new tenant at Maxwell Chambers,” he said. “Having spent part of my childhood years in Singapore, Maxwell Chambers represents, in my view, all that

is excellent in Singapore – highly prestigious, efficient, helpful, charming, and in every sense global.”

Ban said Maxwell Chambers and its tenants have found a good equilibrium. “Our relationship with the institutions, arbitrators and barristers at Maxwell Chambers is one of great mutual benefit,” Ban said. “They bring the cases and help to give us visibility in their markets and sectors, and in return, we provide them with world class hearing facilities and conveniently located office space.”

Although all the office space at Maxwell Chambers has now been taken up, Ban says that going forward, “We will be looking at integrating our services even more with the surrounding buildings, which can provide more office space, covered car parking and hotel rooms.”

2 ASIAN LEGAL BUSINESSdecember 2012

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EDITORIAL 3WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

The global financial crisis has taken its toll on both corporations and law firms, with most seeking to downsize to save on costs. But Asia has managed to largely buck the trend, thanks to a growing number of wealthy citizens, a burgeoning middle class, and more aggressive international expansion plans by Asian corporations. Such positive momentum is helping to drive legal business in the region, sparking a growing need amongst law firms to bolster their headcounts. To acknowledge the efforts made by firms in the region to meet the growing legal needs of their corporate clients, ALB is proud to showcase the 50 largest law firms in Asia.

The top three largest law firms by headcount in Asia who retain their spots from last year are: Chinese firms Dacheng Law Offices and Beijing yingke Law Firm, and recently merged King & Wood Mallesons. Chinese law firms continued to dominate the scene, but Singaporean firms are also making their presence known. Amongst international firms, Baker & McKenzie is the clear frontrunner, boasting 1,100 fee-earners in the region.

Our methodology in ranking these firms is clear. We have based our research on the figures of partners and lawyers provided by the law firms themselves. Fee-earners counted in our survey included associates, partners, counsel, foreign counsel, and consultants. Amongst international law firms, only Asia-based partners, associates, and fee-earners were considered eligible for inclusion. It is clear that Asia is the hot market for law firms, and I think it is fair to expect that we will have some more fresh faces when we conduct this survey next year.

Also featured this month, ALB is highlighting key developments in the regional telecom industry, which has been a bright spot of activity in an otherwise lacklustre global market. And a newly signed investor protection agreement between China and Taiwan is creating

TOP 50 LAW fIRMS GROW WITH THE TIMES

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M

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CM

MY

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CMY

K

ALB_210x87mm_bleed10mm.pdf 1 2011-8-12 11:04:50

quite a buzz by forming a blueprint for cross strait dispute resolution. There is something for everyone this month. As always, I look forward to receiving your feedback and suggestions. I would also like to wish all of our readers happy holidays and best wishes for the New year! See you in 2013!

SHAHEEN PASHAActing North Asia Editor, Asian Legal BusinessMiddle East Regional Editor, ALB The BriefThomson Reuters

04 BRIEFS 12.2012

“We welcome the spirit of the new law as it signals that the government has taken on board some of the concerns of foreign investors, and it is not overtly nationalistic. However, it still leaves many questions unanswered and the lack of certainty means that investors need to remain agile and be prepared for the unexpected.”

NOMITA NAIRBerwin Leighton Paisner

“While there are a range of incentives for tax, lease of land, and share ownership, there are also important protections for the environment and Myanmar citizens through education, job training, and equal pay requirements. However, the words in the document, as in any law, can be interpreted in many ways and several provisions will require definition and clarification as time goes on.”

SAW YU WINBaker & McKenzie

WHAT IS yOUR INITIAL REACTION TO THE FOREIGN INVESTMENT LAW?

“The government sent a clear signal to the international business community. Foreign investment will be strongly encouraged. The government deflected protectionist tendencies in earlier drafts with relative ease.”

EDWIN VANDERBRUGGENVDB Loi

fORUM

Progress in theoryTHE BIG STORY

By RANAJIT DAM

ON THE FACE OF IT, MyANMAR’S NEW FOREIGN INVESTMENT LAW GIVES SOME CAUSE FOR CHEER. BUT RESIDUAL UNCERTAINTIES AND GROUND REALITIES MEAN INVESTORS WILL HARDLy FEEL CONFIDENT.

INSIDE DEALS: yOUR MONTH AT A GLANCE 07 / FINANCIAL GRAPHICS 08 / GC INTERVIEW 09 / IN FOCUS 10

Of all the economic and political reforms undertaken by Myanmar President Thein Sein since tak-ing office as the head of a quasi-

civilian government in March 2011, few have been awaited or debated like the country’s new Foreign Investment Law. By the time it was finally approved in early November, it had endured some six months of shut-tling between Myanmar’s legislative and executive branches. Too many parties had interests to safeguard: The government was eager to attract foreign investment, the ty-coons were determined to protect their mo-nopolies, and small businesses were keen not to be shut out. And, of course, the army officers and their cronies keen to cling on to privileged positions also had a stake.

In the end, suffice to say, the reformers

prevailed at the expense of the representa-tives of the military junta, as evidenced by a law that has given foreign investors plenty to be positive about. Earlier drafts of the statute had called for a $5 million minimum investment threshold and a 50 percent own-ership cap in certain sectors; also, foreign-ers would have to hold at least 35 percent of any start-up joint venture. The new law, which is yet to be released in English, states that foreigners can still own 100 percent of certain businesses without the need for a local partner. And joint ventures between foreigners and Myanmar citizens or the gov-ernment would be permitted with any stake ratio agreed between the partners.

Coca-Cola, GE and Nestle are keen to en-ter Myanmar, but for the time being, we’re more likely to see deals centred on prod-

uct supply and distribution, rather than the gushing flow of serious cash. The reasons are primarily twofold. One is that despite the welcoming language of the new stat-ute, there exists much uncertainty. Take for example the Myanmar Investment Com-mission (MIC), which will have the overrid-ing power to decide on a number of things, including the shareholding ratio in a foreign joint venture. Operating with little oversight, the MIC appears to be a perfect breeding ground for bribery and cronyism. And then of course, Myanmar’s tangled, slow-moving judiciary itself makes the prospect of dispute resolution a potential nightmare, some-thing that could have been avoided had the country embraced international arbitration. Given the odds stacked against them, many might find Myanmar a gamble too risky.

Pedestrians walk past the City Hall and Sule pagoda in downtown yangon. REUTERS/Stringer

The Partners of RPC

STRONG FINANCIAL PERFORMANCE IN 2012WAS MATCHED BY A STRING OF MAJOR AWARDS.

We’d like to thank our clients, our peers and our people for their support in this exceptional year.

BEST LEGAL ADVISERLegal Week Client Satisfaction Report

CORPORATE TEAM OF THE YEAR (MID CAP)The Lawyer

INSURANCE TEAM OF THE YEARLegal Business

BEST LEGAL EMPLOYERLegal Week Employee Satisfaction Report

SERVICE PROVIDER OF THE YEARBritish Insurance Awards

MOST EFFECTIVE EMPLOYEE BENEFITS SCHEME

The Lawyer

BEST LEGAL TECHNOLOGYLegal Week Technology Report

TOP 20 PLACEMENT & INTERNSHIP EMPLOYERRateMyPlacement

BEST TAX TEAM IN A LAW FIRM (FINALIST)Taxation Awards

ADVISER OF THE YEAR (FINALIST)The London Market Awards

UK FIRM OF THE YEAR (TOP FIVE)RollOnFriday

INNOVATION IN ENTERPRISE (FINALIST)The Guardian Innovation Nation Awards

MOST EFFECTIVE INTERNAL COMMUNICATION (FINALIST)The Lawyer

HEART OF THE CITY AWARD (FINALIST)The Lord Mayor’s Dragon Awards

LONDON BRISTOL HONG KONG SINGAPORE

「政府は世界のビジネス界に明確なシグナルを送った。対外投資は強力に推奨されるであろう。政府は初期の草案における保護主義的傾向を比較的容易に偏向した。」

VDB Loi法律事務所のEdwin Vanderbruggen氏

「新法は政府が外国人投資家の懸念のいくつかを理解していることを示しており、我々は新法の精神を歓迎し、それはあからさまに国家主義的ではない。しかし、まだ未回答の質問が多くあり、確実さの欠如は投資家たちが機敏で不足の事態に準備ができている必要があることを意味する。」

Berwin Leighton Paisner法律事務所のノミタ・ナイール

「様々な税制上の優遇措置や借地権、株式の所有権がある一方、教育、職業訓練、同一賃金の要件を通じた、環境やミャンマー国民の保護も重要である。しかし、いかなる法律でもそうであるように文書内の言葉は様々に解釈することができ、時間がたつにつれ、規定によっては定義もしくは明確化が必要となる。」

ソー・ユー・ウィンベーカー＆マッケンジー法律事務所

外国投資法の第一印象は？fORUM

２０１１年の３月に準文民政府の長に就任して以来、ミャンマーのテイン・セイン大統領が取り組んできた

すべての経済・政治改革のうち、いくつかは国の新外国投資法のように待ち望まれ、または議論されてきた。１１月初旬についにそれが承認されるまでに、それはミャンマーの立法部門と行政部門間の行き来に耐えてきた。あまりにも多くの政党がセーフガードに関心があった。当然ながら陸軍将校たちとその取り巻きたちは特権的地位に執着していることはさておき、政府は外国投資の誘致に熱心で、大物実業家たちは独占状態の保持を決意し、中小企業はそこから締め出されないよう必死である。

結局、外国の投資家たちに積極材料をた

くさん与えた法律からも明らかなように、改革派たちは軍事政権の代表者たちの犠牲で優勢となっていたといえば十分である。制定法の前決議案は最低５００万ドルの投資閾値と特定の分野において50%の所有権の上限を要求しており、外国人たちはいかなる設立当初の合弁会社であろうと少なくとも35%を保持しなければならないであろう。英語では未発表の新しい法律は、現地パートナーを必要とすることなく外国人が特定事業の100%を所有することができると述べている。外国人とミャンマーの国民、または政府との間の合弁事業において当事者間の合意でいかなる出資比率も可能となるであろう。

コカコーラ、ゼネラルエレクトリック、ネスレはミャンマーへの進出に熱心であるが、私たちは大変な資金のほとばしりではなく、

当面の間、商品の供給と流通を中心とした取引を目にすることになるだろう。理由は主に2つの要素がある。ひとつは新法の歓迎の言葉にもかかわらず、多くの不確実性が存在しているということである。例えば、ミャンマー投資委員会(MIC)は外国の合弁会社の持ち株比率を含む、多くのことを決定する主要な決定権を持っている。少々見過ごしつつの運営で、ミャンマー投資委員会は賄賂と縁故主義の温床にうってつけであるように思われる。そしてもちろん、ミャンマーのややこしく、のろのろとした司法当局自体が紛争解決を、国が国際仲裁を受けていれば回避できたかもしれない悪夢に陥れる可能性をはらんでいる。奇妙な積み重ねで、多くの人はミャンマーをばくちではなく危険だと思うようになるかもしれない。

Pedestrians walk past the City Hall and Sule pagoda in downtown yangon. REUTERS/Stringer

06 BRIEFS 12.2012

理論上の進展見たところ、ミャンマーの新外国投資法は喝采を浴びる要因を与えるかのように思える。しかし依然として残る不確実性と現状は投資家たちがほとんど自信を感じていないということを意味する。ラナジット・ダム

THE BIG STORY

DEALS SpotLight 7WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

$512 MILLIONIPOSHANGHAI fOSUN PHARMACEUTICAL GROUP’S HONG KONG IPO• The third-largest Hong Kong IPO so

far this year.• FosunPharmaisexpectedtousethe

net proceeds for future acquisitions of pharmaceutical companies in China and abroad, as well as for the funding of ongoing research and development projects.

$1.93 BILLIONM&ACNOOC’S ACQUISITION Of LNG ASSETS fROM BG GROUP• CNOOC acquired a 25 percent

stake in British energy producer BG Group’s Queensland Curtis liquefied natural gas project, which is under construction in Gladstone, Australia.

• Underthesaleagreement,BGwillsupply CNOOC with 5 MTPA of LNG for 20 years starting 2015.

• Fully-termedtransactionagreementsare expected to be executed in the first half of 2013.

$267 MILLIONIPOCJ HELLOVISION’S SOUTH KOREAN IPO• The country’s largest IPO in almost

18 months.• SharesbegantradingontheKRX

KOSPI market of the Korea Exchange on Nov. 9.

• ExcludingCJHelloVision’soffering,companies have raised just $560 million in Korea through IPOs so far in 2012, compared with $2.3 billion last year.

DEAL NAME fIRM JURISDICTIONVALUE

(US$ MLN)

DEAL TYPE

Shanghai fosun Pharmaceutical Group’s Hong Kong IPO

Morrison & foerster

Hong Kong 512 IPO

Herbert Smith freehills

Grandall Law firm

Chen & Co

SOHO China Ltd’s note issuance

Davis Polk & Wardwell

China 1,000 Debt

Commerce & Finance Law Offices

Sidley Austin

Zhong Lun Law Firm

Walkers

MdME

Global medium term note issuances by Korea Hydro & Nuclear Power, Nonghyup Bank, and SK Telecom, and SK Telecom’s block trade of Posco shares

Clifford Chance South Korea 2,350 Debt, Equity

CJ HelloVision’s South Korean IPO

Cleary Gottlieb Steen & Hamilton

South Korea 267 IPO

CNOOC’s acquisition of LNG assets from BG Group

King & Wood Mallesons

China/Australia 1,930 M&A

Herbert Smith freehills

MGM China Holdings’ refinancing

Norton Rose

Hong Kong 2,000 Debt

Allen & Overy

DEALS: YOUR MONTH AT A GLANCE

BRIEFS8 ASIAN LEGAL BUSINESSdecember 2012

As China tensions simmer, Japan pulls back from ‘world's factory’

fINANCIAL GRAPHIC

Almost a quarter of Japanese manufactur-ers are rethinking their investment plans in China, and some may shift future production elsewhere after the spike in tensions between Asia's two largest economies.

The sentiments were expressed in a Re-uters Corporate Survey released recently and in interviews conducted with executives in in-dustries ranging from electronics to apparel manufacturing.

The concerns suggest the recent rift be-tween China and Japan over disputed islands in the East China Sea could mark the end of a boom that has played out over two decades, in which Japanese companies have emerged as the most active source of outside direct invest-ment in China after Hong Kong and Taiwan.

Since 1990, Japanese companies led by electronics makers like Panasonic Corp and followed by a wave of automakers like Nissan

Motor Corp and Toyota Motor Corp and their suppliers have poured almost $1 trillion into Chinese factories, Japanese government sta-tistics show.

The investment by over 20,000 firms creat-ed over 1.6 million jobs, as Japanese companies looked to take advantage of low production costs and then China's potential as a surging market for everything from cars to cosmetics.

Now, sentiment has turned. When asked if their attitude toward using China as a produc-tion hub over the medium term had changed, 37 percent of Japanese companies surveyed said they had grown more cautious.

Almost half of Japanese manufacturers said they expected to see lower sales in the current fiscal year. In response to a separate question, 24 percent said they were considering delay-ing or reducing planned investment in China. 18 percent said they were considering shifting

production to other countries.The survey allowed companies responding

to pick more than one choice to describe the impact of the China dispute on their business, meaning there could be some overlap between the group of manufacturers considering cutting investment and those looking to other markets outside China as future production hubs.

"China is very convenient, but gradually that convenience has been fading," yoshihisa Ejiri, 65, president of clothing chain Honeys Co told Reuters.

The Reuters survey of 400 Japanese com-panies took place between Oct. 1 and Oct. 17. A month earlier, almost 60 percent of firms in a Reuters survey said they expected little to no fallout from the strains with China. Companies were not asked if they were considering delay-ing or reducing planned investment in China in that poll.

Source: 200 large manufacturers and 200 non-manufacturers in Japan polled between Oct. 29 and Nov.12 by Nikkei Research.

Responses from a Reuters Corporate Survey in Japan

Areas Japanese companies see sales growing amid rising China tensions

C Trevethan 15/11/2012

CHINA

INDONESIA

VIETNAM OTHER AREAS

Manufacturers

Non-manufacturers

OTHER ASIA AREAS

MYANMAR

INDIA

41%18%

26%

21% 23%

16%

33% 34%

36%31% 32%

42%

16%18%

11% 11%

NORTH AMERICA

BRIEFS 9WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

Cadwalader, Wickersham & Taft LLPNew York London Charlotte Washington Houston Beijing Hong Kong Brussels

For more than 200 years, the lawyers of Cadwalader, Wickersham & Taft LLP have risen to new challenges, anticipating market change and solving the issues they create for our clients. Now, more than ever, it is essential to have experienced legal counsel to help you steer the course—counsel who understands the competitive landscape and the strategic challenges posed by the current economic environment. With a strong and diverse international practice, and offices in the U.S., the EU and Asia, Cadwalader is well-positioned to offer standout legal services to help clients all over the world.

For more information, please visit www.cadwalader.com.

To stay ahead, we actually draw the curve.

ALB: What qualities must someone in your role possess?DT: One must be versatile. Because the asset management industry’s core business is tied to the stock and bond markets which change every day. As an in-house counsel within such an industry, one must be a proactive partner as well as a protector of the business. In strong markets, legal advice is needed for new products and on-boarding clients; in down markets, we would be spending time merging or even closing down funds, dealing with customer inquiries or worse still, complaints. In a sense, a lawyer within such an industry appears to be recession-proof.

ALB: What challenges do you face?DT: A key challenge is keeping up with the changes in laws and regulations imposed by regulators from different jurisdictions. There are now myriad regulations which asset management companies have to comply with. The ones that pose great challenges for asset management companies are the ones which are extraterritorial in nature. Whilst the objectives of each regulator

are fairly similar, the problem lies with the differing standards in requirements imposed by different regulators.

ALB: What are some of the major trends in your industry?DT: Apart from the myriad regulations, the industry is also facing a shift in investors’ preference. Investors are no longer simply looking at the track record of the fund managers; they look for good performance, reasonable management fees, and strong risk management. They also demand greater transparency in all aspects of the business operations, including compliance, operations and controls, performance reporting and tax; they demand for frequent and enhanced due diligence on asset managers.

ALB: Can you describe your team?DT: I currently have two others in my team: An Assistant Director (Legal), and a Legal Secretary who is playing more of a paralegal role. As you can see, my team is extremely lean, considering the fact that Eastspring Investments (Singapore) Limited is one of the largest fund management companies

in Singapore, with about S$74.57 billion in funds under management (as of end- June 2012) and serves as the hub of the regional asset management business within Asia. However, when I joined the company in 2010, there wasn’t a legal department within the company, and legal risks were being managed by the compliance department (made up of non-lawyers). I am heartened by the fact that the business now recognises the importance of having a stand-alone legal department, which I finally established in my two-and-a-half years with the company, and the value the legal team can add as its strategic adviser and partner.

ALB: What is the best advice you have ever received?DT: To sum up all the advice that I have received, I found a very apt quote by Robin Sharma, a globally celebrated author of books on leadership, and who, incidentally, was a former litigation lawyer: “Above all else - be significant. Make your life matter. Be of use. And be of service to as many people as possible.” And this is the mantra I live by.

DIANA THE

Position:Director, Legal

Company:Eastspring Investments

(Singapore) Ltd

Location:Singapore

Firms currently used:

‘Above all else, be significant’GC INTERVIEW

in focus10 ASIAN LEGAL BUSINESSDECEMBER 2012

IN fOCUS: COVERED BONDS

Some of Europe's top covered bond issuers have been quietly lobbying regulators in Singapore and Hong Kong to get them to accept their

mortgage-backed securities as level 1 assets for liquidity coverage ratio accounting under Basel III. Initial reaction to the idea, however, has been negative.

The suggestion is not completely unwar-ranted, though. Both jurisdictions are ex-pected to start rolling out Basel III regula-tions as early as next year, and the amount of government securities available in both mar-kets will probably not be enough for banks to have sufficient level 1 assets to meet the new liquidity requirements.

Hong Kong and Singapore are not alone in grappling with that shortcoming. In fact, across the whole industry, the Basel Com-mittee estimates that there will be a short-fall of up to $3 trillion of the liquid assets required to meet liquidity coverage and net stable funding ratios. Some jurisdictions have argued that an open line of credit to the central bank will suffice as a substitute for enough liquid government debt.

But issuers of highly liquid covered bonds, such as the Nordic banks, are nudging regu-lators around the world and suggesting that their covered bonds could be used instead. The lobbying took an official turn in the first week of October, when the European Covered Bond Council (ECBC) published a position paper arguing that Nordic covered bonds met all the criteria required to be level 1 liquid assets, so regulators should consider them as such.

"The ECBC strongly advocates for the inclusion of covered bonds in the definition of transferable assets of extremely high li-quidity and quality," the industry association stated right at the start of the 25-page docu-ment.

For their part, the Nordic banks were said to have told regulators in Hong Kong and Singapore that they would even be willing

By CHRISTOPHER LANGNER of IFR

Europeans push covereds to Asia

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in focus 11WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

to consider issuing local currency bonds if banks could hold the paper for liquidity pur-poses. The idea, however, does not seem to have gained much traction so far.

At a conference of the International Swaps and Derivatives Association in Singapore on Monday, Michael Syn, the head of derivatives for the Singapore Exchange, was asked if the exchange would consider covered bonds for collateral purposes in its contracts - some-thing that would amount to an endorsement of their value as liquid assets.

"We need our clearing house to have a flight-to-quality halo around it - any time there is a crisis, money has to come our way," he answered. "(Covered bonds) aren't com-patible with flight to quality, and they are unlikely to be used (at this stage)."

When Syn answered the question, Loo Siew yee, executive director of the capital markets department at the Monetary Au-thority of Singapore (MAS), was participat-ing on the same panel. She had refused to answer the same question, leaving it to Syn, but the audience took her quiet acquies-cence as an endorsement of Syn's position.

Singapore has long dabbled with the idea of covered bonds, but has yet to provide a full regulatory framework even for its own banks to issue them. Earlier this year, the MAS in-vited responses to a consultation paper on how to enable local banks to issue covered bonds. The final details were being ham-mered down and some of the lenders are weighing the possibility of issuing under that format.

But that is as far as the MAS will go, it seems. Singapore is not alone in its scepti-cism. Asked if covered bonds should become level 1 assets, a regulator in New Zealand said that they were not liquid enough for that. "When the crisis hits, covered bonds start trading like credit again," he said, em-phasising their lack of liquidity outside Eu-rope.

The ECBC position paper used Danish covered bonds as an example, and went to great lengths to point out that covered bonds from some of Europe's best issuers actually behaved like liquid assets during the past crises. A funding manager in Europe that is a big issuer of covered bonds also said that Greece, Italy and Spain showed that even government securities could become illiquid in a severe crisis.

However, it seems unlikely the idea will fly. And even if it does gain strength in Eu-rope, Asian regulators are unlikely to start taking them as collateral or even less as liq-uid assets for Basel III purposes.

What are the main advantages of covered bonds?For most issuers, covered bonds represent a potentially new and cheaper source of funding – investors include central banks, insurers and pension funds looking for safe investments. The demand for covered bonds tends to be more resilient to shocks in the financial markets. Banks can also issue long-dated covered bonds, which would facilitate asset-liability management.

For investors, covered bonds are high quality assets (often rated AAA or AA). In fact, covered bonds in some countries are rated even higher than the sovereign rating, and it has been reported that no covered bond has ever defaulted. One way to view covered bonds is that an investor is essentially buying senior bonds from the bank issuer, with the added right to "double dip" into the cover pool if things go wrong.

What factors make Asia an attractive market for covered bonds?Asia is attractive in that the market is largely untapped, and with the European/U.S. markets still yet to recover from the financial crisis, there is significant demand for Asian credits. This year in particular has been a record year for issuance in the Asian debt capital markets. Although covered bonds have been around since the 1700s, the market has grown substantially in Europe only in the last decade or so and the growth has only just started in Asia in the past few years. The potential is, therefore, enormous.

Reports suggest Asian countries like Singapore are greeting covered bonds with scepticism. Would you say this is warranted?One of the key reasons why commentators have been sceptical towards the Singapore development is that the proposed guidelines include

a cover pool limit of 2 percent of the value of the relevant issuer's total asset, which compares unfavourably to certain other jurisdictions, for example, Australian (8 percent) or New Zealand (10 percent). However, if successful, it is quite possible that this 2 percent cap will be relaxed.

Other commentators have argued that Singaporean banks, like those in many other Asian countries, are well funded and thus covered bonds will unlikely reduce the cost of funding significantly. Equally, investors who are looking for higher yields will unlikely find covered bonds attractive. However, covered bonds do open up a more stable source of funding, and thus will be of interest to banks, especially with memories of the liquidity squeeze still fresh in people's minds. Demand for high-quality assets will also be high, given the various global reforms to the financial sector requiring more high-quality collateral to be posted such as the requirements to margin derivative transactions.

What would you say is the way forward for covered bonds in Asia?There is already momentum in the development of the covered bond market in Asia, with many jurisdictions already proposing legislative reforms or conducting studies to facilitate the issuance of covered bonds. We very much expect this trend to continue, particularly given that many jurisdictions are competing to become the primary financial centre in the region. Ultimately, investors would prefer the certainty that comes with local covered bond legislation or at least some regulatory guidance in terms of how covered bonds can be structured. These legislative/regulatory developments, such as those in Singapore, will help in stimulating interest in, and ultimately the growth of, the market.

Covered BondsWith MATTHEW HEBBURN, partner, andNICHOLAS HO, consultant, Allen & Overy

LEAGUE TABLES12 ASIAN LEGAL BUSINESSdecember 2012

NORTH ASIA ANNOUNCED M&A LEGAL RANKINGS

HONG KONG ANNOUNCED M&A LEGAL RANKINGS

MORI HAMADA & MATSUMOTO

DEALS: 101 MARKET SHARE: 16.2

VALUE($mln)

(*tie) Based on Rank Value including Net Debt of announced M&A deals (excluding withdrawn M&A)

FRESHFIELDS BRUCKHAUS DERINGER


VALUE($mln)


ANY NORTH ASIA INVOLVEMENT ANNOUNCED M&A ACTIVITY - QUARTERLY TREND

RANK LEGAL ADVISER VALUE($MLN)

DEALS MARKET SHARE

2 Skadden 47,506 40 10.7

3 Nagashima Ohno & Tsunematsu 41,868 96 9.4

4 Sullivan & Cromwell 40,198 21 9.1

5 Freshfields Bruckhaus Deringer 38,045 33 8.6

6 Paul, Weiss 35,073 13 7.9

7 Morrison & Foerster 33,828 22 7.6

8 Blake, Cassels & Graydon 32,228 6 7.3

9 Davis Polk & Wardwell 29,111 18 6.6

10 Nishimura & Asahi 28,276 64 6.4


DEALS MARKET SHARE

2 Clifford Chance 5,273 19 9.3


4 Allen & Overy 3,928 9 7.0

5 Baker & McKenzie 2,932 8 5.2

6 Linklaters 2,663 9 4.7

7 Jones Day 2,401 4 4.3

8 Skadden 1,825 7 3.2

9 Debevoise & Plimpton 1,719 1 3.0

10 Zhong Lun Law Firm 1,481 3 2.6

CHINA ANNOUNCED M&A LEGAL RANKINGS

JAPAN ANNOUNCED M&A LEGAL RANKINGS




VALUE($mln)


FRESHFIELDS BRUCKHAUS DERINGER

VALUE($mln)



DEALS MARKET SHARE

2 Paul, Weiss 27,096 7 14.7


4 Davis Polk & Wardwell 20,626 6 11.2

5 Cleary Gottlieb Steen & Hamilton 19,249 8 10.5

6 Stikeman Elliott 18,647 5 10.1

7* Burnet, Duckworth & Palmer 17,666 1 9.6

7* Richard A Shaw Professional Corp 17,666 1 9.6

7* Blake, Cassels & Graydon 17,666 1 9.6

7* Osler, Hoskin & Harcourt LLP 17,666 1 9.6


DEALS MARKET SHARE

2 Nagashima Ohno & Tsunematsu 41,868 96 24.3

3 Morrison & Foerster 33,580 21 19.5

4 Skadden 31,947 16 18.6

5 Nishimura & Asahi 28,276 64 16.4

6 Cravath, Swaine & Moore 24,182 2 14.1

7 Polsinelli Shughart PC 23,392 2 13.6

8* Potter Anderson & Corroon (DE) 23,332 1 13.6

8* Foulston, Siefkin, Powers & Elkouri (KS) 23,332 1 13.6

10 Anderson Mori & Tomotsune 19,989 21 11.6

NOTES: League tables, quarterly trend, and deal list are based on the nation of either the target, acquiror, target ultimate parent, or acquiror ultimate parent at the time of the transaction. Announced M&A transactions excludes withdrawn deals. Deals with undisclosed dollar values are rank eligible but with no corresponding Rank Value. Non-US dollar denominated transactions are converted to the US dollar equivalent at the time of announcement of terms. North Asia includes China, Hong Kong, Taiwan, South Korea, Japan. Data accurate as of November 28, 2012

29,269 71,999

8,943 71,999

54.4

93.9

61.7

103.3112.5

69.9

105.1

128.9

99.7

143.7

92.374.8

54.1

82.2

111.7130.2

101.083.8

128.6136.0

107.0114.9127.0125.9

99.3115.4

141.2

87.8

0

500

1,000

1,500

2,000

2,500

3,000

20406080

100120140160

1Q 06 3Q 06 1Q 07 3Q 07 1Q 08 3Q 08 1Q 09 3Q 09 1Q 10 3Q 10 1Q 11 3Q 11 1Q 12 3Q 12

No. of Transactions

Ran

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US$

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Series1 Series2

SPONSORED PROFILE 13WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

THE ESSENTIALS OF DRAFTING CLEAR, CONCISE & MODERN CONTRACTSDATE: 5 MARCH 2013 | TIME: 8:30AM - 4PM | LOCATION: HONG KONG

PRESENTED BY ALB AND KENNETH A. ADAMS

ALB is pleased to present internationally renowned contracts expert Ken Adams for one day only in Hong Kong. This hands-on seminar explores how to draft contracts that express deal terms clearly and effectively, saving you time and money, enhancing your competitiveness, and mitigating risk. Rather than simply lecturing, Ken uses interactive exercises, encouraging participation and addressing practical considerations related to the drafting process. This seminar is valuable for both junior and senior legal professionals, with tips that apply to all contracts drafted in English, whatever the governing law.

WHAT YOU’LL LEARN— Practical skills from a global industry leader— The problem with mainstream contract language— How efficient contract drafting can benefit your business— The basics of rigorous contract language and layout— Why revising your contract process can improve contract language

CPD POINTSAPPLIED FOR– 5.5 –

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Ken Adams

Lecturer - University of PennsylvaniaLaw SchoolFounder, President - KoncisionContract Automation

As the leading authority on contract language, Ken Adams has successfully coached people around the world in drafting clearer contracts. His book A Manual of Style for Contract Drafting is one of the American Bar Association’s bestselling titles. Mr. Adams has been named as one of 50 leading innovators in the legal profession. For more information about Mr. Adams, visit www.koncision.com

This was by far one of the most usefulprofessional development programs i haveattended in years. I highly recommend it tolawyers of all levels of experience.

Knowledge Management Lawyer,Fraser Milner Casgrain LLP

For enquiries, please call Tel: (65) 6870 3305 or e-mail [email protected]

Price includes the seminar, luncheon, course materials, and a complimentary copy of Ken Adams’s book, A Manual of Style for Contract Drafting.

Early bird - SAVE HKD 3,200*Register before 8 FEBRUARY 2013 and pay only HKD 4,800

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SPECIAL OFFER- FREE BOOK!Each participant will receive, at no extra charge, a copy of the latest edition of Ken Adams’s book, A Manual of Style for Contract Drafting. The seminar explores issues addressed in detail in this one-of-a-kind book that has become a valued resource for the legal profession.

A Manual of Style for Contract Drafting is a must for anyone who works regularly with contracts of any kind. It’s a unique resource, and I defy anyone to make sense of contract language without it.Contracts Manager · InnoPath Software, Inc.

On November 20-23, 2012, China International Economic and Trade Arbitration Commission (CIETAC) held the Tenth CIETAC CUP International Commercial Arbitration Moot (“The CIETAC CUP Moot”) in Beijing. The CIETAC CUP Moot, which was participated by over 200 contestants representing the law schools (departments) of 26 well-known domestic universities, lasted for four days and included 59 debate sessions. CIETAC invited more than 40 arbitrators and well-known lawyers including 8 foreign lawyers and arbitrators to serve as the judges. At the award ceremony on 23rd November, CIETAC presented certificates and trophies to the Best Individual Oralists, Group Contribution Award Winners, the eight finalist teams, as well as the Championship team and Runner-up team.

Till this year, CIETAC CUP Moot attracted nearly 1000 students from over 60 famous law schools in China to participate this event. Given its increased popularity and influence among universities and students, CIETAC CUP has become one of the regular events on the competition

TENTH CIETAC CUP INTERNATIONAL COMMERCIAL ARBITRATION MOOT SUCCESSFULLy HELD IN BEIJING

agenda prepared by the law schools and departments of Chinese universities. The Moot adopts the form of material submission and oral hearing of real arbitration procedure and focuses on the combination of theory and practice. It updates the students’ knowledge and understanding on arbitration system and helps them improve the ability of practice, which has gained great support and consistent favorable comment.

After the CIETAC CUP Moot, CIETAC will go on sponsoring the championship team to attend the Willem C. Vis International Commercial Arbitration Moot to be held in Vienna in March 2013 and the runner-up team to attend the Vis (East) Moot to be held in Hong Kong in March 2013. By sponsoring Chinese students to participate in the international competition held in Vienna and Hong Kong, CIETAC has not only expanded its global reach, but also enabled the Chinese law students to update their knowledge and understanding on international arbitration system, which will have a long-standing influence on their application of arbitration services in their future career.

A: 6/F, CCOIC Building, 2 Hua-pichang Hutong, Xicheng District, Beijing 100035, P.R. China.

T: +86 10 8221 7742 F: +86 10 8221 7766 W: www.cietac.org

CIETAC

IPP Wealth Advisers Ltd.

Suite 625 6/F 100 Queen’s Road Central, Hong Kong.

Tel: +852 9554 7789

Website: www.ippfa.com.hk

Congratulations to Mr. Robert Ashworth of Freshfields Bruckhaus Deringer for winning the

Dealmaker of the Year Award at ALB Hong Kong Law Awards 2012

IPP Wealth Advisers Ltd.

15/F 100 QRC, 100 Queen’s Road Central, Hong Kong

Tel: +852 9554 7789

Email: [email protected]

Website: www.ippfa.com.hk or www.ippfa.com/eag

Investment Protection Planning The right adviser, the right advice

IPP ad.indd 4 27/11/12 11:04 AM

APPOINTMENTS 15WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

www.cmlrecruitment.com.hkwww.cmlrecruitment.com.hk+852 2836 6382+852 2836 6382CareerAsiaCareerAsiaCmlAsiaCmlAsia

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LATERAL HIRESNAME LEAVING GOING TO PRACTICE LOCATION

Herbert Smith FreehillsBingham

McCutchenCorporate JapanSteve Lewis

Baker & McKenzie

yulchon Dispute Resolution South KoreaJunghye June Yeum

Zhong Lun AnJie Law Firm Antitrust BeijingMichael Gu

Grandall AnJie Law Firm Antitrust, Insurance BeijingZhan Hao

King & Spalding Kobre & Kim Dispute Resolution Hong KongShaun Wu

Stephenson Harwood Reed Smith Richards Butler

Shipping Hong KongJason Toms

Beijing Mingtai Law Firm AnJie Law Firm Antitrust BeijingHe Yu

fIRM PRACTICENAME fROM TO

fIRM PROMOTIONNAME PRACTICE LOCATION

Stephen Kitts Eversheds Corporate London Hong Kong

Kate Axup Allens PartnerEnergy and Resources

Beijing

Mark Shipman Clifford ChanceAsia-Pacific

corporate headCorporate Hong Kong

Paul Tan Baker & McKenzieManaging partner (HK,

China, and Vietnam)Corporate,

EmploymentHong Kong

RELOCATIONS

PROMOTIONS

ASIAN LEGAL BUSINESSDECEMBER 2012ALB tOP 50 LARgESt LAw FIRMS16

By SEHER HUSSAIN and KANISHK VERGHESE

ALB METHoDoLoGY

ToP 50 RESEARCH ExPLAINED:—

- Firms were contacted in July 2012, and asked to supply numbers of partners and lawyers across their operations in Asia.

- Total fee-earners equals the universal subset of all timekeepers, including associates, partners, counsel, foreign counsel (including lawyers on secondment from alliance firms) and consultants. Trainees or pupils were not counted among fee-earners.

- In the case of international law firms, only Asia-based partners, associates, and fee-earners were counted.

- Where two firms have the same headcount figure, the firm with the higher number of partners was ranked higher.

- Australia and New Zealand firms and headcounts were excluded from this ranking.

RANK fIRM HEADQUARTERS PARTNERS ASSOCIATES TOTAL fEE-EARNERS^

1 Dacheng Law Offices China 749 1428 2676

2 Beijing yingke Law Firm China 567 1053 1820

3 King & Wood Mallesons China 226 955 1181

4 Grandall Law Firm China 215 580 1112

5 DeHeng Law Offices China 187 763 1106

6 Baker & McKenzie U.S. 247 639 1100

7 Zhong yin Law Firm China 117 584 960

8 AllBright Law Offices China 184 671 940

9 Kim & Chang South Korea 120 N/A 800

10 Zhong Lun Law Firm China 203 560 747

11 Amarchand & Mangaldas & Suresh A Shroff & Co India 68 467 533

12 Jun He Law Offices China 149 299 482

13 Nishimura & Asahi Japan 95 321 474

14 Guanghe Law Firm China 112 348 455

15 Lee & Ko South Korea 128 225 436

16 Zhonglun W&D Law Firm China 98 320 418

17 Lee and Li Taiwan 53 327 380

18 Clifford Chance* UK 58 186 359

19 Allen & Gledhill Singapore 136 184 357

20 Shin & Kim South Korea 118 159 356

21 Rajah & Tann Singapore 117 172 355

22 Linklaters UK 53 215 352

23 Guangdong Sun Law Firm China 35 234 350

24 Nagashima Ohno & Tsunematsu Japan 82 227 340

25 Anderson Mori & Tomotsune Japan 84 207 325

Largest Law firms50

Top

ALB top 50 LArgest LAw firms 17WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business


1 Dacheng Law Offices China 749 1428 2676

2 Beijing yingke Law Firm China 567 1053 1820

3 King & Wood Mallesons China 226 955 1181

26 TMI Associates* Japan 66 215 311

27 Mori Hamada & Matsumoto* Japan 95 189 307

28 yulchon South Korea 90 170 307

29 Zhongcheng Renhe Law Firm China 78 275 307

30 yoon & yang* South Korea 100 154 301

31 Khaitan & Co India 58 242 300

32 Luthra & Luthra India 44 246 290

33 Allen & Overy* UK 46 164 287

34 Bae, Kim & Lee* South Korea 99 157 280

35 Jingtian & Gongcheng China 85 96 279

36 Deheng Law Firm China 37 181 277

37 DLA Piper UK/ U.S. 60 214 274

38 Jincheng Tongda & Neal China 99 217 271

39 Mayer Brown JSM U.S. 80 167 270

40 Guantao Law Firm China 65 140 268

41 Deacons Hong Kong 51 135 268

42 WongPartnership Singapore 93 171 264

43 Beijing Grandway Law Offices China 46 214 260

44 J Sagar Associates India 53 196 250

45 Hogan Lovells UK/ U.S. 44 204 244

46 AZB & Partners* India 19 221 240

47 Herbert Smith Freehills UK 45 192 237

48 Hylands Law Firm China 43 150 235

49 Drew & Napier Singapore 79 72 233

50 Freshfields Bruckhaus Deringer UK 31 N/A 233

ASIA

*Information obtained from law firm website^Total fee earners equals the universal subset of all time-keepers, including associates, partners, counsel, foreign counsel (including lawyers on secondment from alliance firms) and consultants. Trainees or pupils are not counted among fee-earners

While the global economy remains stagnant, Asia con-tinues to be the standard bearer of growth. Sure, the rumblings of an unsettled European economy and a flagging U.S. market have taken its toll in the East. yet,

Asia’s number of wealthy is fast increasing, its middle class is bur-geoning, and its companies are expanding abroad. The legal market is capitalising on these opportunities. The past year has seen many international law firms set up new offices in the region, the creation of several domestic firms, a host of mergers, and the consistent growth of existing Asian practices through lateral hires, internal promotions, and relocations. While many recently established Asian offices may not boast the headcount to ensure a place in ALB’s largest law firm tables, the message is clear that the Asian legal market is a highly competitive one.

The top three largest law firms by headcount in Asia who retain their spots from last year are: Chinese firms Dacheng Law Offices and Beijing yingke Law Firm, and recently merged King & Wood Mallesons. Dacheng Law Offices claims pole position with 2,676 fee-earners, boasting 800 fee-earners more than that of second-placed Beijing yingke Law Firm. King & Wood Mallesons remains the third-largest firm in Asia, and has grown considerably following the merger be-tween King & Wood and Australian firm Mallesons Stephen Jaques in March this year.

Partly due to the size of its domestic market, Chinese firms domi-nate the table again this year, representing 19 out of the 50 largest

firms in Asia. Six South Korean firms are top 50 contenders, while Japanese and Indian firms claim five spots each. Singaporean firms nab four places, with one firm from both Hong Kong and Taiwan fea-turing in the table. International firms – mostly from the UK – account for nine of the largest 50 firms in Asia.

Taking a closer look, Asia’s top 50 features five Indian firms - two fewer than last year - but still indicates consolidated growth as Amarchand & Mangaldas & Suresh A Shroff & Co moves up one place as the 11th largest firm in Asia with 533 fee-earners. Fox Mandal finds itself out of the table, given its recent demerger with Little & Co, while stalwarts J Sagar Associates, Luthra & Luthra, Khaitan & Co, and AZB & Partners continue to make a strong showing. Market sources point to corporate outsourcing as another driver of growth in the Asian market; as multinational corporations outsource more legal work, demand for legal services in low-cost locations is also spiralling upwards. Our India table has expanded to 20 firms to match this trend.

Moving further southeast, the race to be the largest firm in Singapore heats up considerably as Allen & Gledhill reclaims first place from Rajah & Tann by a mere two lawyers. This year we feature a separate table for international firms based in Singapore, highlighting the growing importance of the city-state to the Asian legal market. Large international firms continue to hungrily enter Singapore in an attempt to expand their footprint, and align themselves with Asia’s high growth economies. This burst of firm openings as well as a sig-nificant number of partner relocations for already-established teams

has propelled explosive growth, warranting an international firms table that is hotly com-petitive, with Ashurst and Watson, Farley & Williams tied with 42 fee-earners each.

Finally, the highest placed international firm on our list, Baker & McKenzie in the 6th position with 1,100 fee-earners, elected 68 lawyers this year to partnership. Of those, almost half were based in Asia-Pacific. Ultimately, the numbers do not lie; it has been a prosperous year for the Asian market as demand for legal services continues at a furious pace, and law firms merge, expand, and grow to keep up.

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Largest Law firms

ASIAN LEGAL BUSINESSdecember 2012ALB top 50 LArgest LAw firms18

RANK fIRM PARTNERS ASSOCIATES TOTAL fEE-EARNERS^

1 Dacheng Law Offices

749 1428 2676

2 Beijing yingke Law Firm

567 1053 1820

3 Grandall Law Firm

215 580 1112

4 DeHeng Law Offices

187 763 1106

5 King & Wood Mallesons

192 826 1018

6 Zhong yin Law Firm

117 584 960

7 AllBright Law Offices

184 671 940

8 Zhong Lun Law Firm

203 560 747

9 Jun He Law Offices

149 299 482

10 Guanghe Law Firm

112 348 455

11 Zhonglun W&D Law Firm

98 320 418

12 Guangdong Sun Law Firm

35 234 350

13 Zhongcheng Renhe Law Firm

78 275 307

14 Jingtian & Gongcheng

85 96 279

15 Deheng Law Firm

37 181 277

16 Jincheng Tongda & Neal

99 217 271

17 Guantao Law Firm

65 140 268

18 Beijing Grandway Law Offices

46 214 260

19 Hylands Law Firm

43 150 235

20 Global Law Office

60 200 200

RANK fIRM HEADQUARTERS PARTNERS ASSOCIATES

TOTAL fEE-

EARN-ERS^

1 Baker & McKenzie

U.S. 20 74 94

2 Hogan Lovells

UK/U.S. 11 69 80


4 O'Melveny & Myers

UK 8 39 70

5 DLA Piper UK/U.S. 11 57 68

6 Clifford Chance*

UK 9 46 66

7 Freshfields Bruckhaus Deringer

UK 6 N/A 60

8 Pinsent Masons

UK 8 18 46

9 Herbert Smith Freehills

UK 7 38 45

10 Allen & Overy*

UK 9 22 39

11 Mayer Brown JSM

U.S. 8 26 37

12 Orrick, Herrington & Sutcliffe

U.S. 5 16 37

13 Sidley Austin

U.S. 5 16 32

14 Shearman & Sterling

U.S. 4 26 30

15 Norton Rose

UK 11 15 26

china-h e a dqua rt ered

china int l

^Total fee earners equals the universal subset of all time-keepers, including associates, partners, counsel, foreign counsel (including lawyers on secondment from alliance firms) and consultants. Trainees or pupils are not counted among fee-earners


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1 Deacons 51 135 268

2 Woo Kwan Lee & Lo* 28 35 76

3 Li & Partners* 6 44 50

4 Wilkinson & Grist* 25 17 48

5 Hastings & Co 14 15 41

6 Gallant y.T. Ho & Co 18 14 40

7 P.C. Woo & Co* 16 17 36

8 Haldanes* 18 8 31

9 ONC Lawyers 14 17 31

10 Robertsons Solicitors* 15 N/A 30

hong kong -h e a dqua rt ered


22nd Floor, World-Wide House, Central, Hong KongTelephone: (852) 2501 0088 Fax: (852) 2501 0028Website: www.li-partners.com E-mail: [email protected]

Banking & FinanceLP’s banking and finance team represents borrowers and lenders on a wide range of finance transactions. LP lawyers have extensive experience in banking law and regulations, cross-border lending, syndicated loans, acquisition financing, shipping and aviation finance, equipment leasing, trade and property finance and other forms of financing for listed securities transactions.

ConstructionLP’s construction team deals with both contentious and non-contentious matters: providing legal and contractual advice to developers, construction professionals and contractors, drafting construction and consultancy contracts in South East Asia, Africa, HK & China as well as representing parties in resolving construction related disputes through litigation, CIETAC, ICC & other arbitration and ADR methods. Certain lawyers in our offices hold multiple professional qualifications with charter status in quantity surveying and / or civil engineering as well.

Litigation and ArbitrationLP’s litigation team has substantial experience in dispute resolution and enforcement/recovery actions in particular with regard to shareholder disputes, joint ventures, insolvency-related matters, secured lending recovery, mortgagee actions, enforcement of third party security, trade finance, employment, corporate fraud, listing/regulatory regime matters, licensing agreements and matrimonial proceedings.

Intellectual PropertyLP’s IP team advises on both contentious and non-contentious IP matters, including brand building and protection strategy, acquisition of IP related assets, IP due diligence, technology transfer, and entertainment related matters.

THE FIRMLi & Partners (“LP”) was the first leading Hong Kong law firm established by a PRC lawyer who is also a Hong Kong qualified lawyer. The office consists of Hong Kong, PRC, UK, USA and Japan qualified lawyers. The firm is committed to become the best Chinese international law firm in various common law jurisdictions.

AREAS OF PRACTICE China Practice

LP is widely recognized as one of the top-tier cross-border law firms advising state-owned institutional clients and corporate clients on cross-border investment, stock exchange listings and capital market transactions. Lawyers in our Hong Kong office work closely with lawyers in our PRC offices to represent Asian, US and European clients in structuring, negotiating and documenting investment projects with their PRC counterparts.

Capital Markets / Corporate FinanceLP lawyers have substantial experience and expertise in capital markets and corporate finance matters. LP advises institutional and corporate clients on IPOs, takeovers, privatizations, convertible note/bond issues, rights issues as well as mergers and acquisitions.

Corporate & Commercial / M&ALP regularly advises corporate clients on high-end corporate matters, such as post-IPO compliance matters and interpretation of listing rules and securities-related legislation, sale and purchase of private/public companies, takeovers and private equity investment. LP also advises on outbound investments and cross-border M&As for institutional and corporate clients from the PRC.

Contact:Terence CHIU - [email protected]

Other offices:Beijing; *Shenzhen; *Shanghai *Associate office

Languages: Cantonese, English, Mandarin

Legal Solutions Between East and West

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RANK fIRM PARTNERS ASSOCIATESTOTAL

fEE-EARNERS^

1 Amarchand & Mangaldas & Suresh A Shroff & Co

68 467 533

2 Khaitan & Co 58 242 300

3 Luthra & Luthra 44 246 290

4 J Sagar Associates 53 196 250

5 AZB & Partners* 19 221 240

6 Desai & Diwanji 17 156 173

7 Fox Mandal 36 122 162

8 Trilegal 20 131 151

9 M.V. Kini & Company

8 150 150

10 DSK Legal 14 147 147

11 Kochhar & Co* 34 78 112

12 Economic Laws Practice

19 80 99

13 Mulla & Mulla & Craigie Blunt & Caroe

14 122 86

14 Nishith Desai & Associates*

N/A N/A 69

15 Juris Corp 13 51 64

16 Surana & Surana International Lawyers

9 75 60

17 Thiru & Thiru 7 53 60

18 Krishnamurthy and Co

7 50 57

19 Singhania & Partners

12 44 56

20 IndusLaw 10 44 54

india


RANK fIRM HEADQUARTERS PARTNERS ASSOCIATESTOTAL

fEE-EARN-ERS^

1 Mayer Brown JSM

U.S. 63 121 200

2 Baker & McKenzie

U.S. 51 127 178

3 Clifford Chance*

UK 30 57 164


5 King & Wood Mallesons

China/Australia 34 129 163


7 Freshfields Bruckhaus Deringer

UK 18 N/A 125

8 Allen & Overy*

UK 15 35 99

9 Sidley Austin

U.S. 17 48 96

10 Herbert Smith Freehills

UK 17 73 90

11 Hogan Lovells

UK/U.S. 17 72 89

12 Reed Smith Richards Butler

U.S. 26 54 88

13 Norton Rose

UK 19 50 69

14 Kirkland & Ellis

U.S. 18 26 58

15 Latham & Watkins

U.S. 11 35 46

hong kong intl


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1 Hadiputranto, Hadinoto & Partners/Baker & McKenzie

16 86 106

2 Ali Budiardjo, Nugroho, Reksodiputro

15 65 104

3 Lubis Ganie Surowidjojo

7 93 100

4 Assegaf Hamzah & Partners

9 41 60

5 Soewito Suhardiman Eddymurthy Kardono

7 45 58

6 Hanafiah Ponggawa & Partners

9 44 56

7 Soemadipradja & Taher

8 36 48

8 Makarim & Taira* 8 30 46

9 Mochtar Karuwin Komar

5 40 45

10 Melli Darsa & Co 5 35 40

indon e sia



fEE-EARNERS^

1 Nishimura & Asahi 91 317 463

2 Nagashima Ohno & Tsunematsu

82 227 340

3 Anderson Mori & Tomotsune

83 206 323

4 TMI Associates* 66 215 311

5 Mori Hamada & Matsumoto*

95 189 307

6 City-yuwa partners* 36 75 120

7 Oh-Ebashi LPC & Partners

36 66 109

8 Atsumi & Sakai 37 53 94

9 Kitahama Partners* 30 45 85

10 Nakamura & Partners

32 48 84

ja pan


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1 Shearn Delamore*

86 63 151

2 Zaid Ibrahim & Co

45 83 128

3 Skrine* 41 57 103

4 Shook Lin & Bok*

28 52 80

5 Wong & Partners/Baker & McKenzie

11 47 79

6 Zul Rafique & Partners

37 41 78

7 Azmi & Associates

11 50 61

8 Raja, Darryl & Loh

18 37 55

9 Rahmat Lim & Partners

13 28 41

10 Albar & Partners

12 24 36 RANK fIRM PARTNERS ASSOCIATESTOTAL

fEE-EARNERS^

1 SyCip Salazar Hernandez & Gatmaitan

40 77 146

2 Angara Abello Concepcion Regala and Cruz Law Offices (ACCRALAW)

41 89 138

3 Romulo Mabanta Buenaventura Sayoc & De Los Angeles

43 54 97

4 CVC Law* 23 47 70

5 Castillo Laman Tan Pantaleon & San Jose Law Offices (CLTPSJ)

22 24 56

6 Quisumbing Torres/Baker & Mckenzie

18 37 55

7 Siguion Reyna Montecillo & Ongsiako*

29 20 49

8 Picazo Buyco Tan Fider & Santos*

22 26 48

9 Puno & Puno Law Offices*

13 32 45

10 PJS Law Firm* 12 20 32

m a l aysia

philippin e s




fEE-EARNERS^

1 Allen & Gledhill 136 184 357

2 Rajah & Tann 108 151 321

3 WongPartnership 93 171 264

4 Drew & Napier 79 72 230

5 Rodyk & Davidson

73 86 198

6 Baker & McKenzie.Wong & Leow

22 63 102

7 Shook Lin & Bok 33 47 89

8 KhattarWong 30 25 85

9 RHTLaw Taylor Wessing

31 28 59

10 Colin Ng & Partners

18 33 51

singapore-headquartered


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Cav

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1 Baker & McKenzie.Wong & Leow Singapore/U.S. 22 63 102

2 Clifford Chance* UK 12 45 68

3 Allen & Overy* UK 9 46 61

4 Norton Rose UK 17 42 59

5 Herbert Smith Freehills UK 10 34 44

6 Watson, Farley & Williams UK 12 30 42

7 Ashurst UK 10 32 42

8 Hogan Lovells UK/U.S. 8 N/A 24

9 O’Melveny & Myers U.S. 5 19 24

10 Berwin Leighton Paisner UK 8 10 21


12 Pinsent Masons UK 4 11 18

13 Eversheds UK 5 9 14

14 Sidley Austin U.S. 2 7 12

15 Gibson, Dunn & Crutcher U.S. 3 4 10

singa pore int l


Korea’s Premier Law FirmDriving excellence to help clients succeed

www.kimchang.com

Founded in 1973Over 800 professionalsHighly specialized practice areas

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1 Kim & Chang 120 N/A 800

2 Lee & Ko 128 225 436

3 Shin & Kim 115 156 350

4 yoon & yang* 100 154 301

5 yulchon 90 170 293

6 Bae, Kim & Lee* 99 157 280

7 Barun Law* 54 101 168

8 Jipyong Jisung* N/A N/A 130

9 Hwang Mok Park* 33 49 124

10 Kim, Choi & Lim* N/A N/A 109

south kore a


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1 Baker & McKenzie 41 99 170

2 Tilleke & Gibbins 14 80 94

3 LS Horizon Limited 9 66 66

4 Siam Premier* 17 N/A 60

5 Weerawong C&P* 9 42 60

6 Chandler & Thong-ek 11 29 40

7 International Legal Counsellors

10 15 40

8 DLA Piper 6 33 39

9 Allen & Overy* 5 26 36

10 DFDL 3 27 30

th ail and


SyCip Salazar Hernandez & Gatmaitan (SyCipLaw) announced the admission of Benedicto P. Panigbatan and Franco Noel A. Manaig to the partnership earlier this year.

Benedicto P. PanigbatanMr. Panigbatan has been with the firm since December 1997. His practice areas include mergers and acquisitions, foreign investments, corporate structuring and reorganization, sale and purchase of non-performing assets of banks and financial institutions, securities regulation, documentation of loans and security arrangements, real estate joint ventures and financing, and taxation (including estate planning and availment of reliefs and exemptions under various tax treaties). He also has extensive experience in mining and construction projects, general corporate services, legal due diligence exercises, and general contract drafting, review and negotiations. Mr. Panigbatan is acting as corporate secretary or assistant corporate secretary in various companies in the fields of real estate, investment house business, pharmaceuticals, tollroad business, mining, and business process outsourcing. Mr. Panigbatan earned the degree of Bachelor of Laws from the University of the Philippines where he ranked 7th in the graduating class of 1997 and received the Dean’s Medal for

ANNOUNCEMENT OF NEW PARTNERS

Academic Excellence. He was a lecturer on “Contract Writing and Contract Review” for the firm’s Mandatory Continuing Legal Education (MCLE) program accredited by the Philippine Supreme Court. He has contributed legal articles on banking, finance and securities to several international publications.

Franco Noel A. ManaigMr. Manaig joined the firm in 2000 and specializes in intellectual property, franchising and distribution. He has extensive experience in intellectual property rights enforcement, technology transfer, and portfolio management. Mr. Manaig is a member of the Asian Patent Attorneys’ Association and the Intellectual Property Association of the Philippines. Mr. Manaig received his LL.B. from the University of the Philippines where he received the Dean’s Medal for Academic Excellence. He is an accredited lecturer for “International Law” of the Philippine Supreme Court’s MCLE program. He has contributed legal articles on intellectual property to several international publications.

SyCipLaw is a top-tier full-service law firm in the Philippines. It received the Philippine Deal Firm of the year at the 2012 ALB Southeast Asia Law Awards.

A: SyCipLaw Center, 105 Paseo de Roxas, Makati City, Philippines

T: (632) 982-3500, 982-3600, 982-3700

W: www.syciplaw.com

SyCIP SALAZAR HERNANDEZ & GATMAITAN

Benedicto P. Panigbatan [email protected]

franco Noel A. Manaig [email protected]

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fEE-EARNERS^

1 Lee and Li 53 327 380

2 Baker & McKenzie

31 33 91

3 Formosa Transnational*

15 49 91

4 Formosan Brothers

20 42 62

5 Tsar & Tsai* 24 20 58

6 Chien yeh Law Offices*

14 35 57

7 Deep & Far* 5 40 45

8 LCS & Partners N/A N/A 43

9 Jones Day* 8 11 28

10 Chen & Lin Attorneys-at-Law

7 17 24

taiwan



fEE-EARNERS^

1 Baker & McKenzie 5 23 64

2 Vision & Associates

14 49 63

3 yKVN 9 46 55

4 VILAF 10 34 44

5 Phuoc & Partners 7 15 40

6 S&B LAW 6 25 40

7 Bizlink Lawyers & Consultants

5 20 35

8 Indochine Counsel

6 20 30

9 LuatViet Advocates & Solicitors

5 24 29

10 Mayer Brown JSM 6 18 28

vietna m


TV

YOUR CONTENT ON THE ALL-NEW ALB TV

RAISE YOUR PROFILEIncrease the visibility of your organization or an individual, through your own programming on the main channel or your branded channel.

DEMONSTRATE YOUR EXPERTISEDistinguish your organization’s capabilities through multimedia programming.

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ENGAGE YOUR AUDIENCESupplement your video with additional elements such as PDFs, firm profiles, partner bios, podcasts and hyperlinks back to your website.

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ham

Connected. Informed. Experienced.Paul, Weiss has been consistently voted the best Asian IT/Telecommunications firm by leading publications and industry surveys in recognition of our M&A, private equity and regulatory efforts in the telecommunications and IT sectors. Our knowledge of the regulatory landscape in Greater China is recognized by our peers as being second to none.

Recent accolades include:

“Tier 1” international firm for TMT in China by The Legal 500 Asia Pacific 2013

“TMT Law Firm of the Year - Hong Kong” by Finance Monthly Law Awards 2012

“International TMT Firm of the Year ” by China Law & Practice Awards 2012

“TMT International Law Firm of the Year ” by the Chambers China Awards 2012

“Band 1” international firm for TMT in information technology and telecommunications and broadcasting in China by Chambers Asia-Pacific 2012

“Deal of the Month” by Asian-MENA Counsel for our involvement in the groundbreaking joint venture between DreamWorks Animation and various Chinese partners to establish the leading China-focused family entertainment company in the PRC, Oriental DreamWorks in 2012

“TMT Deal of the Year” by Asian Legal Business for our involvement in the creation of Shanghai Disneyland at the ALB China Law Awards 2012

“China Private Equity Deal of the Year” at the AVCJ China Awards 2012, “Large Deal of the Year” in the March 2012 issue of Private Equity International (PEI) and “Deal of the Week” in the September 2011 issue of Asian Venture Capital Journal (AVCJ) for our involvement in the investment in Alibaba Group by an international consortium led by Silver Lake Partners, in which we also represented Temasek Holdings and a Hong Kong-based investment group

Tenth time winner of the “IT/Telecoms Law Firm of the Year” by Asian Legal Business at the ALB Hong Kong Law Awards 2011

“Taiwan Deal of the Year” by Asian Legal Business Hong Kong Law Awards 2011 for our involvement in the Carlyle Taiwan Cable TV business sale

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP WWW.PAULWEISS.COM

Technology, Media and CommunicationsJeanette K. Chan

[email protected]

+86-10-5828-6388

+852-2846-0388

John E. (“Jack”) Lange

[email protected]

+852-2846-0333

Xiaoyu Greg Liu

[email protected]

+86-10-5828-6302

NEW YORK BEIJING HONG KONG LONDON TOKYO TORONTO WASHINGTON, DC WILMINGTON

Contact Us:

M&A FOCUS28 ASIAN LEGAL BUSINESSdecember 2012

Japan’s Mitsubishi UFJ Financial Group (MUFG) is looking at acquisitions in the Unit-ed States, including one big enough to vault it into the country’s top 10 banks, a top ex-ecutive told Reuters.

A significant purchase or a series of small-er deals would likely be in the west, where MUFG owns Union Bank and could get cost savings and synergies, Nobuyuki Hirano, president of the core banking unit of MUFG, Japan’s biggest bank, said.

“Given the uncertain financial and eco-nomic environment we will not miss any opportunity if it arises,” Hirano told Reuters during a visit to London in late November.

Union Bank ranks just outside the coun-try’s top 20 banks with $65 billion in depos-its, and MUFG has said it wants to be in the top 10, which will require a doubling in size. “A series of smaller scale acquisitions will open the way to get there,” Hirano said, add-ing: “For a larger deal we are ready to inject fresh capital ... We are quite flexible.”

“The U.S. is still a growing market. It may be slower than Asia, but we still predict 2 or 3 percent sustainable growth,” Hirano said, adding the U.S. banking model fits its focus on commercial banking.

Union Bank has about 400 branches, mostly in California, and will add 45 more with the $1.5 billion purchase of Pacific Capi-

tal Bancorp, which was due to close by the end of November. Law firm Sullivan & Crom-well is advising Union Bank on the deal.

Hirano, who became president of Bank of Tokyo-Mitsubishi UFJ (BTMU), the core retail and commercial bank arm of MUFG, in April, wants to accelerate expansion and

the growth of overseas earn-ings from Asia, outside Japan, which are currently about 30 percent of group revenues. “We’d like to increase that up to 40 percent in the near fu-ture,” he said.

Hirano said MUFG and Morgan Stanley were both “comfortable” with their re-lationship, which stems from the Japanese bank’s invest-ment in the Wall Street firm in 2008. This resulted in MUFG holding a 22 percent stake in Morgan Stanley and the pair cooperating to share busi-ness. “We are good at global commercial banking...so we like to allocate our resources primarily in that zone, while Morgan Stanley is good at in-vestment banking, so we want them to run their business and work together,” he said.

INTERNATIONAL APPEALHirano, who has spent 13 years abroad and speaks fluent English, has been a key player in many of MUFG’s strategic moves, and is tipped to take over at the top of the bank.

He joined Mitsubishi Bank in 1974, and his down-to-earth style is renowned - he refuses to commute in a chauffeured car, prefer-ring instead the jam-packed Tokyo subway. MUFG and rivals Sumitomo Mitsui Financial Group and Mizuho Financial Group are tar-geting overseas expansion due to sluggish

domestic growth prospects. “The opportu-nity for growth is limited as the population is ageing,” Hirano said.

MUFG wants U.S. profits in 2014 to be up by 30 percent from 2011, EMEA profits to rise 20 percent, and profits from Asia outside Ja-pan to jump by 50 percent. That equates to annual growth of about 15 percent in Asia, 9 percent in the United States, and 6 percent in EMEA, Hirano said.

Greater China, India and the Oceania re-gion are all areas MUFG is targeting, and it will follow Japanese clients expanding into countries like Vietnam, he said. At home, banks have been hit by losses on their hold-ings of Japanese equities, reviving investor concerns over stakes they hold in clients like Sharp and Panasonic.

Banks have slashed these stakes in the past decade, but still have a large number of holdings across many industries. “We will not take a drastic cut, but we will continue to rebalance our portfolio,” Hirano said.

MUFG holds about 3 trillion yen in do-mestic equities.

By STEVE SLATER and SARAH WHITE , REUTERS(Additional reporting by ALExANDER SMITH)

JAPAN’S MITSUBISHI UfJ ON PROWL fOR U.S. BANK DEAL

REUTERS

REUTERS/yuriko Nakao

“THE U.S. IS STILL A GROWING MARkET. IT MAy BE SLOWER THAN ASIA, BUT WE STILL PREDICT 2 OR 3 PERCENT SUSTAINABLE GROWTH.”NOBUYUKI HIRANO, MUFG

REUTERS/Toru Hanai

Mergers & Acquisitions

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LBO Finance

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Asset Management

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Tokyo Office

Marunouchi Park Building

2-6-1 Marunouchi

Chiyoda-ku, Tokyo 100-8222

Tel: +81-3-6212-8330 (public relations)

Email: [email protected]

www .mhm j a p a n . c om

Mori Hamada & Matsumoto is one of the largest full-service law firms based in Japan, offering legal expertise in a comprehensive range of practice areas.

Tokyo ・ Beijing ・ Shanghai ・ Singapore

ASIAN LEGAL BUSINESSdecember 2012SponSored profile30


THE COMPANIES ACT OF JAPAN IS NOW IN THE PROCESS OF ITS FIRST SIGNIFICANT AMENDMENTS SINCE ENACTMENT IN 2005. ON SEPTEMBER 7, 2012, THE JUSTICE MINISTRy’S LEGISLATIVE COUNCIL APPROVED AN OUTLINE REGARDING AMENDMENTS TO THE COMPANIES ACT (THE “OUTLINE”). THIS ARTICLE HIGHLIGHTS MAJOR REFORMS PROPOSED By THE OUTLINE WHICH AFFECT INBOUND M&A TRANSACTIONS INTO JAPAN.

I. Squeeze-out of Minority ShareholdersNeither the Companies Act nor the Financial Instruments and Exchange Act, which regulates takeovers in Japan, provides an express squeeze-out mechanism for buying out minority shareholders.

Currently, there are mainly three practical ways to squeeze-out minority shareholders1. Namely, a cash-out merger, a share exchange for cash or a callable share scheme. Of those, most acquirers have chosen the more complicated callable share scheme since a cash-out merger and share exchange for cash result in taxation on the assets of the target company.

In a callable share scheme, the target company converts its existing common shares into wholly callable shares2 and purchases the callable shares so converted by a series of special resolutions of a shareholders’ meeting. Newly created class shares are allotted to all shareholders including the acquirer as consideration for the callable shares. The exchange ratio is determined in such a way so that only fractional shares will be allocated to the minority shareholders. The minority shareholders then receive cash in lieu of the fractional shares.

As the callable share scheme requires obtaining approval at a shareholders’ meeting and is therefore time consuming and burdensome, there has been a call for a more straightforward squeeze-out mechanism.

As a means to facilitate squeeze-out transactions, the Outline proposes an express squeeze-out right. According to the Outline, a Special Controlling Shareholder (a shareholder holding nine-tenths of total voting rights) has the right to demand that the other shareholders sell their shares to the Special Controlling Shareholder (a “Squeeze-out Right”). If the Special Controlling Shareholder wishes to exercise the Squeeze-out Right, it must first notify the target company of certain particulars of the squeeze-out (e.g., the amount of consideration, proposed acquisition date) and obtain approval from the target company. In case of a target company with a board of directors, such approval must be furnished by the board. When the target company approves the squeeze-out, it must then notify its shareholders of the particulars of the squeeze-out or make a public notice on or before the 20th day from the acquisition date. On the acquisition date, the Special Controlling Shareholder will acquire the shares from the shareholders.

The proposed Squeeze-out Right will provide an additional option to an acquirer and hasten the entire process of squeeze-out transactions as it does not require a shareholders’ meeting.

While the Squeeze-out Right is not linked to a tender offer and a tender offer is not a prerequisite, it is expected that the Squeeze-out Right will mainly be used following a tender offer. It may be pertinent to note that, even if the acquirer is not able to acquire nine-tenths of the voting rights in the tender offer, it may still pursue the squeeze-out of minority shareholders by way of the callable share scheme or other schemes.

The acquirer may wish to have a top-up option prior to the commencement of the tender offer in order to avail itself of the Squeeze-out Right3. Whether such an option would be permissible under Japanese laws needs to be carefully examined.

The Outline provides that the Special Controlling Shareholder may acquire not only shares but also stock options. This would be another advantage as the acquisition of stock options requires consent of option holders under the wholly callable share scheme.

Upon exercise of the Squeeze-out Right, dissenting shareholders would have a right to seek judicial appraisal of the fair value of their share. In addition, if (i) the exercise of the Squeeze-out Right violates laws, (ii) the target company does not comply with the procedural requirements, or (iii) the consideration payable to the shareholders is grossly improper, then the dissenting shareholders would have a right to seek an injunction. Further, for a period of 6 months after the date of acquisition, the minority shareholders could seek to bring a claim which, if successful, would void the exercise of the Squeeze-out right.

It is particularly important to assess the possibility of an injunction in an LBO transaction, because there could be a risk that the acquirer purchases a substantial amount of shares through a tender offer but the subsequent acquisition of the remaining is enjoined, in which case pledging target company’s assets as collateral for the LBO loan could constitute a violation of the fiduciary duty of the directors of the target company.

One remaining issue to be resolved is whether the Squeeze-out Right will be tax neutral.

II. Issuance of New Shares or Stock Options by way of Third Party AllotmentUnder the extant Companies Act, the board of directors of a public company may authorize the issuance of new shares by way of third party allotment so long as the issue price is not particularly favorable to the third party.

Because there have been a number of instances where a listed company has issued new shares by way of third party allotment in a manner that has substantially diluted existing shareholders, it has long been argued that the

HOW DO THE PROPOSED AMENDMENTS TO THE COMPANIES ACT AFFECT M&A TRANSACTIONS IN JAPAN?

Kenichi Sekiguchi, Attorney at law, Japan

Mori Hamada & Matsumoto A: Marunouchi Park Building,

2-6-1 Marunouchi, Chiyoda- ku, Tokyo 100-8222, Japan

T: +81 3 6212 8330 F: +81 3 6212 8230 W: www.mhmjapan.com

1 Another possible scheme is a consolidation of shares so as to ensure that minority shareholders will only receive cash in lieu of fractional shares. A share consolidation scheme is, however, rarely used as this would be regarded as coercive due to the lack of an appraisal right under the extant companies Act while the outline proposes the right of appraisal in a consolidation of shares.2 Wholly callable shares are a type of class shares that may be redeemed through adoption of a special resolution at a shareholders’ meeting.3 In the US, in order to use a short-form merger, the target company often grants stock options so that the acquirer can increase its shareholding to 90% even if it does not achieve 90% through the tender offer.

SponSored profile 31WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business


shareholders (not just the directors) should have a right to vote on a change of control through a large scale issuance of new shares by way of third party allotment.

The Tokyo Stock Exchange and other stock exchanges in Japan have already implemented certain rules addressing these concerns. Under the Code of Corporate Conduct of the Tokyo Stock Exchange4, if a listed company issues new shares by way of third party allotment which results in (i) a dilution ratio of 25% or more or (ii) a change of controlling shareholder, then the listed company must (a) obtain an opinion from an independent third party on the necessity and appropriateness of the third party allotment or (b) take procedures to affirm the intent of its shareholders such as obtaining a resolution at a shareholders’ meeting, except where such issuance is extremely urgent.

In an effort to address these concerns while realizing the necessity of expeditious fundraising, the Outline proposes a right of certain shareholders to request the holding of a shareholders’ meeting5.

According to the Outline, if a public company intends to issue new shares to a third party (“Specific Subscriber”) other than its parent company by way of third party allotment and the number of voting rights to be held by the Specific Subscriber and subsidiaries of the Specific Subscriber after the issuance of such new shares exceeds one-half of the total voting rights of the company, the company must notify its shareholders, or make public notice of the particulars of the issuance at least two weeks prior to the issuance date. If a shareholder holding one-tenth of the total voting rights notifies the company of its intention to object to the issuance within two weeks from the date of notification or the public notice, the company must procure that the issuance of new shares be approved by an ordinary resolution of a shareholders’ meeting. The requirement for obtaining shareholders’ approval does not, however, apply to a situation where the state of property of the public company is substantially deteriorating and there is an imminent necessity to issue new shares to sustain the business of the company.

Where a new issuance of shares could result in a change of control of a public company, it will be necessary to assess whether it is likely that one-tenth or more of the shareholders will object and, if necessary, to schedule time for holding a shareholders’ meeting.

III. Acquisition of Shares in a SubsidiaryThe transfer by a company of all or a substantial part of its business requires shareholder approval, but no such approval is required in connection with the transfer of shares of a subsidiary. In light of the increasing use of holding company structures in Japan, an issue has arisen as to how to protect shareholders of the holding company from mismanagement of subsidiaries.

Therefore, as part of the effort to afford enhanced protection to shareholders of a holding company, when a company transfers all or part of its shares or interest in a subsidiary, the Outline requires obtaining a special resolution at a shareholders’ meeting unless (i) the book value of the shares or interest in the subsidiary is not in excess of one-fifth of the net assets of the company or (ii) the company continues to hold a majority of the voting rights of the subsidiary.

IV. Successor Liability in Spin-offsThe use of a statutory spin-off mechanism can be an effective way to isolate potential liabilities of a target company. However, the Outline provides that if a splitting company spins-off its assets to a succeeding company knowing that such a spin-off will prejudice creditors whose debts are not transferred to the succeeding company, then the creditors may demand the succeeding company to satisfy those debts to the extent of the assets transferred.

Therefore, in a transaction involving a spin-off, potential liability must be carefully examined and appropriate protections in an acquisition agreement such as adequate representations and warranties should be negotiated.

V. Right of InjunctionExcept for transactions such as short form mergers that do not require approval of shareholders6, the extant Companies Act does not provide for the right of shareholders to seek to enjoin the transaction7. Realizing the need to enhance protection of minority shareholders, the Outline proposes the right of shareholders to seek to enjoin transactions such as an acquisition of callable shares, a consolidation of shares, or a merger if there is a violation of laws or the articles of incorporation and the shareholders are likely to suffer any detriment.

A violation of law for this purpose would not be construed to include a violation of fiduciary duty or duty of loyalty of directors and the situations giving rise to an injunction would be limited. However, it will be important to bear in mind these rights of minority shareholders when structuring a transaction.

The Outline also provides a number of other proposals to enhance protection of dissenting shareholders in change of control transactions, including reforms relating to the procedure for appraisal rights and right for injunctions against exercise of voting rights of shares acquired in violation of tender offer regulations.

The Outline is expected to come before the Diet in 2013 and, if all goes as expected, the amendments will come into force in 2014. Investors should keep a close eye on the progress of the amendments.

4 Other stock exchanges in Japan have adopted equivalent rules.5 A similar rule is proposed for the issuance of stock options by way of third party allotment resulting in a potential change of control.6 In the case of short form mergers etc, an injunctive right is provided in certain cases including where there has been a violation of laws, or the merger consideration is grossly improper and the shareholders are likely to suffer a disadvantage.7 The Companies Act provides for the right of demanding an injunction where a director engages, or is likely to engage, in an illegal act etc. However, due to the high burden of proof, seeking an injunction pursuant to this right is usually not practical.

TAIWAN COUNTRY REPORT32 ASIAN LEGAL BUSINESSDECEMBER 2012

CLEARINGTHE CLOUDS?

Men look at the Taipei 101 building from Elephant Mountain in Taipei. REUTERS/Pichi Chuang

CHINA’S STAR MAY BE ON THE RISE AS A GLOBAL GROWTH MARKET, BUT FOR TAIWANESE INVESTORS THE MARKET HAS BEEN FRAUGHT WITH LEGAL CHALLENGES. A NEWLY SIGNED INVESTOR PROTECTION AGREEMENT BETWEEN BEIJING AND TAIPEI ON AUG. 9, HOWEVER, IS FORGING CLOSER ECONOMIC TIES BETWEEN THE TWO NATIONS, AND HAS INTRODUCED A BLUEPRINT FOR RESOLVING CROSS-STRAIT DISPUTES. THE DEAL IS BOLSTERING INVESTOR CONFIDENCE, BUT SOME QUESTIONS REMAIN. KANISHK VERGHESE REPORTS.

TAIWAN COUNTRY REPORT 33WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

For Taiwanese companies and inves-tors, China has been a double-edged sword. Investments in the mainland are vital for growth, but the uncer-

tainty surrounding legal rights in disputes has led several Taiwanese parties to reconsider their dealings in the country. The signing of a new investor protection agreement between Beijing and Taipei, however, lays out avenues for resolving disputes between Taiwanese investors and Chinese entities, which should instil confidence into Taiwanese cross-strait investors. But questions still linger as to how China will implement and enforce the agreement.

A POSITIVE STRIDEAfter two years of difficult negotiations, Beijing and Taipei signed the Cross-strait Bilateral Investment Protection and Promotion Agreement on Aug. 9, 2012. It is the first key pact signed since the land-mark cross-strait Economic Cooperation Framework Agreement, which took effect on Jan. 1 last year. And the agreement should act as a catalyst for further cross-strait business and investment.

The pact offers a framework for Taiwanese investors to take up disputes with a local government on the mainland, while providing safeguards for investors that are common-place in investment treaties elsewhere. This includes protection against expropriation. The agreement also broadens the scope of protection to those investing in China or Taiwan indirectly via a third country.

“It is a positive move for both sides. The pact helps investors on both sides enjoy more legal protection, particularly Taiwanese investors,” says Nigel Li, partner at Lee and Li and chairman of the Chinese Arbitration Association in Taipei. “A semi-governmental platform has been established which will al-low investors who encounter legal problems to have a place to voice their concerns and complaints, and find a better solution than before the signing of the pact.”

To help protect the rights of Taiwanese investors on the mainland, the agreement introduces a mechanism to solve private-to-private (P2P) and private-to-government (P2G) disputes.

The key features of the agreement are that it recognises that P2G or investment disputes can be referred to mediation by in-stitutions in both Taiwan and China, and that

P2P commercial disputes can be referred to arbitration institutions in both countries, says Lillian Chu, partner at Tsar & Tsai Law Firm in Taiwan. In the past, only Chinese institutions could handle arbitration for P2P commercial disputes, Chu adds.

“The existence of this agreement will encourage people and enterprises to utilise those existing arbitration mechanisms,” adds Hsiaoling Fan, a partner at Formosa Transnational, a Taiwanese law firm.

The agreement states the arbitral awards in China or Taiwan are enforceable in each other’s jurisdiction. Private parties involved in commercial disputes could agree upon the arbitration venue, arbitration mechanism, and the arbitrator. These types of commercial disputes were often arbitrated in third-party jurisdictions like Hong Kong, Singapore, and even Sweden, says Fan.

“TAIWANESE INVESTORS CAN EXPECT TO SEE A PROCEDURE WHERE A PRIVATE ORGANISATION OR INSTITUTE PARTICIPATES IN THE MEDIATION PROCESS. THAT WILL GIVE A LOT OF PEOPLE CONFIDENCE.”LILLIAN CHU, Tsar & Tsai

Chairman of China’s ARATS Chen exchanges documents with Taiwan’s SEF Chairman Chiang in Taipei. REUTERS/Pichi Chuang

TAIWAN COUNTRY REPORT34 ASIAN LEGAL BUSINESSDECEMBER 2012

While commercial disputes have long been resolved in international jurisdictions, the lines become blurred when it comes to P2G disputes. The use of third-party arbitration venues to tackle P2G disputes was a hotly debated issue that the Taiwanese business community had demanded to be permitted in the agreement. Despite the progress of cross-strait relations between China and Taiwan, political sensitivities do remain. As a result, the agreement does not incorporate international arbitration as a dispute resolu-tion mechanism for P2G and investment compensation disputes.

AN ALTERNATIVE METHODHowever, the agreement does introduce mediation as a resolution method for invest-ment compensation disputes arising from cross-strait investments. The pact states that mediation proceedings will be private unless otherwise agreed by the disputing parties, and will be handled by arbitration institutions and mediation centres, though a list of which institutions will be used has not yet been provided.

The agreement specifically provides me-diation for P2G disputes for expropriation. On

the other hand, mediation has always been an available approach for P2P disputes, says Li. He adds that there is a different legal signifi-cance of mediation as a mechanism under the laws of both countries. In Taiwan, successful mediation by courts or by an arbitrator car-ries legal force and an enforceable result as a court decision. China’s new mediation law was just passed last year, and mediation has not yet been widely accepted by the courts as an equivalent to litigation. “The PRC courts will only recognise and enforce mediation settlements if it is conducted by court, or

has been approved by courts. There is a gap between the laws of both sides, but this issue has not been covered in this pact,” says Li.

A MATTER OF ENFORCEMENTOther concerns remain. While both parties have shown good faith developing cross-strait relations, many in the legal and busi-ness communities wonder how Beijing will implement the agreement, especially when it comes down to enforcing arbitral and media-tion awards for disputes.

As it stands, arbitral awards are enforce-

“IF WE WANT TO MAKE THESE CROSS-STRAIT P2P MEDIATION MECHANISMS

WORK, WE SHOULD GET ONE OF THE TAIWANESE-CERTIFIED ARBITRATORS INVOLVED. WE NEED TO FIGURE OUT WHAT THE REQUIREMENT IS FOR PRIVATE AGREEMENTS VIA MEDIATION TO BE ENFORCED WITHOUT COMPLICATED PROCEDURES IN CHINA AND TAIWAN.”HsIAoLINg FAN, Formosa Transnational

Taiwan’s President Ma Ying-jeou poses for a photograph during an interview with Reuters atthe Presidential Office in Taipei June 1, 2012. REUTERS/Pichi Chuang

TAIWAN COUNTRY REPORT 35WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

able in both China and Taiwan, but mediation still remains a grey area. Since mediation is deemed a private agreement, the question is how both jurisdictions will enforce agree-ments achieved via mediation. In Taiwan, a provision under its current arbitration law states that only mediated agreements conducted by a certified arbitrator is directly enforceable. “If we want to make these cross-strait P2P mediation mechanisms work, we should get one of the Taiwanese-certified arbitrators involved. We need to figure out what the requirement is for private agree-ments via mediation to be enforced without complicated procedures in China and Taiwan. That is what arbitration associations across the strait are working on,” says Fan.

“Taiwanese investors can expect to see a procedure where a private organisation or in-stitute participates in the mediation process. That will give a lot of people confidence,” adds Chu.

A HANDY TOOLRenewed investor confidence, coupled with greater public awareness, may translate into more cross-strait disputes going to arbitration or mediation. Many lawyers have observed that arbitration is becoming an increas-ingly useful tool for Taiwanese companies, partly due to their aversion to litigate in China. Although awareness is picking up in Taiwan, Chu states that not many cross-strait commercial disputes go to arbitration, which leaves a lot of room for arbitration to develop.

“Unfortunately, arbitration is not a mecha-nism well known to Taiwanese business com-munities, particularly for small-and medium-sized businesses. Of course, multinationals with good legal departments are aware of the benefit of adopting arbitration as a mecha-nism. But the signing of this pact provides an opportunity to really promote arbitration or

alternative dispute resolution,” says Li.

GETTING INVOLVEDReinvigorated confidence for Taiwanese companies and investors and closer cross-strait economic ties are likely to create work opportunities for private practitioners in the region. Besides the general corporate and finance arms of law firms, the dispute resolution practices also stand to benefit. Li believes the pact will prompt companies to adopt more arbitration clauses in their contracts, and expects to see more arbitra-tion cases in Taiwan over the next few years. “Practitioners, including arbitrators and lawyers, will have more opportunities to be involved in the process. The number of cases has not been that big, but in the future, with greater public awareness particularly in the Taiwanese business community, that situa-tion may change,” says Li.

Although signed by both sides, the agree-ment is still pending legislative approval in Taiwan. But many lawyers expect this internal process to be completed before the end of the

“IT IS A POSITIVE MOVE FOR BOTH SIDES. THE PACT HELPS INVESTORS ON BOTH SIDES ENJOY MORE LEGAL PROTECTION, PARTICULARLY TAIWANESE INVESTORS. A SEMI-GOVERNMENTAL PLATFORM HAS BEEN ESTABLISHED WHICH WILL ALLOW INVESTORS WHO ENCOUNTER

LEGAL PROBLEMS TO HAVE A PLACE TO VOICE THEIR CONCERNS AND COMPLAINTS, AND FIND A BETTER SOLUTION THAN BEFORE THE SIGNING OF THE PACT.”NIgEL LI, Lee and Li

IP

13th Fl., 27 Sec. 3, Chung San N. Rd., Taipei 104, Taiwan, R.O.C. ℡: 886-2-25856688 �: 886-2-25989900/25978989

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year. Once the pact takes effect, Beijing and Taipei will start to exchange a list of arbitra-tion and mediation institutions to oversee the new dispute resolution mechanisms stipulated.

A FUTURE OF OPPORTUNITIESThe investment protection agreement is a positive step in the safeguarding of cross-strait investors’ rights, while encouraging and creating a healthier investment environment. Where cross-strait investors would have once encountered problems with other private par-ties or local authorities, formal mechanisms are now in place to offer a platform to resolve disputes. While the question remains as to how the agreement will work in practice, cross-strait investors are likely to be encouraged by the greater clarity provided, and the prospects of closer economic cooperation between China and Taiwan for years to come. Tsar & Tsai’s Chu summarises: “The fact that is has been put in writing in the agreement is already great progress between the two sides.”

SPONSORED PROFILE36 ASIAN LEGAL BUSINESSDECEMBER 2012

lending .The increase in regulatory control over lending has also caused banks in general to be more cautious in lending. Thus, Asian corporations have recently adopted bond issue as a corporate finance instrument in reducing their reliance on bank loans and in satisfying their long-term funding needs with lower costs. As more corporate investors and sophisticated high net-worth individual investors become less risk-averse and embrace bonds as an alternative investment to equity, I am optimistic that the Asian bond markets will continue to grow from strength to strength.

ALB5: Has your firm been busy with work relating to the emerging markets?LCC: Our Natural Resources and Energy (NRE) Practice colleagues are currently wrapping up the on-going coal-delegated port facilities project in the Sovgaran special economic zone in Russia. Our NRE team has also been busy with instructions relating Myanmar (a proposed RTO by a Myanmar conglomerate of a listed entity), Mongolia (a proposed IPO by a Mongolian group) and Indonesia (a series of acquisitions of interests in coal mines).

ALB6: Have your colleagues encountered any difficulties when executing the projects?LCC: Absolutely. The execution process in each jurisdiction has not been a bed of roses. In addition to the cultural and language differences in each jurisdiction, there has been much uncertainty over its legal and regulatory provisions (very often the clarifications provided by the relevant authorities and the local legal practitioners have not been too helpful either). Many of the large conglomerates in Myanmar are controlled by individuals who are on the Specially Designated Nationals (SDN) List maintained by the U.S. Office of Foreign Assets Control (“OFAC”). The SDN List has not been withdrawn notwithstanding the recent visit to Myanmar by President Barack Obama. It would be difficult for such a conglomerate to undertake an IPO or RTO abroad as it would be difficult for the relevant exchange to turn a blind eye to the SDN issue. Whilst Mongolia has transformed itself, over the last 20 years, from a socialist country to a vibrant multiparty democracy, and has been able to attract substantial foreign direct investments (FDIs) from the likes of Rio Tinto and Ivanhoe Mines, there are still serious concerns over its foreign investment law, for instance, the recently enacted “Strategic Entities Foreign Investment Law” appears to be restricting foreign ownership of assets and access to use rights in key sectors, including the natural resource space. Although there is ample room for FDIs to grow in Indonesia, especially in the natural resource sector, the lack of regulatory certainty poses a serious problem to foreign investor. In this regard, the widely publicised resignation of British- born financier Nat Rothschild from the board of Bumi Plc, one of the world’s biggest coal exporters, and the recently introduced 51% compulsory divestment of shareholding by foreign mining licence holders have naturally dampened investor sentiments.

ALB1: Would you, as a specialist practitioner in the field, please share with us the current state of the capital markets in the region?LCC: The equity capital markets in the region, subject to the notable exception of Malaysia, have been slow this year. This could largely be attributable to market volatility resulting from the gloomy global economic outlook and the markets’ serious concerns over the continuing euro zone debacle. Malaysia has performed exceedingly well this year! Bursa Malaysia rolled out a total USD7.5 billion of new listings, including Felda Global Ventures’ USD3.3 billion IPO, IHH Healthcare’s USD2.1billion IPO and Astro Malaysia’s USD1.5 billion IPO. While the IPO markets in the region have not been roaring this year and notwithstanding the postponement of several planned major IPOs, namely, Croesus Retail Trust’s SGD800 million IPO, the IPO of Hong Kong Billionaire Li Ka-shing’s Horizon Hospitality (Holdings) and GE-backed Altitude Aircraft Leasing Trust’s USD750 million IPO, there is still a healthy pipeline of IPO deals waiting to tap the markets. One must not write off the IPO markets in the region.

ALB2: Indeed. In the third quarter this year, the Asian region actually accounted for 80% of the equity capital raised globally. How about the debt equity markets in the region?LCC: More corporations in the Asian region are now tapping the bond markets to fund their long-term capital needs. New issues are performing well. The volume of new bond issues is soaring. The new bond issues in Asia (excluding Australia and Japan), amounted to approximately USD706 billion as of 31 October this year. The bond markets are certainly hot, which caused a leading investment house to warn about a possible Asian bond market bubble!

ALB3: What are the main reasons for this trend?LCC: This trend is largely liquidity driven. There is rising liquidity in the markets as the central banks in the U.S. and Europe undertake quantitative easing measures. The low interest rates in the U.S. (incidentally, the Federal Reserve has on record indicated that it would probably hold the federal-funds rate near zero until at least mid-2015) likewise give the dollar-based investors strong reasons to look for alternative investments with better yields. Similarly, worried investors from Europe, including their central banks, are looking for a safe refuge to park their funds in the light of the risks and uncertainties surrounding the continuing euro zone debacle.

ALB4: Do you think that this trend can be sustained?LCC: In the past, most corporations in the region rely on bank financing to satisfy their long-term funding needs. Bank interests have been relatively low. There has not been any strong reasons to look for an alternative source of funding. However things are quite different now. While the interest rates remain relatively low, bank loans are no longer so readily available. The European banks, which were active in funding the regional corporations, have withdrawn from

I HAVE SO MUCH TO BE THANKFUL FOR?Q&A with Loo Choon Chiaw, Managing Partner of LOO&PARTNERS

LOO & PARTNERS

Loo & Partners LLP

A: 16 Gemmill Lane Singapore 069254

T: (65) 6322-2288 F: (65) 6534-0833 E: [email protected] W: www.loopartners.com.sg

Loo & Partners LLP (Registration NO. LL0800566k) registered with liability in Singapore under the Limited Liability Partnerships Act (Chapter 163A), was converted from the firm “Loo & Partners” to a limited liability partnership with effect from 28 May 2008.

Loo Choon Chiaw


LOO & PARTNERS

ALB7: As 2012 will be ending soon, should we be excited about 2013 in view of the change of leadership in China and the return to office?LCC: Projecting one month ahead, 2012 looks set to be a very thin year for corporate finance practices. With the re-election ofPresidentBarackObamaandtheanointmentofMrXiJin-ping as PRC’s new leader, most analysts expect the U.S. and the PRC to live at peace with each other. On the economic front, most believe that the two countries will continue to work on areas of common interests. The relationship is really symbiotic. The mutual dependence and reliance cannot be over-emphasisied. The PRC provides a huge market to American businesses. The PRC’s substantial (and growing) foreign reserves also come in handy (the PRC happens to be the largest creditor nation of the U.S.). In a similar vein, the PRC businesses need access to the huge U.S. market and its modern technology. As the largest creditor nation to the U.S., the PRC would also be mindful before taking any action which may cause any permanent harm to the American economy. With the two major economic powers living in harmony, and barring any worsening of the euro zone position, there will be a better chance for a global economic recovery, which will benefit the region. All in all, 2013 will turn out to be a much better year than 2012 for all.

ALB8: You are reputed to have a quality and most loyal clientele. Many of whom have stayed with you for about three decades. How do you manage that?LCC: It is difficult to retain clients these days when they are all spoilt for choices. I have my fair share of anxiety over the issue. I certainly do not have a secret recipe. From day one, I have positioned our firm to be the strategic partner of our clients (not many in the early days!). This has become our mission since then. Let me explain, we do not just see our firm as the legal service provider per se and wait passively for clients’ instructions. We are proactive. We try our utmost to understand our clients’ businesses. We pay close attention to developments which are taking place that may have an impact, whether positive or negative, on our clients’ businesses. We do not just confine our focus on the new or proposed legislations or regulations. We try to understand the policy reasons behind those proposed laws. We also put in intense efforts in keeping ourselves abreast with the current issues affecting our clients’ businesses, for instance, each of our NRE colleagues will have at least a good understanding of issues concerning “climate changes “ , “ global warming “, “ acid rain “ ,” zero- carbon technology “ ,” greenhouse gas policy “,” renewable energy policy “ , “ carbon credit “,” carbon trading “,” green investments”.. and so on. We ask ourselves regularly what our clients would need and try to equip ourselves accordingly so as to stay relevant and provide value add, when any opportunity arises. We meet our clients on a regular basis to share our thoughts on matters, which in our view , may affect their businesses, even when we are not working on any matter with our clients at the material time.

ALB9: So the key is really to work hard and sharpen one’s skill sets for future use by clients?LCC: yes. One needs to work very hard to excel in one’s practice area. However, just working hard may not be

enough. Clients must see the value add which one can provide. We believe that clients find the commercial utility and pragmatism of our advice useful. It helps them in their own decision making process whether it concerns the choice of the appropriate territory for the launch of their products; the choice of the appropriate jurisdiction where they ought to domicile their funds or the special investment vehicles for their intended acquisitions; the preferred governing law, the appropriate manner and forum in which any dispute arising from their proposed venture ought to be resolved; the appropriate venue in which they should list their businesses; the preferred jurisdiction( and the particular court) which they should file their claim against their opponents, when a dispute over an existing venture arises. The list goes on. We have managed to survive all these years despite several global and regional financial crises. We must have done something right. It has been a most tiring and trying ( but extremely satisfying ) experience in building up a legal practice from scratch. I have been blessed with a team of totally dedicated, very competent, extremely loyal colleagues. This greatly reduces my burden and makes my task much more enjoyable!

ALB10: Any concluding remarks for our readers?LCC: Most of us have just celebrated Thanksgiving. I have so much to be thankful for, in particular for a loyal and forgiving clientele and a team of most caring and supportive colleagues, which I have been blessed with (and do not really deserve)!

WE ARE OUR CLIENTS’ PARTNER

We regard ourselves as our clients’ strategic partner when tackling their daily challenges. No stone shall be left unturned in our daily search for the most effective legal solution to meet the special needs of each of our clients.

OUR MEMBERS ARE OUR ASSETS

In Loo & Partners, every individual (no matter what position he or she occupies) is a member of our team and an asset to the firm. We are constantly searching for persons with the requisite qualities to join our team.

WE ARE A LOCAL FIRM WITH REGIONAL CAPABILITIES

We strive as follows:• To be the best amongst our peers• To attract and retain committed team members• To enable each member to attain his or her full

potential• To be our clients’ strategic partner in tackling their daily

challenges• To implement changes necessary to serve our clients

better, increase efficiency and reduce costs• To maintain a level of profitability that sustains growth,

funds further investments to enhance our overall capabilities and provides fair rewards to members

aviation38 ASIAN LEGAL BUSINESSdecember 2012

Wealthy Chinese are itching to take up flying as a hobby, drawing crowds to an air show in the southern city of Zhuhai last month, but high taxes and military controls on airspace are grounding the aviation industry’s hopes of a sales boom.

Mongolian coal mine boss John Zhang, aged 39, is aware of restrictions on using pri-vate planes in China for now, but said he still wanted to buy one to take his family up for pleasure.

“Flying is my childhood dream and this is a gift to myself,” said Zhang, pointing to a white Cirrus SR20, worth about $320,000 before tax.

“I probably will get a pilot licence in three months as I plan to put aside everything and be fully devoted to training,” he told Reuters at the air show on Thursday.

Zhang’s personal dream, and the desire felt by many others to take up a hobby which has long been popular in the United States, ought to provide a boost to the aerospace in-dustry.

The country’s aviation regulator, the Civil Aviation Administration of China, estimates that about 1,000 general aircraft will be de-livered to China from 2011 to 2015.

That is a fraction of the potential demand if the world’s second-largest economy opens up its skies to ordinary citizens.

With 310 million people, the United States had about 230,000 business-to-general aviation aircraft at the end of last year, while

China with a population of 1.3 billion had about 1,100.

China pledged in its latest five-year plan for 2011-2015 to promote the general avia-tion industry, and reform the airspace man-agement system to open up more airspace - badly needed not just by hobbyists, but also by congested commercial air lanes.

But observers say China’s military, which technically governs all the country’s airspace while carving out narrow corridors for use by airlines, is reluctant to give up control.

“The airspace here has not opened up as was forecast,” said Briand Greer, Asia-Pacific president for Honeywell International’s aero-space division, one of 650 exhibitors at the air show held every other year in Zhuhai.

“The military still owns the airspace, and today with a fifth more aircraft in the sky, you have got to have more airspace.”

LEADERSHIP HOPEAs the country emerges from a period of leadership transition, many in the industry hope authorities will relax the controls and promote the production of small aircraft.

The restrictions also apply to civil helicop-ters, a relatively rare sight in China compared to many Western countries, but also seen as a huge potential market for foreign manufac-turers who are investing in Chinese facilities.

Under test projects, private planes now can fly below 1,000 metres in the country’s northeastern and central-southern regions,

as well as seven second-tier provincial cities.China will further open up low-altitude

airspace to private planes next year, said Ma Xin,anofficialwiththestateairtrafficcon-trol commission, at the show, without elabo-ration.

Despite slow moves to free up airspace, Western companies are positioning them-selves for growth in China as they suffer a slowdown in their biggest market, the United States.

Textron subsidiary Cessna, the world’s largest general aviation aircraft maker, signed a joint venture agreement with Avia-tion Industry Corp of China’s AVIC general aviation unit, one of many suppliers at the Zhuhai air show.

The two companies will jointly assemble CitationXLS+businessjetsinZhuhaiforChi-nese customers.

Anticipating a flying craze and seizing a chance to acquire help for the development of its domestic aerospace industry, state-owned AVIC bought privately held Cirrus of Minnesota last year in a deal that briefly stirred U.S. political concerns over the trans-fer of aerospace technology to China.

Chinese private entrepreneurs like Fang Tieji have also jumped on the bandwagon. His Jilin Hanxing Group in north China has bought U.S. private plane maker Glasair Avi-ation last year.

Fang plans to set up 40 dedicated service facilities and 10 airports for general aviation alongside aircraft manufacturing and real estate all over China by the end of the de-cade.

At the country’s first general aviation fixed-base operation, Fang presented a team of 12 female pilot trainees in Zhuhai, dubbed the city of dreams.

Private plane owners share the hurdles that have also slowed the growth of business jets - not only restricted airspace, but also a lengthy import process and taxes of up to 21 percent.

Other problems include a shortage of in-frastructure such as suitable airports, pilots, and service facilities.

These may not put off enthusiasts with disposable incomes like Zhang, the coal mine boss, but piloting a plane or even tak-ing one remains a distant hope for many or-dinary Chinese.

“I go to this show every time it is on,” said Li Qiang, an employee with a Zhuhai-based sportswear manufacturing firm. “I would love to have a private plane if only I could af-ford it.”

By ALISON LEUNG

REUTERS

CHINA’S RICH YEARN TO fLY fOR A HOBBY

Spectators carrying filters watch flight demonstration at China International Aviation & Aeropsace Exhibition in Zhuhai. REUTERS/Bobby yip


Robert E. Melson, Jr [email protected]

institutions in respect of the Japanese operating lease financial product. Immediately after our opening in Tokyo, Japan Airlines (JAL) filed for bankruptcy and we were retained as one of the primary counsel to foreign banks involved in secured structured finance transactions impacted by JAL’s filing. In May of 2011 we were fortunate enough to have ten lawyers from Clifford Chance join our Tokyo office, including three partners (Keiji Isaji, Atsushi yamashita and Naoki Watanabe) with significant experience representing airlines in financing and litigation matters. In London, fairly recent partner additions Trevor Beadle and Stephen Moller have been advising financial institutions, airlines and leasing companies on cross-border operating and finance lease matters, debt restructurings and large secondary market debt sales. Neil Campbell, who has advised Chinese carriers on dim sum bond issuances and financial institutions in respect of their involvement in airline ticket and cargo receivable securitizations, is a partner who joined us in Hong Kong this year. Neil also works with Lawrence, Trevor and myself in advising a Southeast Asian state-owned air carrier in respect of syndicated loans, capital markets and aircraft finance matters. Vincent Tso of our Hong Kong office is active in the capital markets space and regularly advises Chinese leasing companies and has recently been involved in the IPO of a leasing company. Also filling out our team in the past few years have been the additions of partners Rose Zhu, Paul de Cordova and David Robbins in Beijing, Dubai and New york, respectively.

The aircraft finance and leasing team we have put together over the past few years allows K&L Gates to advise on just about any type of aircraft finance matter anywhere in the world. The quintessential example of this is a transaction we closed earlier this year where our client was a Japanese leasing company and its Irish subsidiary that was involved in a financing for a German KG fund. In that transaction the Japanese leasing company acted as the agent, its Irish subsidiary was the lender, a German KG fund was the borrower that was acquiring aircraft engines from a US based operating lessor that were on lease to an air carrier in the Middle East. Our clients required advice on New york, English, German, UAE and Japanese law matters that impacted the transaction. David R., Trevor, Frank, Paul, Takahiro and myself were able to provide that advice in a seamless manner. At K&L Gates we clearly have the locations and the people required to handle complex cross-border aircraft finance matters and we intend to continue expanding our global team.

Our continued global expansion has helped secure K&L Gates’ position as one of the top law firms in the world in the area of aircraft finance and leasing. In fact, just this year we were ranked as the Best Overall Law Firm for aircraft finance matters by an international survey of general counsels and senior executives of airlines, leasing companies and financial institutions conducted by the Euromoney publication Airfinance Journal. In the same survey we garnered the top spot in each individual category as well (Best Industry Knowledge, Most Commercially Aware, Most Innovative, Deals Done Quickly, After-Deal Support, Fairest Fees and Client Entertainment). While this came as a surprise to some of our competitors given we had not previously been ranked in this survey, it was not a surprise for our clients or our practice group. Our rise to the top in the area of aircraft finance has come rapidly and tracks the rapid global expansion of our firm. While it is said “location, location, location” is the most important thing in respect of real estate, for a vibrant global aircraft finance practice it is location and people – we now have both covered.

Five years ago K&L Gates’ aircraft finance practice consisted primarily of a vibrant US based practice which focused on US and Latin American deals involving commercial carriers and business jet owners/operators as well as US bankruptcy matters. Our US based Partners Pawel Chudzicki, J.C. Ferrer and David Weitman spearheaded most of those matters and continues to be very active in this space. Pawel and J.C. are experts on commercial aircraft and business jet financings and David is active in advising on bankruptcy matters and workout strategies, including receiverships, financings, and debt restructurings.

As K&L Gates added offices in Asia, Europe and South America (currently we have over 40 offices on four continents) and acquired new talent in existing offices, the practice has filled out to be truly global. In January of 2009, we opened up in Frankfurt and one of our founding partners of that office was Dr. Frank Thomas who has long been known as a top lawyer in the field in Germany. In March of 2009, we added an office in Singapore and one of the first lawyers in that office was Lawrence Altman who has been active in advising air carriers in the region in debt restructurings and financings. In January of 2010 our Tokyo office was founded by Ryan Dwyer, Takahiro Kawaguchi and myself, with us all having a background in aircraft finance matters and regularly advising airlines, leasing companies and financial

K&L GATES

K&LGATESGLOBALEXPANSIONINAIRCRAFT FINANCEBy Robert E. Melson, Jr., Partner & Global Co-Head of the Aviation Industry Practice Group who maintains an officein both Tokyo and Singapore

SINGAPORE A: 10 Collyer Quay,

#37-01 Ocean Financial Centre, Singapore 049315

T: (65) 6507 8100 F: (65) 6507 8111

TOkyO A: kasumigaseki Common Gate

West Tower 35F 3-2-1 kasumigaseki, Chiyoda-ku Tokyo 100-0013 Japan

T: (81) 3 6205 3600 F: (81) 3 3597 6421

ASIAN LEGAL BUSINESSdecember 2012Managing partner Q&a40

View from the top:

ALB ’S HONG kONG DEALMAkER OF THE yEAR, AND LAST yEAR’S HONG kONG MANAGING PARTNER OF THE yEAR, ROBERT ASHWORTH OF FRESHFIELDS BRUCkHAUS DERINGER HAS RECEIvED NUMEROUS PLAUDITS FROM PEERS AND CLIENTS IN THE MARkETPLACE, vALIDATING HIS STATUS AS ONE OF THE TOP LAWyERS IN HONG kONG. HE SITS DOWN WITH CANDICE MAK TO SHARE HIS INSIGHTS ON THE CHALLENGES AND JOyS OF MANAGING THE MAGIC CIRCLE FIRM WIDELy RECOGNISED AS HAvING THE BEST CORPORATE PRACTICE IN GREATER CHINA.

ALB: What sets Freshfields apart from its peers across the region?RA: There are a number of things I could mention. For example, our stellar track record and continued success in the capital markets, our leading position in the M&A league tables, and our high-quality antitrust, finance, dispute resolution, and IP and IT teams. But what I think is more important than the trappings of success, and what to my mind really sets us apart, is our ability to constantly innovate and go about solving things in new and more effective ways. So, for example, we are regularly talking to clients about doing transactions in high-growth markets, but doing them in a way that minimises risk; we are engaging with them in relation to crisis management, that is how to plan for and handle possible crisis situations, whether financial, opera-tional or regulatory. And we are very focused on global investigations, which is clearly a critical consideration for general counsels around the world, in particular when doing deals in Asia. We are the first firm

Freshfields Asia Managing Partner ROBERT ASHWORTH

to offer an online database of international bribery laws that clients can subscribe to and follow developments – we’ve christened this “bribery watch”. It’s this ability to innovate and continually show thought leadership, plus the collective drive of our lawyers to be at the front of the pack rather than following, that I think is a key differentiator for us across the region.

ALB: Can you describe your firm’s culture?RA: For us, culture is really important. It’s what holds the firm together across our inter-national offices, and from one generation to the next. We see a direct correlation between

Managing partner Q&a 41WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

“THE FIRST THING I TRIED TO DO WHEN TAkING ON THE ROLE WAS TO MAkE SURE WE OFFERED EXACTLy THE RIGHT SERvICES TO OUR CLIENTS ACROSS THE REGION. THIS INvOLvED IDENTIFyING PRACTICE AREAS WE NEEDED TO INvEST IN, AND TESTING THE EXISTING AREAS WE HAD TO MAkE SURE THEy WERE SUITABLE.”

the amount of time we spend developing people and the enduring strength of our culture. And that means ensuring people get really terrific training and work opportunities. We are an international firm, so we want to give people the chance to work internationally, wherever they are based. It’s something we actively encourage. Being interna-tional and thinking across boundaries is part of our DNA.

In addition to the international dimension, we consider ourselves to be a thoroughly cooperative and collaborative organisation. One in which individuals focus on the contribution they can make rather than what they are entitled to.

ALB: How long have you been Asia managing partner?RA: Let’s see, since the time I started turning grey - February 2011.

ALB: How would you define the firm’s short-term and long-term strategies that you’ve set during your tenure?RA: The first thing I tried to do when taking on the role was to make sure that we offered exactly the right services to our clients across the region. This involved identifying practice areas we needed to invest in, and testing the existing areas we had to make sure they were suitable. So, for example, one of the things we’ve done in the past 18 months or so has been to increase our Asian ENI capability, and we’ve made some significant hires in Tokyo, Singapore, and most recently in China. Having a first rate energy, natural resources and infrastructure capability in Asia was an immediate short-term goal, and is one that we are now delivering on.

I also looked at our regional footprint to determine whether we were in the right geographic locations, and concluded that we needed more visibility in Southeast Asia. We had operated a Southeast Asia practice from Hong Kong since closing in Singapore in 2007, but we found that the growth of the ASEAN region made that approach increasingly challenging. We talked to clients, and they said “we prefer you to be on the ground in Singapore with an office. Most of your peer firms are there”, so we felt that was the appropriate thing to do. We reopened in Singapore in September, and we look forward to a long-term tenure in the Southeast Asia region. Those are some of the short-term priorities I’ve had.

Over the longer term, I’d like to make sure we are delivering on our firm-wide vision of being the leading international firm. The way we look at international needs a bit of explanation – for us, it doesn’t mean we want offices in 50 countries. It’s not geographic coverage that’s important to us. We want to be in those locations, principally major financial centres, where our key clients are located, and which are

relevant to them. And being in those locations we expect to have a very strong domestic capability, but more importantly what we really want is to project internationally from those locations. So from Singapore we would cover South and Southeast Asia, but also we would expect our lawyers in Singapore to be familiar with developments in the UK, U.S. or China, that is to have an international aware-ness and an international perspective. Not to say every time: “That’s outside our comfort zone, and we’ll send it off to another office.” We want to be able to provide that level of international expertise that comes from hav-ing a very international perspective. That’s what we look for in individuals, and how we train our younger lawyers to think. That’s what ‘international’means for a firm like ours.

ALB: Your Vietnam presence has always been consistently strong.RA: yes, Vietnam has been a strong offer-ing for us for close to 20 years. We think it will benefit further from our opening in Singapore, which is an important gateway to much of Southeast Asia. Many of the clients we service in Vietnam are actually headquar-tered in Singapore, so there’s a very close connection between the two.

ALB: How do you cultivate that rounded domestic-international perspective among your lawyers?RA: In part, it’s through weaving softer skills and awareness training alongside legal techniques. We run three sets of training pro-grammes for associates at different stages of their careers, and all of those are done with an international dimension. Teaching in-depth cross border M&A or global investigations techniques are examples. But we also focus a lot on softer skills, where associates are taught how to interact on an international transaction, to manage projects across vari-ous time zones, and clients that are centred in multiple jurisdictions, as well as to deal


“PEOPLE NEED TO BE TREATED LIkE PEOPLE. yOU CAN’T DEAL WITH EvERyBODy By E-MAIL OR EvEN THROUGH TELEPHONE CALLS; yOU NEED TO SPEND TIME FACE TO FACE ENCOURAGING, GUIDING, AND LISTENING.”

with potential crises simultaneously across jurisdictions. Those are the types of softer skills we focus on, which ultimately do give people more of an international perspective.

ALB: Will you be investing more into your banking and finance practice?RA: yes, banking is a hugely important area for us, and we will con-tinue to support the development of this practice in every way we can. In addition, debt capital markets, project finance, restructuring, and securitisation are important areas within our finance practice. We certainly don’t wish to grow a volume banking business, but we do want to make sure we’re focusing on the right things, and have the right people doing them. Dispute resolution is another area we are growing rapidly. We’ve had two leading partners relocate to Asia in the last few months, Lucy Reed who co-heads arbitration and Geoff Nicholas, who is co-head of our international investigations practice. With their arrival we expect to capitalise on our leading international dispute resolution and investigations reputations. All of that is a prior-ity, and is happening quickly. In addition to the areas just mentioned, IP and IT, regulatory and antitrust are extremely important underpin-nings to our Asia platform, and we will continue to invest in those too.

ALB: A number of U.S. firms have launched Hong Kong practices in the past 18 months. How is Freshfields managing its perch at the top in light of increased competition?RA: Competition is something we welcome. It may wobble the perch a bit, but it encourages us to find new and better ways of strengthen-ing our grip. Of course we did have some departures last year, as did many other firms around Hong Kong. We have the top capital markets practice, so in some ways it wasn’t surprising that people targeted

us to help them get launched. Looking back, it seems we have seeded quite a few of the HK practices of the U.S. firms. Having taken steps to strengthen the platform we’ve had very little turnover of staff in the last year, and more to the point, given the depth of our partner bench we didn’t lose any clients throughout that period. To cap it all, we had our best year in ECM in 2011, where we did eight of 10 deals that raised more than a billion dollars. No other firm acted on more than two. So 2011 was a very strong year for us, despite a bit of local turbulence.

ALB: It was a tough time for rival firms to launch a Hong Kong practice last year, wasn’t it?RA: yes, I agree. It was certainly a very chal-lenging time to set up a Hong Kong IPO practice last year, and 2012 has been a tough year for everybody. That said, we’ve been in the market longer, we’ve got great bench strength, and a strong pipeline of deals, so unlike some firms we were able to continue with quite a lot of work, rather than look for fresh business. We are also well hedged, with a broad spread of practices that have helped us weather the downturn more effectively. In difficult markets our high quality IP and IT, antitrust and regulatory practices make us


SyCip Salazar Hernandez & Gatmaitan (SyCipLaw) is pleased to announce the appointments of Ricardo Ma. P.G. ongkiko and Enrique T. Manuel as the new heads of the firm’s Litigation and Intellectual Property practice groups.

Ricardo Ma. P.G. ongkikoMr. Ongkiko joined the firm in 1988 and has been a partner since 1997. His practice areas include international and domestic arbitration, construction arbitration, mediation, civil and commercial litigation, corporation law, and contract law. He has handled and tried a broad range of cases involving contract disputes, corporate restructuring, debt recovery, infrastructure and engineering disputes, intra-corporate controversies, insurance cases, and tort. Mr. Ongkiko earned his Bachelor of Arts in Economics (magna cum laude) and Bachelor of Laws (cum laude, class salutatorian) from the University of the Philippines. He earned his Master of Laws from the University of Michigan. He is a member of The Chartered Institute of Arbitrators (East Asia Branch) and the Makati Chapter of the Integrated Bar of the Philippines. Among others, he is an accredited arbitrator of the Philippine Institute of Arbitrators, the Philippine Dispute Resolution Center, Inc., the Intellectual Property Office of the Philippines,

ANNOUNCEMENT OF NEW APPOINTMENTS

and the Construction Industry Arbitration Commission. He is also a Supreme Court-accredited mediator for the Philippine Court of Appeals.

Enrique T. ManuelWith more than 30 years of experience as an IP practitioner, Mr. Manuel is an internationally recognized expert in the field of IP law. He counsels clients on all aspects of intellectual property, including branding and trademark issues, specialized and strategic IP portfolio management for patents, trademarks, and copyrights, IP protection and enforcement, infringement and unfair competition, as well as related areas involving licensing transactions, technology transfer, entertainment, publishing, music, computer, Internet, domain name and privacy issues. Mr. Manuel is a member of the Board of Trustees of the Intellectual Property Association of the Philippines and of the Licensing Executives Society of the Philippines. He is also a member of the Asian Patent Attorneys Association, International Trademark Association, Licensing Executive Society International, and the Association Internationale pour la Protection de la Propriete Industrielle. Mr. Manuel received his Bachelor of Arts and Bachelor of Laws from the University of the Philippines.


T: (632) 982-3500, 982-3600, 982-3700

W: www.syciplaw.com

SyCIP SALAZAR HERNANDEZ & GATMAITAN

Ricardo Ma. P.G. Ongkiko [email protected]

Enrique T. Manuel [email protected]

really compelling with clients, and position us to win the best work that’s available.

ALB: What are the key challenges of managing the firm Asia-wide, especially since you are still a full-time practitioner?RA: Ask any Asian managing partner who has a role like mine, and the key challenges are likely to be geography, people, and time. Asia is a large and immensely diverse place. Making sure that you understand the nuances and the differences between how people think and work in China, Japan, or Singapore, is extremely important. People need to be treated like people. you can’t deal with everybody by e-mail or even through telephone calls, you need to spend time face to face encouraging, guiding, and listening. The challenge is about getting the balance right, you could quite easily be on an airplane 300 days a year, but that’s not going to benefit anyone apart from the airlines. I’m passionate about my role as a practitioner, so I dedicate much of the working week to client work, and some of the travel obviously gets done in the evening. It’s a challenge, and it never feels completely in sync, but I think that continuous need to pull the two things together into a balance is quite healthy.

I’m very lucky, of course, to have the support of an incredibly talented team of younger partners, and I tend to work on the more complex transactions, where I can hopefully provide additional value through the benefit of my long experience in the market.

ALB: Do you ever feel pulled too much in one direction or the other?RA: I try to avoid that if possible. It’s a question of anticipating the is-sues, and getting on top of the situation as quickly as possible. There are often client issues or individual partner or office demands compet-

ing for your time and you have to be sensitive and work out where your priorities are. yes, it’s challenging. Am I getting it right? I have no idea. I hope I am, but it’s a dynamic that changes every day.

ALB: How do you ensure you uphold best practices across offices?RA: We try to instill best practices through good communication, and by endorsing good behaviour when you see it. At the same time, when you occasionally see behaviour that falls below best practice, you need to ensure that it is remedied very promptly. All of our partners are really good communicators and good role models for younger lawyers.

ALB: How do international communications work among the Asian offices?RA: We have many forms of communication. For example, each of our China offices has its own town hall meeting. These are done roughly at the same time to ensure that we’re communicating the same sort of information. They are open, informal opportunities for questions and issues to be dealt with.

We also convene regular meetings of prac-tice and sector groups, to ensure we share knowhow and work effectively in our teams.


“NOTHING IS MORE SATISFyING THAN SEEING yOUNG MEN AND WOMEN yOU’vE SUPPORTED AND GUIDED, DEvELOP INTO OUTSTANDING INDIvIDUALS AND LAWyERS. AND TO SEE THEM EMBRACED By THE FIRM, AND MADE PARTNER IS A vERy EMOTIONAL AND INSPIRING MOMENT FOR EvERyBODy.”

And there are numerous subgroups focusing on different areas of the business, whether it’s risk, our community and pro bono programmes, or training.

I certainly don’t chair all the Asia meetings. We have local practice group leaders that run their practice groups, and at the office level we have an office managing partner who runs meetings with partners of that office, and then communicates back to me. But the overall arc of how the firm is operating in Asia is something that partners expect me to be focusing on and communicating to them.

ALB: You have been with Freshfields for 27 years now. What makes you continue to believe in the firm? RA: Is it really that long? I often say to our new recruits - and it’s true - that I’ve never had a dull or unexciting day at the firm. And I think that’s driven by the quality of the work and the team, and by the quality of interactions you have with lawyers and clients on a daily basis. I am always dealing with people that are intellectually first rate, constantly keeping you on your toes, and who are constantly thinking about how we can improve. I find that intellectually very stimulating and fulfilling. It’s the adrenaline rush which comes from innovation that’s quite hard to replicate in too many other professional services firms.

ALB: What was Freshfields like when you first arrived in Hong Kong?RA: Our Hong Kong office opened in 1985. When I arrived in 1994, we had a broad finance practice with around 20 lawyers, and occupied one floor in the Exchange Square. It was around then that we really started to build out our capital markets and public and private M&A capabilities, which have been so successful for us. We are now over 100 lawyers, and have expanded to three and a half floors in the same building. Throughout, we have of course been very focused on China, and that is sure to continue going forward.

ALB: Has the small nature of the Hong Kong legal market contrib-uted to your success and enjoyment of practising?RA: yes, it has certainly helped increase the enjoyment. The fact that you are more likely than not to make friends with clients and competitors from other firms on a regular basis outside of the work environment makes you appreciate that you are living in a community. We’ve all got day jobs, but there’s a life to lead and responsibilities to others outside of work as well. In other countries I’ve worked in, there’s much less overlap between one’s professional life and social life. That’s a unique part of Hong Kong, and one of the reasons I’ve enjoyed it so much.

ALB: What was your proudest moment as a lawyer over the span of your career?RA: There are professional moments, and there are people-related moments. On the people side, nothing is more satisfying than seeing young men and women you’ve supported and guided, develop into outstanding individuals and lawyers. And to see them embraced by the firm and made partner is a very emotional and inspiring moment for everybody.

On the work front, I’ve been challenged over the years to devise new methods for doing M&A transactions on the public markets. Most

recently, we used an alternative form of con-sideration, a loan note instrument, as part of the consideration package to try to close a valuation gap. Particular ideas may have a genesis in another market, but they need to be identified, adapted, tested, and shaped for the domestic market here in Hong Kong. This is something that I’ve tried to do over the years. It’s pleasing to see that some of those techniques have not only been successful, but have also been implemented and adopted by other people for their deals.

ALB: What ingredients are vital for Freshfields’ success in the coming years?RA: As a firm, we need to anticipate chang-ing market conditions and changing client demands. And that means lawyers need to have skills to flex from one practice area to another, so they can always find appropri-ate work to do. It’s about having a mindset that says: “I’m able to take on a broad range of things”, rather than saying “well I’m only comfortable in that one area”. Being interna-tional really helps with that. No one gets pi-geonholed that way. Having a sharing culture also helps through the lean times. We are very much a supportive and cooperative firm, and this encourages people to be entrepreneurial and flexible. Possessing the ability to adapt, continually innovating and being creative, all of those things will help ensure that we are successful in the years ahead.

ALB: In five years’ time, what do you predict the legal market landscape will look like in Asia?RA: It’s a very dynamic market. I think we will see lots of change in the next five years. We are sure to see more PRC firms with offices in Hong Kong, and we’ll see some of the existing

Managing partner Q&a 45WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

firms broadening out their practices to include other areas, particularly regulatory and investigations work.

In the longer term, we’re likely to see a bifurcation in the legal market between the global champions and the smaller, domestic-focused firms. It’s hard and expensive to run big international practices, and make them profitable. Some will succeed and some won’t, and they might shrink back and become more domestic. So over time, you might see the legal profession moving the way the consultancy world has gone. Perhaps not as few as four or five large firms, as there will likely be more than that, but I think there will be a very clear delineation between a domestic practice and an international one.

ALB: What about players trying to replicate the PRC-international firm model?RA: I’m not sure we’re going to see a lot more of that model unless the regulations restricting true partnerships with PRC firms are relaxed. There is sure to be a strengthening of alliances and relationships with PRC firms. We have a set of relationship firms that we are particularly close to in countries where we don’t have offices or can’t practise lo-cal law, and we invest a lot of time in developing those relationships, and ensuring they benefit both parties. We are actively working with those firms to find a way of delivering a more efficient and seamless service to clients. The firm that gets that right will have gone quite a long way to achieving that international-domestic model without the

same investment in offices or capital, and without a formal alliance or merger.

ALB: If you could offer some advice to other managing partners of growing firms (domestic or international) in Asia, what would that be?RA: Don’t get too carried away by success, and don’t be too disappointed by failure. you will end up having both of them, probably in equal measure over the course of your tenure. Put people at the centre of everything you do, and find a way of maximising your relevance to them, whether in the way you solve prob-lems or the way in which you’re available to assist in an hour of need. And be clear about the strategy. Decide what it is you want to do, communicate it, gather feedback, adjust as necessary, and be intuitive. Being a good managing partner is partly about showing leadership, but also partly about turning the mirror, listening to the feedback, and adjust-ing as you go forward. Most importantly of all, be human and enjoy what you do.

TELECOMS46 ASIAN LEGAL BUSINESSDECEMBER 2012

IN A MORIBUND MARKET, TELECOM TRANSACTIONS HAVE REMAINED A BRIGHT LIGHT FOR THOSE STYMIED BY THE GLOBAL

SLOWDOWN. THE LAST YEAR ALONE SAW SOFTBANK’S HEADLINE-GRABBING ACQUISITION OF SPRINT NEXTEL, CONSOLIDATION

MOVES IN SOUTHEAST ASIA, COUNTRY-WIDE SPECTRUM AUCTIONS IN INDIA AND FINALLY, THE OPENING UP OF MYANMAR. SEHER HUSSAIN INVESTIGATES RECENT DEVELOPMENTS IN THIS

CLOSELY WATCHED SECTOR.

REUTERS/Susana Vera

ASIA C ALLING

瀕死寸前のグローバル市場において、電気通信取引は米国と欧州における景気減速により窮地に追い込まれた者たちにとって希望であり続けた。昨年だけ

で、ソフトバンクの数十億、見出しを飾るスプリント社の買収、東南アジアにおけるいくつかの合併の動き、インドでの全国的な周波数入札、そしてミャンマ

ーの開放があった。セハール・フセインはこの注目セクターにおける最近の動向を調査する。

アジアが呼んでいる

TELECOMS 47WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

“IN JAPAN ESPECIALLY, THE SLOW DOMESTIC MARKET AND STRONG YEN HAS MEANT THAT A NUMBER OF JAPANESE COMPANIES ARE NOW SITTING ON LARGE CASH PILES AND NATURALLY ARE LOOKING AT WAYS TO SPEND THIS MONEY ON INVESTMENTS OVERSEAS.”GRAEME PRESTON,Herbert Smith Freehills

TOKYO TALKThe last few months were inundated with talk of Tokyo-based operator SoftBank bold $20.1 billion proposed acquisition of a 70 percent stake in U.S. carrier Sprint Nextel; the largest outbound acquisition by a Japanese company to date. “This deal is a very good illustration of the growing ambitions of Asian telecom players to enter foreign markets,” says Graeme Preston, partner at Herbert Smith Freehills’ Tokyo office. “In Japan especially, the slow domestic market and strong yen has meant that a number of Japanese companies are now sitting on large cash piles and naturally are looking at ways to spend this money on investments overseas.”

Ken Siegel, managing partner of Morrison & Foerster’s Tokyo office and adviser to SoftBank, further elaborates that this transac-tion represents the globalisation of telecoms as well as the ongoing interest of Japanese companies to seek growth in non-Japanese markets. Myanmar, India, and Indonesia in particular have attracted their attention in addition to the U.S. Takeshi Nakao, partner at Tokyo Freshfields, says: “The U.S. is a very attractive market for Japanese clients, as companies feel that it’s a safe and stable ju-risdiction where you can expect steady growth in the domestic market.”

Japan outbound investment is clearly a trend that is expected to continue strongly into 2013. However, lawyers indicate to the extent that there are further acquisitions or expan-sions by telecom operators within or outside Asia, the scale will be much less than Softbank proposed acquisition. But it will likely have a knock-on effect in terms of pushing competi-

REUTERS/Susana Vera

東京の話題ここ数か月は、これまでで日本企業に

よる最大規模のアウトバウンドM&A、即ち東京ベースの通信会社、ソフトバンクの大胆な201億ドルでの米国キャリアSPrInt nExtEL社の70％の株式の買収の提案の話で殺到していた。「この取引はアジアの電気通信プレーヤーが外国の市場に進出する野望の高まりの非常に良い例である。」とハーバート・スミス・フリーヒルズ外国法事務弁護士事務所のグレイム・プレストンは言う。「特に日本では、動きの遅い国内市場と円高は、多くの日本企業が多額の現金の山の上に座って、当然のことながらこのお金を海外投資に使う方法を模索していることを意味している。」

MorrISon＆ForEStEr社のパートナーでソフトバンクの顧問であるケン・シーゲルはこの取引は日本企業の外国市場における成長の模索に対する継続的な関心とともに通信会社のグローバル化を象徴しているとさらに詳しく述べる。特にミャンマー、インド、インドネシアは米国と同様彼らの関心を集めている。「企業は国内市場で安定成長を期待できる安全で安定した法域と感じるので、米国は日本のクライアントたちにとって非常に魅力的な市場である。」とフレッシュフィールズのパートナー中尾雄史は詳しく説明している。

弁護士たちは、それはアジア内外における通信会社の更なる買収または展開がある程度であり、その規模はソフトバンクの買収の提案よりもはるかに小さいであろうと示しているが、日本のアウトバウンド投資は明らかに流行しており、2013年に強く継続すると予想されている。一方、それはおそらく


REUTERS/Kim Kyung-Hoon

“AS OUR NEIGHBOURING COUNTRY, A LARGE NUMBER OF THAI INVESTORS ARE INTERESTED, TELECOM OPERATORS INCLUDED. BUT COMPANIES THAT WANT TO ENTER WILL HAVE TO START GATHERING THEIR RESOURCES NOW.”DHIRAPHOL SUWANPRATEEP,Baker & McKenzie

tors to also undertake deals showcasing their international ambitions. For example, Rob Bratby, Asia managing partner at Olswang, says: “Singtel is also doing smaller acquisi-tions in the mobile advertising space. They have done a number of acquisitions this year to add or enhance capability, which favour-ably compares to a lot of the European and U.S. telcos, who are finding themselves more financially stressed.”

A STRONG SIGNAL FOR SOUTHEAST ASIAIt’s undeniable that investors are very keen to get into Southeast Asia for all the obvious rea-sons. It is a high-growth market and although penetration rates for the region are fairly saturated, the opportunities in value-added services for the next generation of mobiles con-tinue to attract carriers on a consistent basis.

Indonesia, in particular, is seen by many industry sources as a challenging, yet excep-tionally lucrative market. Home to a complex regulatory regime, it currently has seven mo-bile operators, a number which many expect to see lessen in the near future. Industry sources question whether there are too many opera-tors, as Indonesia opened up at a time when licences were issued with a view to achieving infrastructure growth ambitions. That took a lot of foreign capital as it wasn’t available

ライバルに取引を受けさせ、国際的な野望を披露させるという意味において波及効果があるだろう。「シングテルもまたモバイル広告スペースでより小規模な買収を行っている。シングテルは今年小規模な買収を数多く行っており、それは即ち機能の強化であり、よりストレスを抱えている多くの欧州と米国の通信会社と比較しても遜色がない。」とoSLwAng社のロブ・ブラトビーは言う。

東南アジアへの強いメッセージ高成長市場で、地域への浸透率はかなり

高いが、次世代の携帯電話向けの付加価値サービスにおける有利な条件は通信事業者を常に魅了し続けており、あらゆる明白な理由により、投資家たちが東南アジアへの参入に非常に熱心であるということは否定できない。

特にインドネシアは多くの業界筋により、やりがいがあり、おまけに驚くほど収益性の高い市場であるとみなされている。複雑な規制制度により引き裂かれ、市場には現在7つの携帯電話会社があるが、多くの人が近い将来その数が減少することを期待している。「国内資本が利用できなかったので多くの外国資本を投じられたインフラの成長への念願達成の目的でライセンスが発行され、国が解放されたので、ここで読者は通信会社の数が多すぎるかどうか疑問に思うべきである。彼らは今、一歩後ろに下がって、それ

が未来には統合され、人々がもっと付加価値サービスを購入して自らのデバイス上に更にデータを追加することを見込まなければならない。」とフレッシュフィールズのパートナー、マーク・パーソンズは説明する。

通信会社は割引や無料通話のついたSIMカードを提供することにより市場シェアを拡大しようとして互いに価格を下げ合い地域全体が競争の激しい業界となっている。その結果、ユーザーは通信会社から通信会社へと乗り換え、携帯電話会社にとって途方もなく困難な経済状況を作り出している。特にカンボジアは1500万人の人口に対し9の認可された通信会社で過密状態となっている。パーソンズは続ける。「将来の経営に十分な資金があれば、長期的な商売となる。それで通信会社は耐え抜こうとし、長年の懸案であったベトナムとカンボジアでいくらか整理統合がなされるだろうし、特にインドネシアにおいては本当に傑出しているとみなされている。」これらのハイレベルな競争により既にいくつかの統合の動きが推進されたが、最も顕著なのはSAMPoErnA tELEkoMunIkASIインドネシアが2つのCDMA携帯電話会社間の株式スワップ取引の一部として4番目に大きい携帯電話会社バクリー・テレコム(BtEL) の資本の10%を取得したことである。業界筋によると、この取引はバクリー・テレコムがモバイル・データ市場での競争の激化への迅速


domestically. But now, lawyers agree, that the future lies in consolidation and people buying value-add services, adding more data on their devices.

The region as a whole is a fiercely competi-tive marketplace, with operators undercutting each other, trying to build market share by offering SIM cards with discounted or free minutes. As a result, users jump from operator to operator, creating incredibly challenging economic conditions for mobile phone carri-ers. Cambodia, in particular, is overcrowded with nine licensed operators in a country of 15 million people. Mark Parsons, partner at Freshfields’ Hong Kong office, explains that: “If one is sufficiently resourced to carry on for the future, it is a longer term game. So operators will try to stick it out. But you have to expect to see some consolidation in Vietnam and Cambodia where it is long overdue.” These high levels of competition have already propelled several consolidation moves, most notably that of Sampoerna Telekomunikasi Indonesia acquiring a 10 percent stake in fourth-largest mobile carrier Bakrie Telecom as part of a share swap deal between the two CDMA mobile operators. Industry sources indicate that this deal is meant to enable Bakrie Telecom to scale quickly as competition increases in the mobile data market.

SyCip Salazar Hernandez & Gatmaitan (SyCipLaw) maintained its repute as the leading Philippine law firm in 2012 by garnering top Philippine honors at the IFLR Asia Awards, the Who’s Who Legal Awards, the Chambers Asia-Pacific Awards, and the ALB Southeast Asia Law Awards.

The firm started the year by receiving its 11th “National Law Firm of the Year” for the Philippines at the IFLR Asia Awards. The award recognizes the best and most innovative work in both private legal practice and in-house departments.

SyCipLaw then bested five other law firms to receive its 2nd “Philippine Law Firm of the Year” award from the Chambers Asia-Pacific Awards 2012. The awards, which started in 2010, are based on research conducted for Chambers’ annual publication and reflect excellence and outstanding work in the past year.

For the 7th consecutive year, Who’s Who Legal selected SyCipLaw as the “Philippines Law Firm of the Year”. Who’s Who Legal’s editor in chief mentioned “the strong performance” of the firm’s lawyers and the “depth of expertise the firm can offer across a range of areas.”

SYCIPLAW GARNERS TOP ASIA 2012 LEGAL AWARDS

In May, SyCipLaw was adjudged as the “Philippine Deal Firm of the Year” at the Marina Bay Financial Centre ALB Southeast Asia Law Awards 2012, alongside another Philippine law firm. The award recognizes the excellence and outstanding achievements of Southeast Asia’s leading law firms and in-house legal teams.

Some of the notable deals that SyCipLaw handled include representing PLDT in the acquisition of a controlling equity stake in Digitel; representing joint lead managers Citigroup Global Markets Limited and HSBC in the issuance of subordinated guaranteed perpetual capital securities by Royal Capital B.V., with the guarantee of International Container Terminal Services, Inc.; acting as Philippine counsel to Gold Fields Netherlands Services BV in the Mankayan Project Acquisition; advising ING Bank and ING Investment Management Asia Pacific (Hong Kong) Limited in the sale by ING Bank of its trust and investment management business and other related Philippine assets to the Bank of the Philippine Islands; acting as special Philippine counsel to CIT Bank in financing for the purchase of two aircrafts by Challenger Aero Limited and the deregistration of aircrafts in the Philippines; and acting as counsel to the lead managers in the SMC Global Power Holdings Corporation notes issue.


T: (632) 982-3500, 982-3600, 982-3700

W: www.syciplaw.com

SYCIP SALAZAR HERNANDEZ & GATMAITAN

Rafael A. Morales Managing Partner [email protected]

に対処できるようにすること目的としていることを示している。

「特にエティサラットによるxLアクシアタ株式の売却、テレフォニカによるチャイナ・ユニコムと株式の一部売却、ビンペルコムのカンボジアとラオスでの事業の売却案など、数多くの非アジア系の通信会社や投資家たちがアジア市場から撤退するのを見てきた。」と統合に関してハーバート・スミス・フリーヒルズ外国法事務弁護士事務所のパートナー、ミシェル・チャンは同意する。

タイに話が飛ぶが、性質は異なるが通信会社まだ活発なままだ。国は3gオークションを終了したところだ。それは特別利益団体から国民の批判を集めるやや物議を醸しだすプロセスだが、4gのサービスを2013年までに約束し、タイの通信会社にとって、全般的には一歩前進である。「政府によるコミュニケーション活動増加の後押しとその領域の確保は、異なる法域において一連のオークションを競り落としたことを意味する。これらはより高速なモバイル・データに使用される技術の革新につながる傾向があり、これはすべて消費者需要の側からの駆動によるものである。」とブラトビーは言う。明らかに、法的側面において、明らかに法的な面では、2013年にも強気市場が継続し、アジアの通信会社のこととなると活動が足りないということはない。

On consolidation, Michelle Chan, partner at Herbert Smith Freehills’ Hong Kong office, agrees: “We have been seeing a number of non-Asian operators and investors withdraw-ing from the Asia market, notably Etisalat’s sale of its interest in XL Axiata, Telefonica’s partial sale of its stake in China Unicom, and Vimpelcom’s proposed sale of its operation in Cambodia and Laos.”

Hopping over to Thailand, telecom activity remains high, yet of a different nature. The country has just completed 3G auctions; a somewhat controversial process attracting public criticism from special interest groups, however, overall a step forward for Thai telecoms with 4G services promised by 2013. Bratby says: “The push from governments across the region to stimulate communications investment and as part of that, ensuring that sufficient spectrum is available means that we are seeing a round of auctions in various juris-dictions. Following the auctions, the operators are refreshing and upgrading their technology to meet consumer demand for faster mobile data, which in turn is driven by smartphone adoption.” Clearly, on the legal front, there is no dearth of activity when it comes to telecoms in Asia as the market continues robustly into the next year.


Chaos reigned supreme in the telecom sec-tor this year, as the already-battered industry reeled from government indecision, lengthy delays, and one high-profile resignation. A quick recap of the saga so far; a Supreme Court order cancelled more than 100 tele-com licences earlier this year, citing that the first-come, first-serve policy that they were handed out under in 2008 was illegal. The government then took back the airwaves allotted under those confiscated licences and re-auctioned them. Several companies whose licences were cancelled elected to opt out of India entirely. But for those that remained, re-bidding was compulsory, albeit at a much more expensive price, re-ducing the field to only five players - Telenor, Vodafone, Bharti Airtel, Idea Cellular and Videocon.

The second auction, conducted in November, generated a paltry 94 billion ru-pees, just a third of the government’s target of 280 billion rupees, and significantly less than 2010’s auction, which saw the nation’s coffers rake in $1.2 billion. Putting up 144 blocks of spectrum for sale, the most recent auction only attracted bids for 101 of them, as the high starting price meant there were few to no bidders for some service areas.

“There have been several fundamental changes to the way in which the telecom industry works and will work in the future,” says Rahul Matthan, founder partner of Trilegal, “biggest of which is the price which telecom companies will have to pay for spec-trum, which will reflect in the price that con-sumers pay. But now with the auction and all the various issues that are being raised in relation to the price of spectrum, the mar-ketplace is going to be very different to what we are used to. It’s unclear how it’s going to pan out, but people will be approaching this in a very different way.”

Industry sources indicate that the in-crease in prices has already begun, as operators raise tariffs and the number of subscribers slows down. S.P. Purwar, partner at J. Sagar Associates, says: “This summer, the total number of mobile subscribers in

INDIA’S TELECOM DRAMA RAGES ON

CALL ME, MAYBE?

REUTERS/Arko Datta

多分電話してくれるかな？勢いを増すインドの通信会社劇

政府の優柔不断さと大幅な遅れと注目度の高い一人の人物の辞任により動揺し、すでに斜陽産業となっており、今年の通信分野は混乱が支配した。これまでの説明の要点。2008年公布の先着順の方針は違法であること根拠に、今年初めに、最高裁判所の命令により100以上の通信事業ライセンスが取り消された。そして、政府は没収されていたライセンスの下に割り当てられて

いた放送波を取り戻し、再びオークションにかけた。ライセンスを取り消されたいくつかの企業はインドからの完全な撤退に選ばれ、テレノール、ボーダフォン、バーティ·エアテル、アイデア・セルラー、ビデオコンの5プレーヤーのみにフィールドを削減し、残ったものははるかに高い価格ではあるが再入札が強制された。

11月に開催された2番目のオークション

では、政府の目標である2800億ルピーのたった3分の1で、国庫をかき集めて12億ドルと見た2010年のオークションよりも大幅に少ないたったの940億ルピーが生み出された。開始時の高い価格はいくつかのサービス分野ではほとんど入札者がいないことを意味し、144分野がオークションにかられたが、最も最近のオークションで呼び込まれた入札はたったの101であった。

「通信業界の現在・将来の仕組みにいくつかの根本的変化があった。」とtrILEgAL法律事務所のパートナー、ラーフル・マッタンは言う。「消費者が支払う価格に反映される通信会社がスペクトルに支払うべき代価がそのうち最も大きい。しかし、今やオークションにより２g の詐欺とスペクトルの価格に関するすべての様々な新しい規定で、業界は我々が慣れ親しんできたものとは大きく変わるであろう。それがどのように報

いられるのかは定かではないが、人々はこれに対し大きく違った方法でアプローチするであろう。」

情報筋は通信業者が料金を引き上げ、加入者数が鈍化し、価格の上昇はすでに始まっていることを示している。SAgAr & ASSoCIAtES法律事務所のパートナー、SPプルワルは言う。「今年の夏、国内の携帯電話総加入者数は減少傾向にあっ


08/08/12

INDIA’S MOBILE MARKET

Source: Telecom Regulatory Authority of India *As of June 2012.

Subscriptions* – mln Mobile subscribers – mln subscribers

0

200

400

600

800

1000

2012*2011201020092008200720062005200420032002

Bharti Airtel

187.3

Reliance

154.6

Vodafone India153.7

IdeaCellular

117.2

Others142.86

Tata Tele80.23

BharatSanchar

98.28

934.1 mln wireless subscribers as of June 2012

934.1

India is the world's second-biggest mobile market

the country was in decline; the first time it had happened since the new licences were given.” Low tariffs have been the main drivers of telecom growth in India for the last few years, and “and if the prices go up, many marginal subscrib-ers will certainly fall out of the system,” continues Purwar.

Lawyers have careened in tandem with the industry, initially advising com-panies with the fall-out of the 2G scam, then counselling the existing players on how to continue with their corporate ambitions, to now dealing with a very complex and unpredictable regulatory environment.

Matthan says: “We have been busy putting together a strategy for how to go forward. This is quite an abnormal situation in that this is not something one would face in a regular telecoms practice; the quashing of 122 licences is quite unprecedented.” Looking ahead however, he notes that there has been a sea change in the manner in which telecoms will be regulated, with a knock-on effect on M&A and valuations. “We will start to see different questions being asked because companies will be looking to try various measures to bring their costs down,” he concludes.

The less-than-satisfactory November auction has led the government to announce that a third round will be held before the fiscal year is over in March 2013. Profits from the sale of spectrum are critical for the administration to keep its budget deficit within its target of 5.3 percent of gross do-mestic product this year. “The very high base price of 14,000 crores for the auction really discouraged a lot of foreign players,” says Purwar, noting that growth in this market will now depend on policy initiatives by the government to encourage investment.

What is clear is that an erratic market-place hasn’t done the country any favours when it comes to foreign investors. “India is chaos,” says Olswang’s Bratby, “It is difficult for investors in India to understand the coun-try risk profile and as well as telecom specific issues such as auctions and licence validity. They are also faced with wider risk factors: In particular potential retrospective tax li-ability, particularly in light of the Vodafone case. The challenge with India is that you are never sure what’s going to happen.”

たが、それは新規ライセンスが付与されて以来、初めてのことであった。」過去数年間にわたり、低い料金はインド・テレコムの成長の主な原動力であり、「もし、価格が上昇すれば多くの小規模加入者たちは確実にシステムから脱落するだろう。」とパルワルは続ける。

弁護士たちは業界と連携して疾走し、まずは2g詐欺の脱落について企業に助言し、そしてその後は既存のプレーヤーに企業の野望を持ち続ける方法についてカウンセリングを行い、現在は非常に複雑で予測不可能な規制環境に対処している。「1月以降のこの差し迫った局面においては、我々は前進する方法についての戦略をまとめあげるのに忙しい。通常の通信会社の慣習において直面するような物ではないという点において、かなり異常である。１２２のライセンスの取り消しは全く前例がない。」とマッタンは言う。しかし将来を見据え、M&Aや評価への波及効果とともに、彼は通信会社が規制される方法において著しい変化があったと指摘する。「コストを下げるための様々な方策を凝らすことに関心があるであろうから、別の質問が問いかけられることが予期される。」と彼は結論づける。

11月のオークションに満足がいかなかったことから、2013年3月に会計年度終了前に第3ラウンドが開催されることになったことが政府により発表された。スペクトルの売却益は今年の国内総生産（gDP）の5.3%の目標の範囲内に財政赤字を維持するために政府にとって重要である。この市場におけるその成長が今や政府が投資を奨励する政策イニシアチブに依存することを指摘し、「1兆4000億ルピーという非常に高いオークションの基本価格は実に多くの外国プレーヤーを思いとどまらせた。」とパルワルは言う。

明らかなことは、不安定な業界は外国人投資家のこととなると国に何の恩恵も施していないということである。「インドはカオスである。」とoSLwAng社のパートナー、ロブ・ブラトビーは言う。「インドの投資家たちはリスク因子を理解しようと試み、オークションの見込みやライセンスの妥当性などの通信会社特有の問題が存在する。しかし、もっと一般的な危険因子、特にインドの対内投資家の不確実性を生み出したボーダフォンの税金の遡及適用問題がある。インドの課題はもちろん、何が起こるかわからないということである。」


With President Barack Obama’s recent historic visit heralding hope for political and economic change, all eyes continue to be glued to Myanmar, as one of the world’s last remaining markets opens up for business. The telecom market is one that companies are eyeing especially hungrily, as the coun-try has over 60 million people, but has the world’s second-lowest mobile penetration rate after North Korea.

The government is eager to attract in-vestment, recently announcing a business-friendly foreign investment law as well as making moves to liberalise the telecom sector in particular. “We’re going to fin-ish it soon, we really cannot wait,” Kyaw Soe, a senior official at the Ministry of Communications, Posts and Telegraphs, told Reuters. “It’s closely related to (the) economic growth of our nation, so this is a priority sector.” At the moment, the general consensus is that four operating licences will be granted - two to local companies, and the remainder up for grabs for inter-

THE WORLD’S LAST UNTAPPED MARKET OPENS UP

A TALE OF MOBILES AND MYANMAR

REUTERS/Chaiwat Subprasom

携帯電話とミャンマーの話世界最後の未開拓市場の開放

バラク·オバマ大統領の最近の歴史的訪問で、政治的・経済的変革の希望到来で、市場開放の残る世界最後の市場としてすべての視線はミャンマーにくぎ付けとなり続ける。通信市場は6000万以上の人口を抱えながらも北朝鮮に次いで世界で二番目に低い携帯電話普及率をほこっており、その通信市場は、企業が特に貪るように注目しているものである。

最近、特に通信分野の自由化に向けた動きを見せるとともに、企業に優しい外国人投資法を発表し、政府は投資の誘致に意欲的である。「我々はそれをすぐに片づけるつもりだが、我々は本当に待ちきれない。」と通信・郵政電信省の政府高官のkyAw SoEはロイター通信に言った。「我が国の経済的発展に密接に関連しているのでこれは優先分野である。」現時点では、全体的な合意は4つの営業ライセンス、即ち2つが地元企業で残りは掴み取った国際的プレーヤーに付与されるということである。日本企業、nttコミュニケーションは早期先駆者の利点を生かせることを

期待してすでにヤンゴンに支社を開設した。

通信会社の市場参入への熱狂的な意欲にもかかわらず、専門家たちはいくつかの行き詰まりの原因を強調した。その一つ目は新規に作成された外国人投資法は通信業界には及んでいないということである。その分野はまだ以前の対外直接投資制度のもとで制限されており、業界特有の規制は新しい法律の下実施される必要があり、または特に電気通信専用の具体的な法律の制定により明確化されるべきである。「どのような、どれだけ多くのライセンスが利用できるのか制限があるのか、合弁事業としてやらなければならないのか、または単独で行うことができるのかクライアントたちは我々に尋ねている。そして、現時点では我々はそれらの質問に対する答えを持っていない。」とフレッシュ

national players. Japanese company NTT Communications has already opened a branch office in Yangon, hoping to capital-ise on an early-mover advantage.

Despite telecom companies’ frenzied eagerness to enter the market, practitio-ners highlight a few sticking points - first of which is that the newly-written foreign investment law does not cover telecoms; that sector is still restricted under the previous foreign direct investment regime, so industry-specific regulations need to be implemented under the new law or a law specifically dedicated to telecoms should be enacted to provide clarity. “Clients are asking us what and how many licences will be made available, will there be limits, will we have to do it as joint ventures or can we do it alone, and at the moment, we don’t have answers to those questions,” says Freshfields’ Parsons. “They are trying to move very quickly, but you have to factor in the broader uncertainty in Myanmar itself.”

Lawyers reveal that earlier this year,


REUTERS/Soe Zeya Tun

the government indicated that it would issue licences even without a telecom law in play, adding a whole new level of risk for foreign investors. Telecom laws gener-ally detail what obligations operators are under to connect with each other, tariff regulation(s), as well as industry regula-tions. Most foreign entrants to the market, especially one as nascent and unregulated as Myanmar, would want that law in place prior to entering.

Despite the massive opportunities in a country with only two to three million mobile services users, the marketplace is undeniably tough, especially when it comes to gauging risk. If a company were to obtain an operating licence, commit-ments would include building a certain number of mobile phone towers per year and achieving a specified penetration rate annually. Operators would be under a lot of pressure to invest real money; a dicey proposition if the regulatory environment is still so unclear.

Parsons advocates that interested cli-ents, “exercise caution even when the new regime comes down, read carefully through the new legislation, access contacts in the ministries to engage with them and to understand how they are going to be applying the new law and interpreting the new licences.”

One trend that the rush to enter Myanmar clearly illustrates is that of inter-regional investment. From Japan to China to Singapore, operators are chomp-ing at the bit to get a piece of the action. Olswang’s Bratby says: “We are more likely to find that the first investors will be regional players who are more used to deal-ing and operating in jurisdictions where the risk profile is different and where the rule of law is a little weaker.”

It’s also not just the big-name players; smaller, regional companies are also inter-ested. Dhiraphol Suwanprateep, partner at Baker & McKenzie, reveals that: “As our neighbouring country, a large number of Thai investors are interested, telecom operators included. But companies that want to enter will have to start gathering their resources now.” A view that is echoed by many - that the risks may be plentiful, but if you don’t start your engines now, the opportunity may be lost.

フィールズのパートナー、マーク・パーソンズは言う「彼らは迅速に動こうとしているが、あなたはミャンマー自身の広範な不確実性を考慮しなければならない。」

弁護士たちは、外国人投資家たちに全く新しいレベルのリスクを加味しつつ、今年初めに政府が効力のある電気通信法なしにライセンスを発行することが示されたことを明らかにした。電気通信法は業界規制とともに料金規制、そして互いを結びつけるために通信会社がどのような義務を負っているのかを一般的に詳しく説明する。情報筋によるとほとんどの外国人市場参入者たちは、特にミャンマーのように初期段階であったり規制されていないものは参入の前にその法律が施行されてほしいと望んでいるという。

たった2-3万人の携帯電話サービス・ユーザーしかない国での大きなビジネスチャンスにもかかわらず、特にリスクを計測することとなると業界は紛れもなく困難である。企業が営業許可を取得した場合、その義務には年間一定数の携帯電話の中継塔を建てることと、毎年指定された普及率を達成することが含まれるであろう。通信会社は現金を投資する大きな圧力と規制環境がまだ不明確であればあやふやな提案の下にさらされることになる。

関心を抱いているクライアントは「新

体制が崩壊したときでも注意を払い、新しい法律を入念に通読して、省庁の連絡先に連絡して彼らと関与し合い、新しい法律をいかに適用し、新しいライセンスを解釈しようとしているのかを理解する。」とパーソンズは主張する。

ひとつの傾向として、即ちミャンマーへの参入ラッシュは明らかに地域間投資への参入ラッシュを説明している。日本から中国、シンガポールへと通信会社は日本から中国、シンガポールへと通信会社たちは一口乗るためにうずうずしている。oLSwAng社のロブ・ブラトビーは言う。「最初の投資家は、リスク因子が異なり法の支配が少し弱い法域での取引や営業により慣れており、地域のプレーヤーになりやすい傾向がある。」それはまた単に大物プレーヤーではなく、小さな、地域企業もまた興味を持っている。ベーカー＆マッケンジー法律事務所のパートナー、ディラポル・スワンプラティープは明らかにする。「我々の隣国として、通信会社を含み多数のタイの投資家が興味を持っている。しかし参入を希望している企業は資源の収集を今開始する必要がある。」多くの人に賛同を得た見解は、リスクはたくさんあるかもしれないが、エンジンを今すぐ始動しなければ機会は失われてしまうかもしれないということである。

ASIAN LEGAL BUSINESSdecember 2012SponSored reGIonAL UpdATeS54

SPONSORED UPDATE: CHINA

FoREIGN INVESToRS ALLoWED To INJECT EqUITY INTEREST AS CAPITAL CoNTRIBUTIoN

With the recent promulgation of the Interim Provisions on Equity Interest Contributions Involving Foreign Invested Enterprises (the “Provisions”) by MOFCOM, effective from October 22 2012, foreign and PRC investors can now use their equity interests in a Chinese company (whether domestic or foreign-invested (“FIE”)) as capital contribution.

ScopeThe Provisions allow domestic and foreign investors to use equity interest held by them in a Chinese company (“Equity Company”) as capital contribution to establish a new FIE; to invest in a non-FIE and convert it to an FIE; or to change the capital structure of an existing FIE (such company, the “Target Company”).

The equity can only be used as a contribution to the Target Company’s registered capital and to receive additional interest in the Target Company and cannot be used in a share swap transaction where the Investor exchanges its equity interest in the Equity Company with the equity holders of the Target Company.

Conditions of Equity Interest to Be ContributedInterest in an Equity Company cannot be contributed as equity in the Target Company under circumstances such as: the Equity Company’s registered capital has not been fully paid up; the equity interest to be contributed has been pledged, frozen, or is not transferable; and the Equity Company is a real estate company, a foreign invested holding company or a foreign invested venture capital or private equity enterprise.

foreign Investment PolicyThe foreign investment industry policies in China continue to apply to such equity contribution, so only Target Companies which allow foreign investment can be invested using interest of an Equity Company by a foreign investor.

Valuation and Pricing of the Contributed Equity InterestThe equity interests being contributed must be appraised by a PRC appraisal firm. The value of the increased registered capital of the Target Company may not exceed the appraisal value of the equity interest to be contributed. S

PO

NS

OR

ED

RE

GIO

NA

L U

PD

ATE

S

The new Myanmar Foreign Investment Law (“FIL”) was passed on 2 November 2012 following almost

a year of controversy and debate. Some of the key changes introduced by the FIL include: (1) increased period for land leases; (2) choice of dispute resolution mechanism; (3) application of international treaties; (4) local employment requirements; and (5) a list of so-called “restricted/prohibited” sectors.

The FIL now allows an initial lease term of 50 years with two possible extension terms of 10 years each. This is an increase from what was extended under Notification 39/2011, which permitted an initial term

of only 30 years with two extension terms of 15 years each.

As for dispute resolution, the FIL provides that disputes may be settled in accordance with the provisions contained in the relevant contract, indicating that foreign investors may choose the mode of dispute resolution in respect of their joint venture agreements and/or other contractual arrangements. The FIL also provides that in the event of a conflict between the FIL and an international treaty that has been ratified by Myanmar, the provisions of such international treaty shall apply.

With respect to local employment, there is now a further requirement that foreign companies operating under the FIL have Myanmar citizens accounting for at least 25% of their workforce within the first two years of operations. This percentage is to be subsequently increased to 50% within the second two-year period, and 75% within the third two-year period.

Finally, the FIL restricts or prohibits foreign investments in certain specified sectors. Foreign investors are particularly concerned over the inclusion of manufacturing or service enterprises as prescribed by the Myanmar Investment Commission (“MIC”) and which can be undertaken by Myanmar nationals. The MIC has yet to prescribe the actual list of such manufacturing or service enterprises, and it is expected that such matter will be clarified further in the implementing rules (“Rules”) to be issued within 90 days from the FIL’s enactment. Notwithstanding the foregoing, the FIL provides that foreign investors may still invest in such restricted or prohibited sectors if so permitted by the MIC, with the approval of the Union Government. Where any of such restricted/prohibited investments are undertaken by way of a joint venture, the foreign-local equity ratio must be in accordance with that as may be prescribed in the Rules.

Whilst there are still a number of issues that have to be clarified in relation to the FIL, and it is anticipated that the Rules will provide further clarity, the enactment of the FIL is a welcome development, if not a step in the right direction, for foreign investors looking to do business in Myanmar.

SPONSORED UPDATEEMERGING MARKETS

NEW FOREIGN INVESTMENT LAW UPDATES INVESTMENT FRAMEWORK IN MyANMAR

CHERYL CHEONG HANNAH LIM Foreign Consulting Attorney Foreign Consulting Attorney Kelvin Chia yangon Ltd Kelvin Chia yangon Ltd E: [email protected] E: [email protected]

Kelvin Chia Partnership has an office in Myanmar, Kelvin Chia Yangon Ltd. (“KCY”), which is a full service foreign legal consultancy firm established in Yangon in 1995. The oldest foreign legal consultancy firm based in Myanmar, KCY brings together the expertise of local Myanmar-qualified lawyers and foreign consulting attorneys, in order to meet the needs of clients from various jurisdictions, particularly in complex local and cross-border transactions.

SponSored reGIonAL UpdATeS 55WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

The registered capital of the Target Company must also comprise at least 30% cash, thus the aggregate value of the equity interest to be contributed together with the other non-cash assets that have been or may be contributed, may not exceed 70% of the total enlarged registered capital of the Target Company.

Approval ProceduresAny transaction involving the contribution of equity interest must be approved by the provincial-level MOFCOM (“Transaction Approval Authority”) in the province where the Target Company is located, unless central MOFCOM’s approval is required under other relevant regulations. If the Equity Company is also an FIE and was originally approved by a different local counterpart of MOFCOM, the Transaction Approval Authority should consult with the provincial-level MOFCOM in the province where the Equity Company is located before it deliberates on the matter.

After the proposed transaction is approved by the Transaction Approval Authority, the Equity Company must also apply to its original approval authority for approval of the change of shareholder.

Although there are still some legal and practical issues that need to be clarified by MOFCOM and other agencies, foreign investors are now able to consider using the equity interests held in China in their proposed restructurings, mergers and acquisitions.

Written byJeanette Chan, Partner Yuan Yuan Zhou, China law consultantPaul, Weiss, Rifkind, Wharton & Garrison

Hong Kong Club Building, 12th Floor3A Chater Road, CentralHong KongE: [email protected] T: +852 2846 0300

SPONSORED UPDATE: SINGAPORE

SIMPLIFIES AND ENHANCES REqUIREMENTS oN DISCLoSURE oF INTERESTS IN LISTED ENTITIES

The Monetary Authority of Singapore has introduced a new disclosure of interests (DOI) regulatory regime to streamline and enhance the existing DOI requirements in listed entities by directors and substantial shareholders. The new regime has taken with effect from 19 November 2012. A summary of the key changes is set out as below:

(a) Consolidation of all DoI requirements in the Securities and Futures Act (SFA)

All notification requirements in respect of interests in listed entities (corporations, business trusts and REITs) are streamlined and consolidated in the SFA.

(b) Simplify notification process for directors and substantial shareholders

Directors and substantial shareholders are not required to separately report their interests, and changes in interests, in securities to the Singapore Exchange (SGX).Onlytheholdingcompanyisrequired to aggregate the interests of every related corporation for its reporting purposes. For each subsidiary, it needs only to report its own interests.

(c) Legal requirement for listed entities to notify investors of interests or changes in interests

To ensure that investors are kept informed of any changes in holdings of directors and substantial shareholders on a timely basis, listed entities have to announce the information as soon as possible and no later than the end of the following business day.

(d) Reporting obligations by the Chief Executive officer (CEo) who is not a director

The notification requirements applicable to directors are extended to CEOs who are not directors due to the fact that they are the key decision makers in respect of operating and financial policies of the listed entities.

(e) Include interests in foreign corporations with a primary listing on the SGx

The legal obligations for directors and substantial shareholders to report their interests or changes in interests, which

was only applicable to Singapore-incorporated listed companies under the old regime, is now extended to foreign-incorporated corporations with a primary listingontheSGX.

(f) Notification requirements for shareholders of trustee-managers of business trusts and responsible persons of REITs

For business trusts and REITs where business and assets are externally managed by the manager, investors are likely to be also concerned with the identity of the persons controlling the manager. A shareholder of the manager of a business trust or REIT is required to give notification when his shareholdings in the manager reaches, crosses or falls below the strategic levels of 15%, 30%, 50% and 75%. Any acquisition or disposal of interest in the securities of the business trust or REIT by the manager must also be disclosed.

(g) Stiffer penalties for flagrant breaches The introduction of penalty of up to

$250,000 and/or imprisonment for a term not exceeding two years for material contraventions which are committed intentionally or recklessly. Civil penalties may also be imposed.

In addition, electronic notification forms are introduced to improve the disclosure and dissemination of information. Overall, this new DOI regime can simplify the reporting process and reduce compliance burden. It strikes a good balance between consistency, transparency and flexibility.

Written by

Mr Nicholas ChangSenior Corporate Finance ExecutiveTel: (65) 6322 2236Fax: (65) 6534 0833E-mail: [email protected]

Ms Amy HanCorporate Finance ExecutiveTel: (65) 6322 2285Fax: (65) 6534 0833E-mail: [email protected]

Loo & Partners LLP16 Gemmill LaneSingapore 069254www.loopartners.com.sg

ASIAN LEGAL BUSINESSdecember 2012SponSored reGIonAL UpdATeS56

SPONSOREDREGIONALUPDATES

CHINA

PHILIPPINES

SINGAPORE

SPONSORED UPDATE: PHILIPPINES

NEW DATA PRIVACY LAW INTHE PHILIPPINES

A new law which focuses on the processing of an individual’s personal information was approved by the President of the Philippines on August 15, 2012. Republic Act No. 10173, “An Act Protecting Individual Personal Information in Information and Communications Systems in the Government and the Private Sector, Creating for this Purpose A National Privacy Commission, and for Other Purposes,” or the “Data Privacy Act of 2012” (the “Data Privacy Act”), took effect on September 8, 2012. A violation of this law is a crime, and penalties imposed include fines and imprisonment.1

The Data Privacy Act “applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines.”2 The general rule is that the processing of personal information is allowed if the individual has given his consent.3

“Personal information” is “any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.”4 “Processing” is “any operation or any set of operations performed upon personal information including, but not limited to, the collection, recording, organization, storage, updating or modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data.”5

The citizenship or residence of the data subject is an important factor in determining whether the Data Privacy Act applies. For example, the law will have extra-territorial application, even if processing of personal information were done offshore, in case personal data pertained to Philippine citizens or residents, and the processor has a link with the Philippines.6 On the other hand, personal data collected from non-Philippine residents but processed in the Philippines are excluded from the coverage of this law.7

Implementing rules and regulations of the Data Privacy Act will be issued by the National Privacy Commission,8 which was created under this law.9

1 Data Privacy Act, Chapter VIII.2 Data Privacy Act, Section 4, par. 1.3 Data Privacy Act, Section 12(a).4 Data Privacy Act, Section 3(g).5 Data Privacy Act, Section 3(j).6 Data Privacy Act, Section 6(b).7 Data Privacy Act, Section 4, par. 2(g).8 Data Privacy Act, Section 39.9 Data Privacy Act, Section 7.

Written by

Hiyasmin H. LapitanE-mail: [email protected]

SyCip Salazar Hernandez & GatmaitanSyCipLaw Center105 Paseo de Roxas,Makati City,PhilippinesTel: (632) 982-3500, 982-3600,982-3700Fax: (632) 817-3145, 817-3896http://www.syciplaw.com

ASIAN LEGAL BUSINESSdecember 2012SPONSORS58

CHINA

Paul, Weiss, Rifkind, Wharton & Garrison LLP is a globally oriented, full-service law firm employing over 700 lawyers worldwide. Paul, Weiss is headquartered in New york and has offices in Tokyo, Washington, D.C., Wilmington, Beijing, Hong kong, Toronto and London.

MALAySIA

Wong & Partners is a Malaysian law firm dedicated to providing a quality and solution-oriented legal services to its clients. Wong & Partners has grown steadily with international standards of quality and experience and the Firm has a solid commitment to training its lawyers, and invests in training, professional development and quality management programs with the aim of producing lawyers of global standard.

INTERNATIONALTAX

AzureTax Ltd provides transparent strategic and ethical tax advice. Through our professional corporate and International, tax advisory and trustee services your tax plan is comprehensively implemented. Our advice provides you with independent innovative and rigorous solutions which deliver results and long-term accountability. We are qualified Uk, U.S., Hong kong and PRC tax advisors and complete tax filings for Uk, U.S. and Hong kong tax returns.

ACCJ

Established in 1948 by representatives of 40 American firms, the ACCJ, a fully independent chamber of commerce, has grown into one of the most influential business organizations in Japan, with more than 2,700 members representing more than forty countries and 1,000 companies.

EMERGING MARKETS

kelvin Chia Partnership is a commercial law firm headquartered in Singapore with strong regional capabilities. With offices in Hanoi, Ho Chi Minh City, yangon, Bangkok and Phnom Penh, and extensive experience all throughout Asia, we provide localized legal solutions consistent with international standards in emerging markets in Asia.

CCCJ

Promoting the development of commerce between Canada and Japan since 1975, the Canadian Chamber of Commerce in Japan (CCCJ) is a private sector, not-for-profit business organization serving its members through communications, networking and advocacy. Representing some 33 business sectors, the CCCJ is a member-driven, member-focused organization and is the longest serving Canadian Chamber in Asia with over 300 members.

VIETNAM

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

THE PHILIPPINES

Established in 1945, SyCipLaw is the largest law firm in the Philippines, with its principal office in Makati City, the country’s financial and business center, and branches in Cebu, Davao and Subic Bay. SyCipLaw combines its tradition of professional integrity and excellence with a time-tested ability to break new ground. The broad range of the firm’s expertise is reflected in its client base, which includes top corporations, international organizations and governments.

COUNTRy / REGIONAL EDITORSTHE COUNTRy / REGIONAL UPDATES SECTION OF ALB IS SPONSORED By THE FOLLOWING FIRMS:

INTELLECTUAL PROPERTy / ENERGy & RESOURCES / EMPLOyMENT

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

SSCA

The Singapore Corporate Counsel Association or SCCA was set up in 2002. It is the pioneer association representing in-house lawyers in Singapore. http://www.scca.org.sg

FUJIAN

Sphere Logic Partners is a mid-sized business law firm known for its offering of value, sophisticated legal solutions in a leaner approach across a range of practice areas, critical to the success of clients. We maintain an established global network with numerous law firms and relevant service providers. Our seasoned and culture-ready professionals assist clients in cross-border investment, M&A and financing, governance and daily operations, identification of business opportunities and solving of complex legal disputes.

SHANGHAI

victory Legal is a boutique legal practice in Shanghai, focusing on general corporate, corporate finance and capital markets matters. Its clients include governmental authorities, State-linked enterprises, banking and financial institutions, MNCs, SMEs and foreign law firms. The firm has extensive network across the region. It serves clients’ domestic and regional needs.

PRACTICE AREA AND INDUSTRy EDITORS THE INDUSTRy UPDATES SECTION OF ALB IS SPONSORED By THE FOLLOWING FIRMS:

ALLIANCES ALB ENJOyS ALLIANCES WITH THE FOLLOWING ORGANISATIONS:

SINGAPORE

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

I P B A 2 0 1 2New Delhi - India

JICN

The Japan In-house Counsel Network (JICN) is a professional association for in-house counsel working in, or having other affiliations with, Japan. JICN offers a forum for communication between members, social and networking opportunities, legal seminars, roundtable member discussions and other activities, as well as events with other lawyer and in-house groups. visit www.jicn.jp for more details.

HKCCA

The Hong kong Corporate Counsel Association is the pioneer association run for in-house counsel by in-house counsel in Hong kong. It provides an efficient and effective range of benefits and services for its members’ professional development, including continuing legal education, a platform for networking and the exchange of ideas, information and experiences that are unique to the in-house role.

S CC A Singapore Corporate

Counsel Association

SUNDRIES 59WWW.LEGALBUSINESSONLINE.COM: @ALB_Magazine : Connect with Asian Legal Business

Compiled by ALB

“ThErE ArE NO ShAdES Of ANyThING IN A

SAGA SUCh AS ThIS, NO jUSTIfICATIONS;

ONLy A CLEAr LINE NOT TO BE

CrOSSEd.”

QUOTE OF THE MONTH

Singapore District Judge Eugene Teo, who sentenced a 32-year-old teacher

and mother of two to prison for having sex with a 15-year-old student.

REUTERS/Tim Chong

Proposed changes to Vietnam’s law on legal services that would restrict foreign firms have received criticism from international lawyers and business leaders, according to media reports. With Vietnam’s economy stumbling, chambers of commerce as well as international lawyers have sounded their opposition to the changes. “It would mean that anybody investing or doing business in Vietnam

would have to rely on a much smaller group of law firms, none of which have international networks or presence,” AP quoted Baker & McKenzie partner Frederick Burke as saying. The local lawyers, unsurprisingly, did not see it that way. The same report quoted Ngo Thanh Tung of Vilaf, one of the Vietnamese law firms proposing the changes, as saying that the foreign lawyers were being “overly sensitive.”

Who’s suing who? Olam International, Asia’s largest

agribusiness firm, has sued U.S. short-seller Muddy Waters Research and its

founder Carson Block.

Why? At the Sohn London investment

conference in London last month, Block said that Olam could collapse due to its

debt load and other factors. Olam’s shares plunged 7.5 percent in value the next day.

Damages? Olam hasn’t publicly specified any yet.

LAWSUIT WATCHFACEbOOk pOST

LEADS TO ArrESTSIn another example of how Facebook can indeed be a dangerous place to air one’s views, two 21-year-old Indian women were arrested last month after one criticised Mumbai authorities on the social network for shutting down the city for the funeral of powerful Hindu nationalist politician Bal Thackeray, and another clicked “Like”. According to media reports, shortly after Shaheen Dhada posted her status update and her friend Renu Srinivasan “liked” the post, all hell broke loose, with 500

outraged supporters of Shiv Sena, Thackeray’s party, storming the local police station and demanding action; the arrests followed soon after. A group also vandalised a medical clinic run by Dhada’s uncle. After an outcry from the media and several notable personalities, things eventually took a turn for the better, with charges against the girls dropped and nine of the alleged vandals arrested instead. The policemen who arrested the two women will also face an inquiry.

4 bILLION rUpIAHAmount sought by four Chevron Pacific Indonesia employees for the “embarrassment” of being named suspects in a high-profile graft case by the Indonesian Attorney General’s Office (AGO). The graft case relates to $23.4 million paid by state oil and gas regulator BPMigas to complete an environmental cleanup project in Duri, Riau, a project the AGO says was never completed.

REUTERS/Crack Palinggi

bACkLASHFOr prOpOSED CHANgES TO

VIETNAM’SLEgAL SErVICES LAW

ASIAN LEGAL BUSINESSDECEMBER 2012INDEX60

AllBright Law OfficesAllen & GledhillAllen & OveryAllensAmarchand & Mangaldas & Suresh A Shroff & CoAnderson, Mori & TomotsuneAnJie Law FirmAZB & PartnersBae, Kim & LeeBaker & McKenzieBeijing Grandway Law FirmBeijing yingke Law FirmBerwin Leighton PaisnerBingham McCutchenBlake, Cassels & GraydonBurnet, Duckworth & PalmerChen & CoClifford ChanceCleary Gottlieb Steen & HamiltonCommerce & Finance Law OfficesCravath, Swaine & MooreDacheng Law OfficesDacheng Law OfficesDeaconsDebevoise & PlimptonDeheng Law FirmDeHeng Law OfficesDLA PiperDrew & Napier

16-2616-26

6, 12, 16-2615

16-26

12, 16-2615

16-2616-26

4, 12, 15, 16-2616-2616-26

41512126

6, 12, 15, 16-266, 12

612

16-266, 12

16-2612

16-2616-2616-2616-26

EvershedsFormosa TransnationalFoulston, Siefkin, Poers & EkouriFreshfields Bruckhaus Deringer

Grandall Law FirmGuangdong Sun Law FirmGuanghe Law FirmGuantao Law FirmHerbert Smith FreehillsHogan LovellsHylands Law Firm

J Sagar AssociatesJincheng Tongda & NealJingtian & GongchengJones DayJun He Law OfficesKhaitan & CoKim & ChangKing & Wood MallesonsLee & CoLee & LiLinklatersLoo & PartnersLuthra & LuthraMayer Brown JSMMdMEMori Hamada & Matsumoto

1532-35

1212, 16-16,

40-45, 46-536, 16-26

16-2616-2616-26

6, 16-26, 46-5316-2616-26

16-26, 46-5316-2616-26

1216-2616-2616-26

6, 16-2616-26

16-26, 32-3512, 16-26

16-2616-26

616-26

A-H

I-PQ-Z

Morrison & FoersterNagashima Ohno & TsunematsuNishimura & AsahiNorton RoseOsler, Hoskin & Harcourt LLPOslwangPaul WeissPolsinelli Shughart PCPotter Anderson & Corroon

Rajah & TannReed Smith Richards ButlerRichard A Shaw Professional GroupShin & KimSidley AustinSkaddenStikeman ElliottSullivan & CromwellTMI AssociatesTriLegalTsar & TsarVDB LoiWalkersWong Partnershipyoon & yangyulchonZhongcheng Renhe Law FirmZhong Lun Law FirmZhonglun W&D Law FirmZhong yin Law Firm

6, 12, 46-5312, 16-2612, 16-26

612

46-53121212

16-261512

16-266

1212

12, 2816-2646-5332-35

46

16-2616-26

15, 16-2616-26

6, 12, 16-2616-2616-26

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CHINA INTERNATIONAL ECONOMIC AND TRADE ARBITRATION COMMISSION

CHINA INTERNATIONAL ECONOMIC AND TRADE ARBITRATION COMMISSION

AnnouncementOn the Administration of Cases Agreed to be Arbitrated by

CIETAC Shanghai Sub-Commission and CIETAC South China Sub-Commission

The 2012 Arbitration Rules of the China International Economic and Trade Arbitration Commission came into effect as of 1 May 2012. Yet, as branch offices of CIETAC, the CIETAC Shanghai Sub-Commission and the CIETAC South China Sub-Commission (originally named the CIETAC Shenzhen Sub-Commission) refuse to apply the CIETAC Arbitration Rules (2012), and refuse to remain under the leadership of CIETAC in respect of case administration. Such conduct violates the basic principles provided in the CIETAC Articles of Association and the CIETAC Arbitration Rules (2012) that CIETAC and its Sub-Commissions form an integrated arbitration institution and that the Sub-Commissions conduct arbitration business under the authorization of CIETAC.

In order to ensure the effective realization of parties’ autonomy in choosing CIETAC for arbitration, safeguard the exercise of parties’ arbitration rights and facilitate the effective resolution of parties’ disputes through CIETAC arbitration, CIETAC hereby announces the following decisions in accordance with the CIETAC Articles of Association (2012) and CIETAC Arbitration Rules (2012):

1. As from 1 August 2012, CIETAC’s authorization to the CIETAC Shanghai Sub-Commission and the CIETAC South China Sub-Commission for accepting and administering arbitration cases is hereby suspended.

2. As from 1 August 2012, where parties have agreed to arbitrate their disputes by the CIETAC Shanghai Sub-Commission or the CIETAC South China Sub-Commission (the CIETAC Shenzhen Sub-Commission), the parties shall submit their applications for arbitration to CIETAC and the CIETAC Secretariat shall accept such arbitration applications and administer such cases. Without CIETAC’s authorization, no institutions shall have the right to accept and administer the afore-mentioned arbitration cases.

3. When the CIETAC Secretariat accepts and administers the above-mentioned cases, unless otherwise agreed by the parties, for cases agreed to be arbitrated by the CIETAC Shanghai Sub-Commission, the place of arbitration and the place of oral hearing shall be Shanghai; for cases agreed to be arbitrated by the CIETAC South China Sub-Commission (the CIETAC Shenzhen Sub-Commission), the place of arbitration and the place of oral hearing shall be Shenzhen.

4. For information and consultation about the afore-mentioned cases, please contact the CIETAC Secretariat at the following:

Shanghai: Tel: 86-21-58200329 | Fax: 86-21-50810965 | Email: [email protected]

Shenzhen: Tel: 86-755-82796739 | Fax: 86-755-23964130 | Email: [email protected]

Beijing: Tel: 86-10-82217788 | Fax: 86-10-82217766 | Email: [email protected] China International Economic and Trade Arbitration Commission

INTERNATIONAL IMAGE OF CHINESE ARBITRATION

CHINA’S EXPERIENCE ININTERNATIONAL ARBITRATION

Address: 6/F, CCOIC Building, 2 Huapichang Hutong, Xicheng District, Beijing 100035, P.R.ChinaTelephone: (86-10) 8221 7788 | Fax: (86-10) 8221 7766 64643500

CITEC ad_regional.indd 1 27/11/12 11:22 AM

HKALB December 2012

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