近几个月来，为数不少的中国企业被指控违反美国证券法和上市公司准则，并因此受到相关调查和法院诉讼。这些问题的曝光通常源于公司聘请的会计师事务所对公司财务信息真实性的怀疑，或是出于外界对公司某些不正当交易的指责。这些公司在被内部审计委员会、美国证监会和相关证交所调查的同时，也面临受害股东提起的法律诉讼。大多数这类中国公司根本没有预想到会面临这些诉讼和调查，也没有料想到其强度和因此会产生的高额费用。这一切都对公司及其董事、管理人员和员工形成了巨大的压力。公司为配合调查或应诉需要调集大量的人力和资金，相关的开支动辄上千万美元，同时还不可避免地殃及公司的日常运作和员工的士气。
为了合规以及应对在美诉讼都要付出高昂的资金成本，外加股价的低迷和交易量的骤减，对于中国企业来说，美国资本市场的吸引力已不如往日。 Continue Reading 中国公司在美国上市的法律风险和成本考量
By Susan Ning,Liu Jia and Hazel Yin
On 3 May 2012,China’s Supreme People’s Court issued the Rules of the Supreme People’s Court on Several Issues Concerning the Application of Law in Hearing Civil Cases Caused by Monopolistic Conduct ("Rules").The Rules contain 16 articles covering standing of plaintiffs,jurisdiction,burden of proof,evidentiary rules,expert witness,the judicial process, form of civil liabilities and the statute of limitations.The Rules entered into force on 1 June 2012.
Compared to the draft Rules released last year for public comments ("Draft Rules")1,the Rules contain fewer articles and remain silent on a few issues that were previously addressed in the Draft Rules.This article discusses the major provisions in the Rules.
本文分两部分刊登， 2012年6月5日金杜法律博客(Chinalawinsight)刊登的了本文的第一部分。文章第二部分将继续对《香港的法律制度及解决商业纠纷的民事诉讼程序》进行解读。
八、简易判决
简易判决可作为以全面审讯解决纠纷的另一选择。简易判决是在被告人没有提出抗辩的情况下，法庭可以不经过庭审即向原告人提供实体终局性判决结果[i]。简易判决的程序是为了避免被告人拖延判决进程，并在被告显然缺乏抗辩理由的情况下，避免浪费时间及诉讼成本。
By Zhang Yi, Alan Du and Hu Xia King & Wood Mallesons’ Corporate Group Shanghai Office
Recently, it was reported by various media sources that the National Development Reform Commission (NDRC) had issued certain policies requiring an RMB fund (the ‘FIE GP Fund’) with a foreign invested enterprise (the ‘FIE’) acting as the general partner (the ‘FIE GP’) and domestic investors (exclusive of FIEs established in China) acting as limited partners to be regarded as a foreign investor. Being defined as a foreign investor means that the portfolio investments of such a FIE GP Fund shall be subject to foreign investment approvals, which are read by the public as referring to the approvals from the Ministry of Commerce or its local counterpart (MOFCOM).
International private equity firms often structure their RMB funds in the form of FIE GP Funds, as a result this news caused great concern among them because their RMB funds will be defined as offshore funds in regard to making portfolio investments and as a result there will probably be little chance of raising new RMB funds in the form of FIE GP Funds. Continue Reading NDRC reply on RMB Fund with FIE GP
By Renee Gu King & Wood Mallesons’ Dispute Resolution Group
This article continues to discuss The Legal System and Civil Procedure for Commercial Dispute Resolution in Hong Kong. The first part of this article was published on Chinalawinsight on May 2012.
VIII．Summary Judgment
As an alternative to resolving a dispute by way of a full trial, it may be an option to apply for a summary judgment. The purpose of the summary judgment is to give judgment before trial to a plaintiff, where the defendant has no defence to the claim[i]. Continue Reading The Legal System and Civil Procedure for Commercial Dispute Resolution in Hong Kong (Part II of II)
By Renee Gu King & Wood Mallesons’ Dispute Resolution Gourp
I．Introduction
Commercial disputes are inevitable in the commercial world. It is often crucial to find the most cost-effective and expeditious way to resolve the dispute.
Hong Kong is Asia’s most international city with a vibrant and cosmopolitan community where East meets West, the key attributes of which include a level playing field for entrepreneurs of all nationalities; an educated and skilled workforce; an unrivalled location as the gateway to China; the rule of law being upheld and respected by a clean government; low taxes funding world class infrastructure; a free flow of information; and international lifestyle[i].
By Susan Ning and Hazel Yin
On May 19, 2012, MOFCOM cleared, with conditions, Google’s acquisition of Motorola Mobility ("Motorola"), a USD 12.5 billion deal and the largest ever in Google’s M&A history. The deal was announced in August 15, 2011 and obtained unconditional approval from the United States’ Department of Justice and the European Commission in February 2012. This article outlines the major points of MOFCOM’s conditional clearance decision of the Google/Motorola deal ("Decision").
Continue Reading MOFCOM Cleared Google/Motorola Deal with Conduct Remedies
一、在仲裁地对裁决提出异议
相对于执行程序，争议解决的过程中获得一个令人满意的仲裁裁决相对容易一些，但即使裁定胜诉方获得经济赔偿，败诉方却拒绝支付时，胜诉方需要采取进一步措施以真正获得赔偿。其间每一个步骤都意味着败诉方可能会拒绝或延期支付。
即使执行程序开始之前，裁决债务人仍有机会阻止裁决债权人采取救济措施：对仲裁裁决提出异议的常见的方式是向仲裁委员会所在地的法院申请撤销裁决。
By Ariel Ye and James Rowland King & Wood Mallesons’ Dispute Resolution Group
I. Challenging the award in the place of arbitration
Achieving a favorable arbitral award is sometimes the easy part of the dispute resolution process. Where the successful party is awarded money damages and the unsuccessful party resists payment, the successful party will still need to take further steps to actually obtain the money awarded. Each step will present the unsuccessful party with another opportunity to resist or delay payment.
Even before arriving at enforcement proceedings, there is a threshold opportunity for the award debtor to prevent the award creditor from securing its remedy: by challenging the award, usually in an ‘action to set aside’, before the national courts in the place of arbitration.
