Newsletter 2019.9

Honor

Winners Law Firm was granted the honor of first 100 Best Chinese Law Firm 2018. The evaluation was sponsored by Yale University Chinese Law Research Center and Chinese leading medias, aiming at promoting outstanding China mainland law firms.

Bar Re-election

Mr. Tongxu Niu, senior partner of Winners Law Firm and head of the Winners Finance Department was re-elected as Vice President of Tianjin Bar Association. Mr. Niu will be leading industry innovation and development in his new term.

Focus Talk

Way to Enforce an Arbitration Award in the US

1.International trade disputes are inevitable, nowhere to hide means nothing to fear.

2.No matter how twisty the road is, the persistence and professionalism will be rewarded.

3.The final success is achieved through global cooperation between law firms.

Chambers

 Winners Law Firm was appraised by Chambers and Partners as the First Band Corporate/Commercial Firm since 2009 and the First Band Environment Firm since 2013.

 Haibo Li

Corporate/Commercial - Eminent Practitioners

Environment - Recognised Practitioner

 Jinzhong Shen

Environment - Eminent Practitioners

 Tongxu Niu

Corporate/Commercial - Second Band

Mergers and Acquisitions

Since the beginning of 2017, Tianjin has encouraged its large scaled state-owned enterprises to reform its ownership, aiming at introducing more funds, more business resources and high-quality management to the enterprises and the city. In the past two years, Winners has provided full legal services for 9 enterprises, including the Northern International Trust Co., Ltd. and Tianjin Huaze (Group) Co., Ltd., and formulated trading rules and scheme for the Tianjin Property Rights Exchange Center.

Restructuring and Liquidation

Winners is the ?rst batch quali?ed law ?rm that included the List of Bankruptcy Administrator in Tianjin. On February, 2019, Winners was appointed by Tianjin Second Intermediate People's Court as the bankruptcy administrator of Tianjin Shunhang Shipping Co.,LTD, the controlling shareholder of the listed company Changhang Phoenix, as well as the largest bankrupt enterprise in Tianjin. The bankruptcy claims are CNY 3.8 

billion. Winners team has completed the creditor right declaration and is actively pushing the company to enter the legitimate restructuring process.

Two Business Departments Forged 

In March 2019, Winners brought together  fresh business teams with rich work experience lawyers in two areas— Corporate Restructuring & Insolvency Department and International Trade & Customs Law Department. Led by senior lawyers Mr. Feng Gao and Ms. Yunxia He respectively, the new business teams are providing consultancy and dispute resolution services related to corporate bankruptcy and liquidation, customs and maritime business.

Winners Opinion Adopted by Banking Laws

Winners was engaged to provide legal services for the evaluation of shareholder performance by Jincheng Bank, the ?rst private bank in North China. Winners Senior Partner Mr. Dapeng Fan's team undertook the project and spent one month conducting a comprehensive review of the shareholding structure, equity change, commercial operations and related transaction of 16 corporate shareholders of Jincheng Bank. Winners’ legal opinion summarized the non-compliance of Jincheng Bank shareholders and proposed the improvement advice. As this is the ?rst private bank shareholder performance evaluation project carried out by China's lawyer. The Chinese banking regulatory authority has drawn reference to the legal opinion of Winners in the process of formulating the later Interim Measures for the Administration of Equity of Commercial Banks (CBRC No. 1 of 2018).

Retainership Legal Service 

Xiong'an New District is a state-level new district decided by the Central Committee of the Communist Party of China and the State Council in 2017. China Xiong'an Group is the main carrier and operational platform for the development and construction of Xiong'an New District. In April 2019, Winners Finance Business Department and Real Estate & Construction Engineering Department was shortlisted in the China Xiong'an Group’s legal service vendor base, which will allow Winners providing legal services for the Group and its funded enterprises.

Environment Law Hearing 

Winners represented a German-invested industrial enterprise in an environmental administrative punishment case and attended the hearing against local Ecological Environment Bureau of a district in Shanghai in mid-2019. Winners Environment Law team analyzed the facts of the case, investigated the environmental management of the company, attended the hearing, and e?ectively communicated with the Bureau, and ?nally won the ideal result. Winners also put forward professional legal advice on foreign invested companies in China to be more careful on environmental due diligence and internal compliance management.

Labour Law Litigation 

A large enterprise involved Winners to its labor dispute litigation regarding an employee’s remuneration and reimbursement. Winners combed the judicial judgment trends of similar cases to analyze the breakthrough points of the case and cooperated with the Client in evidence digging. Despite of the employer’s loss at the mandatory arbitration stage, the court of ?rst instance supported the company’s claim and eventually set aside the arbitration award. 

Lawyers Associated Worldwide 

Lawyers Associated Worldwide (LAW) is a global association of 100 independent law ?rms located in more than 50 countries. With access to more than 4000 lawyers worldwide, membership in LAW allows member ?rms to service the legal needs of clients that are expanding their operations and relationships into new domestic and foreign markets. On March 8, 2019, the 2019 LAW Asia-Paci?c Regional Meeting was held at the Swiss?tel the Stamford in Singapore. 48 lawyers from 29 Asia-Paci?c countries and regions attended the Meeting. Lawyers from the GHR Rechtsanw?lte AG Law Firm in Zurich and the Howard Kennedy LLP in London were invited as guest ?rms. The Managing Partner of Winners Law Firm Mr. Haibo Li, together with Attorney Soloon Wang attended the two-day meeting, exchanging ideas with international partners.

Winners Law Firm: To Win with Clients and Global Partners

The US companies, especially those working on international trade, are known by the world as the predecessors in using legal weapons, either to attack others or to defense their own interests. But through endeavor and cooperation with its partner law firm, Winners Law Firm won the arbitration for its client and enforce the award in the U.S.

Focus Talk

1. International trade disputes are inevitable, nowhere to hide means nothing to fear.

US company T is a Long Island nutritional products maker. T company specializes in pharmaceutical raw materials, sports nutritional ingredients, joint health ingredients and food additives among other products. T entered into a sales contract with a Tianjin vendor company registered in Tianjin Free Trade Zone (“Z company”) in which T company purchases form Z company the dietary supplements in amount of $480,000 in December 2013. The products included 5,000 kg of creatine monohydrate, 4,000 kg of betaine anhydrous and 9,000 kg of creatine HCL. Thereafter a dispute arose from the above deal then T company came for seeking legal advice from Winners Law Firm. 

The international dispute is a big challenge to Chinese companies as it may be time consuming and a judgement can be hard to enforce. After hearing  Z company’s brief, Winners immediately appointed a proper legal team to study the case, led by senior lawyer Partner Yunxia He and Lawyer  Jinxiao Li. Discovering the performance and all relevant evidences, it is found Z company had timely delivered the products and T company never objected on their quality but only failed to pay. Moreover, as part of the sales contract, the parties agreed to arbitrate disputes before the China International Economic and Trade Arbitration Commission (CIETAC). Winners present the coming cost and all the risk to realize the rights, together with its strategy and timeframe to Z company according to laws, treaties and judicial precedent. Z company after careful consideration decides to engage Winners for retrieving its losses. The arbitration application was subsequently submitted in March 2015.

2. No matter how twisty the road is, the persistence and professionalism will be rewarded.

The lawyers entrusted solved many legal problems on merits and evidence in many aspects with their client, but many may surprise that the most difficult point in this case is documentation delivery. The address of T company which is written in the sales contract is provided to the tribunal at first. But the documents were later returned to CIETAC. In order to drive the arbitration forward, the lawyers dig out another address of the T company which is listed with the New York Secretary of State then the documents were once again sent. The whole course of delivery was well recorded which is later proved important and meaningful. Eventually the documents were received, and CIETAC verified that the documents were duly served on T company. As a consequence, T company simply chose not to participate in the arbitration proceedings.

The arbitration was conduct in T company’s absence. Tao Jie is appointed by the arbitration commission’s chairman to oversee the dispute. He recognized Z company’s endeavor on the documents delivery. Jie said in his decision that T company had been informed about the proceedings in Beijing but did not show up for a trial in October of that year. Jie also wrote that T company submitted no written objection to Z’s materials, nor did it submit any of its own.

As a result, the arbitrator, Tao Jie, pointed out in his decision “From aforesaid facts recognized by the arbitral tribunal, the applicant performed the obligation of goods delivery under the contract and the respondent should pay the price of goods as agreed”. Jie’s decision cited a Chinese law article that requires a party to bear liabilities if it fails to hold up its end of a contract. In addition to ordering T company to pay $480,000, Jie tacked on interest and fees to reach a total of $575,905 as plead.

3. The final success is achieved through global cooperation between law firms. 

To retrieve its losses, it is not enough for Z company to get a favorable award only. The arbitration award had to be enforced in the US, which could not be completed by Chinese lawyers solely. Providing overseas service for years and as an active member of Lawyers Associated Worldwide, Winners has reliable cooperative partner firms in many countries. After throughout comparison on specialty, strategy and fee, Z company took Winners team’s recommendation and engaged the US White and Williams LLP to be its arbitration award enforcing law firm in the US side. 

In July 2018, represented by White and Williams, Z company filed a petition before the US court seeking the recognition and the enforcement of the arbitration award in accordance with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Lawyers from White and Williams fought with passion and reason and successfully persuaded the judge. U.S. District Judge Joanna Seybert denied T company’s argument seeking to dismiss the case and to dismiss the arbitral award. The judge praised the Chinese company submitted an authentic copy of the award and the agreement to arbitrate and slapped down all the defending excuses brought by T company’s lawyer that it was never properly served, that the sales contract was a forgery and that Z company did not try to amicably settle the dispute before commencing arbitration.

Finally, the New York federal court on 25 April 2018 recognized the award for Z company against T company. It's worth mentioning that Judge Seybert wrote that “The court is satisfied that the China International Economic and Trade Arbitration Commission provided T with the opportunity to participate in the arbitration in a meaningful manner.” This comment and our client’s satisfaction would be the best memoir for our endeavor and cross-border teamwork in this case.