Interview with: Xu Bangwei
Jingtian & Gongcheng | View firm profile
What are the main practice areas and major clients of your team?
Our team specializes in handling difficult, complex domestic and cross-border commercial disputes (including domestic and cross-border litigation, arbitration and enforcement cases), complex enterprise bankruptcy liquidation and restructuring (especially difficult liquidation cases of foreign-invested enterprises), investment, recovery and disposal of NPLs, and some civil and criminal compliance matters in finance, securities and investment areas.
Our clients include a number of the world’s top private equity fund management companies and investment institutions, well-known foreign investment banks, large asset management companies, as well as a number of Fortune 500 companies, large multinational enterprises, large state-owned enterprises, listed companies, non-governmental organizations, etc. The clients are in a wide range of industries including finance, securities, equity investment, real estate, trade, energy, machinery manufacturing, transportation, telecommunications, TMT, pharmaceuticals, education, media, consumer, environmental protection, etc. .
What are the competitive advantages of your team different from other teams in the field?
First, I always emphasize the concept of one-stop dispute resolution service (all-around dispute resolution service). Although dispute resolution is a traditional legal practice field, in fact, the front end of the dispute is often closely related to commercial contracts and negotiations, and the back end is directly connected with the result, survival and death of relevant entities. If only committed to winning a lawsuit, then my value to my client is limited to the amount in dispute of this lawsuit, which is the limitation of a lawyer’s thinking mode and a barrier to a lawyer’s value. If I cling too much to the diversification of my practice and engage in an extensive practice fields too much, I may become a comprehensive but not proficient lawyer, difficult to obtain client’s trust and recognition. Therefore, based on many years of practice and experience accumulation, our team not only deep ploughing in difficult, complex domestic and foreign commercial dispute resolution practice, and at the same time, on this basis, extends forward and backward, in multi-directional development, and ultimately capable to provide client with “early dispute avoidance”,” medium-term dispute resolution “, “late-term realization” and “comprehensive evaluation and prediction” full range of services, a one stop package of services. In addition to the traditional litigation and arbitration services, our team provides legal services such as compliance investigation, bankruptcy and liquidation, recovery and disposal of non-performing assets. They are intertwined and interact with each other in order to provide clients with real problem-solving strategies to their matters and achieving their goals, predict and prevent legal risks as far as possible, while saving time, economy and cost of trial for errors for clients to the maximize extend. One client commented that it was great to find a team like you with such extensive and rich practical experience with goals to win lawsuits, we can trust and hand over almost all matters related to dispute resolution directly to your team, while we only need to cooperate and expect a good result.
Second, our team pursues challenges, leadership and achievements. Although we are already a very mature team in practice, I always tell myself and my team lawyers to walk out of our comfort zone, to embrace challenges, to challenge traditional legal views and thinking mode, to challenge new cases in the market, so that everyone under pressure may get stimulate creative thinkings and therefore grow quickly, adapt to the ever-updating legal market and meet the ever-changing needs of clients.
Our team never does “mere formality” work, but takes the initiative to step out for achieving our client’s goals as our responsibilities, such as to enforce the cases that is hard to enforce, to liquidate the enterprises that is hard to liquidate, to make the impossible possible. We firmly believe that only a team that is willing to meet the challenges will be able to explore the potential of lawyers, while meeting the various requirements of clients in difficult and complex cases, reflecting the value of lawyers to clients.
With consent of client, our team will take the responsibility of moving forward the cases as entrusted agent, leading whole process of cases, and doing our best to assist and promote the client to make judgments, so as to strive for satisfactory representing results for clients with full cooperation of clients.
In addition, our team is committed to winning cases and fully achieving clients’ commercial goals. The partners and senior lawyers of our team are not limited to pure legal thinking, but also have good commercial thinking and flexible thinking, capable of using various legal means and tools to help clients solve problems at a higher level to achieve commercial demands of clients.
Third, the partners of our team, especially myself, always work on the front line of representing difficult and complex cases. I think a good dispute resolution lawyer must keep learning, keep abreast of latest changes in laws, judicial interpretations and court/arbitration cases, and maintain their best trial performance. This is my commitment to clients, which is also the best way to help clients.
Fourth, under the premise of ensuring the high-quality of case representing, our team is an efficient team with high execution ability. For the client’s needs, we will require our lawyers to concentrate on complete the tasks in a timely manner in the first time. It is very common for our team members to work diligently until midnight every day, in order to push forward the work according to the client’s schedule as far as possible. This efficiency is especially reflected in our represented cases of liquidation, enforcement and disposal of liquidation assets, which is highly consistent with the results pursued by clients.
Fifth, our team has overcome geographical barriers. The lawyers of the team are mainly distributed in Beijing, Shanghai and Guangzhou, and main members are based in Beijing. As a team, we have been fighting together for a long time, with good teamwork and a high degree of unity. Because I note that although many firms have branch offices everywhere, when dealing with a cross-regional series of cases, it is inevitable to involve other teams, and the re-run, communication and coordination of different teams may cause additional costs, even barriers. When I started building the team, I wanted to minimize such unnecessary dilemma, so that our team lawyers can consistently provide consistent, timely and high-quality legal services to clients everywhere. In particular, the Fortune 500 companies and top investment institutions generally have offices in different locations in China, while our team members are located in different regions and each region has a partner to lead the work of other lawyers. Such work arrangements can ensure us to meet the urgent needs of clients in the first time, and for cases where clients have special experience and location requirements, we can introduce other professional teams in local firms in the shortest time to provide more professional service to the client, thus to minimize discomfort and distress caused by cultural differences, internal communication and coordination work between different regions.
How can your team ensure that it can provide clients with comprehensive legal services in the different fields of commercial dispute resolution, bankruptcy liquidation and restructuring, and disposal of non-performing assets at the same time?
In order to provide clients with satisfactory legal services in the fields of commercial dispute resolution, bankruptcy liquidation and reorganization, and disposal of non-performing assets at the same time, we selected and invited colleagues with rich experience in related fields to join our team, and have differentiated the structure of our team members. At present, all key members of team are graduated from top domestic and international law school or business school. Before joining the team, the team members have work experience in people’s courts at all levels, arbitration committee, commercial bank asset preservation department, large asset management company, foreign commercial companies and financing and securities department of law firms, etc. They have rich practical experience and work background in civil and commercial litigation, commercial arbitration, bankruptcy and liquidation, recovery and disposal of non-performing assets. Many of the members also have backgrounds in directly hearing financial disputes or engaging in the financial industry. At the same time, a high proportion of senior lawyers in our team makes us more suitable for undertaking difficult and complex cases.
In addition, many members of the team have both domestic and international law school education background and they are qualified to practice in both Mainland China and the State of New York, United States, and are fluent in Chinese and English to provide a full range of legal services for domestic and foreign clients.
Our team members are mainly based in Beijing, Shanghai and Guangzhou, and at the same time we have established close cooperation relationship with teams and partners in Tianjin, Hangzhou, Nanjing, Wuhan, Hefei, Shenzhen and Hong Kong. Therefore our team can quickly respond to the instructions of clients located in different regions.
Please describe the representative dispute resolution cases that your team has handled?
It is worth mentioning that our team is good at handling difficult and complex dispute resolution cases, such as complex corporate control disputes, cases of revocation or non-enforcement of foreign arbitration awards, retrial cases of the Supreme People’s Court and the Provincial High Court, major intellectual property disputes and unfair competition cases, complex administrative disputes, etc. Here I would like to list just a few of the more representative cases:
In terms of corporate control disputes, we have represented a foreign shareholder of a well-known domestic biomedical vaccine production company listed abroad and provided comprehensive legal services in a serious of corporate control disputes against PRC shareholders. The disputes involved complicated cross-border corporate control disputes of a US listed company, a Hong Kong Company, an offshore island company and a PRC company. The client won a number of favorable judgments in Mainland China. The total amount in dispute was hundreds of millions of US dollars. The case has attracted wide attention both at home and abroad, and was selected as one of the most influential commercial dispute cases in 2020.
In addition, on behalf of a well-known domestic high-tech biology company and its founder, we provide comprehensive legal services in a series of equity interest transfer disputes, corporate control disputes and the derivative administrative review by CSRC, infringement of reputation disputes. We took over the cases under the disadvantageous circumstances that the opposing party had already filed a lawsuit, and we finally helped the client won all cases we represented, including the equity interest transfer agreement litigations, reputation rights disputes, series of board resolution cases and shareholder resolution cases, and a CSRC administrative review case. The market value of the underlying equity interest involved is about 2 billion yuan. It is especially worth mentioning that in this series of cases, we have successfully obtained favorable result in the CSRC reconsideration case, which is also the only successful case of all CSRC reconsideration cases filed in the past five years. The case was selected by the China Business Law Journal as one of the best commercial dispute cases of the year of 2020 (outstanding cases in 2020 – dispute and investigation cases).
As for setting aside or non-enforcement of foreign arbitration awards, in addition to our representing of foreign clients in a number of cases where their international arbitral awards have been successfully recognized and enforced in Mainland China, we have represented a domestic educational institution on its application for non-enforcement of an arbitration award made by HKIAC before Beijing Fourth Intermediate People’s Court. After reviewing by Beijing High Court and Supreme People’s Court, the Court finally granted a total non-enforcement verdict in favor of client. The cumulative losses avoided for the client was approximately USD150 million. For another similar HKIAC arbitration award obtained by the client, we also assisted the client on its application for revoking an arbitration award made by HKIAC before the High Court of Hong Kong, thereby delaying and ultimately preventing the opposing party from applying in mainland China for recognition and enforcement of the arbitration award, thus avoiding huge economic losses for the client. In addition, we represented a domestic enterprise on its application for non-enforcement of an arbitration award made by SIAC before Urumchi Intermediate People’s Court. The Court finally granted a partial non-enforcement verdict in favor of the client. The cumulative losses avoided for the client was approximately 500 million yuan. It was very difficult to successfully make the two arbitral awards of international arbitration institutions not recognized and enforced in Mainland China. The team made great efforts and a great deal of work on the cases.
With regard to the retrial case, we have represented a top well-known investment management company in China in a retrial case heard by the Supreme People’s Court regarding energy cooperation dispute. We took over the case just 1 day prior to the expiration date of the time limit for adducing evidence. By applying for expert witnesses to testify in court and dealing successfully with three highly complicated appraisal procedures, we finally persuaded the Supreme People’s Court to reject nearly 98% of claims from counter party. The total amount in dispute was about 168 million yuan. We have also helped an overseas listed company, which is also an affiliate of a fortune 500 state-owned company, apply for a retrial after the client had already obtained very unfavorable effective judgments finally helped the client obtain a number of complete victory in the retrial judgments rendered by Beijing High People’s Court and several other courts throughout mainland China.
In terms of major intellectual property disputes and unfair competition disputes, we have acted on behalf of a top e-business company to file a lawsuit against another famous online shopping mall in connection with misleading public dispute, and finally got a satisfactory settlement for the client. The market share involved in this dispute valued more than 10 billion yuan. We have also respresented a large listed company engaged in food condiment manufacturing in China in administrative and civil litigations in connection with trademark disputes, as well as an arbitration case against a foreign technology company regarding the quality of equipment and patent rights. or which we have obtained all successful judgments or favorable settlement results for our clients.
In terms of complex administrative disputes, we have handled a series of environmental administrative review and administrative litigation proceedings against environmental administrative authorities on behalf of a subsidiary company of a major Hong Kong listed company. The losses avoided for the client was approximately 1 billion yuan. We have also represented a domestic real estate development company in a tax administrative review and an administrative litigation proceedings against a tax authority in Beijing. The total amount in disputes was about 200 million yuan.
In addition, our team has also represented clients in all kinds of complicated securities default disputes, consulting service agreement disputes, reputation disputes, guarantee disputes, objection in execution proceedings and has all achieved satisfactory results for our clients. Many of these cases are cases where the clients felt like chanceless at the beginning, but with our efforts, the final judgements or settlement terms are significantly beyond the clients’ expectations.
Please introduce the representative bankruptcy liquidation and restructuring cases that your team has handled?
The bankruptcy and liquidation cases handled by our team include various difficult and complex cases such as cross-border liquidation, compulsory liquidation under abnormal circumstances of the company, large-scale consolidated bankruptcy and restructuring cases.
With regard to cross-border liquidation cases, we represented Maybank as the offshore creditor to deal with verification of assets and liabilities of subsidiaries of Pacific Andes International Holdings Limited in mainland China, and cooperated with lawyers from international law firm and provided PRC legal services in the bankruptcy liquidation project of the 1.5 billion yuan of Pacific Andes, a HK-listed company. The project won the ALM financial transaction of the year award.
With regard to the compulsory liquidation cases under abnormal circumstances, we have represented a PRC subsidiary of a fortune 500 company headquartered in USA in a compulsory liquidation case and obtained a court verdict approving registration of cancellation of the company for the client under circumstances that the PRC shareholders refused to turn over the financial documents and records and the compulsory liquidation could not be done through the normal approach. It was the first court verdict in Beijing approving the registration of cancellation of a company when compulsory liquidation cannot proceed. With the verdict, we also helped the client communicate with the Administration for Industry and Commerce, Tax and Foreign Exchange authorities, and finally successfully achieved the client’s commercial goals of cancellation of the company and remitting the large amount of remaining funds out of Mainland China. We also represented a large foreign company in handling the liquidation and de-registration of a company and two branch companies invested by its Hong Kong subsidiary. Since the official seal and financial documents of the company are lost, and the legal representative is missing, the involuntary liquidation procedure cannot be completed. We assisted the client to apply to the court for compulsory liquidation as shareholder of the company, persuaded the court to accept the case and finally helped the client achieve its commercial goal of de-registration of the company.
With regard to large-scale consolidated bankruptcy and reorganization cases, we represent many creditors to participate in the consolidated bankruptcy reorganization proceedings of a large domestic enterprise listed in Hong Kong and its nearly 100 affiliated enterprises. The clients declared 20 claims in the case with an aggregate amount of more than RMB1 billion. The total amount of the declared claims in the proceedings was more than RMB 70 billion. Recently, we are acting on behalf of a top investment institution in China in the restructuring of a bankrupt enterprise, which is a major case involving industrial revitalization and likely to be reorganized successfully.
In addition, our team has acted on behalf of domestic and foreign clients in many bankruptcy liquidation and reorganization cases involving complex creditor’s rights and liabilities, as well as various potential disputes, and therefore has rich experience in providing legal services to creditors, debtors and debtor shareholders.
Please describe the representative cases in which your team provided legal services to investment funds clients?
Our clients include many top domestic and foreign investment funds. Our team has very mature control ability and experience in handling valuation adjustment mechanism (VAM) disputes, repurchase disputes, corporate control disputes against target companies disputes between shareholders of the target companies, bankruptcy and reorganization proceedings encountered after investments made by the fund, and liquidation of the fund itself, domestic dispute resolution and cross-border arbitration, the application for setting aside or non-enforcement of foreign arbitration awards in China, as well as investigation and compliance cases. At present, we are providing a full range of services to top domestic and foreign investment funds, including potential dispute resolution consultation services, all kinds of commercial dispute resolution, compliance, liquidation and invested enterprise control disputes, corporate disputes, liquidation and bankruptcy restructuring, and asset disposal services, which involves various types of equity investment in real estate, trade, energy, machinery manufacturing, transportation, communication, TMT, medicine, education, media, consumption, environmental protection, disposal and clearing of various types of creditor’s rights in connection with non-performing assets and distressed assets, as well as financial and securities compliance matters.
In addition to the cases described above, as for domestic dispute resolution, we have represented a top domestic fund management company to provide full dispute resolution services in a series of lawsuits and potential disputes arising out of its domestic and foreign investments, and its LP’s issuance of bonds overseas. The total amount in dispute was more than 10 billion yuan. We have also represented a number of funds managed by several top domestic and foreign private equity fund management companies as arbitration applicants to handle multiple arbitration cases arising from equity investment disputes before the China International Economic and Trade Arbitration Commission. Not only did we finally obtain the successful awards, through timely preservation measures, we also ensured the successful enforcement of the awards. The total amount in dispute was more than 3.5 billion yuan.
In terms of bankruptcy reorganization and fund liquidation, we have represented a top private equity fund management company as a creditor to participate in consolidated bankruptcy and reorganization proceedings of a private enterprises group and its several affiliates, and negotiated the reorganization plan with the administrator and potential investors on behalf of the client, as the biggest creditor and mortgagee. The case involved six enterprises, five plots of land and about 20 factories, as well as a large number of assets such as motor vehicles, machinery and equipment. The total amount of claims declared was about 1.7 billion yuan. We have also represented many top private equity fund management companies in the liquidation of private equity funds under their management, as well as various potential disputes between GP and LP during the fund liquidation process.