站在事实的肩膀上雄辩是诉讼律师们的战斗日常，而“事实的肩膀”能有多高，则考验着诉讼律师们对案件诸多细节精准的把握能力。在过去的一年中，《人民法院报》编辑部评选出了2019年度人民法院十大商事案件，与往年相比，涉及行业更广、金额更大，且案情更加复杂，预示着中国商事争议解决行业对诉讼律师的要求越来越高、挑战愈加严峻。但令人欣喜的是，在ALB收到的2020年ALB China十五佳诉讼律师申报表格中，我们看到一位又一位诉讼律师凭借扎实的法律基本功、丰富的行业知识、严密的逻辑思考、细节化的案情解读和高度专业的态度赢得了有利于客户的诉讼结果，多次在原本不利的情况下力挽狂澜，反败为胜。这些律师既是法律专家，又是行业能手，充分理解法律法规及其立法意图的同时紧密关注着行业前沿动态，秉承着深耕细作、精益求精的匠人精神，不断更新和扩充自身的“知识库”，走在行业最前端。我们在这些杰出的诉讼律师中评选出了2020年ALB China十五佳诉讼律师。
ALB China 2020 Top 15 Litigators
China’s commercial litigation business has experienced vigorous growth in recent years; and meanwhile, Chinese commercial litigation lawyers have enhanced their overall professional competence and global competitiveness through profound accumulation of knowledge and solid experiences.
For outstanding litigators, making compelling arguments based on clear facts is their job. The People’s Court Daily selected the top ten commercial cases in 2019, which, in comparison with the previous year, involved more industries, larger amounts and more complicated situations, indicating that China’s commercial disputes sector poses higher requirements and more severe challenges to litigators.
But we are excited to see that many applicants for ALB China 2020 Top 15 Litigators won favourable results for their clients by their solid legal skills, proficient industry knowledge, excellent logical reasoning skills, accurate interpretation of cases and highly professional attitude. These qualities enable them to stand out and win cases for clients even in unfavourable conditions. These lawyers are both legal experts and industry experts with the craftsmanship spirit. They have comprehensive understanding of the laws and regulations and their legislative intents, pay close attention to the industry’s cutting-edge trends, and constantly update and expand their “knowledge base”. We have now selected the winners of ALB China Top 15 Litigators this year.
Most of the winners on the list this year have about 20 years of working experience in the field of dispute resolution, practicing in the areas of maritime, foreign dispute resolution, international trade, energy and offshore engineering, insurance finance, intellectual property, private funds, and venture capital. They not only provide clients with high-quality legal services, but also play an important role in promoting the development of China’s commercial dispute resolution industry and accelerating the process of rule of law in China.
In addition to serving as lawyers, many of them have experiences of working at procuratorates, courts, or arbitration organizations, or serving as general counsels, which enable them to think from multiple perspectives when handling cases, have a more accurate and comprehensive understanding of the cases and serve clients better in dispute resolution. They are also actively engaged in academia: Chen Fu, a partner at Commerce & Finance Law Offices, serves as a tutor of the Law School of Beijing Jiaotong University and an off-campus tutor for master’s degree students of the University of International Business and Economics; Lloyd Lyu, a partner at Guantao Law Firm, once served as a master’s degree tutor of East China University of Political Science and Law and an off-campus tutor of master’s degree program of public administration of Tongji University; and Wang Junqi, a partner at DeHeng Law Offices, serves as a master’s degree tutor at Fudan University. By doing so, they train the new-generation litigators under their rich practice experience and academic accomplishments. Additionally, the winners also actively participate in charitable activities. These outstanding lawyers not only demonstrate excellence in their work but also show great commitments to social development. We want to congratulate them for their great achievements over the last year and praise them for their strong sense of social responsibilities.
We interviewed some of the lawyers on the list this year to find out the key to their success, and to hear their understanding of the legal profession, their advice to enterprises and their outlook on the industry.
Wang Zhao, a partner at JunHe, believes that the most important quality for litigators is “remaining calm in all circumstances and not always being competitive and feisty.” Litigation involves many confrontations, but its goal is to resolve disputes and mean-while to maximize legitimate benefits for clients. The core of litigation is protecting and maximizing the interests of clients rather than competing with the opponents. Wang Zhao’s professional philosophy is “to be a professional and speak professionally.” Legal professionals must respect the laws and rules when practicing law, and should always stay in control of the case, make arguments based on logic and give advice based on facts, Wang Zhao says.
Xu Yu, a partner at Hylands Law Firm, says that litigators must have a clear position and viewpoint, be proficient in a certain field, have excellent social skills and be eloquent, and have very good common sense. Xu’s professional philosophy is “the ultimate goal of litigation is to convince the judge.”
“In legal proceedings, it’s essential for lawyers to convince the judge to support their claims to the greatest extent,” he says. “Plaintiffs bring charges against defendants and try to demonstrate the legality of their charges, and defendants try to deny the charges or the legality of the charge. Our job is to help our clients go through the numerous facts to find grounds supporting their claims, and then convince the judge.”
When it comes to “big challenges facing litigators,” Xie Peng, a partner at Jingtian & Gongcheng, says that since the clients are from various industries and backgrounds, litigators are exposed to all aspects of society and industries, the development and evolution of which keep bringing new types of legal disputes, but some of those disputes are not clearly defined or stipulated due to “law lag.” It poses a big challenge to litigators when faced with disputes of new types, for which the existing laws only have rather vague provisions, Xie says. When dealing with problems like this, Xie says that on one hand, they analyse the background and causes of the dispute in order to grasp the substantial legal issues involved, find out the judicial spirit of the precedent, and then explain the views in combination with academic interpretations; on the other hand, they keep expanding their knowledge of different industries and fields, and keep abreast of hotspots in the society, thus improving the capability to resolve new types of disputes. Xie shares with us a case he and his team worked regarding a dispute between a famous state-owned central enterprise auto parts company and a national federation of industry and commerce about the name of auto parts exhibition. The core of the dispute was the ownership of the right to use the name of the exhibition, which had been held for more than ten years, and the resulting infringement loss compensation. Since the subjects involved in the case have great influence in the industry, and the exhibition could generate tens of millions of yuan in revenue every year, the court was very cautious about the trial. However, the name of the exhibition was not a trademark or a shop name, nor was it a patent or copyright. It did not belong to the object of the trademark law or patent law. Therefore, whether such a name was exclusive or not, and if so, what law should be applied, were the core issues that troubled the court, causing the difficulty in advancing the case. Xie and his team, after a lot of research on law, judicial interpretation and similar cases, proposed to the court that based on the evidence, it could be seen that this exhibition had gained popularity because of its long history and great economic value. As an exclusive right like a trademark, it should be protected. In terms of the application of law, since the case could be understood as an improper competition and infringement, in essence, the anti-unfair competition law could be applied to the trial. These views were adopted by the court, and the case proceeded smoothly.
Chen of Commerce & Finance Law Offices pointed out another big challenge: to have a thorough understanding of the case and develop a practical litigation strategy within the shortest time frame. “We usually work in teams according to division of responsibilities and give full play to the capabilities of different lawyers, thereby accomplishing the task at an expedited pace,” Chen says.
Chen and his team represented a CCB cultural company in a joint debt case which was based on equity buyback debt. The structure of the investment transaction in the case was very complicated, involving VIE structure, overseas USD funds, and removal of the red-chip structure to return to A shares; and the legal relationships in the case were also complex, which included the expansion of arbitration clauses and the determination of shareholder repurchase responsibility, debt inheritance, identification of joint debt, and distribution of burden of proof between the creditor and debtor.
After accepting the entrustment, a team composed of partners and attorneys was quickly established within a short time, gathering elites in various fields including domestic and foreign financing and listing, and marriage and family affairs. The team responded quickly, straightened out the facts, found evidence, looked up the laws, prepared plans, made demonstrations, and worked out litigation strategies. Their claim was finally upheld by the court.
In Wang Zhao’s opinion, the professional challenge is how to turn the situation around in an unfavourable condition, to protect the legitimate rights and interests of the client. “Under these circumstances, we should not give up easily, instead, we should seek opportunities to protect our clients through an in-depth study of laws and further exploration of the details of the facts,” Wang Zhao says. He then shared with us the first vertical monopoly civil litigation case in China, in which he and his team represented the defendant.
The plaintiff accused the defendant of setting a minimum resale price in the distribution agreement, which constituted a vertical monopoly agreement. It is provided for in Article 14 of the Anti-Monopoly Law of China that it prohibits the operator and the counterparty from entering into a vertical monopoly agreement that sets the minimum price at which a reseller can sell the product. Therefore, it seems that there was no reason to refute the plaintiff’s claim. But Wang Zhao and his team did not easily give up. They argued that the definition of a monopoly agreement is an agreement that excludes or restricts competition; furthermore, in a recent case, the U.S. Supreme Court decided to demote resale-price-maintenance antitrust cases to the rule-of-reason standard, thus an agreement that stipulates the minimum resale price does not constitute the violation of Article 14 of the Anti-monopoly Law; and it constitutes a monopoly agreement only if it “excludes or restricts competition.” In a civil lawsuit, the plaintiff bringing such a claim must prove there exists the “exclusion or restriction of competition.” Their views were accepted by the court. What’s more exciting is that their views are line with the provisions of the judicial interpretation issued by the Supreme People’s Court later concerning the elements of vertical monopoly agreements.
ADVICE TO COMPANIES
Regarding how companies can effectively avoid disputes, Xie points out: “Enterprises should always pay attention to stay control of legal risks in the operation and transaction process, especially when signing documents such as relevant agreements. It is important to pay close attention to the language used in the contract. In my experience, disputes often arise because a word or expression used in a clause is ambiguous, and sometimes disputes arise from the expression of the general clauses of the contract which are often neglected. It is recommended that an enterprise should consult relevant legal professionals before determining its business model or conducting trans-actions, to control risks from the beginning.”
If a dispute is already raised, an enterprise should be very careful of words it uses or the statements it makes when communicating with the opposite party in the dispute, since certain words or expressions might be used as evidence against them, which might increase the chance of causing the enterprise to lose a case, Xie warns. The enterprise should start gathering and keeping evidence in favour of itself as early as possible, especially if the enterprise is the defendant; and the enterprise should consult lawyers the earliest possible, and start preparing litigation materials under the guidance of professionals, to protect its legal rights and interests to the maximum extent, he advises.
According to Xu, an enterprise, especially a large enterprise, should “avoid disputes by thinking as there will be.” In other words, when a company conducts a specific activity or transaction, it should first assume that disputes may arise in the future, and all terms or conditions outlined in the contract or agreement should be based on how to avoid disputes, or turn the dispute to its advantage. On this basis, the enterprise should establish a complete set of risk control mechanism in advance to protect its legitimate rights and interests to the greatest extent if a dispute arises. Enterprises should also involve legal professionals in their day-to-day operation activities, who can help them discover and resolve disputes at the earliest stage. Taking an active attitude towards disputes and adopting effective measures will help gain advantage in the future dispute settlement if disputes arise.
In general, there will be a higher demand for dispute resolution services, and the dispute resolution business will become more and more internationalized, diversified and specialized, Wang Zhao predicts. As the overall economic growth slows down or declines, there will be more disputes of different types. However, many of these disputes will be resolved through litigation or arbitration, which will lead to further growth of dispute resolution business. With the introduction of new laws and regulations, new types of disputes will continue to emerge. And as China sees rapid development in foreign trade, investment, and the Belt and Road Initiative related sectors, more and more overseas arbitration institutions set up their representative offices in China, and cases could be heard in free trade zones, there will be more demands for solving cross-border disputes, Wang Zhao says.
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