新冠疫情阻碍了全球及各国内部经济发展计划，也在不同行业投射下了长久的不稳定阴影。对惯常于跨司法管辖区展开敏捷服务的离岸律师事务所来说，疫情带来了双重影响：疫情既改变了他们的客户关系，也改变了不同分支机构的策略。
伴随新冠疫情继续在全球范围内考验着律所拥抱技术、适应变化，以及在不确定性中持续领先的能力，离岸律师事务所则对当下局势保持着谨慎乐观的态度。律师们说，虽然挑战深刻，但对于反应灵敏的律所来说，未来依旧大有机遇。
Anthony Oakes和Oliver Payne分别是奥杰律师事务所融资业务亚洲负责人和争议解决部门的亚洲区主管，他们认为，疫情对个体和机构都构成了深远而多元化的挑战。
以机构为例，管理层和法律团队都在和一系列涉及财务、风险、诉讼、合规的问题做斗争。“有些问题前所未见，有些则呈现出比以往更激烈的面孔。”Oakes和Payne说。
管理层和法律团队因此面临更多责任和压力，然而与此同时，“他们对于所在机构的宝贵价值也前所未有地显现出来。”他们说。“快速分析能力和保持思维清晰是关键。考虑到大背景总在不断变化，必须明白途径和解决方法可能无法一蹴而就，而需随时间不断反思及修改。这就要求良好的沟通能力，更重要的，还有耐心和决心。”
虽然大家默认商业将遭遇诸多不确定性，但客户依然需要借助离岸管辖区法院解决诉讼纠纷。
“公众，或者说已展开诉讼的客户最大的顾虑在于：面对疫情引发的封锁和封关，这些法院还能正常运作吗？答案是：它们运作得很不错。”Oakes和Payne说。
虽然离岸司法管辖区法院反应迅速，但也不免经历了适应过程。“还不能说现在已经完全恢复到了正常。”两位合伙人说，然而，法院审讯表依旧繁忙，案件审理也在向前推进。“举例来说，开曼群岛法院已经进行了几周的网络庭审；在英属维尔京群岛，疫情前法院就上线了电子文档系统，运行得还不错。”两位说。
在交易层面，凯瑞奥信律师事务所香港办公室管理合伙人彭德贤告诉ALB，在过去几个月中，流动性是客户最关注、但并非唯一关注的话题。
“我们的私募基金客户也在忙着分析被投公司情况，考察它们在现行市场下业务模式的可行性。”彭律师说。
“对正在进行并购的客户，由于受到市场上估值不确定性流言的影响，很多交易都被暂停或终止了。借款人在采取措施扩展贷款途径，或想办法避免违约。”他补充道。
内部变化
全球各地的企业都在这场疫情下对企业策略重点和工作方式等内部问题进行了全方位审视。离岸律所同样在过去几个月中改变了工作方式，强化了灵活性，也改善了内部沟通流程。
冯静思律师是康德明律师事务所香港办公室合伙人，她告诉ALB，良好沟通是减缓疫情对于业务冲击的关键所在，康德明已将跨办公室分享知识储备作为了律所策略之一。
“例如我们在律所内部设立了新冠疫情热点中心，分享世界各地办公室的办公安排，以及公司注册处及各地法院的运营信息。”她说，同时补充道律所也在紧密关注各地政府及公共健康组织采取的新举措，以便“在保护员工健康和为客户提供服务间达成平衡”。
“我们鼓励律师和康德明公司服务业务总监（他们可以远程访问办公室网络）在家办公，也缩减了每周到岗时间。我们还许可员工上午晚来，或下午提早结束工作，避免遭遇交通高峰。”冯律师如此谈及降低病毒传播风险的方法。
“新安排衔接流畅，也没有使工作质量打折扣。在过去几个月里，我们面临了前所未有的挑战，但也学会了新的合作方式。在后疫情新常态中，我们还会变得更加灵活。”冯律师补充说。
奥杰的Oakes和Payne也告诉ALB，在该所涉及的所有司法管辖区中，远程工作都成了新常态，科技工具的使用使得远程工作尤为流畅。
“作为创新的重要举措之一，奥杰在过去几年中加大了科技投入。相应地，员工都掌握了远程工作工具。我们还能够提供电子签名和虚拟资料室平台，在疫情期间对客户来说尤为宝贵。虽然面临挑战，但奥杰团队的灵活性和互助能力让我们十分感动。”他们说。
同样地，凯瑞奥信的彭律师也将“从天而降”的在家办公安排视为香港商业世界面临的最剧烈变化之一。
“我们律所的技术、信息安全及商业团队做出相应安排的速度和效率令人赞叹不已，这让我们从始至终保持了高质量服务和生产力。”彭律师指出，“灵活性、定期沟通和保持幽默感很重要，能让员工们感觉不孤单、有应援且有干劲。”
疫情下的变化也给律所提供了学习机会。“我们改变了商业发展策略，不再过度依靠见面会议和国际差旅，转而关注起合作型网络课、网络会议、以数字化方式进行的客户汇报，以及与关键客户及联系人进行的一对一培训。”彭律师说。
展望未来
虽然疫情在全球造成了诸多负面影响，但离岸律所说，对客户来说，未来并非被阴云彻底笼罩。
“‘危’中必定暗含‘机遇’。”康德明的冯律师说，“我相信很多客户视当下疫情为收购低估值资产的好机会。此外，封锁也使更多人开始使用手机应用和网络服务，在线服务和电子商务平台也许会经历飞跃式发展。”
奥杰的Oakes和Payne也指出，今后工作文化可能会出现长期而深刻的改变。
“考虑到未来可能普遍采取的远程办公方式，客户有机会重新思考办公空间安排，以及未来将采取的新办公风格。在疫情所导致的经济下行环境中，围绕低估值资产也会产生新机会。”他们说。
机会型并购成为了选择，还有“不被市场看好的上市企业的私有化，以及不良贷款的证券化”。
“结构性融资将继续成为振奋人心的领域，在低利率环境下，投资者对于创意性收益方式接受程度更高。长远来看，伴随客户不断寻找新方式关注环保、回馈社会，环境、社会和公司治理（ESG）领域也备受关注。”Oakes和Payne说。
与此同时，凯瑞奥信的彭律师也观察到国际局势变化和贸易争端如何促使运营海外业务，或在海外上市的中国企业“重新思考全球策略问题”。
“我们预期将看到更多在美上市中国企业到香港或其他资本市场进行二次上市，这将极大补充这类企业的资本来源。”彭律师说，“我们还预期看到更多针对不良业务的收购和重组，这对并购客户和基金发起人都是机会。我们已做好准备，在此方面支持客户。”
“我们香港办公室的业务大多与中国内地相关。未来大抵依旧如此，然而伴随贸易纠纷破环传统东-西供求关系，我们预期更多亚太地区‘玩家’，如日本、印度和印度尼西亚未来将成为重要的业务来源地。”他补充说。
COVID’s Offshore Impact
COVID-19 has derailed business plans both global and domestic, and cast a long shadow of uncertainty across businesses. For offshore law firms who typically work nimbly with their colleagues across jurisdictions, the impacts have been twofold — with both their clients, and their offices to consider.
As the global pandemic continues to test law firms’ tech adoption, ability to adapt quickly and lead through uncertain times, offshore law firms remain cautiously optimistic. Challenges run deep, but opportunity is there for those who respond smartly, lawyers say.
Anthony Oakes, partner and head of the finance practice in Asia, and Oliver Payne, partner and head of dispute resolution in Asia, say that for both individuals and institutions, the challenges the virus posed are profound and diverse.
Within institutions, both management and legal teams are grappling with issues spanning financial, risk, litigation and regulatory. “Some of these issues have not been seen before and others are more intense than in the past,” say Oakes and Payne.
As a result, there is more focus and pressure on management and legal teams, but simultaneously, “their value to their respective organisations will be more obvious than ever,” they say. “Rapid analysis and clarity of thought are key. Given the ever-changing landscape, it will also be important to recognise that approaches and solutions may not be perfect and need to be re-thought and revised over time. This will require good communication and, perhaps more importantly, patience and resolve.”
But a general sense of business uncertainty has not changed the fact that clients need to litigate disputes within offshore courts.
“A significant concern, particularly for those clients with litigation that was already ongoing, was how the offshore courts would react to COVID-19, and how well they could continue to function in the face of lockdowns and sealed borders. The answer is, remarkably well,” Oakes and Payne say.
While offshore courts may have adapted quickly, it has been an adjustment. “It hasn’t entirely been business as usual,” the partners say, nevertheless, court lists remain busy and cases are moving through. “For instance, the Cayman Islands courts have been conducting hearings virtually for weeks now and, in the BVI, electronic court filing was up and running well before the pandemic hit,” Oakes and Payne say.
On the transactional side, Michael Padarin, managing partner of Carey Olsen’s Hong Kong office, tells Asian Legal Business that over the past few months, liquidity has been the primary concern for clients — but by no means has it been the only consideration.
“Our private equity clients have also been busy analysing their portfolio companies to ensure they'll remain as viable businesses despite current market conditions,” says Padarin.
“For clients in the course of making acquisitions, there have been concerns voiced around the impact of valuation uncertainty, resulting in deals being shelved or cancelled altogether. Borrowers may have taken steps to extend facilities or avoid covenant breaches,” he adds.
INTERNAL CHANGES
For firms across the board, the pandemic has triggered internal examinations of everything from strategic priorities to ways of working. Offshore firms have also changed the way they work over the past few months, pushing flexibility and streamlining communication processes.
Vivien Fung, a partner in the Hong Kong office of Conyers Dill & Pearman, tells ALB that communication has been key to manage the business impacts of the pandemic, with knowledge sharing across the various offices part of the firm’s approach.
“To facilitate this, we have internally created a COVID hub to share information on the work arrangement of our worldwide offices and the accessibility of Registry of Companies and Courts for conduct of searches,” she says, adding that new policies and precautions advised by government authorities and public health organisations are being closely followed by the firm, to “strike a balance between protecting the health of our staff and delivery of service to clients.”
“We encourage lawyers and CCS supervisors (who have remote access to our office network) to work from home and reduce the number of times in a week support staff need to work in the office. We also allow staff to come into the office later in the morning and leave the office earlier after work to avoid congestion,” says Fung of minimising the risks of spreading the virus.
“The arrangement has been smooth, and our work quality has not been compromised. In the past few months, we have gone through unprecedented challenges and have learnt to work together in new ways. We are looking to develop even more flexibility to cope with the new COVID norm,” Fung adds.
Oakes and Payne of Ogier also tell ALB that remote working has become the norm in most of the firm’s jurisdictions, while tech adoption has helped smooth the process.
“As part of our commitment to innovation, Ogier has invested heavily in technology over the past few years.
Accordingly, employees were well equipped with the tools to work remotely. We are also able to offer e-signature and data room platforms which have proved valuable to clients, during this period. We have been grateful for how flexible and helpful the Ogier teams have been in these challenging times,” they add.
Similarly, Padarin of Carey Olsen cites suddenly working from home as one of the most dramatic changes for businesses in Hong Kong.
“The speed and efficiency with which this was carried out by our group technology, information security and business continuity teams was exceptional, and we have been able to maintain our service and productivity levels throughout,” Padarin notes. “Flexibility, regular communication and trying to keep a sense of humour have been key to making sure our staff have felt connected, supported and motivated.”
But the shift has also been a learning opportunity for the firm. “We have also adapted our business development strategy away from in-person meetings and international travel, and have pivoted to greater involvement with collaborative webinar sessions, virtual meetings, electronic client briefings and one-to-one training with key clients and contacts,” says Padarin.
LOOKING AHEAD
While the pandemic remains a disruptive force around the world, offshore firms say for clients, the future isn’t all gloomy.
“There is an opportunity in every crisis,” says Fung of Conyers. “I am sure that some clients will see COVID-19 as a good opportunity to buy undervalued assets. Lockdowns have exposed a wider population to the use of apps and online services. Companies operating a business of online services or sale platform will likely see a sharp growth.”
Oakes and Payne of Ogier also note that there are likely to be long-term, deep changes in work culture.
“Given the trend towards remote working, there will be an opportunity for clients to reconsider their office space and their approach to working style more generally. There may be opportunities around assets which have been devalued as a result of the COVID-19 induced economic downturn,” they say.
Opportunistic purchases may also be on the cards, as well as “take-privates of listed companies whose shares are currently unappreciated by the market or the securitisation and work-out of underperforming loan portfolios.”
“Structured finance continues to be an exciting area, with investors open to creative ways to make a return, in the low-interest-rate environment. More broadly and inspiringly, ESG has remained in the spotlight, with clients looking for new and exciting ways to care for the environment and give back to the community,” Payne and Oakes add.
Meanwhile, Padarin of Carey Olsen has observed how international policy and trade tensions are forcing Chinese businesses with operations or listings overseas to “rethink their global structuring.”
“International policy and trade tensions are forcing Chinese businesses with operations or listings overseas to rethink their global structuring. We'd expect to see more Chinese businesses listed in the U.S. seeking dual listings in Hong Kong or other regional exchanges, which will provide great opportunities for alternative sources of capital,” Padarin says. “We also expect to see further acquisitions and restructuring of distressed businesses, which represents opportunities for acquisitive clients and fund sponsors, and we are very well-placed to support our clients in this regard”.
“For the Hong Kong office, the bulk of our business continues to come directly and indirectly from China. Going forward, we'd expect more of the same, although with trade tensions disrupting traditional East-West supply relationships, we anticipate regional players such as Japan, India and Indonesia becoming increasingly important sources of work,” he adds.
To contact the editorial team, please email ALBEditor@thomsonreuters.com.
