Interview: Walter Chen, Grandall Law Firm, China

Walter Fa-Yun Chen is Senior Counsel and Senior Partner of Grandall Law Firm (Nanjing). He specialises in international litigation and arbitration, cross-border investment and M&A, foreign investment, intellectual property, anti-dumping, countervailing and safeguards, US Section 337 proceedings and other foreign-related cross-border legal matters.

Chen graduated from the University of Liverpool with a Degree of Master of Laws in international business law in 2000. Before that, he graduated from Fudan University with a Bachelor Degree of Laws in International Economic Law and from Anhui Normal University with a Bachelor Degree of Arts in English Language and Literature. From 2007 to 2008, he pursued special interest studies in the University of Maryland as a visiting scholar on Jiangsu Provincial Government funds, majoring in anti-dumping, countervailing, safeguards, Section 337 proceedings, US corporation law, international trade law. He also interned at Washington D.C. Office of Jones Day, a renowned US law firm. He was handpicked as one of members of the first batch of the “Leading Chinese Lawyers Dealing with Cross-Border Legal Matters” jointly organized by the Chinese Ministry of Justice, the Ministry of Finance and All China Lawyers Association in November 2013.  During that time, he received special subsidies from the Central People’s Government to support his studies in the School of Law of the University of Hamburg and the EU Headquarters, majoring in outbound investment and cross-border M&A. He also interned at Hamburg Office of DLA Piper, a global renowned law firm.

At present, Chen is a member of ICC China Arbitration Committee, an arbitrator of the China International Economic Trade Arbitration Commission (CIETAC), the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKIAC), the Arbitration Centre Across the Straits, the Chongqing Liangjiang Arbitration Centre and other domestic and foreign arbitration institutions. He is a fellow of Hong Kong Institute of Arbitration (FHKIArb), also one of the top lawyers in the “One Belt, One Road” Cross-Border Lawyer Pool sponsored by the Ministry of Justice, the Ministry of Finance and All China Lawyers Association, the Kazakhstan Country Coordinator of Chinese Lawyers Serving “One Belt, One Road” Strategy Construction Program.  He is a mediator of Jiangsu International Commercial Legal Services Centre.

Chen is also an influencer in the Jiangsu province in China.  He is an executive director of Jiangsu Western Returned Scholars Association (Jiangsu Overseas-Educated Scholars Association), the Vice President and Legal Director of Jiangsu Industrial Overseas Development & Planning Association, the Chair of the International Law & Practice Section of Jiangsu Bar Association, a researcher and the Vice Director of Jiangsu “One Belt, One Road” Legal Services Research Centre, an executive director of Jiangsu Chamber of Commerce for Import and Export Firms, an expert of Jiangsu Enterprise Internalization Expert Tank (specially appointed by Jiangsu Provincial Department of Commerce), an expert of the Legal Committee of Jiangsu International Chamber of Commerce, an adjunct professor of EMBA & MBA of Nanjing University of Science and Technology and a visiting professor of the Law School of Harbin Institute of Technology.

The legal journey

LTA :  Mr. Chen, your remarkable qualifications, international experience and achievements in legal industry in China are impressive.  How did you start your legal career? 

Chen :  After graduating from the university with good academic performance, I was assigned to work as a university teacher. During that time, China just launched reform and was opening up, foreign investment began to swarm into China, and the import and export trade of China grew exponentially. As a result, the European and American countries initiated more and more anti-dumping and countervailing investigations. I became acutely aware that legal talents with the ability to handle cross-border matters would be urgently needed by the country. The prospects would be promising. Foreign language capability would play a key role in cross-border legal services.  I would like to connect the legal practice with English language ability to adapt to demands of the market. I therefore made up my mind and gave up my teaching position in the university, pursued studies for a law degree and then went overseas for further studies. In this way, I embarked on my legal career as a cross-border lawyer.

Landmark cases : Multi-jurisdiction mega disputes

LTA :  Mr. Chen, your distinguished legal qualifications and achievements are impressive. Could you share one or two challenging or interesting cases or transactions, which represent important milestones or breakthroughs in your career, or with significant impact on your legal career?

Chen : Two multinational cases impressed me most and left significant impact in my legal career. One of which involved a humongous amount of claim, as high as USD 15 billion, which was the then record high amount of claim Chinese enterprises had ever been sued in overseas jurisdictions. The case was tried first in a federal district court of the US, then in the Hong Kong International Arbitration Centre. In that case, we worked with a global renowned international law firm for five years. We won the case in the end and the Chinese enterprise was rescued from the brink of collapse. The other case is an arbitration case involving demand guarantee instituted in London against a renowned Chinese bank in accordance with the rules of London Maritime Arbitrators Association (LMAA). In that case, we teamed up with a renowned law firm in the UK.  We argued that the underlying shipbuilding contract was unenforceable due to backdating, and it is against public policy to uphold the validity of the contract. We had a landslide victory.  Everyone in China or overseas thought this case is doomed.  But we won and helped the Bank avoiding a direct loss of USD 20 million.

In the two cases I mentioned, we as Chinese lawyers who handled cross-border matters, had to work alongside our overseas counterparts . We assisted clients through a “3Cs” approach i.e. (Command, Control & Communication).  We commanded and controlled the entire flow of the case, with a view to ensuring best quality of work. We coordinated, communicated amongst all parties, helped resolve conflicting issues during the process and so on.  The 3Cs approach was the key leading to our final victory.

Attributes of good cross-border lawyer

LTA :  What do you think are the required qualities for a good lawyer dealing with cross-border legal affairs?

Chen : First, a good lawyer dealing with cross-border legal affairs must have international vision. He/ She must be able to draw on synergy from global legal service network, maintain close cooperations and oversee the entire process of cross-border project and dispute resolution. Second, it is necessary to have a good command of foreign language. On many occasions, our working language is English. We have to communicate with foreign clients and overseas lawyers in English. Very often, primary documents and law materials are written in English and the final legal texts are mostly in English. A good command of English is a must for effective communications and provision of services. Third, practical knowledge of international laws is required. It is necessary to strengthen understanding of international laws. One not only has to be familiar with domestic laws but also has a deep understanding of foreign law, customs and practice. Fourth, team work is also crucial. Without seamless cooperation among professional team members consisting of overseas and Chinese lawyers, it will be very difficult to conduct complex cross-border cases, project and transactions.

Cross-Border Legal Matters

LTA :  Mr. Chen, could you share with us more experience in handling cross-border legal matters? What are the projects or cases with foreign and cross-border elements you mainly handle?

Chen :  I mainly deal with cross-border civil and commercial litigation and arbitration and investment projects. For example, I rendered advice for the joint venture project between Jaguar Land Rover and Chery Auto, from drafting, review, negotiation to execution of the relevant contracts. The total investment in the project was over RMB 10 billion. The project was ranked as “The Best Deal of the Year 2012” by China Business Law Journal, Hong Kong. Recently I am advising a China Mainland enterprise in relation to an investment in a garbage power plant in the UK.

In addition to cases tried in domestic courts of various levels and arbitration agencies, in recent years, we have also represented the clients in civil and commercial cases tried by federal district courts of the US, LMAA, the International Court of Arbitration of ICC, the Hong Kong International Arbitration Centre(HKIAC), Hong Kong High Court and other foreign judicial authorities and arbitration agencies, such as RICO case and cooperation dispute arbitration case brought against a Chinese renowned joint-stock auto company in a federal district court of the US and the Hong Kong International Arbitration Centre, an export product liability and tort claim case brought by an American company against a Nanjing enterprise by a US citizen in the circuit court in Fayette of Alabama, a refund guarantee claim dispute arbitration case brought in London in accordance with the rules of LMAA, a share transfer dispute brought against a Korean company by a Hong Kong company in the Hong Kong International Arbitration Centre, an international sale and purchase dispute brought against a Korean company by a famous heavy machinery company at the International Court of Arbitration of ICC, an L/C dispute case brought against a China Mainland renowned commercial bank by China Construction Bank (Asia) Corporation Limited at Hong Kong High Court, an arbitration case brought against a Chinese home appliance group company by a Japanese home appliance giant at the International Court of Arbitration of ICC and a dangerous goods air transport case prosecuted against a chemical company by the Human Environment and Transport Inspectorate of the Netherlands.

Furthermore, I have also participated in trying and deciding of many cross-border and foreign-related commercial arbitration cases either as sole arbitrator, co-arbitrator or the presiding arbitrator.

LTA: What are the major areas of legal risks that businesses should be aware of in handling cross border transactions? Any suggestions to minimise the risks?

Chen :  In cross-border transactions, enterprises should pay attention to legal risks in such steps as selection of business partners, due diligence of the project and the legal environment of the host country, objective evaluation of project feasibility, negotiation and execution of the agreements, performance and termination of the project and document management.  In order to minimize risks, enterprises must have strong legal awareness and pay sufficient attention to legal risks. Second, “Stones from other hills may serve to polish the jade of this one” . Chinese enterprises should be good at utilizing and consolidating global legal network and resources, with the objective of trying to reduce or minimize risks.

One Belt, One Road

LTA :  From your experience, what changes have been brought about in your legal market with the launch of “One Belt, One Road” initiative by China? What trends do you expect to see (including but not limited to trends in legal market, business operation and regional cooperation)?

Chen :  With “One Belt, One Road” initiative being implemented in full swing, Chinese enterprises going global are trading more and more with their foreign counterparts. Jiangsu is a developed province. Its outbound investment thus far leads across China.  According to statistics, Jiangsu enterprises invested in 222 projects in 54 countries among the 64 countries along the route of “One Belt, One Road” in the year of 2016. The contracted investment amount reached USD 3.09 billion and the trade amount with countries along the “One Belt, One Road” was USD 109.75 billion, accounting for 21.5% of their foreign trade amount during the same period. Outbound investment by Jiangsu enterprises is noticeably characterized by the industrial park mode. For example, in the year of 2007, Hodo Group invested in Cambodia and constructed Cambodia Sihanoukville Special Economic Zone (SSEZ), the first overseas economic cooperation zone of Jiangsu province and one of the first batch of overseas economic cooperation zones approved by the Ministry of Commerce and the Ministry of Finance. Up to now, the economic zone has 109 enterprises from China, Japan, Korea and European and American countries and has become the largest special economic zone in Cambodia. As cross-border investment and trade by Chinese increase, cross-border disputes will inevitably increase. Therefore, greater demand is expected for cross-border legal services.  There would be more demand for good quality cross-border legal services.

LTA :  As a lawyer, what preparations should young lawyers make for the challenges brought about by the “One Belt, One Road” initiative? Could you give some advice to young lawyers on how to capture the opportunities presented by the Belt & Road initiative?

Chen :  In my 20+ years of practice, I deeply feel that the legal career is a challenging, pioneering, self-fulfilling and lifelong-learning journey. In order to tackle the challenges brought about by the “One Belt, One Road” initiative, lawyers should lose no time to learn foreign-related law, acquire good command of a foreign language, strengthen network and communication with foreign lawyers, strive to polish and enhance professional skills for providing cross-border legal services, to bravely embrace the tide brought about by the “One Belt, One Road” initiative.

As Chinese saying goes, “Taking ten years to sharpen a sword”, young lawyers must make up their minds in pursuit of their desired direction for professional development as early as possible. They should find an appropriate development platform, often through learning from Chinese and foreign lawyers and senior lawyers, pursue the studies of law and foreign languages diligently, work hard, in order to build a solid foundation for future career development.

Interests and Hobbies

LTA : We understand that it is not easy for a leading lawyer to have work-life balance. It is particularly difficult to deal with pressure brought by pressing demands of clients and the need to meet deadlines. How do you balance work and life? Do you have some special interests or hobbies to relieve pressure?

Chen : I enjoy reading very much, particularly books such as the history of World War II and The Art of War by Sun Tzu.  Having closely studied history and The Art of War, one would find that everything has a common thread. History and the art of wars all share similarities with litigation and arbitration strategies, negotiation strategies and skills. English literature in original English textbooks has a special flavor which is an enjoyable read. Reading not only relieves pressure after work  but also often enlightens me in my practice.

LTA :What brings you the most satisfaction in your practice?

Chen : I had worked as a university teacher and a researcher before I became a lawyer. The practice of law as a lawyer, by itself, is a very special profession. It is challenging and fulfilling.  Our practice covers work which leads the times and responds to demand of the times.  When we have assisted clients to resolve thorny problems, the satisfaction and self-actualization are invaluable. ♦

陈發云律師是国浩律师(南京)事务所高级合伙人,一级律师,主要从事的业务领域是国际诉讼与仲裁、跨国投资与并购、外商投资、知识产权、“二反一保”、美国337 调查等涉外跨境法律业务。

陈律师 2000年毕业于英国利物浦大学,获得国际商法硕士学位,此前分别就读于复旦大学、安徽师范大学,获得法学学士、英语语言文学双学士学位。2007-2008年,由江苏省财政专款资助,陈律师被公派至美国马里兰大学做访问学者,主攻反倾销、反补贴、337调查、美国公司法、国际贸易法等,并在美国著名律所Jones Day Washington D.C. Office见习;2013年下半年,他被司法部、全国律协确定为首届“中国涉外律师领军人才”,由中央财政专款资助,被公派至德国汉堡大学法学院、欧盟总部学习,主攻对外投资与跨国并购,并在全球著名律所DLA Piper Hamburg Office见习。

陈律师现为国际商会中国国家委员会 (ICC China)仲裁委员会委员;中国国际经济贸易仲裁委员会 (CIETAC)、新加坡国际仲裁中心(SIAC)、香港国际仲裁中心(HKIAC)、海峡两岸仲裁中心、重庆两江国际仲裁中心等国内外仲裁机构在册仲裁员;香港仲裁司学会资深会员 (FHKIArb); 司法部、财政部、全国律协“一带一路”项目跨境律师人才库律师;中国律师服务“一带一路”战略建设哈萨克斯坦项目国别协调人。

另外,陈律师在江苏省亦是法律界举足轻重的领军律师。他是江苏省国际商事法律服务中心调解员;江苏省欧美同学会 (江苏省留学人员联谊会)常务理事;江苏省产业海外发展协会(直属江苏省发改委)副会长、法律部主任;江苏省律师协会涉外业务委员会主任;江苏省一带一路法律服务研究中心副主任、研究员;江苏省进出口商会理事;江苏省企业国际化专家库专家(江苏省商务厅特聘);江苏省国际商会法律专业委员会专家;南京理工大学EMBA & MBA商法导师以及哈尔滨工业大学法学院特聘客座教授。

投身法律之路

LTA :  陈律师,你丰富的学术背景、国际经验及在中国法律界的成就令人印象深刻。您是怎么开始您法律之路?

陈律师 :  大学毕业后由于成绩较好被分配到高校任教。彼时的中国正在改革开放,外资开始大量涌入,中国进出口贸易呈现几何级增长,中国制造产品越来越多地遭受欧美反倾销、反补贴调查。我敏锐的意识到涉外法律服务人才应当是国家急需人才,在未来应该有广阔的发展前景,外语应该在涉外法律服务中有一定用武之地。我想将英语和法律嫁接起来,以适应形势发展需要。于是,我决定放弃教职,转而攻读法学学位,后又出国留学、进修,最终走上了涉外法律服务这条路。

事业里程碑:跨国大案

LTA :  陈律师,您卓越的法律资历、事业成就令人印象深刻。您能分享一或两个最具挑战性、有趣的案件或交易,这些案例或交易是您重要的里程碑,事业上的突破或对您的法律事业产生深刻的影响?

陈律师 :  我律师职业生涯中,有两件跨国大案的办理,感受颇深,影响巨大。一是我们与某全球知名国际律所合作,前后5年,成功代理中国企业应诉美国联邦法院、香港国际仲裁中心审理的中企海外诉讼仲裁第一大案,涉案金额高达150亿美元,创我国企业在境外被诉标的额之最,避免了该企业遭受“灭顶之灾”。二是我们联手英国某知名律所,代理国内某银行在伦敦应诉根据伦敦海事仲裁员协会规则(LMAA)提起的见索即付退款保函索赔纠纷仲裁案,利用违反公共政策的抗辩,导致倒签造船合同无效,最终大获全胜,使业内公认的死案“起死回生”,为该银行避免2000万美元的直接损失。

上述案件代理过程中,我们作为中国涉外律师,与境外律师同行紧密合作,通过“3 Cs”(Command, Control & Communication)方式,帮助客户掌控、驾驭与主导案件全部流程,确保案件质量;协调、沟通与处理应诉过程中出现的各种问题与矛盾,等,对于最终胜诉起到至关重要的作用。

优秀跨境律师的素質

LTA :  在你看来,一个好的跨境律师应当具备何种素质?

陈律师 :  第一,具有国际视野,能够整合全球优质法律服务资源,并与之紧密合作,同时能够掌控、驾驭跨境项目与纠纷处理的全部流程;第二是良好的外语基础,我们的工作语言很多时候是英语,和客户及外国同行打交道、涉外法律第一手资料及最终形成的法律文本大部分都是英文,没有良好的英文基础,是无法沟通与提供服务的;第三是国际法律实务知识,要加强国际法律研习,不仅要熟知国内法律,也要充分了解与掌握国外法律与实务知识;第四是团队协作精神,重大疑难复杂涉外民商事案件、项目没有专业团队包括中外专业团队精诚合作是很难完成的。

跨境业务

LTA :  陈律师, 可否与我们分享更多您处理跨境事务的经验。您主要处理哪些范畴的具有涉外及跨境要素的项目或案件?

陈律师 : 我处理的跨境事务主要是民商事诉讼与仲裁、跨境投资项目等。如曾为投资总额过百亿元人民币的英国捷豹路虎与奇瑞汽车合资项目提供从合同起草、审查、谈判、签署等全程法律服务。该项目被香港《商法》月刊(China Business Law Journal)评为“2012年度最杰出交易”。最近正在为一家大陆企业赴英投资垃圾发电厂项目进行服务。

除了在国内代理各级法院、仲裁机构审理的案件外,我们近年来还代理过美国联邦法院、伦敦海事仲裁员协会、国际商会仲裁院(ICC)、香港国际仲裁中心(HKIAC)、香港高等法院等境外司法、仲裁机构审理的民商事案件。如:美国联邦地区法院、香港国际仲裁中心审理受理的美国某公司 vs某知名汽车股份有限公司RICO欺诈案、合作纠纷仲裁案;美国阿拉巴马州Fayette县巡回法院审理的美国公民vs南京某企业出口产品责任与侵权赔偿诉讼;根据伦敦海事仲裁员协会规则(LMAA)在伦敦提起的退款保函索赔纠纷仲裁案;香港国际仲裁中心审理的香港某公司vs某韩国株式会社股权并购纠纷案;国际商会仲裁院审理的某知名重工有限公司vs某韩国株式会社国际买卖质量纠纷案;香港高等法院审理的中国建设银行(亚洲)股份有限公司vs国内某知名商业银行信用证纠纷案;国际商会仲裁院审理的某日本电器巨头vs国内某电器集团新加坡仲裁案,以及荷兰人类环境与运输检查署运输安全航空部特别检查官诉某化工有限公司航空运输危险品案等。

此外,近年来以独任、首裁及边裁仲裁员身份,参与了多起跨境、涉外商事仲裁案件的审理与裁决。

LTA :  企业在处理跨境交易时应注意哪些主要法律风险?应如何最大限度地降低风险?

陈律师 : 企业在跨境交易时,应当注意的主要法律风险包括合作伙伴的选择,项目及东道国法律环境的尽职调查、项目的可行性的客观评估,谈判、协议的签署、项目的执行与终止环节,文档管理等涉及的风险。要做到最大限度地降低风险,必须一要具有强烈的“法律意识”,高度重视法律风险的存在;二、“他山之石,可以攻玉”,要善于整合全球优质专业法律资源,设法消除或最大限度地降低风险。

“一带一路”

LTA :  陈律师, 根据你的经验,在中国的“一带一路”倡议中,你所在地区的法律市场有什么变化?您预期将在近期内看到什么趋势(包括但不限于法律市场,商业操作和区域合作的趋势)?

律师 :随着“一带一路”倡议如火如荼展开,走出去中国企业与境外经济贸易往来日益频繁。江苏省作为发达省份,走出去投资在全国遥遥领先。据统计,2016年江苏赴“一带一路”沿线国家投资项目已达222个,覆盖沿线64个国家中的54个,协议投资额30.9亿美元,与“一带一路”沿线国家贸易额达1097.5亿美元,占同期外贸总额的21.5%。江苏企业对外投资的一个很大特点是对外输出工业园模式,如红豆集团2007年赴柬埔寨投资,创办了江苏唯一、全国首批通过商务部和财政部核准的境外经贸合作区—柬埔寨西哈努克港经济特区(西港特区),目前已有中国、日本、韩国及欧美等国家和地区的109家企业入驻,成为柬埔寨最大的经济特区。随着中国企业跨境投资贸易的扩大,跨境纠纷亦不可避免随之而来。因此,可以预期,对涉外法律服务的需求肯定是越来越广泛,对涉外法律服务质量的要求也必然会提高。

LTA :  作为律师,应该如何为“一带一路”倡议带来的挑战做好准备?可否给予年轻律师建议,如何能充分捕捉“一带一路”的机遇?

陈律师 :  执业二十多年来,我最大的感触是律师职业具有挑战性、前瞻性、能实现自我价值,是终身学习的事业。为应对“一带一路”倡议带来的挑战,律师应当抓紧学习涉外法律知识,打好外语基础,加强同国外律师同行的联系与交流,努力提升涉外法律服务的水平与技能,积极融入“一带一路”的大潮中。

对于年轻律师来说,“十年磨一剑”,必须尽早找准专业发展方向,找到合适发展平台,多向中外律师同行、前辈学习,努力学好法律与外语,脚踏实地工作,为今后职业生涯发展打好坚实基础。

业余兴趣和爱好

LTA :作为精英律师,我们认识到,平衡繁忙的工作和下班后的生活并不容易。处理忙碌和紧张的执业压力殊不容易。你如何在工作和生活之间的张力找到平衡点?你有什么特别的兴趣或爱好来减轻压力吗?

陈律师 :我非常喜欢读书,尤其是二战史及《孙子兵法》,在这方面钻研颇多。你会发现,很多事情是相通的,历史也好,兵法也好,很多和诉讼、仲裁策略、谈判策略与技巧等,有异曲同工之妙。英文的原版书籍读起来也是十分地道,十分有味道。我的这份爱好不仅帮助我调节缓解工作的疲乏,同时也对我的工作产生了非常多的启发。

LTA :  是什么让你在执业过程中带来最多的满足感?

律师  : 我当过大学老师、研究员,后改行做了律师。律师这个职业非常特别,它本身就具有挑战性以及由此带来的实现自我价值的满足感。我们从事的工作,处于时代前沿,切切实实为客户解决各种重大疑难问题,响应、引领时代的需求,这就带来了自我价值实现的满足感。 ♦

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