Interview: Zhao Ping, Jincheng Tongda & Neal, China


LTA is honored to interview Mr. Zhao Ping, an influential lawyer in Mainland China. Mr Zhao is a former Judge in PRC Courts. He is currently the director and senior partner of Beijing Jincheng Tongda (Shanghai) Law Firm, and a member of the management committee of Jincheng Tongda Law Firm. He is an expert in dispute resolution and a senior arbitrator.

Zhao is currently the director and senior partner of Beijing Jincheng Tongda (Shanghai) Law Firm, and a member of the management committee of Jincheng Tongda Law Firm.

He received a Bachelor of Law Degree from China University of Political Science and Law, Master of Law Degree from China University of Political Science and Law; Master of International Comparative Law from Kent Law School, Chicago, USA and EMBA in CEIBS.

LTA : Mr. Zhao, as a former Judge in PRC Courts, you are an expert in dispute resolution and senior arbitrator. Could you share with us your professional background?

Zhao : I have eight years of court work experience as a judge. Hence, I have a deep understanding of civil and commercial disputes and can navigate complex cases with clear legal logic. With careful strategic planning and overall action plan, I can assist clients to maximize their prospects of success when dealing with civil and commercial cases. The nature of disputes I handle includes: real estate, finance, investment, intellectual property and international trade. In particular, I have special niche in handling multi-national cases and international cases, as I appreciate the core issues which lies at the heart of the problems. The cases I handled in the past, in which I acted for SAIC, BYD, Zhongbao Ke Holdings, Shanghai Telecom, Fudan Guanghua and other companies, all achieved satisfactory outcome.  During the SARS epidemic, I handled a case in which I acted for a telecommunications company in resisting unlawful enforcement. I assisted client to seek legal redress from the lowest level of local courts all the way up to the Highest People’s Court. Having taken the case through 4 levels of court, I managed to assist client to seek redress to rectify unlawful enforcements, which safeguarded the client’s interest to the maximum extent.

 

I currently act as: Arbitrator of CIETAC, HKIAC, KLRCA, CMAC, BAC/BIAC, SHIAC, SHAC, and Wuhan, Qingdao, Chongqing, Hainan, Weihai, Ningbo, Langfang Arbitration Commission; Executive Council Member of China Academy of Arbitration Law; Director of Professional Committee on Real Estate Arbitration of China Academy of Arbitration Law; Member of Arbitration Commission of All China Lawyers Association; Director of Research Commission on International Trade of Shanghai Bar Association; Executive Council Member of China University of Political Science and Law Arbitration Institute; Member of Shanghai Municipal Administrative Reconsideration Committee; Member of Shanghai Putuo District Administrative Reconsideration Committee; Part-time Legal Adviser for the People’s Government of Shanghai Baoshan District; Part-time Legal Adviser for Shanghai Municipal Commission of Commerce; Member of the Competition Enforcement Expert Tank of Shanghai Administration for Industry and Commerce; Member of the Legal Advisory Group for the People’s Government of Shanghai Pudong New District; Special Mediator of People’s Professional Mediation Center of Shanghai Pudong New District.

The legal journey

LTA : How did you start your legal journey?

Zhao : My legal journey began in 1987, when I applied to pursue my studies of law with the Chinese University of Political Science and Law.

From 1987 to 2017, it has already been 30 years since I started my journey in law. During this journey, I have played three roles: first, I was a student. From 1987 to 1991, I was an undergraduate student of the Faculty of Law of China University of Political Science and Law. From 1994 to 1997, I was a graduate student of Civil and Commercial Law of China University of Political Science and Law. My second role, I had been a judge. Since my graduation in 1991 up to 1999, I was in Hebei Province Xingtai City Intermediate People Law sitting as a judge. My third role is a lawyer. After resigning as a judge in 1999, I have joined Shanghai Guo Yao Law Firm as an attorney, which marked the start of my journey as a lawyer. From 2002 to 2009, I, together with several like-minded alumni of China University of Political Science and Law, founded Shanghai Eternal Law Firm. In early 2010, I joined the Jincheng Tongda law firm as senior partner, is now the Managing Partner of the Shanghai Office. Since then, I was appointed as the head of the International Trade Business Research Committee of the Shanghai Bar Association and many other public appointments. And so my legal journey continues.

Secrets of success

LTA : Could you share with us your secrets of success?

Zhao :  I would not describe my legal career as “successful”. Perhaps the more accurate description is that my legal career is building from strength to strength with spiraling upward trend. During this process, there are 3 keys : (1) Perseverance.  Whatever cause one pursues, once we have made up our mind, we must follow through to the very end persistently and never give up. If we ever encounter difficulties, or in the face of setbacks, we must bravely overcome the challenges and keep going, building up our strengths to move on; (2) Keep an open mind. As we grow older, our experiences have accumulated. For senior lawyers, it is not impossible that one might often have certain “inertia” and rely on our old experience. This might be a stumbling block if we encounter new situations or circumstances. Hence, we need to keep life-long learning, to learn from pioneers and to learn from the younger generations; (3) Set up long-term goals. Many people who initially choose to pursue the legal career might be motivated by the desire to earn a high income, but this cannot be the ultimate goal. The practice of law, in the long run, carries a higher purpose to serve enterprises, to enhance social and economic prosperity, to serve the community and endeavoring to achieve rule of law in the society.

LTA : Your outstanding legal qualifications, career achievements are impressive. We are interested to hear more stories about some challenging or interesting cases or transactions you handled in the past. Would you mind sharing with us?

Zhao : I recall there is a case in which I acted for a small company as respondent in an arbitration case. We were up against a giant company which is the applicant.

In that case, the small company obtained license to use certain technology, and at the same time purchased the giant company’s chips to be used on the mobile phones manufactured by the small company. The parties executed two sets of contracts i.e. the sale and purchase agreement, and the license agreement. The sale and purchase agreement is a framework agreement and pursuant to the terms therein the small company placed orders to the giant company to purchase chips and would settle the price of the goods. On the other hand, no payment was payable under the license agreement, which only contains the restriction that during the contract term the small company cannot purchase products from third party companies.

The cause of the dispute arose out of the fact that the chips produced by the giant company cannot fulfill the needs of the small company. Hence, the small company had to turn to third parties for supply of chips which was discovered by the giant company. The giant company commenced arbitration proceedings, claiming huge damages against the small company for breach of contract.

Our key lines of defence are as follows: (1) to prove the necessity and legitimacy of the small company’s conduct in purchasing chips from third party company; (2) in the event that breach of contract is found, endeavor to minimize the exposure of loss and damage.

Our reaction plan is to make a counterclaim. We argued that as the giant company failed to supply goods in time, this had caused huge loss and damage to the small company and the giant company is liable for such loss. We appreciate that it is difficult to substantiate this, as the subject agreements were drafted by the giant company and it is difficult to prove that the giant company had failed to fulfill the orders in time. Nevertheless, the lawyers for the giant company made a fatal mistake, as the request for arbitration was only on the basis of the license agreement and they did not make any claim under the sale and purchase agreement. They claimed that the small company’s counterclaim was not the same dispute as their request for arbitration and they insisted to defend. In the end, the arbitral tribunal held that the small company’s counterclaim is unfounded. The small company withdrew its counterclaim.

The outcome in the award:  In this case, on the face of it the giant company had won. However, in practical terms the giant company was trapped in a dichotomy, i.e. at the time of its request for arbitration, it only requested for damages representing the sales value of the chips, while the sales of the trips could only be achieved through the terms of the sale and purchase agreement. Its claim for damages had no basis under the license agreement because no payment was payable thereunder. Only through combining the two agreements can the giant company attain its objective. But the giant company has excluded the sales agreement in the arbitration. In the end the arbitral tribunal held that even though the small company was in breach of contract, but in accordance with the license agreement no compensation was awarded to the giant company. In reality, the small company achieved final victory.

Profound impact : This case made me realize the importance of legal skills, and how assessment of the likely outcome would impact the result. As advocate of the small company, if no counterclaim was raised at first, or if I did not seize the chance to hardly attack the giant company’s fundamental mistake, the final victory for the small company cannot be achieved. Also from this case, I became acutely aware of the uniqueness of arbitration, the intricacies of arbitration and this is one of the reasons I maintained my arbitration practice.

Tips for cross-border lawyers

LTA : Mr. Zhao, in your opinion, what are the qualities of a good cross-border lawyer?

Zhao : In my view, (1) one must have a deep understanding of the law and be able to navigate the law.  On the face of it, the law is “dead”, but in fact it is “alive”. By “laws”, it includes not only local laws, it also includes foreign laws. International legal actives includes laws, i.e. apart from the law in the client’s home jurisdiction, it also involves laws of third party jurisdictions and also international conventions. At the same time, laws not only include substantive laws, it also includes procedural laws and conflict of laws. It not only encompasses statues, but also includes case laws. Further, it not only includes legal knowledge, but also includes the skills to apply applicable legal framework to achieve one’s commercial objective.

(2) One must be able to fully understand the needs of the parties, to understand their business objectives. That is, to understand the purpose of the parties, whether to facilitate the transaction, to obtain compensation, or long-term cooperation, or just to win the litigation or arbitration, to reduce losses. Only if one can satisfy the client’s objectives can one qualify as a competent lawyer. When one can facilitate the attainment of objective, can one maintain good and long term cooperation.

(3) One must have cross-cultural awareness and thinking. The culture of each country and region is not the same. When dealing with cross-border transactions, even if one cannot be expected to know the various cultures, one must have cross-cultural awareness and thinking. One must be able to understand that the problem cannot be viewed from one perspectives only, but to consider the needs and background of the parties in order to make comprehensive judgments.

(4) One must be able to master the foreign language well. As a cross-border lawyer, language is the basic skills set.

(5) One must be able to learn to cooperate well as a team. In handling cross-border cases, very often a single lawyer would not be able to handle it all alone. There are bound to be cooperations with a few lawyers or even a team of lawyers to make it work. Sometimes local lawyers would have to team up with lawyers in overseas jurisdictions. Therefore, to be able to work as team is a must, through which the legal team can cooperate and achieve mutual success and benefit.

Dealing with foreign legal matters

LTA : Mr. Zhao, we understand that one of your core practice areas is cross border cases. Could you share with us more about your experience in dealing with cross-border matters. What are the items or cases of foreign and cross-border elements that you mainly deal with?

Zhao : From my experience, there are some key points to note when handling cross border transactions : (1) one must choose the applicable law carefully. One must understand the differences and similarities between the laws in different countries and regions. For example, in international sale of goods, whether the laws applicable to a particular country’s laws relating to sale of goods would apply, or whether the “United Nations Convention on Contracts for the International Sale of Goods” would apply in the contract should be clearly stated and agreed. A lawyer must be conscious of this when designing a transaction document or handling a dispute.

(2) One must be able to fully understand the background of the transaction, and then analyze and grapple the weak link, to understand the strengths and weaknesses of both sides, so as to better design the transaction structure, which can help prepare appropriate and water-tight legal documents.

(3) One must be able to approach the issues from the perspective of cooperation. Because cross-border transactions are often related to the parties to the transaction, and in international transactions, parties often have a common or cross target. If the target is achieved, both can attain mutual benefit; failing of which both parties’ interests may be harmed. Therefore, to achieve good transaction outcomes, one must give consideration from a cooperation perspective.

Nature of cases: At present, I mainly deal with domestic cases involving real estate and financial investment disputes. I also handle international cases which are mainly investment, trade and intellectual property disputes. Historically, there have been many international trade cases, and now there are more and more international investment cases, including the transfer of international patents and designs, international finance and other fields.

Beware of legal risks

LTA : What are the major legal risks that businesses should pay attention to when dealing with cross-border transactions? How should the risk be minimized?

Zhao : Businesses should watch out the various legal risks:

(1) the risk of conflict of laws under different legal systems. For example, Chinese law differs from US law, and the laws between different US states are different. In cross-border transactions, it is quite often that contracts have governing laws of different countries. Hence, objectively speaking there are legal risks.

(2) the credit risk of the counterparty. Even if the transaction framework is well structured, the legal documents are drafted well, but if the credit situation is poor, there will still be problems, and once the problem is difficult to sort out, it will be difficult to recover loss even through litigation or arbitration.

(3) the risk of dispute resolution. In the case of litigation, the laws and regulations of each country and region are different, the background and culture of the judge are different; if arbitration is used, the arbitration rules of the arbitration institution in each country where the transaction is located are different, and if it involves arbitration institution in the third party country, more costs would be involved.

To reduce the risk, one should:

(1) Contain the unpredictable risks. For example, reach agreement on the applicable law, the mode to resolve dispute; if desire to use arbitration, reach consensus on agreed arbitration institutions, seat of arbitration. The goal is to manage the risks.

(2) Do the preparatory work. For example, through legal due diligence, understanding of the parties’ business background. The more is done to know your transaction partner, the less likely there would be unpredictable risk. Even if there is a risk, you already have a timely and effective means to tackle.

(3) In the course of execution and performance of contracts, try to retain evidence, while taking into account the relationship between commercial transactions and the law. The two are both intertwined and distinct. “Intertwined” means the law protects the integrity of a commercial transaction. “Distinct” means there are many matters to be taken care of in business transactions which may not be appropriate from the legal perspective. Hence, it is necessary to retain the relevant legal documents, materials, etc. as evidence, in the event of a dispute, in a timely manner to enable that timely action can be taken to assert rights and interests.

China’s Belt & Road Initiative

LTA : According to your experience, what trends and developments do you see in the Chinese legal market since the “One Belt One Road” Initiative? What trends do you expect to see in the near future (including but not limited to legal markets, business operations and regional trends)?

Zhao : I have seen many changes recently. (1) On the one hand, FDI continues to be stable; on the other hand, the legal business of China’s foreign investment has increased significantly. (2) Arbitration, especially international arbitration, is becoming more common in China. The Chinese government and Chinese enterprises are increasingly aware of the importance and effectiveness of arbitration in safeguarding legitimate commercial interests. (3) The demand for international legal talent is increasing and the expectations for quality legal service are higher.

Regarding trends, on the whole, the “One Belt One Road” Initiative has provided more opportunities for Chinese lawyers. The arbitration market has seen remarkable developments ever since.

LTA : How should a lawyer be prepared for the challenges of the “Belt and Road” Initiative? Any advice to young lawyers on how to capture the opportunities?

Zhao : You should get ready and prepare yourself (1) to see how the future legal services market may change. (2) Depending on their stage of career, personal strengths, existing customers, the background of their law firm, there are 3 ways : (1) stick to the existing practice areas; (2) from the existing practice areas, try to develop further practice areas; (3) cooperating with other professions. Generally lawyers should not be encouraged to quit its practice, only under special circumstances should one consider this.

For young lawyers, one must be brave enough to try new practice areas, such as legal services relating to international infrastructure contacts. For young lawyers who have construction law background with good language skills, they must keep polish their skills and strengthen their knowledge and abilities.

Last but not least…

LTA : As a leading lawyer, we recognize that it is not easy to have work life balance. Do you have any hobbies or interests to relieve the stress from the demands of your busy practice?

Zhao : Modern lawyer’s work is really busy, especially when I am the managing partner of the firm, with other public appointments. I enjoy traveling, when I can go out of town to see more, to learn more and gain more experience. Of course I have to keep track of my clients’ needs and must never compromise the tasks entrusted by client, or the responsibilities and roles endowed upon me by my firm and the public.

Thanks to modern technology, which allows us to juggle between traveling and work. For example, while traveling in Europe, because of the time difference, I usually get up three hours earlier, to allow time to finish all work required ahead of time, so that on the one hand I can work efficiently, on the other hand, I can enjoy the joy brought about by traveling which can relieve the stress from work. This forms a positive cycle.

LTA : What makes you up to the best in your practice?

Zhao : From my view, (1) effectively solve client’s problems, get recognition by the client; (2) get recognition in the industry by various arbitration institutions, as well as by peer arbitrators and fellow lawyers; (3) while a decent income counts, when one gets more senior and has more experience, as compared to young lawyers, the satisfaction derived from a decent income has become a lesser motivation to do better; (4) to be able to contribute to the development of the cause of law and to promote the rule of law in my practice of law also gives me great pleasure and satisfaction. ♦

我们很荣幸可以替赵平律师作这次专访。赵律师现在担任北京金诚同达(上海)律师事务所主任、高级合伙人,金诚同达律师事务所管理委员会委员。

赵律师的法律业务包括:争议解决专家,资深仲裁员。本人拥有八年的法院审判工作经验和严密的法律逻辑思维能力,对民商事争议案件有精深的理解和把握。凭借出色的战略性整体诉讼和仲裁方案设计能力和技巧,本人能在代理的民商事案件中最大程度地维护客户的利益。本人处理的争议案件类型主要包括:房地产、金融、投资、知识产权和国际贸易。本人尤其在处理跨地域案件和国际案件中有独特优势,能够深刻理解案件特点和核心问题所在,在代理的上汽集团、比亚迪、中宝科控、上海电信、复旦光华等公司的系列案件中取得了良好的效果。本人在非典期间处理一起涉及某大型电信公司被某基层法院违法执行案,历经从基层法院至最高人民法院的四级法院,终于纠正了违法执行行为,维护了当事人的合法权益。

赵律师担当各个重要社会职务,包括:中国国际经济贸易仲裁委员会仲裁员;香港国际仲裁中心仲裁员;马来西亚吉隆坡区域仲裁中心仲裁员;中国海事仲裁委员会仲裁员;北京仲裁委员会仲裁员;上海国际经济贸易仲裁委员会仲裁员;上海仲裁委员会仲裁员;武汉仲裁委员会仲裁员;青岛仲裁委员会仲裁员;重庆仲裁委员会仲裁员;海南仲裁委员会仲裁员;威海仲裁委员会仲裁员;宁波仲裁委员会仲裁员;廊坊仲裁委员会仲裁员;台州仲裁委员会仲裁员;中国仲裁法学研究会常务理事;中国仲裁法学研究会房地产仲裁研究专业委员会主任;中华全国律师协会仲裁委员会委员;上海市律师协会国际贸易业务研究委员会主任;中国政法大学仲裁研究院常务理事;上海市人民政府行政复议委员会委员;上海市普陀区人民政府行政复议委员会委员;上海市宝山区人民政府兼职政府法律顾问;上海市商务委员会兼职政府法律顾问;上海市工商行政管理局竞争执法专家库专家;上海市浦东新区人民政府法律顾问团成员;上海市浦东新区专业人民调解中心特邀调解员等。

LTA: 您是怎么开始您法律之路?

律师: 我的法律之路,是从1987年报考中国政法大学法律系开始的。

我的教育背景是:1991 中国政法大学法学学士;1997 中国政法大学法学硕士;2008 美国芝加哥肯特法学院国际比较法学硕士;2008 中欧国际工商学院EMBA。

1987年至2017年,我在法律之路上已走过三十个年头。在这期间,我有三个身份:第一个身份,学生。1987年至1991年,我作为中国政法大学法律系的一名本科生;1994年至1997年,我作为中国政法大学民商法专业的一名硕士研究生。第二个身份,法官。1991年本科毕业至1999年,我在河北省邢台市中级人民法担任法官。第三个身份,律师。1999年辞去法官一职至2002年,我作为上海市国耀律师事务所的专职律师,开启了我律师事业的起步阶段;2002年至2009年,我与几位志同道合的中国政法大学校友,创立了上海市世代律师事务所;2010年初,加入金诚同达律师事务所,成为高级合伙人,现担任上海分所主任。此后,我陆续担任了上海市律师协会国际贸易业务研究委员会主任等社会职务,继续我的法律之路。

成功秘訣

其实我的法律事业难说成功,更准确的说是一步一步呈螺旋式上升。在这过程中,我认为有三点很重要:(1)坚持不懈。任何一项事业,一旦决定了开始,就要坚定不移地走下去,绝不能轻言放弃。遇到困难,面对挫折,要勇敢克服,不断摸索,积蓄力量继续向前;(2)保持开放的心态。年龄在增长,经历也在丰富,资深的法律人可能会产生一种“路径依赖”,即做任何事情都依照旧有的经验,这样如果遇到新的状况或形势,就很难应对。因此要不断向周围学习,向先进学习,向青年学习。(3)树立长远的目标。很多人从事法律事业的基本目的或者说最初目的可能是获得高收入,但这绝不是也不能是最主要的目的,法律执业的长远目标是要通过法律,为企业服务,推动社会经济健康发展;为大家服务,助力社会实现法治化。

LTA: 你卓越的法律资歷、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?

赵律师: 大公司(申请人)与小公司(被申请人)仲裁案件,我作为小公司的代理人。

基本情况:小公司从大公司处取得技术使用许可,同时购买大公司生产的芯片用在自己生产的手机上。因此,双方签订了两个合同——销售合同、许可合同。其中,销售合同是框架协议,根据该合同小公司向大公司订购芯片并支付货款;许可合同是免费的,根据该合同小公司在约定期间内不得购买第三方公司的产品。

纠纷起因:大公司生产的芯片不能满足小公司的需求,小公司转而向第三方购买,被大公司发现。大公司提起仲裁,指控小公司违约并要求其赔偿巨额损失。
答辩要点:① 证明小公司向第三方购买行为的正当性,即有其必要性、合理性;②即使在违约情况下,要尽力减少或免除损失。

应对办法:提起反请求。由于大公司没有及时提供产品,给小公司造成了巨大损失,要求大公司赔偿。虽然这一点在实践中的确较难成立,因为相关合同都是大公司起草的,很难证明大公司未及时供货。但我们是依据销售合同和许可合同两者提起反请求,而大公司的代理人犯了一个错误,他们仅依据许可合同提起仲裁,把销售合同排除在外,称我们的反请求与他们的本请求针对的并非同一个案件,坚持抗辩。最后,仲裁庭认为小公司的反请求不正确。小公司因此撤回了反请求。

裁决结果:在这一反请求仲裁程序中,表面上大公司胜了,但实际上是落入了一个陷阱,就在于其提起仲裁时要求赔偿的是销售芯片的利润,销售利润只能通过销售合同实现,而其指控的违反许可合同对于大公司而言并无经济损失,因为许可合同本身是免费的。这两个合同结合起来才是完整的合同。但由于大公司的代理人坚持把销售合同排除在外,最后仲裁庭虽然认定了小公司违约,但依据许可合同大公司并不能获得赔偿。因此,实质上小公司获得了胜利。

深刻影响:本案使我认识到了法律技能的重要性,以及对未来趋势判断的重要性。作为小公司的代理人,如果一开始没有提起反请求,或者后来没有抓住大公司所犯的请求基础错误,那么这个案件就不会有小公司的实质胜利结果。也正是本案,使我感受到了仲裁本身的特殊性、趣味性,这也是我一直坚持作仲裁的原因之一。

LTA: 在你看来,一个好的跨境律师應应具備何种素质?

赵律师: (1) 要深刻地理解和把握法律。法律看起来是死的,但其实是活的。法律不仅包括本国法,也包括外国法。国际商事活动中的“法”,除了当事人所在国家的法律,还往往涉及第三方国家法以及国际规则。同时,法律不仅包括实体法,也包括程序法以及冲突规范;不仅包括法律条文,也包括案例;不仅包括法律知识,也包括如何运用有效的法律架构达到自己的商业目标。
(2)要充分了解当事人的需求,理解其商业目标。即了解当事人的目的,究竟是促成交易,是取得赔偿,还是长期合作,或者仅仅为了赢得诉讼或仲裁,减少损失。只有满足了当事人的需求,才是一个合格的律师;只有促成了当事人商业目标的实现,才能维持良好长远的合作关系。

(3)要有跨文化的意识与思维。每个国家和地区的文化不尽相同,处理跨境交易,律师即使不能对各种文化了如指掌,但一定要有跨文化意识和思维,要明白解决问题不能仅仅站在一方的角度,而是要考虑各方的需求和背景,综合判断。

(4)要掌握外语。跨境律师,语言是一个基本功。

(5)要学会合作。在跨境情况下,往往不是一个律师就能应对自如的,往往需要几个律师甚至律师团队合作才能顺利进行,有时还可能需要境内外律师或律师团队的通力协作。因此要善于合作,通过合作达成共同目标互利共赢。

跨境业务

LTA: 请与我们分享更多关于您处理跨境事务的经驗。您主要处理哪些范疇的具有涉外及跨境要素的项目或案件?

赵律师: 经验 – (1) 要选好适用的法律,要了解不同国家和地区法律的异同。例如,在国际货物买卖中,是适用某一国家的货物买卖相关法律,还是适用《联合国国际贸易销售合同公约》,这在合同中应明确有效地约定。至少律师在设计交易文件或遇到纠纷时,要意识到这一点。

(2)要充分了解交易的背景,进而分析和把握交易各方的风险点,知己知彼,这样才能更好地设计交易架构,有助于起草更加合适完善的法律文件。

(3)要从合作的角度看待问题。因为跨境事务往往涉及到交易各方,且在国际交易中各方往往有一个共同或交叉的交易目标,达成则各方受益,不能达成则各方受损。因此,获得良好的交易结果需要从合作角度去考虑。

范畴:目前,我主要处理的国内案件是房地产和金融投资争议,国际案件主要是投资、贸易和知识产权纠纷。从历史上来看,国际贸易案件很多,而现在国际投资案件越来越多,还设计国际技术转让、国际金融等领域。

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?

赵律师: 我认为有两方面要注意:

– 法律风险:
(1)不同法律制度下的法律冲突风险。例如中国法与美国法不同,且美国各州的法律也不同。跨境交易,根据合同约定等,可以适用不同国家的法律,因此法律风险在客观上是存在的。
(2)交易对手的资信风险。即使交易框架设计得很好,法律文件起草得完善,但如果对方的资信情况不佳,则也会存在问题,且一旦出现问题很难弥补,即使通过诉讼或仲裁也很难挽回损失。
(3)争议解决方式的风险。如果采用诉讼,各个国家和地区的法律规定不同、法官的背景和文化不同;如果采用仲裁,各个交易方所在国的仲裁机构仲裁规则不同,而在第三方国家的仲裁机构,又涉及费用问题等。

– 降低风险:
(1)将不确定的风险确定化。例如,约定好适用的法律,约定好争议解决方式,如果选择仲裁的,约定好仲裁机构、仲裁地等,将可能的风险逐一固定下来。
(2)做好前期的准备工作。例如法律上的尽职调查,了解各方的交易背景等。前期工作越仔细,后期发生风险的可能性就越小。即使发生了风险,也能有一个及时有效应对的手段。
(3)合同签订及履行过程中,要尽量保留证据,并且考虑到商业交易与法律之间的关系。这两者既要合一,又要分离。合一即法律保障商业交易的顺利进行,分离即商业交易中很多事务处理方式,从法律角度而言并不合适,因此需要保留相关的法律文件、材料等作为证据,一旦发生纠纷,及时主张权利,减少损失。

一带一路

LTA: 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)?

赵律师: 法律市场变化:
(1)一方面,FDI继续稳定;另一方面,中国对外投资的法律业务明显增加。
(2)仲裁尤其是国际仲裁在中国越来越常见,中国政府和中国企业越来越认识到仲裁对于保障合法商业权益的重要性和有效性,因而有大规模发展。
(3)对国际法律人才的需求在增加,要求也在提高。

趋势方面,总体来讲,“一带一路” 对中国律师的要求提高了,同时为中国律师带来的机会也多了,对中国的仲裁市场发展起到了很大的促进作用。

LTA: 作為律师,应該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?

赵律师 : 律师应为<一带一路>准备:
(1)要看清未来的法律服务市场有何变化。
(2)要根据自己所处的阶段,结合个人优势、现有客户、律所背景判断如何应对挑战,办法有三个:①坚持原有业务;②从原有业务发展出细分业务;③跨界融合。一般不鼓励律师抛弃原有业务,仅在特殊情况下可以考虑。

给予年轻律师建议,对于青年律师而言,在一带一路倡议实施中,对新出现的法律业务要敢于尝试,例如国际建设工程相关的法律业务。既有建筑工程背景又有优秀外语能力的青年律师一定要把握机遇,锻炼自己,不断提升自己的能力。

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。处理忙碌和緊張的执业压力殊不容易。你如何在工作和生活之间的張力找到平衡点?你有什么特别的兴趣或爱好来减轻压力吗?

赵律师: 现在的律师工作确实忙,尤其是在同时担任律所主任以及其他各类社会职务的情况下。我平常喜欢旅游,出去多看多学多感受,但我也深知,无论如何不能耽误客户的重要工作,不能影响自己的角色和责任承担。

但得益于现代科技,我们确实能够做到工作、旅游两不误。例如在欧洲旅游时,由于时差原因也正是利用时差,我一般会早起三小时,把国内需要处理的事情集中处理完毕,这样一方面提高了工作效率,另一方面也能让自己在白天畅快享受旅游带来的乐趣,减轻工作压力,形成良性循环。

LTA: 是什么让你在执业过程中带來最多的满足感?

赵律师: (1) 有效地解决客户的难题,得到客户的肯定;(2) 在业内得到诸多仲裁机构的认可,以及诸多仲裁员和律师同行的认可;(3) 执业收入也是一方面,但随着年龄的增长和经历的丰富,相较于年轻律师,收入带来的满足感已经越来越小;(4) 通过法律职业,为法律事业的发展贡献力量,在推动法治方面做力所能及的工作。 ♦

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