備忘錄memo金杜法律備忘錄模板

1、If a dispute arises from the interpretation or performance of the Joint Venture Agreement and, in theabsenceof a valid and enforceable arbitration agreement among the parties, a claim is made againstg金聿帥事務(wù)所三 KING&WOODP R C LAWYERS北京市朝盾區(qū)東三環(huán)中躋39號(hào)建外SOHO A座311郵編10002231st Floor, Tower ArJianwai SOHO

2、, 39 Dongsan huan Zhong I uChao/ang District, Beijing I00022rChinaTel (8610)Fax (8610 5378-5566 www kingandvvood com距信紙?zhí)ь^下邊緣1.30cmApril 29, 2005PRIVILEGED AND CONFIDENTIAL空 一 行Memorandum to: Jeff Wood, Esq.Debevoise & Plimpton (Hong Kong)空兩行空一行Background*此為提綱挈領(lǐng)之部門，可促使作者在之后的法律分析中緊扣題目，故有書寫此部分必要空 兩

3、 行Chinese Court s Jurisdiction Over AT &T凡冒 號(hào)句 號(hào)等 表示 一句 終了的 標(biāo)點(diǎn) 之后 均空 兩格左邊距為You have asked us to advise whether a Chinese court would have Jurisdiction over AT&Tin the following transaction: * AT&T plans to invest in a Chinese-foreign joint venturecompany (the “Joint Venture Company ) thr

4、oughgdanngffshore special purpose vehicleto be established and wholly owned by it. * Once established, Pudong LLC will enter intoa joint venture agreement (the Agreement ) with two Chinese parties to form the JointVenture Company. At the request of the Chinese parties, AT&T intends to provide ag

5、uarantee in the form of a comfort letter (the “ Letter to )ensure the performance byPudong LLC of its obligations under the Joint Venture Agreement. The Letter (a copy ofwhich having been provided to us) expressly provides that it is governed by New Yorklaw and subject to the jurisdiction of New Yor

6、k or Federal courts in the United States. Theletter is proposed to be signed by AT&T and countersigned by the Chinese parties to theJoint Venture Agreement.“Joint Ventur右邊距為3.00ciQuestion3.00cmThe question is whether AT&T will be subject to the jurisdiction of a Chinese court byexecuting the

7、 Letter in the manner as described above.Short Answer*客戶時(shí)間有限，有時(shí)只需要簡(jiǎn)短的 結(jié)論性回答上邊距為 3.00cmPudong LLC before a Chinese court having jurisdiction over the claim, it is likely that AT&T will benamed as an indispensable party and the Chinese court may decide that, since the Letter is part andparcel of t

8、he Joint Venture Agreement, the court should have jurisdiction over AT&T.Analysis*建議寫此部分Under Chinese law, contracts or agreementssuch as the Joint Venture Agreement which will be filedwith the relevant Chinese governmental authorities for the establishment of companies such as the JointVenture

9、Company must be governed by Chinese law. As a parallel, China C ivil Procedural Lawprovides that, in the absence of a valid and enforceable arbitration agreement among the parties, theChinese court will have jurisdiction over any dispute that may arise from the interpretation andperformance of a con

10、tract such as the Joint Venture Agreement. Article 246 of the Civil Procedure Lawstates:Actions concerning disputes arisingfrom the performance of contracts for Chinese-foreign equity joint ventures, or Chinese-foreigncooperative exploration and development of the natural resources in the PRC shall

11、fall under thejurisdiction of PRC courts.”Since AT&T, by virtue of the Letter, provides a guarantee for the performance by Pudong LLC of itsobligations under the Joint Venture Agreement, it is likely that AT&T will be named as an indispensableparty to the dispute. If so, the question is whet

12、her the Chinese court will decide that it has jurisdictionover AT&T even though AT&T does not have any presence in China other than providing the guarantee.Under Article 243 of the Civil Procedure Law, a foreign person may be subject to the jurisdiction of theChinese court if, among other th

13、ings, (i) it has a representative office in China, or (ii) it is a party to acontract which is the subject matter of the litigation, or (iii) it has assets located in China that can beattached. For example, parties to the Joint Venture Agreement will have to choose Chinese law as thegoverning law an

14、d, in the absence of an arbitration agreement, the Chinese court will have jurisdictionover a dispute arising from the Joint Agreement by virtue by virtue of Article 246 of the Civil ProcedureLaw and over the parties if any of the conditions set forth under Article 243 of the Civil Procedure Lawis m

15、et. On the other hand, Chinese law also permits parties to a contract to choose the governing law andthe forum of dispute resolution (including foreign courts) if such a choice is not with the mandatory rulesunder Chinese law that provide otherwise.Conclusion*建議寫此部分Based upon the above analysis, we

16、are of the view that the Letter, as so drafted, in and by itself does notconstitute a contract that is mandatorily governed by Chinese law or over which the Chinese court willhave jurisdiction in respect of any dispute arising therefrom. Chinese courts should honor thepartieschoice of law and jurisd

17、iction in respect of the Letter. On the other hand, however, if the Chinesecourt determinesthat a dispute arising from the Letter constitutes a dispute of the Joint Venture Agreement, it may decidethat it has jurisdiction over AT&T.*此部分的寫作可視情況及客戶的要求而Suggestions*定，一般來(lái)說(shuō)應(yīng)該給出中肯而切實(shí)的建議In view of the a

18、bove analysis, we would suggest the following: First, parties to the Joint VentureAgreement agree that any dispute arising therefrom should be submitted to arbitration before a wellestablished international arbitration institution, such as the London Court of International Arbitration orthe Internat

19、ional Chamber of Commerce Court of Arbitration. By law, Chinese courts should honor theparties choice of arbitration and reject filing of a lawsuit by any of such parties in respect of a disputearising from the Joint Venture Agreement.Second, the language of the Letter should be adjusted so as to eliminate any suggestion or impressionthat AT&T is the actual party (in lieu of Pudong LLC) that makes the investment in the Joint VentureCompany.Third,