备忘录 memo 金杜法律备忘录模板(3页).doc

-距信纸抬头下边缘1.30cm空 一 行April 29, 2005空 一 行PRIVILEGED AND CONFIDENTIALMemorandum to:Jeff Wood, Esq.Debevoise & Plimpton (Hong Kong)空 两 行Chinese Courts Jurisdiction Over AT &T*此为提纲挈领之部门，可促使作者在之后的法律分析中紧扣题目，故有书写此部分必要空 两 行空 一 行Background右边距为3.00cm左边距为3.00cm*凡冒号、句号等表示一句终了的标点之后均空两格You have asked us to advise whether a Chinese court would have Jurisdiction over AT&T in the following transaction: * AT&T plans to invest in a Chinese-foreign joint venture company (the “Joint Venture Company”) through Pudong LLC, an offshore special purpose vehicle to be established and wholly owned by it. * Once established, Pudong LLC will enter into a joint venture agreement (the “Joint Venture Agreement”) with two Chinese parties to form the Joint Venture Company. At the request of the Chinese parties, AT&T intends to provide a guarantee in the form of a comfort letter (the “Letter”) to ensure the performance by Pudong LLC of its obligations under the Joint Venture Agreement. The Letter (a copy of which having been provided to us) expressly provides that it is governed by New York law and subject to the jurisdiction of New York or Federal courts in the United States. The letter is proposed to be signed by AT&T and countersigned by the Chinese parties to the Joint Venture Agreement.QuestionThe question is whether AT&T will be subject to the jurisdiction of a Chinese court by executing the Letter in the manner as described above.*客户时间有限，有时只需要简短的结论性回答Short Answer*If a dispute arises from the interpretation or performance of the Joint Venture Agreement and, in the absence of a valid and enforceable arbitration agreement among the parties, a claim is made against Pudong LLC before a Chinese court having jurisdiction over the claim, it is likely that AT&T will be named as an indispensable party and the Chinese court may decide that, since the Letter is part and parcel of the Joint Venture Agreement, the court should have jurisdiction over AT&T.上边距为3.00cm* 建议写此部分Analysis*Under Chinese law, contracts or agreements such as the Joint Venture Agreement which will be filed with the relevant Chinese governmental authorities for the establishment of companies such as the Joint Venture Company must be governed by Chinese law. As a parallel, Chinas Civil Procedural Law provides that, in the absence of a valid and enforceable arbitration agreement among the parties, the Chinese court will have jurisdiction over any dispute that may arise from the interpretation and performance of a contract such as the Joint Venture Agreement. Article 246 of the Civil Procedure Law states: “Actions concerning disputes arising from the performance of contracts for Chinese-foreign equity joint ventures, or Chinese-foreign cooperative exploration and development of the natural resources in the PRC shall fall under the jurisdiction of PRC courts.”Since AT&T, by virtue of the Letter, provides a guarantee for the performance by Pudong LLC of its obligations under the Joint Venture Agreement, it is likely that AT&T will be named as an indispensable party to the dispute. If so, the question is whether the Chinese court will decide that it has jurisdiction over 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 the Chinese court if, among other things, (i) it has a representative office in China, or (ii) it is a party to a contract which is the subject matter of the litigation, or (iii) it has assets located in China that can be attached. For example, parties to the Joint Venture Agreement will have to choose Chinese law as the governing law and, in the absence of an arbitration agreement, the Chinese court will have jurisdiction over a dispute arising from the Joint Agreement by virtue by virtue of Article 246 of the Civil Procedure Law and over the parties if any of the conditions set forth under Article 243 of the Civil Procedure Law is met. On the other hand, Chinese law also permits parties to a contract to choose the governing law and the forum of dispute resolution (including foreign courts) if such a choice is not with the mandatory rules under Chinese law that provide otherwise.* 建议写此部分ConclusionBased upon the above analysis, we are of the view that the Letter, as so drafted, in and by itself does not constitute a contract that is mandatorily governed by Chinese law or over which the Chinese court will have jurisdiction in respect of any dispute arising therefrom. Chinese courts should honor the parties choice of law and jurisdiction in respect of the Letter. On the other hand, however, if the Chinese court determines that a dispute arising from the Letter constitutes a dispute of the Joint Venture Agreement, it may decide that it has jurisdiction over AT&T.*此部分的写作可视情况及客户的要求而定，一般来说应该给出中肯而切实的建议Suggestions*In view of the above analysis, we would suggest the following: First, parties to the Joint Venture Agreement agree that any dispute arising therefrom should be submitted to arbitration before a well established international arbitration institution, such as the London Court of International Arbitration or the International Chamber of Commerce Court of Arbitration. By law, Chinese courts should honor the parties choice of arbitration and reject filing of a lawsuit by any of such parties in respect of a dispute arising from the Joint Venture Agreement.Second, the language of the Letter should be adjusted so as to eliminate any suggestion or impression that AT&T is the actual party (in lieu of Pudong LLC) that makes the investment in the Joint Venture Company.Third, subject to the agreement among the Parties, the Letter should be as explicit as possible that the guarantee by AT&T is a general guarantee, and not a joint and several guarantee. Under Chinese law, in the absence of a joint and several guarantee, a party may not sue the guarantor until and unless it has exhausted its remedies against the primary obligor. This may add some additional protection for AT&T.If you have any questions, please feel free to call any of the undersigned.空 两 行*落款人及其联系方式须写清楚，但格式不限于此，备忘录中也可不写联系电话Xiaoming Li (86-10-6554-1155)*Zhang Yi (86-6841-0088)Quan Ruixue (86-10-6554-1155)空 两 行*如本文件需抄送他人阅读，则必须标明被抄送人CC Francis Linm*-第 3 页-