备忘录 memo 金杜法律备忘录模板教案资料.pdf

备忘录 memo 金杜法律备忘录模板精品资料距信纸抬头下边缘 1.30cmApril 29,2005PRIVILEGED AND CONFIDENTIAL空一行Memorandum to:空一行Jeff Wood,Esq.Debevoise&Plimpton(Hong Kong)空两行Chinese Courts Jurisdiction Over AT&T空两行*此为提纲挈领之部门，可促使作者在Background之后的法律分析中紧扣题目，故有书终*You have asked us to advise whether a Chinese court would have Jurisdiction over空一行写此部分必要了凡的冒AT&T in the following transaction:*AT&T plans to invest in a Chinese-foreign joint标号点、venture company(the“Joint Venture Company”)through Pudong LLC,an offshore之句后号special purpose vehicle to be established and wholly owned by it.*Once established,均等空表Pudong LLC will enter into a joint venture agreement(the“Joint Venture Agreement”)两示格一with two Chinese parties to form the Joint Venture Company.At the request of the句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 theJoint 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 jurisdictionof New York or Federal courts in the United States.The letter is proposed to be左signed by AT&T and countersigned by the Chinese parties to the Joint Venture边距Agreement.为3.00cmQuestionThe question is whether AT&T will be subject to the jurisdiction of a Chinese courtby executing the Letter in the manner as described above.Short Answer*客户时间有限，有时只需要简短的结论性回答If a dispute arises from the interpretation or performance of the Joint VentureAgreement and,in the absence of a valid and enforceable arbitration agreementamong the parties,a claim is made against Pudong LLC before a Chinese court仅供学习与交流，如有侵权请联系网站删除谢谢2右边距为3.00cm精品资料上边距为 3.00cmhaving jurisdiction over the claim,it is likely that AT&T will be named as anindispensable party and the Chinese court may decide that,since the Letter is part andparcel of the Joint Venture Agreement,the court should have jurisdiction over AT&T.Analysis*建议写此部分Under Chinese law,contracts or agreements such as the Joint Venture Agreementwhich will be filed with the relevant Chinese governmental authorities for theestablishment of companies such as the Joint Venture Company must be governed byChinese law.As a parallel,Chinas Civil Procedural Law provides that,in theabsence of a valid and enforceable arbitration agreement among the parties,theChinese court will have jurisdiction over any dispute that may arise from theinterpretation and performance of a contract such as the Joint Venture Agreement.Article 246 of the Civil Procedure Law states:“Actions concerning disputes arisingfrom the performance of contracts for Chinese-foreign equity joint ventures,orChinese-foreign cooperative exploration and development of the natural resources inthe PRC shall fall under the jurisdiction of PRC courts.”Since AT&T,by virtue of the Letter,provides a guarantee for the performance byPudong LLC of its obligations under the Joint Venture Agreement,it is likely thatAT&T will be named as an indispensable party to the dispute.If so,the question iswhether the Chinese court will decide that it has jurisdiction over AT&T even thoughAT&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 thejurisdiction of the Chinese court if,among other things,(i)it has a representativeoffice in China,or(ii)it is a party to a contract which is the subject matter of thelitigation,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 thegoverning law and,in the absence of an arbitration agreement,the Chinese court willhave jurisdiction over a dispute arising from the Joint Agreement by virtue by virtueof Article 246 of the Civil Procedure Law and over the parties if any of the conditionsset 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 theforum of dispute resolution(including foreign courts)if such a choice is not with themandatory rules under Chinese law that provide otherwise.Conclusion*建议写此部分Based upon the above analysis,we are of the view that the Letter,as so drafted,in andby itself does not constitute a contract that is mandatorily governed by Chinese law orover which the Chinese court will have jurisdiction in respect of any dispute arisingtherefrom.Chinese courts should honor the parties choice of law and jurisdiction inrespect of the Letter.On the other hand,however,if the Chinese court determines仅供学习与交流，如有侵权请联系网站删除谢谢3精品资料that a dispute arising from the Letter constitutes a dispute of the Joint VentureAgreement,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Suggestions*定，一般来说应该给出中肯而切实的建In view of the above analysis,we would suggest the following:First,parties to theJoint Venture Agreement agree that any dispute arising therefrom should be submittedto arbitration before a well established international arbitration institution,such as theLondon Court of International Arbitration or the International Chamber of CommerceCourt of Arbitration.By law,Chinese courts should honor the parties choice ofarbitration 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 anysuggestion or impression that AT&T is the actual party(in lieu of Pudong LLC)thatmakes the investment in the Joint Venture Company.Third,subject to the agreement among the Parties,the Letter should be as explicit aspossible that the guarantee by AT&T is a general guarantee,and not a joint andseveral 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 remediesagainst 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Xiaoming Li(86-10-6554-1155)*落款人及其联系方式须写清楚，但格式不Zhang Yi(86-6841-0088)Quan Ruixue(86-10-6554-1155)限于此，备忘录中也可不写联系电话空 两 行CC Francis Linm*如本文件需抄送他人阅读，则必须标明被抄送人仅供学习与交流，如有侵权请联系网站删除谢谢4