备忘录-memo-金杜法律备忘录模板

April 29 2005 PRIVILEGED AND CONFIDENTIAL Memorandum to Jeff Wood Esq Debevoise Plimpton Hong Kong Chinese Court s Jurisdiction Over AT T Background 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 Question The 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 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 空 一 行 空 两 行 空 两 行 空 一 行 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 凡冒号 句号等表示一句 终了的标点之后均空两格 左边距为 3 00cm 右边距为 3 00cm 客户时间有限 有时只需要简短的 结论性回答 距信纸抬头下边缘 1 30cm 空 一 行 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 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 China s 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 Conclusion Based 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 上边距为 3 00cm 建议写此部分 建议写此部分 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 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