November 2010

RESOLVING DISPUTES IN PRIVATE / PUBLIC PARTNERSHIP AGREEMENTS

By: Carlos Gonzalez, Miami Office; Gerardo Rodriguez, Miami Office

         Generally speaking, public-private partnerships (PPPs) are mechanisms through which public sector works can be constructed, managed and/or operated by a private entity for the ultimate benefit of the public. PPPs are inherently complicated projects with numerous contractually obligated participants involved.  Thus such PPP projects demand a concerted diligence to manage and avoid potential disputes.  There is however no steadfast solution as to which type of resolution method will fit every situation.  Nonetheless the ability to adequately resolve disputes that may arise at any point in the PPP’s hierarchy is critical to ensuring the long-term viability and profitability of the project itself.

         In this paper, Carlos Gonzalez and Gerardo Rodriguez compare and contrast the different methods available for resolving disputes in PPP projects.  This paper is designed to assist private investors, government officials, as well as legal and other consultants interested in efficiently managing such disputes arising in the context of PPP agreements.     

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INTELLECTUAL PROPERTY RIGHTS IN THE SULTANATE OF OMAN

By:Carlos Gonzalez, Miami Office; and Arti Sangar, Miami Office

          Oman has enacted a seemingly comprehensive regime for the protection of intellectual property rights (IPR) through its participation in key international treaties, conventions, and protocols, and its implementation of domestic laws. These laws range from the procedural (how to register trademarks and names), to the substantive (the civil and criminal penalties for a breach). The current approach to IPR protection and the mechanisms through which this protection is carried out in Oman are similar to those used in other Middle Eastern jurisdictions. However, the courts in Oman may struggle with trademark infringement cases where the local courts have not yet developed a body of experience and knowledge in this specific area.

         In this article, Carlos Gonzalez and Arti Sangar provide a broad overview of Oman’s judiciary, with an emphasis on its structure and amenability to the fair and impartial resolution of business or commercial disputes.

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A STORM IS BREWING: CHINA AT THE CROSS-HAIRS OF U.S. TRADE SANCTIONS FOR KEEPING YUAN UNDERVALUED

By: Xingjian Zhao, Pudong, Shanghai Office

           On September 24, 2010, the Ways and Means Committee of the U.S. House of Representatives approved H.R. 2378, the Currency Reform for Fair Trade Act of 2010. This Act clarifies that unfair trade practices of dumping and subsidization related to imported goods is actionable under United States countervailing and anti-dumping laws.  In broad terms, “dumping” means selling merchandise in the United States at prices that are lower than the prices at which comparable merchandise is sold in the home market of the exporter or lower than the cost of producing the merchandise. “Countervailing” duty laws are intended to offset the advantage that foreign producers gain through government subsidies in the production or exportation of goods.

            The filing of an anti-dumping or countervailing duty case can never be a good sign for a foreign importer. Nonetheless, for companies that are targeted by these cases, there are steps that can be taken to ensure that they can still participate in the U.S. market on a reasonable basis. In this article, Xingjian Zhao provides an update on several recent developments concerning enforcement of the US countervailing and antidumping duty laws.

HAS BAIN CAPITAL WON GOME – WHAT DOES GOME’S SHAREHOLDER DISPUTE SIGNIFY FOR THE FUTURE OF PRIVATE BUSINESSES IN CHINA

        Today, Gome Electronics is China’s second largest electronics retailer in terms of market value, and the largest in terms of the number of stores, operating over five hundred stores around China. In November 2008, Huang Guanyu, founder of Gome Electronics, was arrested and later sentenced to 14 years for bribery, insider trading and unspecified illegal operations. Due to this arrest and Dome’s huge debts, Gome had to sell 233 million dollars of convertible bonds to Bain Capital LLC, a Boston-based private equity firm with a condition that Bain would have the right to nominate three directors to Gome’s Board of Directors. This was the beginning of a power struggle between the board of directors of Gome which escalated into a long drawn-out corporate battle. As a result of these ongoing issues, the Gome case has been widely reported, closely watched, and widely commented in China. 

            In this article, Vincent Li points out at the issues that Chinese companies, such as Gome can face for going public. This article also highlights the invaluable lessons that western investors can learn when operating in china.

THE SINGAPORE SLING MEETS THE MOJITO

         Last month, Singapore welcomed the world’s only high-speed Formula One (“F1”) night race.  Under the backdrop of the Grand Prix, Singapore hosted the Seventh Latin Asia Business Forum.  Economists are forecasting a healthy growth rate for trade and investment between Latin America and Southeast Asia, specifically Singapore.  The potential opportunities for collaboration between the regions are boundless and will drastically increase in the near future.   

            However, due to inherent cultural differences and geographic barriers between Singapore and Latin America, evaluating risks is not an easy task.  In this article, Sumeet addresses real issues and challenges that investors and merchants alike must understand to evaluate the risks involved before engaging new and exciting endeavors. This article also discusses the vast opportunities emerging between the two regions.

FOREIGN INVESTED TRAVEL AGENCIES

           Overseas tourist destinations are becoming increasingly popular among Chinese people who are fond of travelling in their leisure time. In line with the growing outbound tourist trend, the Chinese government has recently issued the Provisional Measures Governing Outbound Tours Operated by Sino-Foreign Joint Venture Tourist Agencies (“Measures”).  The Measures came into effect on 7 September 2010 and will allow qualified foreign travel agencies to organize overseas trips for Chinese nationals.  While China has made efforts to liberalize its travel agency market, current licensing and business scope restrictions still exist. China’s tourism sector is opening up, but implementation is not yet complete and further reform is needed.

            In this article Joe Zhang sheds light on some of the serious considerations that foreign travel companies should take into account prior to establishing their presence in China. This article also discusses some of the significant restrictions that foreign operators face when conducting business in China. 

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