American and British law firms have made no secret of their desire to push into the China market. But fast-growing Chinese firms are now pushing back.
美国和英国的律师事务所毫不掩饰开发中国市场的愿望。但是，现在这些高速发展的律所受到了阻碍。
A fiery April 17 memo by the Shanghai Lawyers Association has accused foreign law firms of conducting "illegal business activities" by skirting regulations prohibiting them from practicing Chinese law.
炎热的4月17日，上海市律师协会举办的内部会议上，指责外国律所绕开禁止外国律所从事中国法律事务的规定，开展"非法经营活动"。
The group, representing lawyers in China's largest city and burgeoning financial center, has called upon authorities to crack down on foreign firms to "put in order, regularize and purify the Shanghai foreign legal services market."
作为中国新兴金融中心和最大城市的律师代表组织——上海市律师协会，呼吁当局限制外国律所的活动，"规范、理顺、净化上海涉外法律服务市场"。
"The Shanghai Lawyers Association is well-known and very important, so a memo like this can only be worrisome," said Jerome A. Cohen, a professor specializing in Asian law at New York University School of Law and former Beijing partner with Paul, Weiss, Rifkind, Wharton & Garrison.
原美国宝维斯律师事务所北京分所合伙人，纽约大学法学院亚洲法律问题专家，Jerome A. Cohen教授说，"上海市律师协会非常知名,具有重要的影响, 召开这样的内部会议使人甚为堪忧。
Though technically confined to practicing non-Chinese law in a cross-border setting, many foreign law firms, generally at the behest of foreign corporations operating in China, have pushed into the frontiers of the practice restrictions.
虽然，理论上可以界定不包括中国法律事务的国际业务，但是，在华经营的外国律所已经推进到执业限制的前沿。
Cohen, who opened the first Beijing office of a U.S. firm for Coudert Brothers in 1979, said the government has not strictly enforced the restrictions in the past out of recognition that doing so could hurt foreign investment in China, harming both foreign and local lawyers.
曾在1979年为美国高特兄弟律师事务所首次在北京开设办事处的Cohen谈到，“过去，政府并没有这样严格限制，是因为意识到这样做会不利于在华的投资，也会对本土和国外律师造成伤害。”
That may be changing. The memo refers to investigations of foreign law firms by both China's Ministry of Justice and Shanghai's municipal government.
Seattle lawyer Daniel P. Harris, who practices often in China and posted the memo and an English translation on his China Law Blog last week, said the expectation among lawyers in Shanghai is that the government will take some action against foreign law firms.
但是，事情正在变化。在这次会议上，提到应调查外国律所是否经过了中国司法部和上海市政府的批准。常在中国开展业务的西雅图Daniel P. Harris律师,上周在他的中国法律博客中上传了这次会议的内容和相应的英文翻译。他说“上海的一些律师希望政府采取措施限制外国律所。
"There's a real feeling that something's imminent," he said. "There's talk of shutting down two or three firms just as an example." Even the possibility of such action would appear to run counter to what many observers have seen as a liberalization trend over the past several years.
China has somewhat eased restrictions on foreign firms' opening offices in Chinese cities and recently agreed to open its courts to lawyers from Hong Kong, a special administrative region of China with its own legal system.
“有一种某些事情即将发生的真实感觉”，他说，“在讲话中以已经关闭的两三家律所为例”。甚至，采取此种行为的可能性，将会出现在被认为在过去的几年中违法经营，具有违法倾向的很多律所身上。中国在某种程度上减少了对外国律所在一些城市开设分支机构的限制。近来，同意有独立法律体系的香港特别行政区的律师从事与法院相关的业务。
But the past several years have also seen the strong growth of Chinese law firms, many staffed by lawyers with experience at large U.S. and British firms. Lawyers with end thxperience in the region broadly agree that it is the growing confidence of the local firms aeir resentment of competition from foreign firms that are behind the Shanghai memo.
但是，在过去的几年中，中国法律服务市场呈现出强劲的增长，许多具有美国、英国大的律所经验的律师被雇用。具有丰富本土经验的律师认为，此次上海会议之后，本土律所的信心和对国外律所竞争的抱怨将日益增加。
A partner at one Chinese law firm said the 150-lawyer Shanghai firm AllBright, which touts itself as China's largest firm, had made previous complaints about foreign law firms to the Ministry of Justice.
"It is safe to say that AllBright and other Shanghai firms are behind this," he said.
有150名律师的上海市锦天城律师事务所声称自己为中国最大的律师事务所， 该所的一位合伙人曾向司法部投诉外国律所，他说，“可以不夸张地讲，锦天城和其它上海律师事务所在这方面是落后了。”
'ILLEGAL BUSINESS ACTIVITIES'
The memo broadly outlines eight "illegal business activities" foreign law firms are allegedly engaged in. These include hiring large numbers of Chinese-licensed lawyers as "assistants" surreptitiously providing legal services even though they surrender their licenses on joining foreign firms;drafting contracts and opinion letters on Chinese law; conducting due diligence; handling applications and registrations with Chinese government agencies; and directing litigations and arbitrations in which Chinese lawyers make the appearances.
“非法经营活动”
这次会议上广泛地界定了外国律师事务所涉嫌参与的八种“非法经营活动”。这些行为包括：大量雇用具有中国执业执照的律师作为助理人员秘密提供法律服务，虽然他们在加入外国律师事务所时缴回了执业证；起草合同；出具关于中国法律的意见书；开展尽职调查；代理办理与中国政府有关的申请登记；让中国律师在诉讼和仲裁中出庭。
The memo says some foreign firms practice Chinese law through their control of Chinese law firms. It also accuses some firms of disseminating "illegal and misleading propaganda," including claims of expertise in Chinese law.
会议上指出，一些外国律师事务所通过所控制的中国律师事务所从事中国法律服务，还声称自己为中国法律问题专家等“非法和误导性的宣传”。
The Shanghai lawyers group also claims foreign law firms are evading Chinese taxes because much of their revenue from China work is realized in overseas offices and never reported to Chinese tax authorities.
上海市律师协会也指责外国律所逃避中国税收，因为许多关于中国服务的收入通过境外机构结算，从不向中国税务部门纳税。
Evan Cohen, a New York partner of British firm Clifford Chance who practiced in Hong Kong until 2004, said he was troubled by the broadness of the memo's language, which could arguably apply to almost all activity by foreign law firms in China.
"They include things like arbitration, which I always understood to be OK," he said.
英国高伟绅律师事务所纽约分所合伙人Evan Cohen， 直到2004年一直在在香港开展业务。他对会议上如此偏激的语言感到担忧。他说，上述所说的违法经营行为几乎涉及外国律所在华代表机构的所有活动，“他们将仲裁业务包括在内，而根据我的理解是可以的。”
He said Clifford Chance, which has more than 30 lawyers in China, did not practice Chinese law but did work with local counsel to advise clients on options in the China market. The firm itself stopped short of giving specific legal advice on Chinese law, he said.
他说，高伟绅律师事务所有30多年在华开展业务的历史，但不开展中国法律服务，只是与本土的律所合作给客户提供在中国市场上做出选择的建议。现在，律所自己停止了提供关于中国法律事务建议的业务。
The Clifford Chance partner said the memo was a sign that the Shanghai firms were becoming "territorial." Though he said he did not expect a similar outcome, he noted that law firms in India had pushed similar issues in the past, including tax claims on overseas revenue, resulting in litigation and a diminished presence of foreign law firms in that market.
高伟绅律师事务所合伙人说，这次会议表明上海律所“本土化”倾向日趋明显。过去，在印度的律所也提出了类似的争议，包括海外收入的税收争议，结果导致了诉讼和外国律所在该市场数量的减少。但是，他并不希望中国出现类似的结果。
'IN THE TRENCHES'
枕戈披甲
The head of the Hong Kong office of a leading New York firm agreed, adding that, despite the broadness of the language, it was clear to him the Chinese law firms were most concerned about a particular subset of foreign firms. Top New York firms like his own, he said, are heavily focused on cross-border capital markets work alongside the major banks. Chinese firms are not generally in a position to compete for this work, he said.
这家大规模的纽约律师事务所香港分所负责人说，尽管语言偏激，但清楚表明中国律所非常注意外国律所的特定业务。和他自己所在的律所一样，纽约顶级律所十分关注通过跨国银行进行的国际性资本市场运作。但在此项业务上的竞争力，中国律所一般与外国律所无法相提并论。
But he said other large U.S. and British firms were very much "in the trenches" competing with Chinese firms for what has become lucrative midmarket work representing foreign multinationals attempting to navigate the thicket of Chinese regulations in order to expand their manufacturing and retail operations in the country.
但是，他说规模较大的的美、英律所枕戈披甲：跨国公司试图左右中国规则的制定，以其扩大他们在中国的制造业和零售业务，外国律所与中国同行展开竞争，从而代表跨国公司参与到此项事情之中，这将是一项获利甚丰的的业务。
Though the China market has a reputation for forcing expensive foreign law firms to accept low or discounted fees, such fees can still produce high margins when the work is performed primarily by relatively low-paid Chinese lawyers.
中国市场以迫使收费昂贵的外国律所接受收取低廉的费用，或给客户打折而出名。但是，当工作主要有低薪中国律师完成时，这些收费仍可以产生高额利润。
The Hong Kong partner said local firms were also profiting enormously from this spread, to the degree that experienced associates working in Asia for Western firms now clamored to become partners at local firms. But he said foreign firms in this market were advantaged by their ability to pay Chinese lawyers more and their name recognition among multinationals.
香港分所合伙人说，本土律所也从这种蔓延的趋势中获得了巨大的利润。从某中程度上讲，在西方律师事务工作的有经验的亚洲同事，主动要求成为国内律所的合伙人。但是，他说外国律所在这个市场上的优势在于在跨国公司中的高知名度和有能力付给中国律师高薪。
"I'm not entirely sympathetic to my American peers on this issue," the partner said, adding, "I am a little worried that if they get pushed out of that market, they'll come back and compete with us."
“我并不完全同意我的美国同事在此问题上的观点”，这位合伙人又补充到，“我担忧的是，如果他们被赶出这个市场，他们又会回来与我们竞争。”
Several lawyers who spoke to the New York Law Journal about the issue said Jones Day and Baker & McKenzie were the large U.S. firms seen as competing most directly with Chinese firms for both business and staff. It is unclear how large a presence they and other U.S. firms have in China, as many local hires would likely not be included on Web sites or other attorney rosters.
在谈到上述问题时，几位律师对《纽约法律杂志》说，美国众达律师事务所和贝克－麦肯斯律师事务是美国规模较大的律师事务所，在业务和人才上与中国同行展开了最为激烈的竞争。目前，不清楚这两家律所和其他美国律所在中国市场的业务量有多大，但是许多本土雇员不愿意让自己的名字出现在律所网站和登记手册上。
For example, Jones Day's Web site lists only eight lawyers in Shanghai, but a firm brochure for the office boasts that it has "nearly 30 legal professionals, making Jones Day one of the largest foreign law firms in Shanghai." It notes that several of these are "China-trained lawyers with significant experience in Chinese and Western legal environments."
例如，在美国众达律师事务所的网站上，仅注明有八名律师在上海。但是，在律所的宣传册上声称有30近名法律专家，是上海最大的外国律所之一，部分是具有中西法律背景、训练有素的的中国律师。
CHINESE LAWYERS 'NOT READY'
Harris in Seattle said the foreign law firms' chief advantage was foreign corporations' reluctance to rely on local lawyers. In many instances when Chinese and American law firms ostensibly work together for the sake of complying with regulations, he said, "the American clients don't even know the Chinese lawyers exist."
中国律师没有做好准备
西雅图的Harris律师谈到，外国律所的最大优势在于国外公司不信任国内律师。在许多案子中，为了遵守规定，中美律师事务所表面上在一起工作，但是，美国客户甚至不知道中国律师的存在。
But he said those clients' reluctance was not wholly unjustified. Chinese lawyers, he said, were generally not highly skilled in the client service arena. He said his experience was that many Chinese lawyers often failed to present options to clients, instead recommending and performing the same transactions over and over again.
他说，客户的不信任并不是完全不对，中国律师一般并不擅长为客户服务的领域。根据他个人的经验：许多中国律师不能够向客户陈述观点，相反，仅是一边又一边的重复着同样的话语。
"My suspicion is they're not ready," he said of the Chinese law firms' ability to take on more work for foreign clients. “
“我怀疑他们并没有准备好，以中国律所现在的能力能给外国客户带来更多的工作量”。
The Chinese authorities' concern about antagonizing those clients by essentially forcing them to use local counsel may temper their enthusiasm for a prolonged crackdown on foreign law firms, said Harris.
Harris说，中国当局关注这种敌对情绪，迫使外国客户使用本土律师，将会激发这些客户延长对国外律所的雇用时间，以对抗这种压力。
The head of the Asia practice for a large New York firm agreed, noting that both the Chinese justice ministry and the local Shanghai government had both proven themselves fairly pragmatic in the past.
这家纽约律师事务所亚洲业务的负责人认为，这说明中国司法部和上海市政府已经证明自己在过去是相当务实的。
"There's a point at which they know they're mostly hurting themselves," he said, noting that China's main interest at the moment was in encouraging greater foreign investment. He predicted that those firms already in China or eager to expand there would be undeterred.
表明他们知道对自己的伤害是最大的。他说，在这一时期，中国的主要利益是吸引更多的国外投资。他预言，已经在中国设立代表机构和将要拓展中国市场的外国律所未被上述言论所吓倒。
Several lawyers noted that China has traditionally been less restrictive on foreign firms' practice than other major markets in the region, such as Japan and South Korea. In the latter nation, foreign law firms are not permitted to have offices at all.
这几位律师说，与日本、韩国等其地区的主要市场相比，中国在传统上较少限制外国律所的业务范围。在这些地区，严禁限制外国律所开设分支机构。
But NYU's Cohen notes that China's more relaxed approach is based on its choice not to enforce strict rules that are in place.
但是，纽约大学的Cohen教授指出，中国在此领域的宽松是基于选择不严格执行规定。
"The threat that the formal rules might be enforced is an ever-present Sword of Damocles over the foreigners and occasionally, as in this case, proves to be troublesome," he said.
“强制执行规定所带来的威胁永远是一把达摩克利斯之剑。但是做为一个案例，在短期内证明这种威胁，是相当棘手的。”
Cohen said China might consider embracing the de facto integration of legal services that is taking place in individual firms comprised of both foreign and local lawyers. Though foreign firms' hiring of Chinese lawyers was well known, he said local firms' recruiting of foreign lawyers could prove equallyif not more significant.
Cohen说，中国可以考虑，在私人律所中提供包括中外律师在内的、事实上的综合性法律服务。虽然，大家都知道是国外律所雇用中国律师，但是本土律所也可以同样雇用外国律师，这不仅仅有重大意义。
