China: 多元争议解决手段在一起涉外股权转让争议纠纷中的综合运用

Last Updated: 21 November 2019
Article by DeHeng Law Offices
Most Read Contributor in China, November 2019

多元争议解决手段在一起涉外股权转让争议纠纷中的综合运用 ——以策略、方法与程序为视角

2018年7月,笔者接待一起关于股权转让协议纠纷的客户咨询。经了解,系争股权转让协议由A公司全体股东(下称"转让方")与B上市公司(下称"B公司")签署,协议约定转让方将所持的A公司与另一香港公司(下称"C公司")的控股权转让给B公司。协议签署后,B公司支付了第一期股权转让价款,但在第二期股权转让价款的付款条件成就时,B公司逾期未付当期款项。协议签署后,B公司已安排数家中介机构进入A公司开展尽职调查,A公司给予全面配合;A公司与B公司在业务层面亦已开始深度合作。

笔者注意到,本案股权转让争议具有以下特点,使其成为较为复杂的一件争议:(1)收购方B公司为上市公司,依通常经验,上市公司并购团队应拥有较丰富的项目经验且重视风险控制,故需特别关注B公司在协议中设置的对转让方的制约条款;(2)转让方当事人为多主体情形且包含外籍自然人,故需关注法律适用与仲裁中的相关程序问题;(3)目标公司为A、C公司两家,其中A公司是大陆公司,C公司是香港公司,涉及C公司的部分应考虑涉外法律适用问题;(4)据当事人介绍,目标公司的商业运营模式较为复杂,需精准把握其商业模式并将其转化为法律模式,且须避免对并购交易框架的碎片化理解、避免过度关注细节条款而忽略整体判断;(5)股权转让协议已开始实际履行,多家中介机构已进场尽职调查,需考虑A公司向中介机构提交的资料是否可能存在不利证据等;(6)转让协议中约定了对各方违约情形的惩罚性违约金(高达数亿元),A公司对追究收购方B公司违约金表现出高度关注和乐观预期;(7)收购方B公司虽为上市公司,但自2018年下半年受中美贸易战影响,上市公司股权质押风险集中爆发,B公司偿债能力存不确定性。

二、代理工作第一阶段:尽职调查+谈判

经与A公司负责人初步沟通,当事人向笔者询问律师费报价。笔者向当事人了解对仲裁请求金额的想法,获知当事人有意以约定的惩罚性违约金为基数,再结合律师的专业意见作一定增减。

笔者提出,依实事求是的原则,律师若未经收集第一手证据资料,未经仔细查阅、分析原始资料和了解事实,仅根据当事人的介绍,尚不能对案情作出整体判断。律师发出报价需要基于一定前提,如需要知道客户的委托范围、客户对案件处理方向的考虑、可评估案件所需的工作量等。

尽管无法立即判断案件的整体情况,但根据A公司介绍,可以知道当事人已有确定的具体需求。譬如,A公司与转让方已迫切需要聘请律师介入,以便及时获得专业人士的咨询建议,帮助梳理问题,形成思路,讨论策略,以把握主动。

由此笔者与客户商议,将原来计划的整体一并委托调整为分段委托。就当事人认为需要律师立即开展的工作,本所律师作出相应报价,如能确定委托关系,本所律师即可进场开展工作;未来随着工作深入与当事人的需求明朗化,再协商是否需扩大对本所的委托范围。

A公司负责人采纳了笔者建议,决定委托本所律师团队承办股权转让协议纠纷的证据收集(以进场尽职调查方式)、事实情况分析、提供谈判方案咨询与参与谈判等工作。

本所律师的调查工作沿着股权转让意向的产生、转让方与收购方的磋商与沟通过程、各方洽谈签署与实际签署的各种法律文件如意向书、备忘录、股权转让协议及其附件、股权转让协议生效所需的内外部批准文件、股权转让协议的实际履行情况及相关证据等为线索展开。与此同时,结合收购方作为上市公司、负有法定信息披露义务的特点,本所律师全面跟踪与收集B公司的公开披露信息资料,并及时进行分析。

在尽职调查期间,为进行谈判准备,本所律师与客户举行了密集的会议与访谈,以准确把握当事人的真实需求与目的,与客户讨论碰撞,形成谈判思路与工作方案。遗憾的是,由于转让方与收购方对谈判会面的安排出现阻滞,未能按计划建立本所律师参与谈判的对话环境。故在第一阶段,本所律师虽与客户已达成以谈判方式促进解决争议的共识,但未能加入到与B公司的直接谈判对话。

本所在第一阶段形成的主要成果包括:其一,基于证据收集与分析,形成项目事实要点总结报告,固定了转让方与收购方的往来函件等关键证据;其二,拟订完整的谈判与工作计划,包括谈判前的工作准备、目标与步骤、计划时间表、关注的重点问题与责任单位等。即便未能如愿开展谈判工作,但第一阶段的工作成果,为本案争议的最终解决打下扎实的证据基础。

Please click here to view the full article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions