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1、April 29, 2005PRIVILEGED AND CONFIDENTIALMemorandum to:Jeff Wood, Esq. Debevoise & Plimpton (Hong Kong)Chinese Courts Jurisdiction Over AT &TBackgroundYou 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 Chine
2、se-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 t
3、he 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) ex
4、pressly 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.QuestionThe question is whether AT&T will be su
5、bject 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
6、 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
7、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 autho
8、rities for the establishment of companies such as the Joint Venture Company must be governed by Chinese law. As a parallel, Chinas 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
9、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 cooper
10、ative 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 name
11、d 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 su
12、bject 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 Ventu
13、re 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
14、 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 t
15、hat provide otherwise.ConclusionBased 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 there
16、from. 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: Fi
