近日，受国际权威法律评级机构钱伯斯（Chambers & Partners）邀请，天同律师事务所陈耀权律师为其独家撰写钱伯斯《2022年大中华区-争议解决：诉讼领域概览》Chambers Greater China Region 2022-Dispute Resolution: Litigation (PRC Firms) Overview，参与撰写的作者包括合伙人李谦律师、汤友军律师。

 

下述为文章全文：

 

诉讼，既是商事争议的泄洪闸，也是商事风险的防火墙，这种双重作用，在全球疫情防控步入常态化的2021年，表现的尤为明显。诉讼服务不得不回应经济下行、监管加码、审级下沉等多种外部环境的变化，显示出“客户需求更为多元、新类型业务不断涌现、竞争格局更为激烈”三大特点。

 

Litigation is not only a floodgate of commercial disputes, but also a firewall of commercial risks. This dual role of litigation has become particularly obvious in 2021, along with the normalization of Covid-19 prevention and control all over the world. Litigation services must respond to various changes in the external environment such as economic downturn, tighter regulation and lowering of trial levels, which showed three characteristics - ‘more diverse customer needs, new-type services emerging and more intense competition'.

首先，经济下行刺激了法律服务需求的增长，客户对律所及律师的综合服务能力提出了更高的要求，具体表现在三个方面：一是客户需要将争议解决的经验反哺到风险防控，以诉讼的视角重新审视商事交易风险，这进一步模糊了诉讼与非诉的界限，要求诉讼律师必须以更为综合的服务能力融入商事交易全程；二是客户对资产处置能力和变现效率的要求明显提高。2021是十四五规划开局之年，国家在金融、地产、教育等领域的政策调控持续加码，其影响也迅速传导至法律服务行业，促使法律服务与资本运作的联结更加紧密。律师不仅需要在快速变化的政策中保持领先的专业研究能力，更需要在跨区域、跨团队的协作中展现资源整合优势，譬如能否快速对接待处置资产的受让方，能否在破产程序中统筹其他债权人等，往往会成为赢得客户的关键；三是客户的跨境法律服务需求激增。新冠疫情致使全球供应链遭受重创，跨境纠纷频出。境内客户对跨境诉讼及仲裁、境外资产保全及处置的需求明显高涨，中国的法律服务市场更进一步地融入了全球法律服务市场，客户将更青睐在全球范围内拥有协同服务能力的律所。

 

First of all, the economic downturn stimulated the growth of demand for legal services while clients are demanding more from the comprehensive service capabilities of law firms and lawyers, which were reflected in the following three aspects. First, Clients need to transfer their experience of dispute resolution to risk prevention, and re-examine commercial transactions risks from a litigation perspective of, which further blurred the boundaries between litigation and non-litigation matters, and requires litigation lawyers to integrate into the whole process of commercial transactions with more comprehensive service capabilities. Second, clients' requirements for the ability to dispose of assets and the liquidity efficiency has be significantly enhanced. In 2021, the first year of the 14th Five-Year Plan, the national policy control in the fields of finance, real estate and education has continued to be increased, and the impact has also be rapidly transmitted to the legal services industry, promoting closer connection between legal services and capital operations. Lawyers not only need to keep ahead of the curve in the rapidly changing policy environment, but also need to demonstrate resource integration advantages in cross-regional and cross-team collaboration. For example, the ability to quickly receive and dispose of the assets of the transferee, the ability to coordinate other creditors in the bankruptcy proceedings, would often became the key to win clients. Third, clients’ demand for cross-border legal services has increased sharply. The COVID-19 pandemic has inflicted heavy losses on the global supply chain and given rise to frequent cross-border disputes. Domestic clients have increased their demand for cross-border litigation and arbitration, the preservation and disposal of overseas assets, and the PRC legal service market has been further integrated into the global legal service market，along with clients preferring law firms with global collaborative service capabilities.

其次，新经济增长极的崛起推动了新业务板块的形成和发展，表现最为明显的是互联网和知识产权。腾讯、阿里巴巴等巨头，字节跳动、滴滴、快手等独角兽企业不仅重塑了经济格局，也带来了法律服务新蓝海。数据安全、出海合规、隐私保护、新型垄断等法律服务需求应运而生，各大律所快速响应并组建了专门的业务团队，争抢潮头。在知识产权领域，新冠疫情、中美贸易战、华为芯片等事件将本国创新的战略性意义提到空前高度，生物医药、人工智能等领域的知识产权争议成为热门话题，我们也在该板块着重发力，努力提升为高新企业服务的能力。

 

Moreover, the rise of new economic growth poles has promoted the formation and development of new business sectors, most notably the Internet and intellectual property. Giants such as Tencent and Alibaba and unicorns such as ByteDance, Didi, and Kuaishou have not only reshaped the economic landscape but also created a new blue ocean for legal services. The demand for legal services such as data security, offshore compliance, privacy protection, new monopoly etc. ermerged, and law firms quickly responded and established specialized teams to compete for the trend. In the field of intellectual property, events such as the COVID-19 the Sino-US trade war and Huawei's chips have brought the strategic significance of domestic innovation to an unprecedented height, while intellectual property disputes in the fields of biomedicine and artificial intelligence became hot topics. We also focus on this section and made efforts to improve the ability to serve high and new tech enterprises.

最后，审级下沉加剧了区域服务市场的竞争，对律师的专业服务能力提出了更高要求。最高人民法院自2019年起启动四级法院民事审判职能改革，经过一系列政策调整，其自身和高级人民法院受理的案件显著减少，大量案件将累积在基层及中级人民法院处理。与此对应，诉讼业务也必将面临持续下沉的态势，省会及一线城市律师的地缘优势将不复存在，所有的律师都将参与到重大案件代理机会的角逐中来，区域竞争不断加剧。与此同时，中基层法院人少案多的矛盾将更加突出，二审不开庭审理将成为常态，这要求律师以更加专业的能力去配合法官快速、准确判案的需求，庭审表达要更精炼，书面材料需更有条理、更具说服力。

 

Finally, the lowering of the trial levels has intensified competition in the regional service market and placed higher requirements on lawyers' professional service capabilities. Since 2019, the Supreme People’s Court ("SPC") has launched the reform of the civil trial functions of four-level courts. After a series of policy adjustments, the number of cases accepted by the SPC and higher people's courts has decreased significantly, and a large number of cases. and a large number of cases will accumulated and be handled by the primary and intermediate people's courts. Correspondingly, the business of litigation has to face with the same lowering trend, and the geographic advantage of lawyers in provincial capitals and first-tier cities will no longer exist. As a result, all lawyers will compete for representation opportunities of major case and regional competition will intensify. At the same time, since the contradiction between fewer judges and more cases in primary and intermediate people’s courts will be more prominent, no court hearings in the second instance will become a norm, which requires lawyers to be more professional to meet the needs of judges to rule cases rapidly and accurately, with more refined oral presentation and more organized and persuasive written materials.

2021年，全球经济经历大考，对于诉讼市场而言，未来的发展环境和趋势均面临较大的不确定性。但危中有机，无论外部环境如何变化，法律行业专业化、精细化的发展道路不会变。我们相信，商事诉讼服务市场的蛋糕会持续增大，律师需要持续提高自己的专业服务能力，适应变化，与客户、与市场一同成长。

 

In 2021, the global economy underwent a major test while lawyers faced great uncertainty in the litigation market for the future development environment and trends. However, there are opportunities in crisis. No matter how the external environment changes, the delivery of professional and refined legal services is still the key to our development. We believe that the pie of the commercial litigation service market will continue to grow and will continuously improve our professional service capabilities, adapt to changes, and grow together with our clients and the market.

 

 

陈耀权

天同律师事务所合伙人、管理委员会委员

深圳办公室负责人

邮箱：chenyaoquan@tiantonglaw.com

工作地点：深圳

 

 

 

李谦

天同律师事务所合伙人

邮箱：liq@tiantonglaw.com

工作地点：深圳

 

 

 

汤友军

天同律师事务所律师

邮箱：tangyoujun@tiantonglaw.com

工作地点：深圳