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China Law Expert Opinion Provided By China Lawyer

In law, an opinion (also consilia) is usually a written explanation by a judge or group of judges that accompanies an order or ruling in a case, laying out the rationale and legal principles for the ruling. As China practicing lawyer for more than 10 years, we provide China law legal opinion on various China law issues for foreign lawyers, foreign courts and arbitration tribunals. We also call it China law expert opinion.

Nature and Scope of China Law Expert Opinion

Opinions are usually published at the direction of the court, and to the extent they contain pronouncements about what the law is and how it should be interpreted, they reinforce, change, establish, or overturn legal precedent. If a court decides that an opinion should be published, the opinion is included in a volume from a series of books called law reports (or reporters in the United States). Published opinions of courts are also collectively referred to as case law, which is one of the major sources of law in common law legal systems.

Legal opinions are commonly used in a variety of situations. For example, in the context of a cross-border transaction, a legal opinion may be used for the purpose of opining on whether certain transaction documentation is valid and enforceable in a particular jurisdiction and complies with the local law of that jurisdiction. In transactions involving multiple jurisdictions where the governing law of the documentation is English law, a combination of foreign and English law legal opinions may be required and in such circumstances the lawyers in the relevant jurisdictions will need to ensure that together the legal opinions opine on all relevant matters.

In finance transactions, a legal opinion may be required to satisfy certain conditions precedents in the transaction documents (either to enable the transaction to complete or to support a particular credit rating) and will usually be required by the lenders to give them reassurance that the legal effect of lending in the transaction concerned is what they expect it to be. Legal opinions are also used in connection with bond issues where the issuer's lawyers may need to provide a legal opinion to the managers of the bond issue for the purpose of providing comfort to the managers that the terms and conditions of the bonds do not contravene any laws.

Depending on the circumstances giving rise to the request for a legal opinion certain timing and related issues (which are set out below) will need to considered and dealt with early on to prevent any delays in issuing the opinion.

Practical Matters to Consider in Legal Opinion

Agreeing the text of opinion

This is particularly important in the context of a cross-border transaction where legal opinions may be required in several foreign jurisdictions. In such circumstances it will be important for the text of each form of opinion to be agreed amongst all the parties as early as possible in order prevent any delays occurring to completion of the transaction and to ensure all relevant matters are opined upon. Agreeing the text early allows the law firm preparing the opinion to ensure that the text is appropriate for the client’s purposes and to consider the scope of searches to be carried out.

Internal compliance procedures

Most international law firms will have an internal review procedure which will need to be complied with before an opinion by that firm will be released. It is not uncommon for at least two partners, not involved in the transaction or the project, to be required to review and approve the opinion before its release. The significance to a law firm in the context of an opinion is the extent to which documents may be relied upon by third parties, who are not client’s of the firm, and the liability issues (as set out above) that may arise if the opinion proves to be shown to be subsequently inaccurate and/or misleading. The liability issues to be considered by the law firm in such circumstances may be different those arising in the context of a client of the firm relying on the firm’s opinion.

Carrying out searches

All relevant searches and enquiries should be carried out as soon as the text of the opinion has been agreed. The company search should be updated on the date that the opinion is given.

Dating the opinion

If the opinion is to be issued for the purposes of a transaction, it should be dated the same date as the transaction documents in order to ensure that it reflects the law or the matter which has been opined upon as at the transaction date.

 
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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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This China Lawyer Blog is aiming at providing better knowledge and understanding of Chinese law for foreigners. Should you have any legal issue in China, do not hesitate to contact China Lawyer Blog for consultation. Preliminary consultation is free. Further legal service, however, will be charged in due rate and in due course.

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.