About Mayer Brown

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2015. Information about the firm. About Mayer Brown. Leading global law firm offering local market knowledge combined with global reach. . 20 offices in key business . centers. worldwide. Unequalled global scope and scale enhanced by 2008 combination with Johnson Stokes & Master in Asia and 20.... ID: 237733 Download Presentation

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About Mayer Brown

2015. Information about the firm. About Mayer Brown. Leading global law firm offering local market knowledge combined with global reach. . 20 offices in key business . centers. worldwide. Unequalled global scope and scale enhanced by 2008 combination with Johnson Stokes & Master in Asia and 2009 association with .

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About Mayer Brown




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Slide1

About Mayer Brown

2015

Information about the firm

Slide2

About Mayer Brown

Leading global law firm offering local market knowledge combined with global reach. 20 offices in key business centers worldwideUnequalled global scope and scale enhanced by 2008 combination with Johnson Stokes & Master in Asia and 2009 association with Tauil & Chequer Advogados in Brazil Clients are the world’s largest companiesMost of the Fortune 100, FTSE 100, DAX and Hang Seng Index companies

2

Slide3

Our GeographiesSignificant Presence in Americas, Europe, Asia

3

Slide4

Dispute Resolution in China

Menachem Hasofer PartnerRaymond YangAssociateMayer Brown JSM+852 2843 2384 +852 2843 2295 Menachem.hasofer@mayerbrownjsm.com Raymond.Yang@mayerbrownjsm.com

29 April 2015

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe-Brussels LLP both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a

SELAS

established in France; Mayer Brown

JSM

, a Hong Kong partnership and its associated entities in Asia; and

Tauil

&

Chequer

Advogados

, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

Slide5

PART ONE

New

Developments on Arbitration in China

Slide6

1. Overview of China-related Arbitration

1.1 PRC-seated Arbitration

not

a Model Law jurisdiction

/

Arbitration Law 1994

Institutional Arbitration only (Article 16 )

Dual-track Regimes: Domestic vs. Foreign-related

Slide7

1. Overview of China-related Arbitration Cont.

1.2 Offshore/foreign arbitrationsAccede to NY Convention (1958) with two reservations Convention award vs. HK, Macau, Taiwan awardNon-domestic award?

7

Slide8

2. CIETAC Split – The Dust Settles Down?

2.1 History 1954: CIETAC (China International Economic and Trade Arbitration Commission)2012 : Shanghai (SHIAC) / Shenzhen (SCIA) split31.12. 2014: Shanghai / Shenzhen Sub-commission reorganized2.2 Attitude of Courts 2013: Notice of Supreme People’s CourtEarly 2015: latest judgments of Shanghai / Shenzhen Courts

8

Slide9

2. CIETAC Split – The Dust Settles Down? Cont.

9

2.3 Current Status “Renamed” Sub-commissions – SHIAC / SCIA “Reorganized” Sub-commissions – Shanghai / South China (Shenzhen) 2.4 Recommendation Disputes pending arbitration – refer to the renamed Sub-commissions Existing contracts / new contracts - avoid simply designating “CIETAC Shanghai / Beijing Subcommison” - specify the exact name of the “renamed/reorganized” institution

-avoid simply designating “CIETAC Shanghai / Beijing

Sub-

commissions

-specify the exact name of the “renamed/reorganized” institution

Slide10

Anhui Longlide Packing and printing Co., Ltd v BP Agnati S.R.L Arbitration clause providing ICC arbitration and "the place of jurisdiction shall be Shanghai, China", held valid Enforcement of non-domestic award

10

3. Foreign Arbitration Institutions in China – Longlide Case

4. Offshore arbitration for domestic disputes – Beijing (Chaolaixinsheng) case

A contract between a PRC company and a Foreign-invested company, providing disputes shall be referred to "

arbitration at the Korean Commercial Arbitration Board (

KCAB

) in Seoul

" – held

invalid

Echoes the traditional position of

SPC

, yet arguably a flawed decision

Slide11

5. Hybrid Arbitration Clauses – Invista Case

Arbitration shall take place at CIETAC under the

UNCITRAL

Rules

CIETAC Rules allows hybrid clause

Held, a valid clause

Slide12

PART TWO

Civil Litigation

in the PRC

Slide13

Introduction

Chinese culture and its influence on

China-related dispute resolution

 

Slide14

1. Legal Systems of China

1.1 Civil law system1.2 Sources of law/hierarchy - Multilateral or bilateral treaties - Domestic Statutes Constitution National laws Administrative Regulations Departmental Rules Local Rules Case precedents? (SPC Interpretations + Guiding cases)

14

Slide15

1. Legal Systems of China cont.

1.3 Legal professions

National Bar Exam

Judiciary/

Procuratorate

/Lawyer/Notary Public

 

1.4 "One country, four jurisdictions"

Mainland/Macau/Taiwan

Hong Kong

Slide16

2. General Overview of Dispute Resolution in China

2.1 Negotiation enforceability of settlement agreements2.2 MediationTwo types: institution vs. court Enforceability  2.3 Arbitration PRC seated arbitrationOffshore arbitration

16

Slide17

2. General Overview of Dispute Resolution in China Cont.

2.4 litigationCourt Structure Source: www.thecourt.ca, by Jiahong Yang 

Slide18

2. General Overview of Dispute Resolution in China Cont.

2.5 Major legislations

PRC Civil Procedure Law

("

CPL

"), 01/01/2013

SPC

Judicial Interpretations on the CPL

("

SPC

Interpretations

"), 04/02/2015

Slide19

3. Litigation in China – When it becomes inevitable

3.1 Arbitration vs. Litigation: pros and cons

party-autonomy, flexible, confidentiality

world-wide enforcement

 

3.2 Where there is an arbitration agreement

 

Arbitration agreement held invalid/inoperative

Stringent test for a valid arbitration clause under PRC law (Article 16)

Subject matters not

arbitrable

 

Arbitration-related litigation

validity of arbitration agreement

setting aside award

refusal to enforce award

Slide20

3. Litigation in China – When it becomes inevitable Cont.

3.3 where there is no arbitration agreement

 

Exclusive jurisdiction of PRC court

real estate/properties

dispute arising from port operation

Inheritance disputes

Chinese-foreign joint ventures

Chinese-foreign joint ventures on natural resources

 

Non-Exclusive jurisdiction of PRC court

Forum shopping and parallel proceedings

Practical considerations

interim measures of foreign courts/tribunals not enforceable

tribunal of a PRC-seated arbitration has limited powers

complex transactions involving multi-parties/contracts

Slide21

4. Choice of Foreign Law

4.1 General principles

foreign-related civil relations

procedural law vs. substantive law

substantive law, excluding conflict of law rules

4.2 Exclusive application of PRC laws

Chinese-foreign joint ventures (Article 126 of

PRC Contract Law

)

Circumstances concerning public interests

4.3 Finding and application of foreign law

several ways to find the foreign law

PRC law applies in default

Slide22

5. Pre-action Consideration

5.1 Jurisdiction

competent courts

centralised jurisdiction

5.2 Limitation period

generally 2 years with exceptions

when starts to run afresh

 

5.3 Credit investigation

Slide23

5. Pre-action Consideration Cont.

5.4 Legal representation and assistance

PRC lawyer only?

legal representative vs. agent

ad

litem

5.5 Notarisation and legalisation

 

5.6 Pre-action

preservatory

measures

Injunctions

preservation of assets

Slide24

6. Key Stages and Issues through the Proceedings

6.1 Commencement of proceedings

filing and acceptance of complaints

payment of court fees

attempt mediation?

 

6.2 Exchange and service of court proceedings

filed by parties & served by court

service out of jurisdiction

Hague Convention

Supreme Court's Rules

Slide25

6. Key Stages and Issues through the Proceedings Cont.

6.3 Disclosure and inspection of evidence

duty to disclose

alternative ways to squeeze more evidence

privilege

electronic evidence

factual/expert witness statement

Slide26

6. Key Stages and Issues through the Proceedings Cont.

6.4 Interlocutory applications

injunctions

security for costs?

preliminary enforcement (interim payment)

6.5 Hearing

pre-trial review

inquisitorial vs. adversarial

oral testimony vs. documents only?

trial with jury?

adjudication committee

Slide27

6. Key Stages and Issues through the Proceedings Cont.

6.6 Judgment

summary judgment/default judgment

reasoned decisions?

substantive remedies

6.7 Costs

court's fees vs. parties' costs

allocation of costs

insurance/third-party funding

Slide28

6. Key Stages and Issues through the Proceedings Cont.

6.8 Appeal

time limit

suspension of enforcement

6.9 Trial supervisory procedure

time limit

suspension of enforcement?

6.10 Enforcement of court judgments

time limit

methods of enforcement

freezing order, seizure, and order for sale

fine, detention, arrest for refusal to pay

prevention order/ prohibiting luxury consumptions

Slide29

7. Recent Judiciary Reform

7.1 Transparency of court proceedings

Open court

Party's access to information

Publication of judgments

Publicity of judgment debtors

 

Slide30

7. Recent Judiciary Reform Cont.

7.2 Judiciary reforms

Selection of elite judges

Specialised IP court

Circuit courts

Slide31

8. Judicial Assistance in aid of Foreign Proceedings (Indian Arbitration / litigation)

8.1 Service of proceedings

8.2 Taking of evidence

8.3 Interim orders

8.4 Enforcement of foreign judgements

8.5 Advantages of HK as the forum

Slide32

Disclaimer

These materials are provided by Mayer Brown JSM

and

reflect information as of

31 March 2015

The contents are intended to provide a general guide to the subject matter only and should not be treated as a substitute for specific advice concerning individual

situations

You may not copy or modify the materials or use them for any commercial purpose without our express prior written

permission

Slide33

Q & A

Thank You

Slide34

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe-Brussels LLP both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a

SELAS

established in France; Mayer Brown

JSM

, a Hong Kong partnership and its associated entities in Asia; and

Tauil

&

Chequer

Advogados

, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

Slide35

Trends in international litigation

2015

Litigation funding

Slide36

Litigation Funding (1)

Why do it?

Claimant, funder (maybe law firm too), share risk

Certainty of legal budget

Take cost off balance sheet

May allow more claims to be funded

Funder as a “sense check”

Slide37

Litigation Funding (2)

Legal restrictions

Maintenance and

champerty

Control is key element

Association of litigation funders

Code of Conduct

Adequacy requirements

Practical aspects

Minimum claim value

Prospects of success

Enforcement is key

Use as part of a “cocktail” – CFA,

DBA

, ATE

Slide38

Litigation Funding (3)

Potential scope

Litigation and arbitration

Developed industry in many countries

Growing in international arbitration

Investment disputes

Warning note

Excalibur Ventures LLC v. Texas Keystone Inc. & Ors.

Funders held liable for costs