集体诉讼[1]是美国联邦民事诉讼规则中一个非常重要也富有争议的法律制度。在传统的民事诉讼程序中，法院审理的是一个原告和一个被告之间的争议。在集体诉讼中，集体代表代表全体集体成员向法院提起诉讼。集体代表之外的缺席集体成员不是传统意义上的诉讼当事人，他们不参与诉讼程序。无论判决对集体成员是否有利或者不利，集体诉讼判决将约束所有集体成员。
在美国，集体诉讼比民事诉讼的任何其它领域更受到法院、立法机构、学术界和实务界的关注。集体诉讼涉及生活中受到广泛关注的各种问题，这些问题涉及石棉诉讼、飞机失事、证券欺诈、反垄断、消费者权益保护、环境保护、种族歧视、性别歧视、就业歧视、输血、烟草、公民权利保护、员工福利、产品责任等方面。同时，集体诉讼比民事诉讼的任何其他领域更有争议。赞成者主张，集体诉讼是美国“二十世纪程序法最重要的发展之一”。法院应更多地使用集体诉讼，以达到改良社会目的，同时为那些在经济上无法起诉的受害者提供救济。反对者认为，除了使公司破产、律师发财、法院积压案件外，集体诉讼一无是处。
Continue Reading...By Meg Utterback and Holly Blackwell King & Wood's Dispute Resolution Group
The concept of US discovery is very alien to the uninitiated litigant and particularly foreign to Chinese parties, because the Chinese litigation process is far different. China proceedings are conducted much like other civil code jurisdictions, with the parties proffering only evidence that supports the claims or defenses. US discovery is intended to uncover both supporting and damaging evidence. US discovery rules provide litigants liberal access to information possessed by opponents, and even third parties, such as internal company emails, documents, records, and policies. Disclosure of requested information may be required, even though such disclosure would be prohibited under PRC law. The Hague Convention provides one avenue of obtaining evidence located in China, but US courts are not always willing to require the use of the Hague Convention procedures where a party has submitted to the jurisdiction of the US court. Recent US cases demonstrate the challenges of requiring discovery from Chinese parties and the challenges that Chinese parties face in US courts.
Continue Reading...By Liu Cheng and Linda Davinson King & Wood's Foreign Direct Investment (FDI) Group
A significant recent ruling from the U.S. Court of Appeals Federal Circuit temporarily concludes the U.S.-China tire wars in the case of GPX International Tire Corporation and Hebei Starbright Tire Co., Ltd et al v. United States et al. The U.S. Federal Court held that existing U.S. countervailing duty law cannot be applied to non-market economy (NME) countries including China, affirming the U.S. International Trade Court's decision but on different grounds.
Shortly thereafter, China's Ministry of Commerce (MOFCOM) highlighted the U.S. Federal Court's decision by issuing a statement to the United States to not impose countervailing duties on Chinese imports because to do so would violate the rules of the World Trade Organization and prevailing U.S. law.
Continue Reading...By Richard W. Wigley of King & Wood's Dispute Resolution Group
Data privacy for internet users is a topic of concern the world over, with the P.R.C. being no exception. Internet information service providers (hereinafter also referred to as "IISPs"), such as commercial websites, regularly collect information from online visitors, sometimes with full knowledge of the visitors and sometimes unknown to the visitors. In addition, IISPs have been known to maliciously introduce software incompatible with the user's existing software, install certain software such as "spyware" onto users' computers/mobile devices and/or change users' browser configurations without permission, and it goes without saying that "pop up ads" are an ongoing online annoyance. As online users in the P.R.C. look for protections from such unwanted invasions of their privacy and restrictions upon user control of their online experience, the recently released "Several Provisions on Regulating the Market Order for Internet Information Services" (hereinafter referred to as the "Provisions") provides needed rules and regulations in this regard.[1]
Continue Reading...By Richard W. Wigley and Xu Jing King & Wood's Dispute Resolution Group
The means available for effective enforcement of settlement agreements associated with litigation is an issue which is often raised by litigants in the P.R.C. Specifically, it is often asked, what is a party's recourse should the other party breach a private settlement agreement, but where the breach occurs after the Appeal in the litigation at issue has been withdrawn? As P.R.C. law is a civil law system based upon the statutory law, there is no equivalent to the case precedent system of common law countries, such as the United States, Australia, and the U.K. There is relevant statutory law as provided in the Civil Procedure Law of the P.R.C., but there exist certain legal issues which may require additional clarification beyond the statutory law. With this in mind, as per the Article 1 of the Supreme People's Court's Provisions on Case Guidance ("Provisions"), the Supreme People's Court does on occasion publish what it sees as "indicative" cases, where the decisions reached in the cases are deemed to be used as guidelines in relevant judicial review by the lower courts.[1]
Continue Reading...By Wu Wei and Su Shaohua King & Wood's Dispute Resolution Group
Under China's anti-bribery laws, the value of bribes in commercial bribery cases is calculated on a cumulative basis in the conviction and sentencing process. However, such calculations may yield varying results in practice. According to our experience, due to a lack of clarity in the law and various policy rationale for fighting corruption, cumulative calculations give rise to risks of criminal liability, whether seen as accepting or offering bribes.
A. Legislation
a. The second paragraph of Article 383 of the Criminal Law of the People's Republic of China(1) ("Criminal Law") provides:" Toward those who have committed repeated crimes of graft, all amounts of graft of unhandled cases are to be added in meting out punishment." Article 386 of Criminal Law provides:" whoever commits the crime of accepting bribes is to be punished on the basis of Article 383 of this law according to the amount of bribes and the circumstances. A heavier punishment shall be given where a bribe was specifically demanded."
Continue Reading...对贿赂犯罪定罪量刑时，行贿受贿数额在何种情形下会被累计计算，实务中的做法不统一。在司法实践经验中，由于法律规定不够明确、打击腐败的政策等原因， 无论是受贿还是行贿均存在被累计计算的法律风险。具体分析如下：
1、法律规定
（1）《中华人民共和国刑法》（1）（“《刑法》”）第三百八十三条第二款规定：“对多次贪污未经处理的，按照累计贪污数额处罚。”第三百八十六条规定：“对犯受贿罪的，根据受贿所得数额及情节，依照本法第三百八十三条的规定处罚。索贿的从重处罚。”
Continue Reading...by Cecilia Lou and Yao Di of King & Wood's Intellectual Property Group
It is not uncommon to receive unsolicited emails from domain registrars warning of imminent domain registrations by third parties. Generally, this email is a means by which some registrars solicit business in China. In many cases there is no actual third party attempting to register the domain in question.
When receiving such domain name emails we suggest that clients consider the following measures:
Continue Reading...By He Wei and Zeng Ying King & Wood's Dispute Resolution Group
This article continues to discuss Extra-judicial Mediation System and Practice. The first part of this article was published on Chinalawinsight on October 2011.
Compared with mediation during arbitration or litigation, extra-judicial mediation can offer a more amicable way for the solving of disputes and avoid many of the disadvantages of "judicial mediation".
In judicial mediation judges and arbitrators primarily rely on rigid laws and regulations to guide the mediation process whereas the regulations applicable to extra-judicial mediation are more flexible. Article 17 of the Several Provisions provides that "in the mediation of cases, relevant organizations may, without violating the mandatory provisions of laws and administrative regulations, guide the parties to reach settlement agreements by referring to industrial practices, village regulations, community conventions, local good customs and other codes of conduct."
Continue Reading...本文分两部分刊登， 2011年10月31日金杜法律博客(Chinalawinsight)刊登的了本文的第一部分。文章第二部分将继续对《非司法体系下的调解制度及实践》进行解读。
非司法体系下的调解相对于诉讼和仲裁中的调解更有利于帮助当事人握手言和、消除纷争，同时也可以克服法院调解和仲裁调解的弊端，体现出自身独特的优势。
首先，在适用法律的问题上，仲裁和法院的调解中，法官和仲裁员作为法律专业人士，仍然多以刚性的法律法规为依据，引导当事人解决纠纷。而在非司法体系下的调解中，适用的规则就更加灵活。最高人民法院《若干意见》第17条规定：“有关组织调解案件时，在不违反法律、行政法规强制性规定的前提下，可以参考行业惯例、村规民约、社区公约和当地善良风俗等行为规范，引导当事人达成调解协议。”
Continue Reading...By He Wei and Zeng Ying King & Wood's Dispute Resolution Group
Mediation in China can be divided into three categories: mediation supervised by the people's court, mediation supervised by an arbitral tribunal and mediation without the supervision of a court or arbitral tribunal. The first two categories of mediation share many similarities. Both of them are conducted by particular institutions in accordance with statutory proceedings, and the settlement agreements reached have the same binding force as judicial judgments. These two categories of mediation, because of their "quasi-judicial" nature, are usually collectively referred to as "judicial mediation". Usually such bodies are decision making—and a mediation must give only the parties control over decisions.
Besides judicial mediation there are many other forms of mediation, which also help resolve disputes and lift the heavy caseload of the courts and arbitration institutions. These forms of mediation can be collectively described as "extra-judicial mediation". Extra-judicial mediation, which provides parties with more alternative dispute resolution mechanisms, plays a very important role in today's fast-growing economy.
Continue Reading...我国目前的调解制度主要包括法院调解、仲裁调解、以及法院和仲裁调解之外的其他调解。法院调解与仲裁调解有很多共同之处，他们均依托于规范的机构和严格的程序，其调解协议具有充分的法律效力，加之仲裁在一定程度上具有“准司法”的性质，两者往往可以合称为“司法体系下的调解”。与之相对，法院和仲裁程序之外还存在着很多其他形式的调解，有效解决了大量的纠纷，大大减轻了诉讼和仲裁的压力，可以统称为“非司法体系下的调解”。非司法体系下的调解在利益多元化的今天提供了多元化的纠纷解决机制，在社会生活中发挥了非常重要的作用。
非司法体系下的调解制度在我国由来已久，并且在实践中被广泛应用。它既包括在专门调解机构的主持下进行的调解，也包括没有调解机构参与的调解。处理的争议既可以是民事的，商事的，也可以是行政的。非司法体系下的调解包括以下几大特征：第一，自愿性。当事人将自己的争议交由自己选择的第三方处理，而且纠纷的范围和内容均是当事人可以自行处分的。调解员必须始终尊重当事人的意志，不得有任何的勉强和强迫。第二， 独立性。非司法体系下的调解独立存在，不附属于任何其他程序。第三，调解的结果没有强制执行力。第四，调解的结果不影响当事人以其他公力救济的方式寻求争端解决。
Continue Reading...金杜律师事务所破产、重组和清算组
司法实践中，在债务人破产（包括破产清算、重整与和解，下同）程序中，管理人常常会遇到债权人的债权人向相关法院提出申请，要求执行债权人在债务人破产程序中可获得的分配权益。具体的做法是：
债务人破产程序中，在受理破产案件的法院裁定确认各家债权人的债权之后，债权人的债权人申请法院（该法院不一定是受理破产案件的法院），对债权人在债务人破产程序中可受偿的权益予以执行；受理执行案件的法院则根据债权人的债权人之申请，出具民事裁定书，向债务人破产程序中的管理人发出协助执行通知，要求冻结债权人在债务人破产程序中的可分配权益，并要求管理人在对债权人进行分配时，将应当分配给债权人的资产的全部或者一部分，直接支付给提出执行申请的债权人的债权人，或是直接支付至受理执行案件的法院，再由受理执行案件的法院转给提出申请的债权人的债权人。
Continue Reading...金杜律师事务所破产、重组和清算组
中国证监会于2011年1月发布了5个并购重组法律适用意见，内容包括上市公司严重财务困难认定、要约豁免申请条款选用、二级市场收购的完成时点、拟购买资产存在资金占用问题、上市公司在12个月内连续购买、出售同一或者相关资产的有关比例计算等。
中国证监会有关部门负责人表示，这些法律适用意见就市场参与主体对《上市公司收购管理办法》、《上市公司重大资产重组管理办法》有关法律理解上可能存在不一致的问题加以明确，并以证监会公告的形式对外发布，体现其严肃性和法律效力。
Continue Reading...金杜律师事务所破产、重组和清算组
公司在进入重整程序之前处于正常运转状态，重整前的公司治理结构属于《公司法》上通常意义的公司治理结构。公司治理结构中包括几种关系：股东大会与董事会之间的信托关系；董事会和经理人员之间的委托代理关系；监事会与董事会和经理人员之间的监督与被监督关系。重整前的公司治理结构与重整中的治理结构存在较为明显的区别，主要特点是：1、公司最终控制权归属股东；2、股东利益至上；3、公司意思自治不受外界干预；债权人被排除在治理结构之外。
by Cecilia Lou and Vincent Yu of King & Wood's Interllectual Property Group
Service inventions created by employees ("Service Invention") are valuable intangible assets for employers, which makes it important to distinguish Service Invention from non-service invention. The Patent Law of the People's Republic of China ("PRC Patent Law")(1)provides a rudimentary definition of Service Invention leaving many questions unanswered, such as what is the definition of "employee" for purposes of defining Service Invention, and what "tasks of the Entity" should include. Due to those uncertainties, many disputes arise as to the ownership of the right to patent inventions. This article summarizes the requirements and burden of proofs of Service Invention by analyzing actual cases, followed by a comprehensive strategy to avoid those disputes from the perspective of an employer.
Continue Reading...By Meg Utterback and Holly Blackwell of King & Wood's Dispute Resolution Group
Whether you are building a manufacturing plant, a petrochemical plant or just fitting out an office, local rules and local authorities can play a significant role in your project. Local regulations and practice varies widely, from designer and contractor qualifications to requirements for building completion. Finding the right contractors for design and construction can make the difference in completing on time and on budget.
Here are some tips to avoid common pitfalls:
Continue Reading...自2002年最高人民法院颁布关于审理证券市场虚假陈述民事赔偿纠纷的司法解释(1)后，中国证监会的行政处罚决定或者人民法院的刑事判决一旦认定上市公司构成虚假陈述，往往引发大批投资者对上市公司提起民事赔偿诉讼。但如果上市公司应对得当，并非必然赔偿投资者的投资损失。近日，中电广通股份有限公司（“中电广通”）应对股民提起的证券虚假陈述民事赔偿案(2)，法院最终判决驳回股民全部赔偿请求。
Continue Reading...By Zhang Baosheng and Zhou Wei of King & Wood's Dispute Resolution Group
Since the Supreme People's Court released interpretations regarding civil liability arising from false statements in securities markets in 2002, (1) a large number of investors have filed lawsuits against listed companies as soon as an administrative penalty decision is issued by China Securities Regulatory Commission ("CSRC"), or a criminal conviction is confirmed by the People's Court for false statements. Under such circumstances, should the listed companies successfully utilize correct legal tactics, they do not necessarily have to bear the burden of civil compensation to the investors. In a recent case, Liu vs. CEC CoreCast Corporation Limited., the People's Court dismissed all claims filed by the investor for compensation on the grounds of false statements against CEC CoreCast Corporation Limited.(2 )
Continue Reading...由于对中国司法制度和仲裁制度的陌生或偏见，外国公司在订立合同时对争议解决条款的关注大大高于其它条款。而在争议解决条款中，它们最为关心的问题之一则是仲裁机构和仲裁规则的选择。在决定选择恰当的仲裁机构及仲裁规则前，外国公司应考虑下列法律问题。
Continue Reading...By Huang Tao and Dai Yue of King & Wood's Dispute Resolution Group
Lacking knowledge of and exposure to China's judicial and arbitrational system, foreign companies usually worry about dispute resolution clauses more than any other clause in a contract. Deciding which arbitration tribunal and what arbitration rules to specify becomes a sensitive and important aspect of contract negotiations for wholly foreign owned entities ("WOFE") and cooperative joint ventures ("CJV").
Continue Reading...
...but level of enforcement is still considered inadequate by anti-corruption watchdog Transparency International
A month after Transparency International (“TI”) published its 2010 annual progress report on enforcement of the OECD Anti-Bribery Convention, the Australian Federal Police have charged two Reserve Bank of Australia subsidiaries, Securency and Note Printing Australia, with offences under the Criminal Code Amendment Act: Bribery of Foreign Public Officials.
Continue Reading...2005年修订的《中华人民共和国公司法》（1）（下称“《公司法》”），对我国公司法律制度作出较大调整和完善，增加了公司纠纷的可诉性。但由于《公司法》的一些规定过于概括性、原则性甚至宣示性，司法实践中对公司诉讼案件同案不同判的现象比较常见。为解决《公司法》理解和适用的统一问题，指导司法实践和公司相关主体的商事活动，最高人民法院此前先后对《公司法》做出两个司法解释（2），重点明确《公司法》适用的一些基本原则和公司解散、清算问题。2011年2月16日，最高人民法院颁布《关于适用<中华人民共和国公司法>若干问题的规定（三）》(下称“司法解释（三）”)，对公司成立前债务承担、出资和股权确认等实践中争议较大的问题作出解释。本文试从实务角度对司法解释（三）进行解读。
Continue Reading...By Zhang Baosheng, a partner of King & Wood's Dispute Resolution Group
In 2005, China amended its Company Law(1)and made substantial adjustments to the State's company law system and strengthened the justiciability of company related disputes. However, some provisions of the amended Company Law are overly general, conceptual and declaratory, and as a result it is not uncommon to find disparate outcomes in similarly situated cases. In order to ensure uniform understanding and application of the Company Law and provide guidance for judicial practice and commercial activities, the Supreme People's Court (the "Supreme Court") issued two judicial interpretations of the Company Law(2), mainly clarifying certain fundamental principles of applying the Company Law and specific matters like dissolution and liquidation of companies.
Continue Reading...By Jeff Lane of King & Wood's Dispute Resolution Group
"Combating bribery is about common sense …….." - UK Lord Chancellor, Kenneth Clarke
On 1st July, 2011, the long awaited Bribery Act will come into force. The Act, together with its Guidance Notes represents a major overhaul of the UK's anti bribery legislation and creates one of the most comprehensive anti-corruption regimes anywhere in the world.
Continue Reading...By Richard W. Wigley and Xu Jing of King & Wood's Intellectual Property Group
Among the most frequent questions posed by overseas corporate counsel overseeing litigation involving their companies in P.R.C. courts are those questions relating to evidence collection. For the attorneys from the United States, those questions will often focus upon the "discovery" practices of P.R.C. courts. As they come from a litigation environment which often has liberal discovery options, it often comes as a surprise to foreign attorneys – especially U.S. attorneys - that the P.R.C. legal system has no direct equivalent to U.S.-style discovery practices. Collecting the required evidence in support of litigation in the P.R.C. is subject to very different guidelines from those guidelines of many foreign jurisdictions. This article will take a very brief look at evidence collection practices in the P.R.C. and offer some potential alternatives in the P.R.C. to "discovery" practices.
Continue Reading...By Ariel Ye, James Rowland and Richard Wigley of King & Wood 's Dispute Resolution Group and Intectual Property Group
Introduction
By asserting rights which Motorola and Nokia Siemens Networks undoubtedly consider legitimate, and relevant to the protection of their interests in the wireless infrastructure market, Huawei has taken a meaningful step towards the successful resolution of its differences with Motorola over the sale of its wireless network assets to one of Huawei's competitors. If Huawei had not taken this step before the US Federal District Court, then Huawei and Motorola may have spent years in private commercial arbitration of this issue, achieving no meaningful outcome.
Continue Reading...简介
虽然在摩托罗拉和诺基亚西门子网络有限公司（下称“NSN”）看来，华为所主张的权利应是他们的合法权利，并且事关两者对基础无线网络领域利益的保护，但是华为采取的这种方式，是解决其与摩托罗拉之间关于向NSN（华为的竞争对手）转让无线网络资产的分歧的有效步骤。倘若华为不向美国联邦地区法院提起申请的话，华为和摩托罗拉可能要为此在保密的商业仲裁程序上耗费几年时间，并且毫无结果。
Continue Reading...By Ariel Ye and James Rowland
On 29 December 2010 the Information Office of the State Council (China's cabinet) published a report detailing China's past and present anti-corruption efforts (the "White Paper").1 This has been followed in quick succession by the publication of a report including the key facts and figures relating to China's anti-corruption efforts in 2010 and a public statement by President Hu Jintao in his address to the Central Commission for Discipline Inspection that the Chinese government will wage a more forceful fight against corruption in future and that "More efforts should be made to investigate graft in key industries and key posts".2
Continue Reading...2010年12月29日，国务院新闻办公室发布了一份详细介绍中国过去及目前反腐败建设的报告（以下称“白皮书”）1。 中国政府之前发布了关于2010年反腐败建设主要事实和数据的报告。此外，国家主席胡锦涛在中央纪律检查委员会全体会议上的公开讲话中表示，中国政府将会采取更强有力的措施遏制腐败，并且“应该加大对重要行业中贪污和重要职位贪污的调查”2 。在此基础上，中国政府发布了白皮书。
Continue Reading...1. 介绍
英国《2010年反腐败法案》（c.23）（以下称“《法案》”）于2010年4月8日获得御准并将于2011年4月生效。[1]
《法案》规定的两项一般性罪名取代了普通法项下以及之前英国成文法项下的腐败相关罪名[2]（这些法律规定因缺乏明晰性并且使用术语不一致而广受诟病[3]）。第一项罪名包括在诱导或者酬谢不当行为的意图下提供、许诺或者给予好处[4]（行贿罪），第二项罪名涉及要求、同意接受或者接受不正当的好处或者不当行为的引诱或酬谢[5]（受贿罪）。《法案》同时创设了一项独立的罪名——贿赂外国公职人员罪以及另一项新的罪名，即商业机构未能预防贿赂罪。[6]《法案》确保反贿赂法律平等适用于任职于公共机构以及被选出的私人机构的人员的贿赂行为，且不在两者间存在任何歧视待遇。[7]
Continue Reading...By: Ariel Ye and James Rowland
I. Introduction
The UK Bribery Act 2010 (c.23) (the “Act”) received royal assent on 8 April 2010 and will come into force in April 2011.[1]
The Act replaces the offences of bribery at common law and under earlier UK statutes[2] (which received much criticism for their lack of clarity and use of inconsistent terminology[3]) with two general offences. The first covers the offering, promising or giving of an advantage with an intention to induce or reward improper conduct [4] (active bribery) and the second deals with the requesting, agreeing to receive or accepting of an advantage that is improper or is an inducement or reward for improper conduct[5] (passive bribery). The Act also creates a discrete offence of bribery of a foreign public official and a new offence where a commercial organization fails to prevent bribery.[6] The Act ensures that the law against bribery applies equally to the bribery of persons exercising public and selected private functions without discriminating between the two.[7]
Continue Reading...By Meg Utterback and Ding Liang of King & Wood's Cross border dispute resolution Practice
As the United States mid-term elections draw near, we can expect greater protectionist measures from the US government in an effort to appease voters who are demanding an improvement in the US unemployment statistics. One such protectionist measure is the initiation of the recent 301 investigation relating to allegations that the Chinese clean technology and renewable energy sectors are being unfairly advantaged by government subsidies. Almost all countries are subsidizing the renewable sector in one form or another in hopes of easing the world’s dependence on fossil fuels. It seems however that the US has taken umbrage with the extent of Chinese programs supporting the clean technology and renewable energy industries.
Continue Reading...不管是诉诸法院或通过仲裁，大部分案件都能达成和解。从纠纷出现到最终裁决，当事人会权衡各种因素，并在过程中不断进行成本效益分析。一般来说，原则和先例等问题可能会阻碍争议的解决。如果违反内部原则（如“无责任即拒付款，甚至名义付款”），或开创不好的先例（如为被解雇员工支付超出法定要求的赔偿金），当事人不会考虑和解。另一个主要因素通常是市场和业务战略。多年来，许多中国当事人对发展国外业务没有兴趣，所以他们选择不参与海外仲裁。此外，诉讼成本也必须被充分考虑到。在现今的全球化经济环境下，企业可能会面对来自多个司法管辖区（如英属维京群岛、香港及中华人民共和国）、牵涉类似事实和有关当事人的诉讼。由于涉及多个司法管辖区的诉讼费用高昂，这类情况促使当事人更愿意达成和解。本文旨在提供一些实务技巧，供大家在仲裁之前及仲裁期间寻求和解作为参考。
Continue Reading...By Meg Utterback, Ariel Ye and James Rowland of King & Wood's Cross Border Dispute Resolution Practice
The majority of cases, whether in court or arbitration, are settled. Parties weigh a variety of factors from the start of the dispute to award, constantly performing a cost benefit analysis. Generally speaking, issues such as principle and precedent often preclude a settlement. Parties will refuse to consider a good settlement if it violates an internal principle, e.g. no payment, even nominal, in the absence of liability; Continue Reading...
陈希佳、 罗千里
自2008年5月“马先生”在台湾地区开始执政以来，两岸关系日趋密切。首先，2008年6月举行第一次陈江会谈，议定两岸周末包机与大陆地区居民赴台旅游事宜；随后，2008年11月，第二次陈江会谈签署了两岸空运、海运、邮政及食品安全等四大协议；2009年4月，第三次陈江会谈除了签署《海峡两岸共同打击犯罪及司法互助协议》、《海峡两岸金融合作协议》及《海峡两岸空运补充协议》等三项协议外，最重要的是两岸达成“共同推动陆资来台投资”的共识，台湾地区也因此开始修订与实施一系列关于陆资来台的“法令”。
By Ariel Ye, Partner, Dispute Resolution, King & Wood Beijing *
In a recent session held May 29, 2010, the International Bar Association (the “IBA”) Council approved the 2010 revision to the IBA Rules on the Taking of Evidence in International Arbitration (the “Rules”).
Continue Reading...By Ariel Ye and James Rowland, King & Wood's Cross Border Litigation & Arbitration Group
Many foreign business operators report that they are concerned about the risks associated with entertaining their business partners in China, even when providing meals or offering to pay for travel and accommodation costs of a low value.
By Guan Feng and Wu Sijie, King & Wood's Litigation & Arbitration Group
In 2008, a financial derivatives dispute arose between a foreign-funded bank (the "Bank") and a local Chinese company (the "Company"). Although both parties executed certain documents to conclude the transaction, due to adverse changes in the international financial environment, the Company denied that the parties had entered into any contract regarding the derivative transaction and refused to perform. As a result, the Bank initiated a lawsuit against the Company to seek damages.
King & Wood's IP Legal Group in Beijing
The Domain Name Dispute Settlement Center of CIETAC was established in December, 2000, and began operation on July, 2005, as the Internet Disputes Settlement Center. This Center accepts cases including cybersquatting of domain names (disputes on Chinese domain names, e.g. ".cn", and top-level general domain name, e.g.".com"), cybersquatting of general websites, wireless websites, text message websites, etc.
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By Xu Jing, Partner at King & Wood's Intellectual Property Group
Malicious litigation is broadly thought to be using a legal right to litigate to protect an interest when no substantive right has been violated. Currently, Chinese law does not provide any specific provisions on how to determine whether a party has abused its right to litigate, nor does the law define the concept of malicious litigation. Moreover, Chinese law does not provide specific remedies for a victim of malicious litigation to repair the damages suffered from a malicious litigation.
Continue Reading...Chinese outbound investment has grown rapidly in the last few years, particularly in the energy, mining, banking, IT and creative industries. On August 18, 2009 China Petroleum & Chemical Corporation (Sinopec) announced the USD 7.2 billion acquisition of the Swiss Addax Petroleum Corporation. This was the largest international acquisition by a Chinese company to date. Additionally, CNPC has made several large international acquisitions - for example, in May, 2009, CNPC acquired a 45% stake in Singapore Petroleum for USD 1.2 billion while companies such as China Minmetals, China Nonferrous Metals, Baosteel, and ICBC have also made significant outbound investments recently. With the increasing internationalization of Chinese companies, commercial disputes are almost inevitable. In our experience, when dealing with international arbitration and litigation proceedings, we see Chinese companies employing a number of different strategies:
By King & Wood's Cross Border Dispute Resolution team
Continue Reading...Apart from judgments dealing with divorce and custodial issues, only a small number of published cases have been identified involving attempts to enforce monetary judgments entered in China in U.S. courts. A recent decision from the Central District of California is a landmark in the recognition of Chinese decisions.
By Ge Yan, Partner, Cross Border Dispute Resolution
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A Chinese company's top executive is usually the company's legal representative, and he or she is legally entrusted with the company seal, which is the company's official symbol. The company seal provides the legal capacity to make and execute agreements, provide guarantees, transfer assets, and legally bind the company. When a legal representative is replaced, the displaced legal representative must return the company seal to the company so that the new legal representative can represent the company. However, if the displaced legal representative refuses to return the seal, the company could be liable for all the agreements that the former legal representative binds the company to. In other words, even if the articles of association can be used to remove an executive it does not necessarily mean that the foreign investors have been able to regain control of the company in practice. Therefore, retrieving the terminated legal representative's unlawfully held company seal is an important step toward the foreign investors recapturing control of the company.
By Zhang Shouzhi, Xu Xiaodan and Li Xiang, King & Wood's Cross-Border Dispute Resolution Practice, Beijing
Continue Reading...With the increased popularity of the Internet, web-based information is frequently used as evidence in judicial proceedings in China. In most cases, the web-based information is stored inside a web server in the form of electronic data. When submitted to a Chinese court as evidence, the web-based information must be downloaded in the presence of a notary public in order to verify its authenticity.
By Xu Jing, Partner at King & Wood
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From 2003-2007, over US$100 billion poured into China via offshore structures in tax havens like the Cayman Islands. Much came from global institutional investors who tasked alternative investment managers with allocating a percentage of their portfolios to high-yield opportunity funds, emerging markets and real estate.
Everyone wanted a piece of the “China Dream,” but in recent months they have woken up to deteriorating economic conditions. Institutional investors are forcing redemptions of their investments from high-yield, high-risk markets.
Jack Rodman, Senior Advisor to King & Wood\'s International Debt/Restructuring Practice
Summarized from Mr. Rodman's article for China Economic Review, May 2009.
Continue Reading...Often, when Chinese lawyers deal with foreign-related cases they see the term "attorney-client privilege" in the foreign lawyer issued legal opinions and memorandums. Furthermore, many foreign lawyers would like to know if their communication with the Chinese lawyers they work with is provided the same amount of protection as their communication with their clients.
Black's Law Dictionary defines attorney-client privilege as a client's right to refuse to disclose, and to prevent anyone else from disclosing, confidential communications between him or her and his or her attorney. This privilege prevents attorneys from disclosing their communications with their clients. Furthermore, this protection prevents any other party, including, the attorney from using any information that could be considered "attorney-client privilege" as evidence in a litigation. However, there are exceptions. For example, an attorney has a duty to disclose privileged information if the disclosure is related to criminal activities. The attorney-client privilege was established to encourage honest communication between an attorney and his or her clients. This opportunity for honest communication will reduce the chance that a client will intentionally or unintentionally engage in an illegal activity due to ineffective communication with his or her attorney.
Gui Hongxia and Li Xiang of King & Wood's Dispute Resolution Group
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On Monday 23 February 2009, the Tribunal de Grande Instance of Paris in France heard an urgent application by a team of Chinese lawyers for an injunction to prevent the auction by Christie’s of two controversial ancient Chinese relics. It was not in dispute that the two bronze sculptures, one of a rat’s head and another of a rabbit’s head, had been looted by Anglo-French troops from the Old Summer Palace in Beijing during the Second Opium War in 1860 and had until recently been part of the collection of the late Yves Saint Laurent. The Tribunal nevertheless rejected the application. Subsequently, on Wednesday 25 February 2009, the sculptures were auctioned off for 14 million euros each to then-anonymous telephone bidders. The controversy is ongoing.
This incident demonstrates the legal difficulties faced by China generally in the retrieval of similarly looted, stolen or otherwise illicitly exported cultural artifacts from abroad. At present, China adopts the following three approaches in respect of such items:
1. repurchasing the items;
2. seeking the return of the items as gifts;
3. seeking the return of the items through diplomatic maneuvers or through the efforts of non-governmental organizations.
This appears to be the first time that China has attempted to seek repatriation of looted cultural property by means of litigation.
Ariel Ye, Dong Ping, and Yang Weiguo of King & Wood's Cross-border Dispute Resolution Practice
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By: Liu Yanling, Partner and head of King & Wood's Bankruptcy, Restructuring & Insolvency Practice
Stellar Megaunion Corporation ("SMC") was in serious debt, as it could barely repay its liabilities. New World China Land ("NWCL"), which was seeking an opportunity to go public, proposed to acquire SMC as a shell company which has no assets, but is publicly listed. To achieve this goal, NWCL conducted several rounds of negotiations with SMC's creditors to settle SMC's debts and clear the roadblocks for the acquisition. However, the parties were unable to make much progress in the negotiations due to the large number of SMC's creditors involved. As SMC needed to solve its debt crisis as soon as possible and its negotiations with NWCL were deadlocked, the company decided to reorganize to completely release itself from the heavy debt burdens in a short period time.
A. Reorganization initiated by SMC's creditors
As SMC failed to repay it debts due, a third party creditor petitioned the proper Intermediate People's Court (the "Court") to reorganize SMC. The Court accepted the petition on March 11, 2008 ([2008] Yusanzhongbozi No.1).
SMC's Reorganization
B. Confirmation of Creditors' Rights
According to the proposed reorganization plan the administrator of SMC (the "Administrator") submitted to the Court and the first SMC creditors' meeting, 70 creditors filed claims and the total value of confirmed claims was nearly RMB 2.5 billion. [continue reading to find out the outcome]
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On May 26, 2008, the China Trademark Review and Adjudication Board (“TRAB”) of the State Administration for Industry and Commerce (SAIC) made a decision in favor of Changyu Winery Group, upholding its exclusive use of the mark “cabernet” in Chinese （“解百纳”） as a registered trademark. The decision further found that Changyu established “解百纳” as one of its trademarks through its use and did not consider “解百纳” the generic name for these cabernet grape varieties. This means other wineries such as China Great Wall Winery, Dynasty Fine Wines Group Limited and Yantai Weilong Grape Wine Co. are prohibited from using the mark “解百纳", which may certainly cause damage to these wine makers in marketing their products.
This dispute mainly focuses on the following two issues:
1. Whether “解百纳” directly indicates the main raw materials and the characteristics of the products and accordingly should be considered a generic term for certain wine products;
2. Whether Changyu obtained the characters “解百纳” through its long term use.
Ting Xu, Associate, Trademark Department
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Finally, it seems that the first light of dawn in a quieter world has been shown to people who have been continuously bombarded by anonymous messages or phone calls via mobile and other communication channels for private tutoring, apartment sales, and insurance.
On the 25th of August 2008, the 4th Conference of the Standing Committee of the 11th National People’s Congress (NPC) deliberated on The 7th Amendment to the PRC Criminal Law (draft). The Draft is the first time a proposal for providing protection of personal information by imposing criminal charges for violations on such information was put forward. This has raised broad public attention at all levels.
Li Yongmei, associate, Domestic Dispute Resolution
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作者：刘军 金杜律师事务所 广州分所 国内诉讼部
2008年3月30日，最高法院公布调整各高级法院和中级法院管辖第一审民商事案件标准，主要从案件标的额方面大幅提高了高级法院和中级法院受理一审民商事案件的门槛，新标准自2008年4月1日起施行。
此次调整将大大减少各高级法院受理一审案件以及最高法院受理二审案件的数量，但同时会导致基层法院受理一审案件数量的激增，相应地中级法院二审案件的办案压力也会一定程度的增大。可以说，新标准的实施后，绝大部分民商事案件的一审、二审工作将由基层法院和中级法院承担。
Continue Reading...Liu Jun, King & Wood's Guangzhou Office,Domestic Dispute Resolution Practice
On March 30, 2008, a notice was issued by the Supreme People’s Court adjusting the standards for jurisdiction of the high people’s courts and the intermediate people’s courts.The adjustment will reduce dramatically the number of first instance cases tried by the high people's courts and the Supreme People's Court, however, it will lead to a huge burden on the basic people’s courts and accordingly the intermediate people’s courts will also see their caseloads increase for cases of second instance. In other words, after the implementation of the new standard, most civil and commercial cases of first and second instance will be charged to the basic and the intermediate people’s courts.The new standard came into force from April 1, 2008...
Continue Reading...As of August 1st,
By Xu Xiaodan, King & Wood's International Litigation & Arbitration Group
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The “Law of the People’s Republic of China on Mediation and Arbitration of Labor Disputes” (“the New Law”) came into force on May 1, 2008. This promulgation has introduced many innovative concepts to Chinese law. The most notable change was the extension of the statutory period for filing arbitration applications in labor disputes.
By Xu Xiaodan, King & Wood's International Litigation & Arbitration Group.
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Successfully handling rejection reviews, based on a prior similar mark, in the past has proven difficult. Rather than simply giving up registration of an important trademark, recent China Trademark Review and Adjudication Board (TRAB) decisions indicate that an effective alternative for applicants is trying to reach a co-existence agreement with the owner of the cited mark. If there is a slight difference between the preliminarily rejected trademark and the cited mark, and the marks do not cover identical goods or services, a co-existence agreement could become “a must” for overcoming a preliminary official rejection.
Recently we received a favorable decision for a client from the TRAB on a trademark rejection review. Since the rejected trademark and the cited mark differed only in one of ten letters and the two marks also covered similar goods, we expected the board to reaffirm the previous rejection based on Chinese trademark examination criteria. The obvious deciding factor resulting in a favorable review was the Co-existence Agreement entered into by our client with the owner of the cited mark. The co-existence agreement in essence consented to the registration and use of the trademark by our client in China.
Written by Zhu Fangjin, Associate, Trademark Group
By: Huang Tao, Partner and Dai Yue , an associate of King & Wood'sDispute Resolution Group in Beijing.
Lacking knowledge of and exposure to China's judicial and arbitrational system, foreign companies usually worry about dispute resolution clauses more than any other clause in a contract. Deciding which arbitration tribunal and what arbitration rules to specify becomes a sensitive and important aspect of contract negotiations for wholly foreign owned entities ("WOFE") and cooperative joint ventures ("CJV").
Continue Reading...作者：李咏梅 金杜律师事务所争议解决组律师
1991年4月9日，第七届全国人民代表大会颁布施行了《民事诉讼法》。2007年10月28日，第十届全国人民代表大会常务委员会做出《关于修改〈中华人民共和国民事诉讼法〉的决定》，形成了《民事诉讼法》第一个修正案，并将于2008年4 月1日起施行。修订后的《民事诉讼法》（“新《民事诉讼法》”）集中解决了原《民事诉讼法》施行过程中矛盾突出的民事案件再审和执行问题，并与2007年 6月1日施行的《企业破产法》统一协调，删除了“企业法人破产还债程序”一章。
Continue Reading...By Li Yongmei of King & Wood's Dispute Resoluton Group
The PRC Civil Procedure Law ("Old Law"), which was promulgated by the seventh National People's Congress of People's Republic of China ("NPC") and became effective on April 9, 1991, was amended for the first time on October 28, 2007 on the 13th session of the Standing Committee of the 10th NPC. The amendments to the Old Law ("New Law") came into effect on April 1, 2008. The New Law will reconcile the conflicts of the retrial system and civil enforcement system during the implementation of the Old Law. Also, the amendment have been coordinated with the PRC Enterprise Bankruptcy Law effective as of June 1, 2007, by deleting the chapter titled "Bankrupt Procedures of Enterprise Legal Person".
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