​By Paul Starr, Dorothy Murray, James McKenzie and Kendal McCarthy King & Wood Mallesons

On 14 June 2017, Hong Kong’s Legislative Council passed the Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016 (“Third Party Funding Bill“), amending the Arbitration Ordinance (Cap 609) (Ordinance) (“AO”) to permit third party funding of arbitration proceedings seated in Hong Kong.As Hong Kong prepares to implement the reform (which is expected to take effect in late 2017), we take stock of some of the key features of the Third Party Funding Bill and what its passage will mean for users of Hong Kong arbitration.  We also make comparisons with third party funding of arbitration in England and Wales to determine what practical lessons can be learned from the reform process in that jurisdiction. Continue Reading New Arbitration Funding Options and Lessons for Hong Kong

By Dorothy Murray and Edmund Northcott  King & Wood Mallesons’ London office.

murray_dAs more jurisdictions permit third party funding of international arbitration, the question of whether details of the funding must be disclosed arises ever more frequently.

Concerns to date focus on conflicts (ensuring that the identity of the funder poses no challenge to the independence and impartiality of the tribunal) and the ability of a respondent to apply for security for costs. The Tribunal in the case of Muhammet Cap v. Turkmenistan[1], was motivated by these concerns when requiring the Claimant to disclose whether it was being funded by a third party funder, and if so, the funder’s identity and nature of the funding arrangements, including to what extent the funder would share in a favourable award to the Claimant. Continue Reading Thoughts on Disclosure of Third Party Funding

By Rebecca LeBherz and Zoe Walker. King & Wood Mallesons’ Brisbane office.

It has now been two years since the Singapore International Commercial Court (“SICC”) was established as an alternative forum to resolve international commercial disputes in Singapore. There are three institutions in Singapore capable of resolving international commercial disputes – it is a veritable cocktail of dispute resolutions services.

London may still dominate cross-border commercial litigation, but it is no longer the default. The SICC has proven that it is able to quickly resolve complex disputes of substantial value. Rebecca LeBherz and Zoe Walker examine where the SICC is now, and what it achieved in its first two years. Continue Reading The Singapore International Commercial Court – Two years on

By Paul Starr and James McKenzie King & Wood Mallesons’ Hong Kong office.

starr_pPaul Starr, Practice Leader Hong Kong Dispute Resolution and Infrastructure and James McKenzie, Senior Associate, King & Wood Mallesons, Hong Kong in conversation with Dr Wang Wenying, Secretary General at China International Economic and Trade Arbitration Commission Hong Kong (CIETAC HK) and Sarah Grimmer, Secretary General at Hong Kong International Arbitration Centre (HKIAC). Continue Reading A B&R Conversation with Dr Wang Wenying and Sarah Grimmer

By Max Bonnell, Ruimin Gao and Erin Eckhoff  King & Wood Mallesons’ Sydney office.

bonnell_mChina’s Belt and Road Initiative is a visionary policy that aims to connect over 60 countries in Asia, Europe and Africa along five main routes of the Silk Road Economic Belt and 21st Century Maritime Silk Road. Affecting a total population of some 4.4 billion (approximately 63% of the world’s population) and generating an aggregate GDP of over USD20 trillion (approximately 30% of global GDP), it is an ambitious framework that is projected to see significant numbers of infrastructure and other projects set up under its auspices. However, with such strikingly ambitious vision comes unchartered risks. Continue Reading Managing Risk along the Belt and Road of Opportunity

By Mia Qu, Hannah Sun and Wendy Dong King & Wood Mallesons’ Dispute Resolution group

qu_miaoTo protect your IP rights, sending potential infringers a Cease & Desist Letter or Warning Letter (the “Letter”) is one of the most common tools. Is it a necessary step before starting any legal proceedings in China?What legal consequences does it entail? Are there any issues that must be attended to? How effective is the Letter? This article will try to project a bird’s eye view regarding everything you should know before sending the Letter to your potential infringers.

Purpose of Sending the Letter

Sending the Letter is not a condition precedent for the right holder to initiate legal actions in China. The purpose of sending the Letter includes: Continue Reading Everything You Should Know before Sending a Cease & Desist Letter in China

By Meg Utterback King & Wood Mallesons’ Dispute Resolution group.

utterback_mIn China, settlement negotiations may not arise until the parties have filed their case in court or arbitration and each side has presented evidence and argument.  At that point, the judge or arbitrator may offer the parties an opportunity to discuss settlement.  Sometimes the introduction of settlement talks is the product of one party or the other suggesting to the arbitration institution secretary or the judge that settlement is a good option for the case.  In most cases, Chinese parties seem to be reluctant to settle early lest it show a fear that the party lacks confidence in the strength of its case.

American counterparties are different.  US arbitration and litigation proceedings are expensive propositions and many companies seek to dispense with litigation early if at all possible.  Settlement is considered even where one may have a relatively strong case if the cost of settlement may be less than the costs of litigation time and fees.  Also, parties recognize the uncertainty of dispute resolution in any forum and so settlement allows certainty.  Thus, we hear the expression, “A bad settlement is better than a good trial.”

As a result, a Chinese party may end up i Continue Reading Negotiating a Settlement with a Foreign Party

By Paul Starr, James McKenzie and Nicholas Lee. King & Wood Mallesons’ Hong Kong office.

starr_pIn the recently released “Report on Third Party Funding for Arbitration” (“Report”) the Law Reform Commission (“LRC”) has recommended that the Arbitration Ordinance (Cap. 609) be amended to permit third party funding in arbitration, mediation and litigation proceedings under the Arbitration Ordinance.

Though the reform still awaits passage through Hong Kong’s Legislative Council, should it go ahead it is likely to herald a flurry of activity in the funding space, with several funders having already set up shop in Hong Kong over the past 18 months in anticipation of the reform.

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By Max Bonnell and Edwina Kwan, King & Wood Mallesons Sydney, Australia

Max BonnellAlex BaykitchThe Philippines is the world’s top producer of nickel ore, supplying more nickel ore to China than any other country. However the viability of the Filipino nickel industry is currently in a state of flux following President Rodrigo Duterte’s national mining audit of the country’s forty metallic mines. The mining audit began soon after President Duterte’s election in July 2016 and has already resulted in the suspension of 10 nickel ore mines.

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By Dorothy Murray King & Wood Mallesons’ London Office

Smurray_dhareholders to JV agree that “any party may submit the dispute to binding arbitration”. Shareholders then get into a dispute, end up in Court and argue about stay.

The parties were shareholders in a BVI joint venture. The shareholders agreement was governed by English law. A dispute arose regarding Anzen’s allegedly unfairly prejudicial conduct in the management of the JV. Hermes commenced proceedings in the BVI courts. Anzen sought a stay of those proceedings pursuant to Section 6(2) of the BVI’s Arbitration Ordinance, which required the court to stay proceedings if it was satisfied that there was a valid arbitration agreement in respect of the matter in front of it.

Anzen relied on the dispute resolution provision at clause 19.5 of the shareholders agreement: in the event of a dispute “any party may submit the dispute to binding arbitration”.

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