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China Law Insight

Tag Archives: dispute resolution

Negotiating a Settlement with a Foreign Party

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

In 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 relucta… More…/更多

The Price is Right? Third party funding in Hong Kong and its potential impact on the construction industry

Posted in Global Network

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

In 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 … More…/更多

Philippine Government’s crackdown on nickel mining

Posted in Dispute Resolution

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

The 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.

Read The Full Article Please Click HereMore…/更多

Shall means shall, may means may, but an option can be exercised in several ways

Posted in Global Network

By Dorothy Murray King & Wood Mallesons’ London Office

Shareholders 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 … More…/更多

Challenges relating to evidence collection within China by foreign parties

Posted in Dispute Resolution

By Liu Yuwu, Zhang Jun(James) and Louise England King & Wood Mallesons

For foreign and domestic parties alike, collection of evidence within China can raise some interesting and specific issues. Such evidence may be foundational for a dispute before a PRC court or arbitral institution, a foreign lawsuit which has Chinese elements, or for a party seeking to identify assets within China.

In some situations, foreign parties will have access to the evidence on which they seek to rely to support their allegations. In other cases, attempting to gather evidence within China requires a party … More…/更多

Chinese “giants” and overseas arbitration

Posted in Dispute Resolution

By Gao Feng  Paul Starr   King & Wood Mallesons’ Dispute Resolution Group

The involvement of Chinese “giants” in arbitration outside of China has come at a price. Parties can lack experience at how best to handle international disputes. They rush precipitously into relationships with “local” on-the-ground law firms who themselves do not necessarily have sufficient international arbitration expertise, and more significantly lack the cultural knowledge and language skills to act as sufficient liaison. In this article, we share what we believe are the seven most seri… More…/更多

The New Engineering Contract – Antidote to arbitration?

Posted in Global Network

By Julia Court, Paul Starr, Richard Lyons and Suraj Sajnani King and Wood Mallesons

The NEC3 Engineering and Construction Contract (“NEC3”) is on a mission to reconstruct the way in which engineering and construction contracts are carried out. From its novel approach to language to the spirit of collaboration which is embedded throughout the contract – the NEC3 takes great leaps away from the adversarial culture of traditional contracts, such as the JCT or FIDIC suite of contracts and the standard forms typically used in Hong Kong in the public and private sectors.

One such leap is … More…/更多

Best of Both Worlds?

Posted in Dispute Resolution

By Paul Stothard and Alexis Namdar, King & Wood Mallesons

There is intense and constant competition to be a venue of choice for international disputes. To gain an edge, the Dubai International Financial Centre [i](“DIFC”) and the proposed Singaporean International Commercial Court (“SICC”) are exploring whether it is possible to combine the most attractive features of international arbitration and litigation before national courts. Each means of dispute resolution has its own well known set of advantages and disadvantages.[ii]More…/更多

An overview on seeking reparation before the International Tribunal for the Law of the Sea

Posted in Global Network

By Ramón García-Gallardo  Alex Mizzi, King & Wood Mallesons’ Brussels Office

King & Wood Mallesons SJ Berwin has successfully brought a claim for damages on behalf of Panama1 before the International Tribunal for the Law of the Sea (the Tribunal) in a dispute with Guinea-Bissau over the arrest and seizure of the Panamanian oil tanker, the Virginia G. The Virginia G was arrested in August 2009 by the coastal authorities of Guinea-Bissau for supplying foreign fishing vessels with fuel (“bunkering”) in Guinea-Bissau’s exclusive economic zone without authorisatio… More…/更多

Singapore Slings: The New Cocktail of Dispute Resolution Procedures in Singapore

Posted in Global Network

By Justin McDonnell and Natalie Caton, King & Wood Mallesons’ Brisbane Office

Already a hub for international arbitration and mediation, the launch of the Singapore International Commercial Court (“SICC”) on 5 January 2015 cemented Singapore as a prime destination for resolving international commercial disputes. Singapore is an ideal location particularly for those doing business in the Asia-Pacific region. Singapore’s Chief Justice Sundaresh Menon stated that the Court aimed to ‘build upon and complement the success of [Singapore’s] vibrant arbitratio… More…/更多

Welcome to “Crossing Borders” Issue 3

Posted in Global Network

By King & Wood Mallesons

Welcome to the third edition of Crossing Borders, a periodic review of developments in international arbitration across the world produced by the global law firm King & Wood Mallesons. In this edition, we discuss a number of important developments in international arbitration. We address the latest updates on anti-bribery and anti-corruption regulations and enforcement in China, ways to maximise investment protection in Africa, the latest IBA Guidelines on Conflicts of Interest in International Arbitration, explore investment treaty claims aris… More…/更多

Applications for Injunctive Orders in IP Arbitration

Posted in IP

By He Wei and Wang Yaxi  King & Wood Mallesons’ IP Litigation Group

Introduction

As China’s cross-border technology trade develops, the number of disputes arising from international Intellectual Property contracts gradually increases. Many parties involved in international business prefer arbitration as their dispute resolution mechanism, because arbitration is confidential and its decisions can be enforced in different jurisdictions. Loads of international technology license agreements contain arbitration provisions whereby the parties agree on how to se… More…/更多

Class Action-type Litigation in China

Posted in IP

By Richard W. Wigley  King & Wood Mallesons’ IP Litigation Group

The framework for variants of class action-type litigation in the People’s Republic of China has been in place since the initial promulgation of the Civil Procedure Law of the P.R.C. (“CPL”) in 1991. The amended CPL provides requirements for filing a “joint litigation” for suits where “the object of the action is of the same category and a party consists of numerous persons” and where the parties may choose to elect a representative.[1] Further as to whether standing is afforded the plaintiff and the filin… More…/更多

论中国司法程序中决定诉讼案件胜负的十大因素 –结合《孙子兵法》”计篇”的思考(下)

Posted in Corporate, Dispute Resolution

作者:陈湘林 金杜律师事务所争议解决

【内容摘要】本文基于诉讼和战争的可比性,参照《孙子兵法》首篇“计篇”,结合中国司法程序中的具体案例,将决定诉讼案件胜负的因素总结为三类,即基本因素、通常因素和特殊因素,具体包括“经济实力”、“事实”、“法律”、“情理”、“团队配合”、“诉讼时间和时机”、“… More…/更多

论中国司法程序中决定诉讼案件胜负的十大因素–结合《孙子兵法》”计篇”的思考(上)

Posted in Corporate, Dispute Resolution

作者:陈湘林 金杜律师事务所争议解决

【内容摘要】本文基于诉讼和战争的可比性,参照《孙子兵法》首篇“计篇”,结合中国司法程序中的具体案例,将决定诉讼案件胜负的因素总结为三类,即基本因素、通常因素和特殊因素,具体包括“经济实力”、“事实”、“法律”、“情理”、“团队配合”、“诉讼时间和时机”、“… More…/更多

The Validity of Arbitration Agreements under Chinese Law

Posted in Corporate, Dispute Resolution

By Huang Tao  King & Wood Mallesons’ Dispute Resolution Group

The fast growth of China’s economy has gotten more and more foreign enterprises to invest in Mainland China. Foreign investors need to establish a local presence Chinese, for example, a representative office, a branch, a subsidiary, or a joint venture so that they can do business in China. As the business ties between China and the rest of the world strengthen, the number of China-related business disputes has been increasing.

Arbitration is one of the most favored international business transaction dispute resol… More…/更多

约定域外法院管辖的困境及出路

Posted in Corporate, Dispute Resolution

作者:张守志 徐晓丹 李响  金杜律师事务所争议解决

在缔约一方为外国公司的合同中,尤其是国际融资合同中,争端解决条款经常约定相关争议应由外国法院管辖。这种约定往往是基于此类合同的惯例,并在作为优势一方的外国金融机构的坚持下订立的。但是,在商事活动越来越国际化的今天,固守这种惯例的交易外方,可能面临进退两难的困境。

一、   外国… More…/更多

Options for International Commercial Dispute Resolution

Posted in Corporate, Dispute Resolution, Foreign Investment

By Liu Xiangwen and Xu Xianhong  King & Wood Mallesons’ Dispute Resolution Group

International commercial disputes have an extensive scope, involving matters such as international sale of goods, mergers and acquisitions, private equity investments, and construction. The so-called international commercial dispute resolution cases dealt with by Chinese lawyers means those related to China and foreign countries, the main factors of which occurred either in China or in other countries. Due to the main characteristic of cross-border issues, international commerc… More…/更多

刍议国际商事争议解决方式的选择

Posted in Corporate, Dispute Resolution, Foreign Investment

作者:刘相文 徐献宏   金杜律师事务所争议解决

国际商事争议的范围很广,涉及国际货物买卖、并购、PE投资、工程建设等诸多领域。但是简言之,中国律师所处理的“国际商事争议”,指的是同时具备中国和外国因素的商事争议,其主要事实可能发生在中国国内,也可能发生在国外。由于其跨国性的基本特点,国际商事争议的解决方式与国内争议有明显的区别… More…/更多

Forum Shopping in Dispute Resolution: Hurdles and Solutions

Posted in Dispute Resolution

By Zhang Shouzhi, Xu Xiaodan and Li Xiang  King & Wood Mallesons’ Dispute Resolution Group

Commercial contracts (especially international financing agreements) between Chinese parties and foreign parties often designate a foreign court outside of China as the forum in which to resolve potential disputes. Such a forum selection clause, often insisted upon by the financial institution due to its stronger bargaining position, has become a generally accepted practice in international financing transactions.

However, when entering into an international commercia… More…/更多

Supreme People’s Court provides a Guideline Case for Court Enforcement of Settlement Agreements

Posted in Dispute Resolution

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 l… More…/更多

最高人民法院为各级法院执行和解协议提供指导性案例

Posted in Dispute Resolution

作者:Richard W. Wigley  徐静 金杜律师事务所争议解决

 在中国的民事诉讼中,如何有效地执行和解协议经常会成为诉讼参与人关注的焦点。尤其是当上诉人撤回上诉请求后,而另一方当事人不执行庭外和解协议,另一方当事人的权利如何得到救济?中国是一个以成文法为基础的大陆法系国家,没有美国、澳大利亚、英国等英美法系国家一样的判例制度。虽然中国有相… More…/更多

境外仲裁裁决作出后的和解

Posted in Dispute Resolution

作者:张守志 胡科 徐贝贝  金杜律师事务所争议解决

在仲裁中,仲裁庭作出终局的仲裁裁决,意味着双方当事人提交仲裁处理的实体法律关系有了最终的、具有约束力的判断,一般也意味着纠纷中有了赢家和输家。在这种情况下,当事人还愿意通过和解解决争议的,少之又少。但在争议标的金额巨大,双方当事人仍有合作的需要和愿望的情况下,达成和解对双方当事人都… More…/更多

Post-Award Settlement for International Arbitration

Posted in Dispute Resolution

By Zhang Shouzhi Hu Ke and Xu Beibei    King & Wood Mallesons’ Dispute Resoution Group

A final arbitral award is the final and binding conclusion of the substantial dispute submitted to arbitration by the parties. It defines the winner and the loser of the game. In few occasions would the parties be willing to settle their disputes after an award has been rendered. However, settlement is still a wise choice when the disputed amount is huge, and the parties still have the will.

In 2011, we assisted 2 separate clients in negotiating amicable settlements after the arb… More…/更多