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 commercial dispute resolution is distinguished from domestic dispute resolution.

In the past, the parties in international commercial activities paid less attention when choosing options for dispute resolution, which were indicated by the fact that there were often no dispute resolution clauses in their contracts, or even where there were such provisions, they were poorly drafted. This situation has improved substantially according to recent cases we have dealt with.

Continue Reading Options for International Commercial Dispute Resolution

作者：刘相文 徐献宏   金杜律师事务所争议解决组

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。

在处理案件的过程中，我们发现国际商事活动的当事人越来越重视争议解决方式的选择，之前在合同中没有争议解决条款或者争议解决条款不规范的情况有所改观。

Continue Reading 刍议国际商事争议解决方式的选择

By Susan Ning and Hazel Yin

On April 18, the Guangdong Higher People’s Court held the first court hearing for the abuse of dominance action filed by Qihoo(the operator of 360 safety software)against Tencent(the operator of QQ instant messaging software)under the Anti-Monopoly Law ("AML"). Qihoo accused Tencent for abusing its dominance in the market of online instant communications services and claimed damages of RMB 150,000,000. The court hearing lasted for more than 8 hours, and attracted an audience of almost 400 people. 

As requested by the court, the hearing was divided into four sessions, dedicated to each of the four issues: market definition, dominant position, abusive conducts and legal liabilities.  The hearing focused on the first three issues and both sides called in expert witnesses and had fierce debates over each of these issues.

Continue Reading 360 v. QQ-Abuse of Dominance Action Tried at Guangdong Higher Court

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 commercial contract with a Chinese party, selecting a foreign jurisdiction to resolve disputes may place the foreign party at a disadvantage with respect to future commercial activities.

Continue Reading Forum Shopping in Dispute Resolution: Hurdles and Solutions

By King & Wood Mallesons’ Trademark Group

According to the statement dated as of March 1, 2012 issued by a representative for Michael Jordan, the suit filed by former NBA basketball legend Michael Jordan against a Chinese sportswear and shoe manufacturer Qiaodan Sportswear Co., Ltd., whose trade name and trademark 乔丹 is equivalent to the commonly used Chinese translation for Jordan, has been accepted by court in China. The specific claims of the suit remain a myth presently.

Subsequent to the above statement, Michael Jordan also released another statement:

Continue Reading Michael Jordan vs. Qiaodan Sportswear Co., Ltd Lawsuit Accepted

作者：金杜律师事务所商标组

篮球“飞人”迈克尔•乔丹（以下简称“乔丹”）起诉乔丹体育股份有限公司（以下简称“乔丹体育”）的诉讼事件近期闹的沸沸扬扬。昨日，该事件有了新的进展，根据迈克尔•乔丹的发言人发布的书面文件，法院已受理上述起诉,但是乔丹的诉讼请求尚不明确。

该书面文件显示的日期为3月1日，内容提及法院已受理迈克尔•乔丹对乔丹体育提起的诉讼。同时，迈克尔•乔丹在一份声明中表示：“我很高兴，中国法院受理了我的诉讼，以保护我的姓名权和中国消费者的利益。乔丹体育未经授权使用我的中文名字、球衣号码23号、甚至试图用我孩子的名字从事经营活动。我认为中国消费者的权益应当受到保护、不应被误导，他们应该对其购买的商品具有清楚的知情权。我采取这一行动旨在保护我的姓名权和品牌。任何人均有权保护自己的姓名权。对于本案的受理，说明中国认可姓名权是每个人应有的权利。”

Continue Reading 乔丹告乔丹体育诉讼获受理

By Susan Ning, Liu Jia and Huang Jing

On April 24, 2012, TV.SOHU.COM, v.QQ.COM,and iQIYI.COM (the specialized video website of Baidu)jointly announced the establishment of an alliance called "Video Content Cooperation" (VCC) for vedio copyright joint purchasing. The VCC is viewed as another "faction" after the recent combination of Youku and Tudou. It is reported that the main purpose of the VCC is to jointly purchasing the copy right for their own each website.1  

TV.SOHU.COM, v.QQ.COM, and iQIYI.COM are all internet video websites and are close competitors. Their cooperation may affect the competition status in the market. This article will analyze under the Anti-Monopoly Law (AML) whether joint purchase arrangement could constitute "horizontal monopoly agreement".

Continue Reading Joint purchasing under the AML-SOHU, QQ and Baidu launched Video Content Cooperation Alliance

作者：胡梅 Holly Blackwell  金杜律师事务所争议解决组 上海分所

美国的诉讼证据开示制度对于缺乏美国诉讼经验的当事人来说非常陌生，对于中方当事人来说更是如此，因为中国诉讼程序与其大相径庭。中国法下的诉讼程序与其他大陆法系国家类似，双方当事人只须提供支持己方诉求或抗辩的相关证据既可。美国证据开示制度则不仅要求当事人提供对己方有利的证据，也要求当事人提供对其不利的证据。美国证据开示规则能使诉讼当事人较容易地得到对方、甚至是第三方的信息，例如公司内部电子邮件、文件、记录和规章。即使此类信息的披露会违反中国法律规定，一方也可以要求对方披露所需信息。尽管海牙公约提供了一条取得中国境内证据的途径，但当一方当事人在美国法庭提起诉讼时，美国法庭并不总倾向于适用《海牙公约》[i]的程序。从近期的一些美国案例中，我们不难看出要求中方当事人出示证据的困难性，以及中方当事人就此问题在美国诉讼中面临的挑战。

Continue Reading 在中国境内为美国诉讼取证

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 Obtaining Discovery in China for Use in US Litigation