By Stephen Johnson King & Wood Mallesons’ Dispute Resolution Group
Traditionally, Chinese companies could avoid engaging in international arbitration because it was difficult to enforce international awards in China. However, the enforcement of international awards in China has greatly improved in recent years. This is in part due to the reporting system implemented by the
By Xu Xiaodan and Qi Yiduo King & Wood Mallesons’ Commerical & Regulatory Group
Answers to Several Issues Concerning the Trial of Labor Dispute Cases (III) (the “Answers to Labor Dispute Issues (III)”)，issued by the First Tribunal of Zhejiang People’s High Court and Zhejiang Labor Dispute Arbitration Committee on 29 September 2015, have
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 serious mistakes made by PRC entities when trying to arbitrate abroad. We respectfully venture to add that these mistakes are by no means confined to Chinese clients – all parties embarking on dispute resolution in a country unfamiliar to them would do well to reflect on what follows.
Continue Reading Chinese “giants” and overseas arbitration
By Juliette Huard-Bourgois and Swati Tripathi, King & Wood Mallesons’ London Office
The conduct of international arbitration proceedings, from enforcement of arbitration agreements to enforcement of arbitral awards, sometimes involves actions before the courts. In the European Union (EU), international arbitration has to co-exist, not only with national procedural law in each jurisdiction, but also with EU procedural law, which harmonises jurisdiction and enforcement rules amongst the EU states.
EU procedural harmonisation is orchestrated through the application by each EU State of Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (hereafter the “Brussels Regulation”). The objective of the Brussels Regulation is the creation of an EU area of justice, where parallel court proceedings are prevented and judicial decisions can circulate easily.
Continue Reading Recast Brussels Regulation: a Brighter Future for Arbitration in the EU
By Julia Court, Paul Starr, Richard Lyons and Suraj Sajnani King and Wood Mallesons
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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 the effect that the NEC3 has on disputes arising out of the contract. Proponents of the NEC3 state that its anti-dispute nature is a large reason for its popularity, and point to the limited pool of relevant case law as support for the position that the NEC set of contracts discourage litigation.
Continue Reading The New Engineering Contract – Antidote to arbitration?
By Justin Lo, Alan Zhang and Alice Leung, King & Wood Mallesons’ Hong Kong Office
The growth in cross-border investment has led to more complex relationships between commercial parties, particularly where foreign elements are involved. Commercial parties are increasingly choosing international arbitration as the means to resolve their disputes.
For parties considering arbitration in the Asia Pacific Region, Hong Kong is an attractive arbitral venue for a number of reasons.
Independent and robust legal system
Hong Kong’s legal system is based on the rule of law, independence of the judiciary and preserves the common law. The World Economic Forum Global Competitiveness Report for 2013 and 2014 ranked Hong Kong number four in terms of judicial independence out of 148 jurisdictions, ahead of the UK, the US, Singapore and many members states of the European Union.
Hong Kong’s legal professionals are fully experienced and capable of providing clients with diversified professional legal advice and related services. Arbitrators in Hong Kong are regarded as independent and highly experienced in dealing with cross border commercial disputes. As such, Hong Kong is seen as a more attractive arbitration hub for domestic and foreign parties to resolve their disputes.
Continue Reading Why should parties consider Hong Kong as an arbitral venue?
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]
Continue Reading Best of Both Worlds?
By Paul Starr King & Wood Mallesons’ Dispute Resolution Group
Over the last several years, Chinese companies have been extending their reach around the globe, undertaking ever-increasing pioneering projects in infrastructure, energy, commerce, environment and other developments.
As they do so, we see a growing number of multi-million dollar disputes arising from their overseas businesses and claims incurred by their overseas counterparts. The legal risks to which Chinese companies are exposed have therefore been increasing. Some of them, rather unwittingly, develop a habit of turning to local lawyers in the dispute countries (“Country Lawyers”) for major dispute resolution solutions. That is very inadvisable.
Continue Reading International Arbitration outside of the PRC: Explaining to Chinese Enterprises why they need us
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 settle IP related disputes. IP disputes that will be arbitrated usually include: whether the licensee’s use exceeds the licensed scope; issues concerning the licensee’s disclosure of the licensor’s technology; and the licensee’s unauthorized sub-license of the licensor’s technology. The value of an IP right, as an intangible property right, lies in a right owner’s exclusive right to use the technology or business resources which constitute the subject matter of the right. Therefore it is essential for a right owner to maintain his IP right by prohibiting unauthorized use by others. Accordingly the use of injunctions plays a vital role in IP cases. China’s IP legislation now provides pre-action and interlocutory injunctions to give right owners provisional remedies, in the form of injunctions before and during the trial. In this way an owner can stop damage from occurring or escalating.
Continue Reading Applications for Injunctive Orders in IP Arbitration
By Harry Liu and Qiu yue King and Wood Mallesons’ Dispute Resolution Group Shanghai Office
As an alternative dispute resolution mechanism, arbitration has been increasingly widely chosen as the dispute resolution method by parties to the commercial contracts. A signatory to the arbitration clause may bring litigation jointly against the other party to the arbitration clause and non-signatories to such arbitration clause. It remains uncertain in judicial practice whether courts have jurisdiction over such joint tort disputes despite of the arbitration clause. The Supreme People’s Court’s view towards the issue also has shifted back and forth. The retrial ruling lately handed down by the Supreme People’s Court after confirmed by its judicial committee gave a clearer answer to the question, which will definitely have a demonstration effect on the judicial practice in the future.
Continue Reading Retrial Ruling of the Supreme People’s Court Settles the Disputes on the Jurisdiction over Joint Tort Cases: Litigation or Arbitration
