dispute resolution

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

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

Tcourt_jstarr_phelyons_richard 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 Paul Stothard and Alexis Namdar, King & Wood Mallesons

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

gallardo_rKing & 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 authorisation. The vessel was arrested and held for 14 months, and the valuable cargo of gas oil was confiscated.

The Tribunal found that Guinea-Bissau exceeded its exclusive economic zone enforcement entitlements under the 1982 United Nations Convention on the Law of the Sea (the Convention) by exceeding what was necessary and proportionate in the circumstances, and that Guinea-Bissau further violated the Convention by preventing Panama, as the flag state, from intervening at the outset.
Continue Reading An overview on seeking reparation before the International Tribunal for the Law of the Sea