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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

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

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

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

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 law countries, such as the United States, Australia, and the U.K.  There is relevant statutory law as provided in the Civil Procedure Law of the P.R.C., but there exist certain legal issues which may require additional clarification beyond the statutory law.  With this in mind, as per the Article 1 of the Supreme People’s Court’s Provisions on Case Guidance ("Provisions"), the Supreme People’s Court does on occasion publish what it sees as "indicative" cases, where the decisions reached in the cases are deemed to be used as guidelines in relevant judicial review by the lower courts.[1]Continue Reading Supreme People’s Court provides a Guideline Case for Court Enforcement of Settlement Agreements

By King & Wood Mallesons’ Labor Group

Beijing Implementation Rules on Regulations on Work-Related Injury Insurance (Beijing Municipal Decree No. 242) (hereinafter "the Rules") was released and effective on December 5th, 2011. Based on the Regulations on Work-Related Injury Insurance promulgated by the State Council of the People’ s Republic of China and taking into consideration the Beijing practice, the Rules details the determination of work-related injuries, appraisal of work capability, and payment of work-related injury benefits, etc.

With regard to the determination procedure of work-related injuries, the Rules for the first time ever provides that if labor dispute concerning determination of the employment relationship affects the determination of work-related injuries, the labor dispute must be resolved in accordance with law before the application for work-related injury determination, and the time for resolving the labor dispute is excluded from the time limit for applying for the determination. In addition, the Rules establishes the scheme of designation of jurisdiction for work-related injury determination, i.e. when departments of work-related injury determination at district or county level deem that the application for determination is out of their jurisdiction, they shall report the application to the municipal social insurance administrative departments for designation of jurisdiction.Continue Reading Beijing Released New Regulations on Work-Related Injury Insurance: Time for Resolving Labor Disputes Excluded from Time Limit for Applying for Work-Related Injuries Determination

By King & Wood Mallesons’ Trademark Group

Registering a foreign celebrity’s name as a trademark is an occurrence frequently seen in China. From Leonardo da Vinci and Air Jordan in the past to the rising NBA star Jeremy Lin, it has become a shortcut for companies to quickly occupy the market by using the foreign celebrities’ names as their trademarks.

The name right refers to the right of a citizen to decide, use and alternate the name by himself and to require others to respect his name. Article 31 of the PRC Trademark Law (the "Trademark Law") provides that protection on prior rights has covered protection on the name right. In addition, Article 10 of the Trademark Law provides that trademark registration should not be detrimental to social morals or customs, or have other harmful influences. These provisions also reflect the legislative intent to protect name rights. Specifically, the Trademark Examination Criteria provides that, without authorization, if registering another’s name as a trademark has caused or may cause damage to the name right of other, the mark shall be disapproved or cancelled from registration. The following conditions shall be met when applying under the above rule: a) the disputed mark is the same as the name of an individual; b) The registration of the disputed mark has caused or may cause damage to the name right of that individual. The names include legal names, pen names, and nick names. If using a name to register a mark may be detrimental to social morals or customs or cause other harmful influences, it shall be subject to the provisions under Article 10.Continue Reading Protecting Name Rights of Foreign Celebrities under Trademark Law in China

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 arbitral awards were rendered in offshore arbitrations. We provide below a brief description of the two cases:Continue Reading Post-Award Settlement for International Arbitration