Avoiding and Winning

China Disputes

Harris & Moure, pllc USA| China www.harrismoure.com www.chinalawblog.com

Dan Harris

Two Keys

Good Partner

Good Contract

Good Partner

Due Diligence

Good Partner - 2

Distrust all company info.

Look Around/Ask Around.

Forget the paper/Scrutinize the paper. Do not delegate/Delegate.

 Good Contract

Why Bother? What About Corruption?

1. A real contract - in writing. 2. One language 3. Incredibly specic. Excruciating detail. 4. Think liquidated damages 5. APorneys fees? 6. Signed AND Sealed 7. Who/What/Where

Good Contract 2

Suing Outside China

Chinese courts are generally required to enforce international arbitral awards.

Chinese courts have no obligation to enforce US or UK or Canadian or Australian judgments- and they dont.

Chinese Law? Document-based Moderately formal Cheap and fast. Unless. Nobody sePles. Very low damages Injunctive relief

Suing In China

Arbitration
Where will arbitration occur? Choice of Law? Institutional or ad hoc? Fees? Language? Arbitrators nationality? Enforcing Award?

Arbitration 2 Arbitration Law of China, Article 16

The following contents shall be included in an arbitration agreement: 1. The expression of the parties' wish to submit to arbitration; The maPers to be arbitrated; and 2. 3. The Arbitration Commission selected by the parties.

Arbitrating Outside China

Hong Kong, Singapore, Vancouver, London, Geneva, New York, etc. China does not recognize ad hoc arbitrations (HK exception?). Enforcement in China under New York Convention: GePing bePer. Best on quality and fairness Are you Chinese and dont know it?

Arbitrating In China: CIETAC

Beijing, Shanghai, and Shenzhen Must be by consent. Can occur outside China. Has own panel of arbitrators (25% foreign), but can appoint outside the panel if CEITAC Chairman agrees. Chinese nationals unless parties agree and push for foreigners.

CIETAC - 2
Very limited discovery. Short, informal, document-focused hearings. Tribunal shall consider international practices and principles of fairness and reasonableness. This is important. Foreign counsel permiPed, except on maPers involving Chinese law (?). Chinese language used unless parties agree otherwise. Three arbitrators unless parties agree otherwise.

CIETAC 3 Condential Award is nal. The losing party usually pays costs, but not aPorney fees, unless in contract. Intermediate People s Court enforces the award with limited grounds to refuse.

CIETAC - 4 Contract Clause

Specify English language. Specify non-Chinese arbitrator, or two or three. Think about discovery. Think about injunctive relief- carve out. Think about third parties. Service/Notice

 Harris & Moure, pllc

USA| China www.harrismoure.com www.chinalawblog.com

Dan Harris