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Dan HarrisHarris & Moure, pllc
USA| China
www.harrismoure.com www.chinalawblog.com
Avoiding and WinningChina Disputes
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Two Keys
Good Partner
Good Contract
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Good Partner
Due Diligence
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Good Partner - 2
Distrust all company info.
Look Around/Ask Around.
Forget the paper/Scrutinize the paper. Do not delegate/Delegate.
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Good Contract
Why Bother?
What About Corruption?
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Good Contract 2
1. A real contract - in writing.2. One language 3. Incredibly specific. Excruciating detail.4. Think liquidated damages5. Aorneys fees? 6. Signed AND Sealed7. Who/What/Where
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Suing Outside China
Chinese courts have no obligation to
enforce US or UK or Canadian or
Australian judgments- and they dont.Chinese courts are generally required
to enforce international arbitral awards.
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Suing In China
Chinese Law? Document-based Moderately formal Cheap and fast. Unless. Nobody seles.
Very low damages Injunctive relief
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Arbitration
Where will arbitration occur? Choice of Law? Institutional or ad hoc? Fees? Language? Arbitrators nationality? Enforcing Award?
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Arbitration 2
Arbitration Law of China, Article 16 The following contents shall be included in
an arbitration agreement:
1. The expression of the parties' wishto submit to arbitration;2.The maers to be arbitrated; and
3.The Arbitration Commissionselected by the parties.
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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: Geing beer.
Best on quality and fairness Are you Chinese and dont know it?
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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 ifCEITAC Chairman agrees.
Chinese nationals unless parties agree andpush for foreigners.
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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 permied, except on maers
involving Chinese law (?). Chinese language used unless parties agree
otherwise. Three arbitrators unless parties agree
otherwise.
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CIETAC 3
Confidential Award is final.
The losing party usually pays costs, butnot aorney fees, unless in contract. Intermediate Peoples Court enforces
the award with limited grounds torefuse.
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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
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Dan HarrisHarris & Moure, pllc
USA| China
www.harrismoure.com www.chinalawblog.com