Presentation Transcript
Resolution of Commercial Disputes in China: Resolution of Commercial Disputes in China Vivienne Bath
Senior Lecturer and Director of the Centre
Commercial Disputes in China: Commercial Disputes in China Four levels of people’s courts: basic; intermediate; high; supreme
Foreigners involved mainly at intermediate level and higher
Rules of civil procedure call for cases to be heard in domicile of defendant
Parties may choose governing law (except for joint ventures and resource development projects)
Commercial Disputes in China: Commercial Disputes in China Parties may exclude jurisdiction of courts in favour of arbitration
Parties may choose a Chinese or foreign court in cases “involving foreign interests” (but enforcement a problem)
Parties may NOT choose a foreign court for cases involving JVs or natural resource development or exploration contracts
Commercial Disputes in China: Commercial Disputes in China Summary
Historical lack of confidence in Chinese courts
Availability of arbitration (inside and outside China)
Perceived availability of enforcement of arbitration awards (local and foreign)
Commercial Disputes in China: Commercial Disputes in China Developments
More, better-trained Chinese lawyers
Judges Law – better qualified Chinese judges
Increase in litigation by Chinese citizens, necessarily involves foreigners
Improved credibility of litigation as opposed to arbitration
Commercial Disputes in China: Commercial Disputes in China Issues
Considerable variation in quality of judges and courts on a regional basis
Proliferation of legislation
Heavy case load for judges across China
Local protectionism?
Uneven benefits of litigation
Commercial Disputes in China: Commercial Disputes in China Increased use of litigation generally
Use of litigation strategically
Use of litigation as a means of intimidation
Litigation in domain disputes and IP cases
Litigation in connection with arbitration clauses
Litigation by foreign investment enterprises