BEER 3/14/2012

1. After the spill
China, environmental disasters and
the role of international arbitration
When You Think Asia Disputes,
Think Fulbright.TM

2. Overview
 Environmental backdrop
 Sources of law – “solutions”
 Effectiveness and complicating factors
 A role for arbitration?
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3. Overview
 Environmental backdrop
 Sources of law – “solutions”
 Effectiveness and complicating factors
 A role for arbitration?
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4. Backdrop
 High profile catastrophes…and some lower profile ones
 Growing government activism
 Legal solutions evolving to meet the problems
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5. Bohai Bay
 Background
● 49 /51 %
● 3,000 barrels
● RMB 1 billion
 Short term response - question marks
● Compensation fund vs class action suits
● Fund inclusion
● Fund distribution
 Regulatory response
● No pre-existing regime for offshore structures
● new ship pollution response regulation
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6. Overview
 Environmental backdrop
 Sources of law – “solutions”
 Effectiveness and complicating factors
 A role for arbitration?
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7. Sources of law - PRC
 Civil law
● Litigation
● Arbitration
 Bohai, March 2006
 Criminal law
● “major environmental pollution”
● “poisoning”
 Administrative law
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8. Sources of law - international
 Civil law
● Litigation
 E.g. Trafigura, Deepwater Horizon,
● arbitration
 International law
● CLC
● BUNKER
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9. Overview
 Environmental backdrop (what‟s happening)
 Sources of law – “solutions”
 Effectiveness and complicating factors
 A role for arbitration?
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10. International arbitration
 method of choice for parties resolving international disputes
● Flexibility
● Independence
● Enforceability
 Arbitration or litigation?
● Domestic litigation
● International litigation
 uses and limitations
● Creature of contract
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11. Chinese arbitration regime
 Chinese features
● short-form
● little scope for witness and expert witness cross examination or
document discovery
● role of Chinese arbitrators is often inquisitorial rather than
adversarial
● decide matters on the basis of concepts of „fairness‟ and „equity‟
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12. matthew.townsend@cbli.org
mtownsend@fulbright.com
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