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Litigating & Conducting Discovery Against Chinese Companies

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This presentation provides an overview of litigation, arbitration, and Discovery issues in China.

This presentation provides an overview of litigation, arbitration, and Discovery issues in China.

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  • 1. Litigating & Conducting Discovery Against Chinese Companies Dan Harris 600 Stewart Street, Suite 1200 Seattle, WA | 98101 (206) 224-5657 | Fax: (206) 224-5659    www.harrismoure.com www.chinalawblog.com
  • 2.
    • China is party to The Hague Convention on
    • Service Abroad of Judicial and Extrajudicial
    • Documents in Civil and Commercial Matters.
    • Service of process must be through
    • diplomatic channels. Really?
    Serving Chinese Manufacturers
  • 3.
    • Chinese courts have no obligation to enforce U.S. judgments. And they DON’T.
    • Chinese courts generally enforce international arbitral awards.
    Collecting From Chinese Companies
  • 4.
    • Chinese law?
    • Document-based
    • Cheap and fast. Limited to no discovery.
    • Nobody settles.
    • Very low damages. Lost profits/pain and
    • suffering – good luck.
    China Litigation
  • 5.
    • Where will arbitration occur?
    • Choice of law? Be careful.
    • Institutional or ad hoc ?
    • Language?
    • Arbitrator’s nationality?
    • How to enforce award?
    Arbitration
  • 6.
    • ICC, LCIA, SCC, ICDR, etc.; Hong Kong,
    • Singapore, Vancouver, London, Geneva, New
    • York, etc.
    • China does not recognize ad hoc arbitrations (HK
    • exception?)
    • Enforcement in China under the New York
    • Convention: “Getting better.”
    Arbitrating Outside China
  • 7. Arbitrating Inside China
    • CIETAC -- China International Economic and Trade Arbitration Commission
    • BAC -- Beijing Arbitration Commission
    • Foreign arbitration in China: dubious.
    • No ad hoc arbitration.
  • 8. CIETAC
    • Beijing, Shanghai, and Shenzhen
    • Must be by consent.
    • “ Can” occur outside China.
    • Has its 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.
  • 9. CIETAC - 2
    • Very limited discovery.
    • Short, informal, document focused hearings.
    • Tribunal shall consider “international practices” and “principles of fairness and reasonableness.” Important.
    • Chinese language used unless parties agree otherwise.
  • 10.
    • Confidential
    • Award is final.
    • Losing party usually pays costs, but not
    • attorneys’ fees unless it’s in the contract.
    • Intermediate People’s Court enforces the
    • award with limited grounds to refuse.
    CIETAC -3
  • 11. HK Arbitration
    • Hong Kong International Arbitration Centre :
    • Highly regarded
    • UNCITRAL arbitration rules, with some modifications.
    • Arrangement Concerning Mutual Enforcement of Arbitration Awards between the Mainland and the HK Special Administrative Region. Ad hoc ?
    • Convert to HK judgment first?
  • 12.
    • China is party to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters.
    • Service through Chinese Central Authority:
    • Bureau of International Judicial Assistance
    • Ministry of Justice of the People’s Republic of China
    • 10 Chaoyangmen Nandjie, Chaoyang District
    • Beijing 100020, China
    Hague Service
  • 13.
    • Submit documents to be served with form USM-94 ( http://www.usmarshals.gov/forms/usm94.pdf ), in duplicate to the foreign central authority.
    • “ Duplicate" means a completed USM-94; one original English version of the documents to be served (summons must have the court’s seal); one translation of all documents to be served; plus, a photocopy of all of the above.
    • USM-94 form does not need to be translated.
    Hague Service - 2
  • 14.
    • Payment of approximately $100.00 MUST be sent with service request via international payment order, payable to Supreme People's Court of the People's Republic of China.
    • If personal service is required, strike out methods (a) and (c) on USM-94 form and indicate method (b), noting the documents should be served personally upon the person or company to be served.
    Hague Service - 3
  • 15.
    • Vienna Convention on Consular Relations; U.S. - China Consular Convention; Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters
    • China does not allow depositions on its soil. Embassy/Consulate? HK.
    • Written Discovery/Letters Rogatory pursuant to the Hague Evidence Convention.
    • Not fast. Not likely.
    Discovery In China – What’s That?

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