The first stage of dispute settlement is to hold direct talks with the Chinese counterpart and the direction of the claim. In some cases, the direction of claims is not set certainly before going to court or arbitration.
In addition, the parties may specify in the contract that all disputes between them should be settled through friendly negotiations and recourse to other methods of dispute resolution is possible only in case of failure of negotiations. This means that the party, whose rights have been violated, is required to first apply the claim to the other party and prepare an evidence of claims and negotiations. If this is not done, the court or tribunal may refuse to accept the lawsuit for consideration because of non-compliance with the order of dispute resolution stipulated in the contract.
When negotiating the Chinese contractor may encounter delay in negotiations. Therefore, even when concluding the contract, we recommend that you set the period for the completion of the negotiations are completed and the parties have the opportunity to go to court or arbitration. That is, avoid wording "in the case of failure of negotiations, the parties may apply to the arbitration"; instead, write a specific deadline after which all negotiations stop and the claim can be filed to the relevant court.
We provide the following services related to the negotiation and claim work:
• a preliminary study of the problem and advise on the feasibility and possibility of sending the claim;
• preparation of claims and evidence, assessment of the feasibility and prospects for successful resolution of the case in court or arbitration;
• preparation of reviews of the claim;
• representation of interests in negotiations;
• Preparation of agreements and other documents on the results of the settlement of the claim.
International commercial arbitration
International commercial arbitration is one of the most popular methods of resolving cross-border commercial disputes. Among the advantages of arbitration there is: 1) the possibility of self-selection of the place of arbitration, the language of the proceedings, rules of proceedings and the arbitrators, who will decide the dispute; 2) The confidentiality of the arbitration; 3) The final award: in contrast to the judgment, it cannot be appealed and may be revoked only in strictly defined cases; 4) the availability of uniform rules to bring the award enforceable in other countries.
To appeal to the international commercial arbitration the parties must include in the main contract arbitration clause or separate arbitration agreement must be concluded. In accordance with the laws of the PRC arbitration agreement must contain: 1) the parties' intention to apply for dispute resolution to arbitration; 2) the subject matter of the agreement, i.e., disputes that the parties are referring to arbitration (usually Forming "all disputes arising from the contract or in connection with it"); 3) the name of the arbitration board to which the parties intend to apply.
Among the arbitration commissions, which you can choose to settle the dispute in China, we recommend the following:
- China International Economic and Trade Arbitration Commission (China International Economic and Trade Arbitration Commission, CIETAC) - is the oldest arbitration commission in China, which was established in the late 50-ies of XX century. At the Chinese Chamber of Commerce and specialized in the resolution of cross-border commercial disputes;
- China Maritime Arbitration Commission (China Maritime Arbitration Commission, CMAC) - second Arbitration Commission at the Chamber of Commerce of China, which specializes in the resolution of disputes relating to merchant shipping;
- Beijing Arbitration Commission (Beijing Arbitration Commission, BAC) - one of the largest regional arbitration commissions, which is engaged in a resolution of domestic and cross-border disputes.
Arbitration commissions Data Solutions will be recognized in China's national courts, so they will be easier to be executed in China, where there is a fundamental property of the Chinese company. If necessary, these decisions can be recognized and enforced outside of China in accordance with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
In addition, we recommend to resolve disputes with Chinese counterparties in International Arbitration Centre, Hong Kong (Hong Kong International Arbitration Centre, HKIAC), Arbitration Center CIETAC in Hong Kong (CIETAC Hong Kong Arbitration Centre; CIETAC branch in Hong Kong) International Court of Arbitration of the International Chamber of Commerce (International Chamber of Commerce, International arbitration court, ICC IAC; one of the Secretariats of arbitration is in Hong Kong), Singapore International arbitration Centre (Singapore International arbitration Centre, SIAC), International commercial arbitration court at the Chamber of Commerce of the Russian Federation (ICAC ), Maritime arbitration commission at the Chamber of Commerce of the Russian Federation (MAC at CCI RF). However, it should be understood that these arbitration proceedings shall not be internal: the procedure for their recognition and enforcement in China is somewhat more complicated.
If you choose arbitration, you can use the model arbitration clause, which is offered by the arbitration. However, we recommend consulting when drafting the arbitration clause with the lawyers that will help make the right choice of arbitration, the place of the rules of the proceedings, which will be reduced by conducting the arbitration and avoid problems with enforcement of an arbitral award enforcement costs.
Our company provides the following services related to the settlement of disputes by arbitration:
• Drafting arbitration agreements;
• Search arbitrators;
• Registration of the application of the plaintiff or the defendant's withdrawal;
• Representation in the arbitral proceedings.
• Enforcement of an arbitral award in the PRC;
• Recognition and enforcement of foreign arbitral awards in China.
• Representation in court
We recommend that you seek to resolve commercial disputes with Chinese counterparts to arbitration. However, in some cases it is necessary to apply to the courts even when the resolution of the dispute to arbitration, for example, to challenge the validity of the arbitration agreement, to ensure the property or evidence, the cancellation of the award, enforcement of the award, as well as for the recognition and enforcement of a foreign arbitral award.
In addition, representation in court may be required in case of: 1) the need to challenge the public authority's decision rendered in an administrative review procedure (in a dispute in the administrative procedure); 2) the need for the expert to challenge the decision made based on the results of the domain dispute; 3) defect of the arbitration agreement, which makes it impossible to transfer the dispute to arbitration; 4) refusal of recognition and enforcement of an arbitral award; 5) resolution of any commercial disputes in court, unless the parties to submit the dispute to arbitration or prorogation concluded an agreement to submit the dispute to court.
We provide services to represent the interests in court, including:
• Representation of interests in the resolution of commercial disputes;
• Representation of interests in challenging the decisions of public bodies (for example, in tax disputes, disputes on intellectual property rights, etc.);
• Representation of interests in the resolution of domain name disputes in court;
• Representation in court related to arbitration proceedings (challenging the validity of the arbitration agreement, the application of interim measures challenging the arbitration award, recognition and enforcement of foreign arbitral awards, etc.).
The fight against cybersquatting
Cybersquatting - the seizure of domain names with a view to their resale - is widespread in China. As a rule, cyber squatters select well-known foreign brands and register domain names, including the brand name in the domain zone .cn, .hk or. 中国 (China). Once registered, they turn to the right holder with a clear or slightly veiled offer to buy back the domain.
However, in China there are effective ways to return illegally seized domain, which will cost much less than the payment of "compensation" to cyber squatters. The domain can be returned through the procedure of permission of domain disputes in arbitration or through the competent court.
Our company provides services for the representation of interests in domain disputes, including:
• The choice of a competent arbitration;
• Preparation of statements and evidence in the arbitration;
• Registration of domain transfer based on the decision made at the Internet registrar.