Publish time: Fri Jul 01 14:49:16 CST 2016
Four Consecutive Years in London, High Level Professional Exchange
2016 London Summit on Commercial Dispute Resolution in China Successfully Hosted
On June 20 2016, the 2016 London Summit on Commercial Dispute Resolution in China was successfully hosted at the DoubleTree by Hilton Hotel London – Victoria by the Beijing Arbitration Commission / the Beijing International Arbitration Center (the “BAC”), jointly with the Chartered Institute of Arbitrators (the “CIArb”), the Centre for Commercial Law Studies, Queen Mary University of London (the “CCLS”), the Institute of Advanced Legal Studies (the “IALS”), University of London.
This is the fourth time that the Summit is held in London in succession to its first launch in 2013, with the aim of making a full presentation of the development of Chinese commercial law, practice and dispute resolution in 2015 on the basis of the Commercial Dispute Resolution in China: An Annual Review and Preview (2016) (the “Annual Report 2016”), and thereby to assist people within the business and legal communities both at home and abroad to better participate in China related investment and trade. The Summit has attracted more than one hundred professionals from China, the UK and other states, including partners and barristers from top law firms, professors and scholars from renowned law schools, arbitrators and staffs of well-known arbitration institutions, and business personnel and in-house counsels of large MNCs. All the participants have conducted a comprehensive discussion and exchange on law and dispute resolution in one or several of the eight sectors including Chinese commercial arbitration and mediation, energy, international trade, financial, construction project, real estate, intellectual property and investment during the past year, and have had a review and prospect of the China-UK economic and legal cooperation in the relevant fields.
The Summit was sponsored by CMS, AnJie Law Firm, Clyde & Co, 39 Essex Chambers, and was supported by the Kuala Lumpur Regional Centre for Arbitration, the Law Society of England and Wales, The General Council of the Bar and LexPR, with joint media support from the Global Arbitration Review, Wolters Kluwer, LexisNexis, and the “ChinaGoAbroad.com”.
The Summit
The Summit
The opening ceremony was hosted by Dr. Fuyong Chen, Deputy Secretary General of the BAC. Madame Hongsong Wang, Vice Chairperson of the BAC, Mr. Anthony Abrahams, Director General of the CIArb, Prof. Loukas Mistelis, Director of the CCLS, and Mr. Jules Winterton, Director of the IALS, subsequently gave opening speeches on behalf of the hosting institutions respectively.
Dr. Fuyong Chen
On behalf of the BAC, Madame Hongsong Wang firstly extended a warm welcome and thanks to all the speakers and audiences participating in the event, and then presented a brief introduction of the Annual Report 2016. She also expressed the sincere wish that the Annual Report series would help promote the healthy and orderly development of commerce.
Madame Hongsong Wang
Thereafter, in the speech on behalf of the CIArb, Mr. Anthony Abrahams explained what justice is by invoking an old saying. Then he stressed the significance of the Annual Report series and the overseas launch events organized by the BAC, and appreciated the BAC’s endeavors in the promotion of the China-UK exchange on commercial dispute resolution. At last, he once again conveyed the strong expectation and interest for further cooperation with the BAC.
Mr. Anthony Abrahams
In his speech on behalf of the CCLS, Prof. Loukas Mistelis briefly introduced the Queen Mary University of London, and reviewed the experience of getting acquaintance and having many times cooperation with the BAC, and expressed full appreciation for the value of the overseas launch of the Annual Report.
Prof. Loukas Mistelis
At last, Mr. Jules Winterton delivered his speech on behalf of the IALS. He once again affirmed the importance of the cooperation between the IALS and the BAC, and conveyed the strong desire of the IALS to promote the combination of teaching and practice. In particular, he stressed that the Annual Report series organized by the BAC have already became one of the key reference materials in the University of London library for Chinese legal research.
Mr. Jules Winterton
Following the opening ceremony, the morning part of the Summit proceeded in line with the agenda, and the sessions on arbitration and mediation, energy and international trade with keynote speeches, comments and exchanges thereon were conducted in turn.
Session on Arbitration and Mediation
The Session on Arbitration and Mediation was moderated by Mr. Rupert Boswall, Chairman of RPC LLP. Dr. Helena Chen, a partner of Pinsent Masons LLP and a BAC arbitrator, gave the keynote speech on the basis of the Annual Review on Commercial Arbitration in China (2016) and the Annual Review on Commercial Mediation in China (2016). First, she pointed out that the Chinese arbitration in 2015 had an increase by 20% from the year of 2014 in the caseload, and a 55% increase in the overall disputed amount. Moreover, she reviewed the significant development worthy of note within the Chinese commercial arbitration area during the past year, which included the enlarged scope of foreign related factors recognition by the Shanghai No. 1 Intermediate People’s Court in its ruling in Siemens v. Shanghai Golden Land Co., Ltd., the launch of offices of foreign arbitration institutions (ICC, SIAC and HKIAC) in the Shanghai Free Trade Zone, the establishment of cooperative organization among Chinese arbitration institutions such as the China Free Trade Zone Arbitration Cooperative Alliance, the Supreme People’s Court’s judicial interpretation released in July 2015 on the jurisdiction issues arisen from the name changes of the Shanghai sub-commission and the South China sub-commission of CIETAC. Then, Dr. Chen introduced that the BAC had a 44% increase in its caseload in 2015 with the disputed amount 2.5 times greater than the figure of the previous year, apparently a rapid growth. With respect to mediation, Dr. Chen highlighted the fast development of commercial mediation with the examples of the 44 mediation cases files with the BAC in 2015, with the total amount in dispute of 380 million RMB, and 1/3 of mediators in the BAC panel of mediators are from foreign jurisdictions.
Dr. Chen’s speech was followed by comments by Ms. Keisha Williams, Head of Dispute Appointment of CIArb. Firstly, with a comparison of the caseload growth and growth rate of Chinese and foreign arbitration institutions, she commented favorably on the huge increase in Chinese arbitration institutions’ caseload. Next, she introduced European arbitration institutions’ launch of offices in China and their selection of China as the seat of arbitration, and thereby pointing out their strong desire of attracting foreign related arbitration from China. At last, she expressed her views on and expectations for further transparency of Chinese arbitration, further publication of big data, further open-up of the Chinese arbitration market.
Session on Arbitration and Mediation Mr. Rupert Boswall
Dr. Helena Chen Ms. Keisha Williams
Session on Energy
The second session in the morning was on energy law. This session was moderated by Mr. Phillip Ashley, a partner of CMS. Dr. Libin Zhang, a partner of Broad & Bright and a BAC arbitrator, delivered the keynote speech based on the Annual Review on Energy Dispute Resolution (2016). He explained that there are two aims of the Chinese energy reform, one is to resolve the problem of externality resulted from petrochemical energy, and the other one is to raise energy efficiency. Currently the reform in oil-gas and power industries is moving slowly, the oil-gas reform program is yet to be released, and the power reform failed to settle the issue of structural monopoly. With respect to the energy legislation, despite the draft Chinese Energy Law has been finished, the energy industry has experienced substantive changes such as overproduction, and thus if the energy legislation does not pay full attention to the time change and promote reform, it will lose its meaning. During the Chinese energy reform, the operation and investment of energy enterprises have been influenced by policy changes due to the alternative energy policy, which resulted in an increase of energy related disputes. Meanwhile, due to the slow progress of relevant law making during the energy reform, the trials of relevant cases did not have sufficient support of law, which brought great challenges to the settlement of such disputes. Dr. Zhang then presented an introduction of many classic cases on oil-gas mineral rights disputes and whether energy policy changes constitute force majeure and frustration of purpose. At last he pointed out that the conclusion of Paris Agreement will promote green energy and clean energy development in China, whereas the constant improvement of relevant laws and regulations will assist with dispute resolution within the energy industry.
Mr. Adrian Hughes, QC and arbitrator from 39 Essex Chambers, acted as the commentator in this session. First of all, he pointed out that the UK also has the clean energy problem, and the British government also provides subsidies to the clean energy industry. With a case, however, he stressed that investors should, when investing in clean energy, fully realize the possibility of the government’s cancellation of such subsidies, and it would be difficult to win court support if investors claim against the government on the ground of such cancellation of subsidies. He also introduced the problem of feed-in tariffs reduction with another case, and said that the British government deems it unreasonable, but the court upheld the compensation for investors.
Session on Energy Mr. Phillip Ashley
Dr. Libin Zhang Mr. Adrian Hughes QC
Session on International Trade
Next to the Session on Energy came the Session on International Trade that was moderated by Prof. Sundra Rajoo, Director of Kuala Lumpur Regional Centre for Arbitration. Dr. Wang Xuehua, a partner of Huanzhong & Partners, gave the keynote speech in combination with the Annual Review on International Trade Dispute Resolution (2016) of which he is the leading author. Dr. Wang highlighted the new trend of legislation within the international trade industry, which includes: first, the constant acceleration of free trade agreement negotiations between China and other countries and regions; second, mainland China’s conclusion of CEPA service trade agreements with Hong Kong and Macau; third, China’s proactive development and experience sharing of free trade test zones; fourth, the implementation of the Belt and Road Initiative; and fifth, China’ active participation in WTO activities. He also addressed on some academic hotspots based on cases, such as the judicial security of free trade zones, the risk transfer in international sales of goods and the principle and interpretation of contract under the common law system.
Following Dr. Wang’s speech, Dr. Roman Khodykin, a partner of Berwin Leighton Paisner LLP, provided his remarks. He was of the opinion that in absence of the applicable law agreed by the parties, Chinese law is often applied in those China related transactions in accordance of conflict rules. However, foreign parties are often not familiar with Chinese law, and thus often request to choose the law of a state other than the jurisdictions of the parties to the contracts, where the United Nations Convention on Contracts for the International Sale of Goods (CISG) is frequently selected. Therefore, it is important to strengthen the research and application of CISG in international trade.
Session on International Trade Dr. Sundra Rajoo
Dr. Xuehua Wang Dr. Roman Khodykin
The remaining part of the Summit in the afternoon covered five sessions, including finance, construction project, real estate, intellectual property and investment. The speakers and the audience conducted extensive exchange and discussion on laws and dispute resolution within these industries.
Session on Finance
The Session on Finance convened under the hosting of Mr. Stephen Denyer, Director of Strategic Relationships of the Law Society of England and Wales. Dr. Xiuming Tao, author of the Annual Review on Financial Dispute Resolution (2016), a partner of JunZeJun Law Offices and a BAC arbitrator, provided the keynote speech. He pointed out that the caseload of financial disputes in China currently is in the growth of a blowout type, with a number of new-type and structurally complicated financial cases. The trial of these cases would meet several difficulties, such as the imperfectness of relevant laws and regulations, the deficiency of the industry’s understanding about complicated financial cases, and the lack of related judicial precedents. To resolve such cases, the following points should be kept in mind: first, familiarity with the financial market practice and the environment of the supervision system; second, accurate judgment and recognition of the nature of transactions and the structure of financial products (especially the legal roles and positions of relevant entities therein); third, accurate computation of the sums involved in financial transactions, and avoidance of the claims awarded at the discretion of judges/arbitrators; lastly, avoidance of simple and mechanical application of the traditional broad legal concepts in new-type financial products, and full respect to party autonomy for innovative transactions if there is no breach of mandatory rules.
In his comments, Mr. Stephen Denyer mainly spoke of the challenges to in-house counsels of financial institutions when facing complicated disputes, and had an in-depth discussion with Dr. Tao on this issue.
Dr. Xiuming Tao Mr. Stephen Denyer
Session on Construction Project
Thereafter, moderated by Mr. Tom Duncan, a partner of Mayer Brown, Ms. Jinghui Tan, Director of the City Development (Beijing) Law Firm and a BAC arbitrator, started her keynote speech on construction project based on the Annual Review on Construction Dispute Resolution (2016) that she has authored. Ms. Tan firstly made a brief introduction and analysis of the status of Chinese economic development and disputes within the construction project industry in 2015. She thought that generally speaking, the Chinese economy is in a downturn, and that resulted in low profit margin of enterprises and an increase in construction project disputes. Next, Ms. Tan introduced the changes in Chinese laws on construction project, including the application of PPP modeling, EPC modeling and Building Information Modeling, and the Belt and Road Initiative. Lastly, Ms. Tan finished her speech with two cases regarding whether the brokerage fee should be paid in construction projects and the relationship between project settlement and government audit report.
Then Mr. Charles O’Neil, a Chartered Arbitrator of the FCIArb, commented on Ms. Tan’s speech from the perspective of PPP projects, and Mr. Andrew Burr, a barrister and arbitrator of ArbDB, gave his remarks focusing on the online registration system and the BIM application.
Mr. Tom Duncan Ms. Jinghui Tan
Mr. Charles O’Neil Mr. Andrew Burr
Session on Real Estate
The third session in the afternoon was on real estate, moderated by Mr. Terence Wong, a partner of Hogan Lovells. Mr. Dennis Deng, a partner of Dacheng Law Offices and a BAC arbitrator, introduced the development trend of the Chinese real estate market and the legislative changes according to the Annual Review on Real Estate Dispute Resolution (2016) that he authored. He identified the four new features of the Chinese real estate market: first, the government’s relaxation of limits to help spur the real estate market; second, the sustained market upsurge in first-tier cities and the continued bleakness in lower-tier cities; third, the growing diversification of the market, with various demands from housing to retirement living, culture and tourism; fourth, the fast growth of real estate related disputes. In the next place, he concluded the legislative trend relating to real estate that was reflected in laws and regulations on land administration, the real estate registration, foreign investment into the real estate market, and real estate advertising standards. Apart from that, Mr. Deng also briefed the audience on significant arbitration, mediation and litigation cases.
Mr. Andrew Burr acted as the commentator in this session as well. He quoted a paragraph of English wordings that led to ambiguity, and thereby commented on how an ambiguous clause in a real estate contract should be interpreted.
Session on Real Estate Mr. Terence Wong
Mr. Dennis Deng Mr. Andrew Burr
Session on Intellectual Property
The Session on Intellectual Property was moderated by Dr. Bing Cheng, a partner of AnJie Law Firm. Dr. Guanbin Xie, the founding partner of Lifang & Partners and a BAC arbitrator, delivered the keynote speech as the leading author of the Annual Review on IP Dispute Resolution (2016). He mainly highlighted the new changes in the Chinese IP laws and those landmark IP cases in 2015, and identified three primary difficulties in IP protection in China: first, plaintiffs’ excessive burden of proof; second, low compensation awarded for damages in IP disputes; third, the tedious and inefficient procedure of IP litigation. However, the draft amendment to the Chinese Patent Law in 2015 as well as the Several Provisions on Issues concerning the Application of Law in the Trial of Patent Dispute Cases and the Interpretation on Several Issues concerning the Application of Law in the Review of Cases Involving Behavior Preservation for Intellectual Property Right and Competition Disputes released by the Supreme People’s Court have given positive response to the three problems.
At the close of Dr. Xie’s speech, Mr. Jamie Rowlands, a partner of Gowling WLG, provided his remarks from the perspective of the concealment of damages resulted from IP infringement, and thought that when dealing with such disputes, courts and arbitral tribunals should raise the compensation level for IP infringement, so as to better protect intellectual property rights.
Session on Intellectual Property Dr. Bing Cheng
Dr. Guanbin Xie Mr. Jamie Rowlands
Session on Investment
Following the Session on Intellectual Property, Mr. Zhi Bao, author of the Annual Review on Investment Dispute Resolution (2016), a partner of Fen Xun Partners and a BAC arbitrator, gave the keynote speech from three aspects including the general status of investment disputes, the key legislation on investment in 2015 and typical cases, under the hosting of Mr. Nusrat Hassan, a partner of D. H. Law Associates. When introducing the general status of investment disputes, he specifically analyzed the differences between those traditional disputes and new-type disputes with reference to some typical cases. With regard to investment legislation, Mr. Bao introduced the key points of the draft Foreign Investment Law, and by referring to the definition of “control” and “foreign investment”, he provided an analysis of the trend of Chinese legislation on foreign investment as well as its influence on future dispute resolution. Moreover, Mr. Bao also presented an introduction of the Chinese State Council’s negative list for market access and China’s reform effort for its IPO verification system. As for typical cases, he provided analysis on three types of cases by referring to his practice experience both as a lawyer and as an arbitrator: (i) “fake fund” disputes, where arbitrators tried to provide proper protection to small investors’ interest based on the finding of information asymmetry between the parties; (ii) disputes arising from the stock repo arrangement that is usually adopted in investment transactions, where the arbitral tribunal would have to face both theoretical challenges and the barriers from provisions of the Company Law and related regulations in case the investors claims for the target companies’ performance of repo obligation; (iii) disputes in connection with the investment transactions inconsistent with the government’s regulation of market access, where the parties would have typical claims and the courts and arbitral tribunals would try their best to respect party autonomy when making the decisions.
At last, Mr. Patrick Zheng, a partner of Clyde & Co, provided a brief introduction of typical disputes relating to investment agreements, and then comments on those disputes involving the Chinese government and Chinese investors as well as the trend of future development thereof.
Session on Investment Mr. Nusrat Hassan
Mr. Zhi Bao Mr. Patrick Zheng
Q&A sections were arranged following the comment section in each of the sessions, where the audience had heated discussion and exchange with speakers and commentators on hot topics of the respective sessions.
Q&A section Q&A section
Q&A section Q&A section
The last climax of the Summit was the closing speech by the Hon. Mr. Justice Blair from the Commercial Court of the High Court of England & Wales. Mr. Justice Blair started his speech by looking back at the BAC’s experience of organizing the Annual Report series, and praised this work for its growing richness in the content with more and more full and accurate information. Thereafter, with the example of multiple areas of cooperation raised by President Xi during his trip to the UK in October 2015, he emphasized that one of those areas of cooperation is the China-UK judicial cooperation that is to be further strengthened. Meanwhile, he took the Chief Judge of the Supreme People’s Court of China Mr. Zhou Qiang’s visit to the Supreme Court of the UK as another example, and highlighted the importance of consolidating the China-UK legal exchange. At last, he highly affirmed the significance of the BAC’s organization of this Summit and its promotion to the China-UK exchange on commercial law and dispute resolution.
The Hon. Mr. Justice Blair
Here the full day’s event came to its end. After the Summit, the hosts held a cocktail reception. Most speakers and audience attended the reception had a further exchange and communication.
Cocktail reception
This Summit unveiled the new problems, new trend and new development of commercial dispute resolution in China during 2015 from eight aspects. Chinese and foreign experts had exchange and communication on related issues, which promoted mutual understanding, and well built a platform for deepening exchange and strengthening cooperation. Keeping to the original aspiration, one will have a good harvest after his longtime perseverance. The Annual Report overseas launch event is a brand event series of the BAC’s promotion of China-foreign exchange. With refinement and improvement of four consecutive years, it has won a growing popularity and an increasing international influence year by year. The BAC as an internationally well-known Chinese leading commercial dispute resolution institution will always endeavor to promote the China-foreign exchange and cooperation on commercial dispute resolution and the internationalization of the Chinese commercial dispute resolution system, so as to realize the expectation and ambition of promoting the organic combination of localization and globalization of Chinese commercial dispute resolution and promoting the coordination of the mutual understanding of Chinese law and foreign law and dispute resolution.
Group photo of speakers and BAC staffs