by Alexandra Damsker
As we discussed in our last entry, arbitration is gaining steam as a method of dispute resolution in both the PRC and Hong Kong. As a refresher, arbitration is legally binding, and comes in two (or three) basic "flavors" in the PRC. First are local PRC disputes, which go through either the China International Economic and Trade Arbitration Commission and China Maritime Arbitration Commission. Second are international disputes, which generally - but not always - includes US companies (see the final paragraph for this warning). International disputes can be broken down further into disputes regarding "foreign awards" (from a non-Chinese arbitration institute), and those regarding "foreign-related awards" (from a domestic arbitration body involving a foreign party). The distinction between "foreign" and "foreign-related" will be seen in the section regarding enforcement.
In any event, parties with international disputes relating to the PRC generally choose to arbitrate in Hong Kong. Hong Kong has a long and well-established legal history, particularly with international disputes (especially with those involving Western nations) and is easier to predict in many ways than PRC outcomes. Also, unlike the PRC, but similar to the US, Hong Kong is subject to principles of common law. Accordingly, along with Singapore, Hong Kong is the main venue of arbitration in the region. The primary arbitration center is the Hong Kong International Arbitration Center (HKIAC), which increased the number of disputed resolved 35% in 2008 over 2007 (compared to 14%increase in 2007 over 2006). As noted previously, the increase is likely due, in part, to the declining economy, as the decreased cost and increased speed both serve to facilitate the speed and profitability of business.
Hong Kong announced in February of this year that it expected to create a single regime for international and local arbitration, based on the UN Commission on International Trade Law Standards (UNCITRAL), without rewriting them. (Interestingly, if both parties are PRC citizens, the arbitration is considered "international" in Hong Kong, just as the Hong Kong arbitration ruling is considered "international" by the PRC government for the purposes of enforcement, discussed below). The use of UNCITRAL is being interpreted as permitting the use of UNCITRAL interpretation for interpretation of the new Hong Kong ordinance, bringing new clarity to arbitration proceedings (and, presumably, negotiations prior to arbitration), filling gaps in Hong Kongʼs court system. The ordinance will also contain limits on court redress of arbitral awards.
Arbitration procedures are gaining popularity among unlikely followers. For example, arbitration tends to typically be less attractive to financial institutions for both the tendency to "split the baby" and their lack of summary judgment. However, the HKIAC recently announced that it is resolving investor disputes related to sales of US $2.03billion in financial products (mostly mini-bonds) associated with Lehman Brothers (see http://www.asialaw.com/Article/2068790/Search/Results/A-new-solution.html?Keywords=Civil+Justice+Reforms) - yet another signal in arbitrationʼs new popularity.
In addition, on April 30, a key case, A v. R, was resolved in Hong Kongʼs High Court, further enforcing the finality of arbitration decisions and encouraging enforcement of the award payment. In that case, the court concluded that mounting an unfounded challenge to an arbitration award fails to comply with a partyʼs obligation to further the objectives of the Civil Justice Reforms (introduced April 2, 2009), particularly the duty to assist the court in the just and efficient resolution of a dispute. Further, and most importantly - it added indemnity costs, considering heavier than usual costs fair, adding further penalty to those wishing to challenge arbitral awards in Hong Kong.
But how enforceable are the judgments reached in these proceedings? Sonia Chan writes an excellent article for AsiaLaw.com regarding the enforceability of arbitration proceedings, http://www.asialaw.com/Article/2023082/Search/Results/Protectionism-is-stifling-Chinese-arbitral-awards.html?Keywords=Arbitral%2bawards, which is briefly summarized (in conjunction with additional research): Basically, unless your defendant is in Beijing, Shanghai or Guangzhou - it can be tough, but it’s getting somewhat easier.
The tools are all there: The PRCʼs Civil Procedure Law of 2007 lays out the basic principles of recognition and enforcement of foreign arbitral awards, which includes both institutional and ad hoc (proceedings conducted by someone other than an "arbitral institution") arbitration proceedings conducted in Hong Kong, both of which are recognized in the PRC. It also lays out a two year time limit for enforcement (an improvement over the previous law’s one year limit), which helps creditors.
However, arbitral awards cannot be enforced unless they have been recognized by the local PRC courts as being enforceable, and local protectionism has been a problem. Although, in 1995, the PRC Supreme Court declared its solitary supremacy in its right to refuse to recognize both foreign awards (from a non-Chinese arbitration institute) and foreign-related awards (from a domestic arbitration body involving a foreign party), that hasn’t solved the problem. There is no time limit on the Supreme Court’s decision, so getting through the procedural red tape can drag on for years - which can also be due to some local protectionism. Enforcement is further hampered by Chinese interest, local or otherwise, in the defendant - and, as anywhere, whether or not the defendant is even solvent.
Finally, it is important to note that domestic arbitral awards may not be enforceable at all! Unlike foreign and foreign-related arbitral awards, Chinese courts can review the arbitration tribunal’s findings of both fact and law. The mere fact that one party is a wholly foreign-owned entity will not normally render the award foreign or foreign-related. So the winning party in arbitration may be pronounced the loser by the court. Consider this when considering domestic arbitration - you may end up in litigation anyway...
Is arbitration the answer? Perhaps - it depends on where you and your partners are located, the interests the PRC has in your and your partners’ business, and the solvency of your partners’ business should the situation decline. Once again, this cannot be overstated: CONSULT YOUR ATTORNEYS. THIS SHOULD BE CONSIDERED BEFORE A MATERIAL BREACH OCCURS. Once disaster strikes, these questions can certainly be revisited, but you are never stronger in negotiating that when you are still at the contracting stage, particularly as the mood is still congenial and terms are much easier to set. An ounce of prevention is worth ten pounds of cure when it comes to dispute resolution mechanics. At the USA China Law Group sound prevention is sound business - please feel free to contact us.
Wishing you good counsel - and good health!
