International Commercial Dispute Resolution --- By SUN WEN JIE

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International Commercial Dispute Resolution---
By SUN WEN JIE

• Lehman, Lee Xu???????
• www.lehmanlaw.com
• May 12, 2006

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Conceptual Analysis

• International vs. Domestic
• Commercial vs. Non-commercial
• Dispute vs. Claim
• Resolution vs. Waiver

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Alternatives for ICDR

• Settlement
• Referral to expert
• Mediation
• Arbitration
• Litigation
• Any others?

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Comparison On Alternatives

• Cost benefit analysis
• Advantages and disadvantages
• Required in certain circumstances
• Binding vs. non-binding

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Process of Dispute Management

1. Introduction instruction from Client
2. Analysis
3. Communication correspondences
4. Negotiation
5. Settlement or legal action

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Strategies Skills in the Process

• 1. Introduction instruction from Client
• Key points
• What you heard from your client may not be true
• Never start an action without authorization from
  your client
• Grasp key elements in the story

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• 2. Analysis
• Key points
• Facts
• Laws
• Commercial Perspective

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• 3. Communication correspondences
• Key points
• 5 W (who, whom, what, when, how)
• Anticipate response
• Start with the end in mind
• Without prejudice
• Confirm any oral agreement in writing
• Collect evidence
• Time limit in contract

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• 4. Negotiation
• Key points
• Stand in the others shoes
• Inner negotiation Don not fear of persuading
  your client to compromise
• Not necessary to win
• Keep things in control
• Friendly but aggressive

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• 5. Settlement
• Key points
• A new agreement
• Pre-action or post-action
• Win-win situation time, money, relationship
• Key elements in Settlement Agreement
  consideration, release of rights, no admission,
  confidentiality
• Key consideration in Settlement Agreement
• unilateral or mutual whether covers all
  parties whether covers all claims

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Arbitration vs. Litigation

• Why arbitration most acceptable ?
• Independency
• Flexibility
• Confidentially
• Enforceability
• Party autonomy

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Process Management for Arbitration/Litigation (1)

• Draft of arbitration agreement
• Venue
• Appointment of arbitrator
• Language
• Procedure
• Place
• Rules
• Final and binding

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Process Management for Arbitration/Litigation (2)

• Preparation for hearing
• All facts must be evidenced
• Classify evidences
• Supporting evidences vs. Opposing evidences
• Relevant vs. Irrelevant
• Available vs. Unavailable
• Assess your opponents evidences
• Claim/counterclaim vs. counter defense/defense
• Prepare to use opponents evidence to support
  your argument
• Simplify facts

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Process Management for Arbitration/Litigation (3)

• Presentation in hearing
• Written arguments and oral argument
• Confirm oral argument in writing
• Focus on focus (not to go farer than your
  preparation)
• Always know your audience

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Some Golden Notes

• Evidences will never be sufficient
• Familiar with in-hand evidences
• Keep thinking opponents response
• Dont submit an evidence until you know how to
  use it
• Are evidences logically connected?
• A good fact is more important than good law

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Case Study 1

• Chart 1

Buyer

• Parties
• US Buyer
• Buyers employee
• Manufacturer
• Freight forwarder
• Shipping company
• Consignee

Consignee
Shipping Co.
Employee
Forwarder
Manufacturer
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Background of Case 1

• US Buyer made a purchase order to Manufacture
  through its Employee in China
• Buyer used Forwarder as agent to ship goods to
  Consignee in New York
• Forwarder on-loaded goods on a vessel of Shipping
  Co.
• Employee took B/L from Forward after shipment by
  cheating and refused to send out the B/L
• Employee said that Buyer owed payment to him as
  well as Manufacturer
• Goods was on the ocean
• You are representing US Buyer now

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Case Study 2

• Background
• A US Distributor signed an exclusive distribution
  agreement with a Chinese Supplier
• There is a Sales Projection in the Agreement
• Based on the Projection Supplier built up
  workshops, hired employees, bought equipments and
  materials
• D failed to meet the Projection
• Supplier claimed D for multi-million compensation

• Chart 2

US Distributor
China Supplier