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China and International Commercial Dispute Resolution

Edited by: Qiao Liu

ISBN13: 9789004306721

Published: October 2015

Publisher: Brill Nijhoff

Country of Publication: The Netherlands

Format: Hardback

Price: £139.00

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China and International Commercial Dispute Resolution presents important contributions from eminent legal scholars from Europe, the United States, Australia, South America, and China in a variety of areas of international commercial law with relevance to China.

The authors provide expert analyses from a number of perspectives – doctrinal, comparative, empirical, economic, and legal – on an array of issues, private and public, involved in or arising from international commercial dispute resolution in China.

Subjects:: Other Jurisdictions , China, Arbitration and Alternative Dispute Resolution

Contents:: Notes on Contributors; 1. Introduction; Qiao Liu and Xiang Ren; Part I General Issues in International Commercial Arbitration; 2. Specific Performance in International Arbitration; Ewan McKendrick and Iain Maxwell; 2.1 The meaning of ‘specific performance’; 2.2 Common law and civil law; 2.3 Specific performance in an arbitral context; 2.4 Xiamen Xinjingdi Group Ltd v Eton Properties Ltd; 3. EU Law in Chinese International Commercial Arbitration; Jürgen Basedow; 3.1 Arbitration in the Law of the European Union; 3.2 Arbitral Proceedings and State Courts in the European Union; 3.3 EU Law and the Merits of International Arbitration Proceedings; 3.4 Arbitration Panels and the European Court of Justice; 3.5 Conclusion; 4. Using Soft Law in International Commercial Contract Arbitration; Larry A. DiMatteo; 4.1 Introduction; 4.2 Soft Law and International Commercial Arbitration; 4.3 Normative Power of Soft Law; 4.4 Types of Soft Law; 4.5 Interpretive Methodologies; 4.6 Soft Law Trumps Hard Law: Private Customary International Law; 4.7 Hard and Soft Law in International Commercial Disputes; 4.8 Conclusion; 5. Independence and Impartiality of Arbitrators: A Comparative Perspective; Carlos Matheus López; 5.1 Factors in Selection of Arbitrators; 5.2 Background; 5.3 Independence and Impartiality; 5.4 Duty of Disclosure; 5.5 Efforts to Systematize and Limits; 5.6 Practical Analysis Factors; 5.7 Means to Ensure Arbitrator Independence and Impartiality; 5.8 Practical Steps to Select a Party-nominated Arbitrator; 5.9 Pre-appointment Interview; 5.10 Some Criteria to Challenge an Arbitrator; Part II Specific Issues in International Commercial Arbitration; 6. China and Foreign Direct Investment: Looking Ahead; Leon Trakman; 6.1 Introduction; 6.2 Investment Claims and China; 6.3 ISA Claims by Chinese Investors Abroad; 6.4 ISA Claims Brought Against China; 6.5 Chinese Arbitrators; 6.6 Withdrawing From ISA?; 6.7 A “China-made” Investment Jurisprudence?; 6.8 China’s Distinctive History of “Liberalization”; 6.9 China’s “Liberalization” of its BITs; 6.10 The History of Chinese BITS; 6.11 Modelling China’s Model BIT; 6.12 “Alternative” Dispute Resolution; 6.13 Conclusion; 7. Arbitrability of Company Law Disputes; Andrew Johnston; 7.1 Introduction; 7.2 Arbitration under the statutory contract; 7.3 Under shareholder agreements; 7.4 Actions by the company against its directors; 7.5 Derivative action by minority shareholder against directors; 7.6 Unfair prejudice applications; 7.7 Conclusion; 8. Rules of Evidence in CIETAC International Arbitration; Song Lu; 8.1 Introduction; 8.2 General Approaches towards Disclosure and Investigation of facts; 8.3 PRC Civil Procedure Law; 8.4 Current PRC Statute on Rules of Evidence in Arbitration; 8.5 Rules of Evidence Agreed by the Parties; 8.6 Rules of Evidence for China – CIETAC Evidence Guidelines; 8.7 Conclusion; Part III Issues in International Commercial Law and Non-Arbitration Dispute Resolution; 9. A Critique of the European Contract Code ‘Project’; Roger Halson; 9.1 Introduction; 9.2 The General Background to Codification; 9.3 Process and the creation of the CESL; 9.4 Further outline of the CESL including available remedies; 9.5 Key Arguments for Reform; 9.6 Further Critique; 9.7 Conclusion; 10. CISG in Chinese Courts: The First Look; Qiao Liu and Xiang Ren; 10.1 Introduction; 10.2 Applicability of CISG in Chinese Courts; 10.3 The Survey; 10.4 Conclusion; 11. State-owned Enterprises in the WTO Law: An Analysis of United States–Definitive Anti-dumping and Countervailing Duties on Certain Products from China; Ming Du; 11.1 Introduction; 11.2 State-owned Enterprises in the Law of World Trade Organization; 11.3 The US- Antidumping and Countervailing Duties Case; 11.4 Conclusion; 12. Judicial Mediation: A Behavioural Law and Economics Perspective; Qi Zhou; 12.1 Introduction; 12.2 Mediation and Judicial Mediation; 12.3 Judicial Mediation As Solutions; 12.4 Evaluating the Role of Judicial Mediation; 12.5 Evaluating the Efficiency of Judicial Mediation; 12.6 Conclusion; INDEX