The Dispute Resolution Surprise John Bishop Partner

Mainland Contractors’ understanding of dispute resolution Background Mainland more than 170 Arbitration Institutions Long History of arbitration in Mainland China Conciliation is an inherent part of Chinese arbitration But Most construction disputes were resolved in “the Chinese way” Sign of failure to have a formal dispute at all

Mainland Contractors’ understanding of dispute resolution But CIETAC and BAC have both updated their arbitration rules No real experience of Mediation, Adjudication or Dispute Resolution Boards –Only one mediator in Mainland China listed by who’s who legal as one of the world’s leading mediators CIETAC has introduced Adjudication rules BAC has introduced Mediation Rules and formed relationship with Pepperdine University’s Strauss Institute to assist in the promotion of mediation Government is encouraging the inclusion of Dispute Adjudication Boards in contracts

Mainland Contractors’ understanding of dispute resolution Mainland Contractors have little experience of “western” methods of dispute resolution, so: –Not enough attention to dispute resolution provisions in contracts outside China –Surprised by what is required when a dispute occurs

Dispute Resolution Provisions Multi-tiered processes generally rejected because of unfamiliarity not for logical reasons Arbitration clauses put forward by Employers often accepted without question –Sometimes little appreciation of the New York Convention –Strange provisions may go unchallenged –Even acceptance of local courts –No appreciation of opportunities that may be offered by Bilateral Investment Treaty Arbitrations

Mainland Contractors’ understanding of dispute resolution processes Currently running or contemplating for Mainland Contractors arbitrations/court proceedings in several countries –Usually no “preparing the way” during the contract –Little consideration of records needed for a dispute in case one occurs –Ineffective participation in pre arbitration processes (e.g Engineer’s decisions, DAB etc) because proceeded too quickly thought best to keep real facts and argument for arbitration

Mainland Contractors’ understanding of dispute resolution processes –Difficult to understand matters such as Precision usually needed in relation to Pleadings and Submissions Depth of witness evidence Rules of evidence Principles of Discovery –Damaging documents –Private documents Timescale

The Opportunities for working with Chinese Contractors THANK YOU 谢谢 ! To contact presenter: 演讲者联系方式 John Bishop

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