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SIAC – SHCCIE Seminar 2019

24 June 2019
SIAC – SHCCIE Seminar 2019
By John Liu, Senior Partner, AllBright Law Offices

The SIAC – SHCCIE Seminar 2019 was titled “Advancing the BRI: Navigating the Legal Landscape”, and attracted around 50 practitioners, in-house counsel and professionals.

Ms. Lim Seok Hui (CEO, SIAC) opened the session, reporting the outstanding performance of SIAC in 2018, as well as its excellent people (the SIAC Court of Arbitration and the SIAC Secretariat) and the state-of-the-art hearing facilities in Maxwell Chambers. Mr. Tony Zhang (Deputy Chairman, Shanghai Chamber of Commerce for Import and Export (“SHCCIE”)) followed with the opening address. He first reported the recent achievements and developments of the SHCCIE and then expressed the hope of continuing future event collaborations with SIAC.

Left to Right: Mr Tony Zhang, Mr Nicolas Lum, Mr David Gu and Mr John Liu

Panel Session : Managing the Legal Risks and Use of Effective Dispute Resolution for BRI Investments

Dr. Li Shen (Chief Legal Officer, Noah Holdings) began with a speech titled “Private Equity Fund Investment Mode and Legal Risk Control in BRI Investment”. He introduced the advantages of PE investment, including the advantages of information in the industry sector, reducing the political risks of investment, broadening the channels of fund raising, and providing professional technology for mergers and acquisitions. He also stressed the risks in private equity investment, such as the short-term and medium-term risks of debt of leveraged buyouts, insider trading and the related moral risks, and the risks of the capital operations of the acquired enterprises. After that, he further emphasized the importance of selecting an internationally well-regarded arbitration institution, as the arbitration awards issued by a reputable arbitral institution are more likely to be recognized and enforced by other contracting States of the New York Convention.

Mr. David Gu (Partner, Tiantong Law Firm) then delivered a presentation titled “Introduction to International Arbitration for Chinese Enterprises: Arbitration Institutions, Arbitration Clauses and Arbitrators”. Mr. Gu gave a brief introduction to relevant aspects of international arbitration, in which the importance of selecting arbitrators was highlighted, as well as strategies and tips in the selection process. He also emphasized that parties should pay attention to the selection of arbitration institutions, the update of the rules of arbitration institutions and the constitution of arbitral tribunals. With regard to drafting of the dispute resolution clause, reference could be made to the model clauses of arbitration institutions.

Mr. John Liu (Senior Partner, AllBright Law Offices) spoke on the topic “Risk Prevention in Overseas Investments by Chinese Enterprises”. He pointed out that risk prevention could be divided into three levels. The first level is prevention in advance, namely compliance framework. If an enterprise completes compliance framework at an early stage, it could better avoid risks later. The second level is in-process prevention, which means the prevention awareness of relevant issues in the process, especially in the process of international trade. When encountering problems or potential risks, companies should work out how to respond. The third level is the post-event remedy. When disputes occur, companies should actively seek professional advice to resolve the disputes. The Chinese enterprises which go abroad should pay more attention to risk prevention.

After that, Mr. Nicholas Lum, Partner of Ince (Shanghai/Singapore offices) spoke on “The Notion of International Commercial Arbitration to Chinese Companies: Demystifying the Myths and Bridging the Cultural and Legal Differences”. He shared with the audience three (3) key points that Chinese companies need to keep in mind when “going out” and embarking on BRI projects. First, Chinese companies should be careful about using modest / non-confrontational tones (or not respond at all) as that may, at law, be argued to be behaviour viewed as concession or admission of fault, when there has clearly been no such intention at all. It was crucial to ensure that positions are properly set out and a proper paper trail established from the outset. Second, during the disclosure process in international arbitration, all evidence deemed relevant to the proceedings had to be disclosed, notwithstanding that such evidence may be adverse to one’s own case. This process has to be properly explained to Chinese companies, which may not be used to the same. Finally, the cross-examination of factual witnesses and experts in international arbitrations is a crucial part of a hearing - this is again quite different from a typical court or arbitration hearing in mainland China, and should be brought to the attention of Chinese companies.

Mr. Tony Zhang (Senior Partner, Co-effort Law Firm) gave a presentation on “Considerations for Selecting the Seat of Arbitration”. He pointed out that there are many legal, technical and procedural issues involved when choosing the seat of arbitration. The seat of arbitration determines the national court that has power to order interim measures in support of the arbitration, determine challenges of arbitrators and set aside the award, etc. During an arbitration, more attention should be paid to issues such as challenges of arbitrators and disclosure of challenge decisions. Therefore, he highly recommended arbitration institutions to disclose such information so as to ensure the transparency and fairness of the arbitration process.

Ms. Jianying Liu (Deputy Head (China), SIAC) moderated a panel comprising Mr. David Gu, Mr. John Liu, Mr. Nicolas Lum and Mr. Tony Zhang. The panelists shared valuable insights on dealing with disputes arising out of cross-border investments. Mr. Gu said that large companies should build a robust team with professional in-house counsel to deal with arbitration cases instead of entirely relying on outside attorneys. Mr. Liu emphasized that enterprises needed to pay more attention to the selection of arbitrators and drafting of arbitration clauses, equip themselves with more knowledge and skills to be fully prepared for unforeseen challenges. Mr. Lum advised that in-house counsel of Chinese companies should take note of pertinent clauses in cross-border contracts (governed by common law) which may be interpreted differently from what one would expect under the Chinese civil law regime. In the event that a matter resulted in a dispute, Mr. Lum stressed that it was vital that suitable steps be taken (whether strategic or legal in nature) to try and resolve it promptly, which would no doubt result in a saving of time and costs for parties. Mr. Zhang indicated that as the world of international arbitration is a professional playing field,practitioners experienced in arbitration should be engaged to represent the parties in an international arbitration case.

Mr Leo Liu Rundong, Deputy Head (China), SIAC concluded the event with brief closing remarks.
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