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Juha Lassila

"Public policy" and the enforcement of foreign arbitration awards in China - Lexology - 0 views

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china law arbitration

shared by Juha Lassila on 21 Dec 10 - No Cached
  • Case Study 1: Morality
  • This concert, however, was suspended when Chinese authorities asserted that the performance included heavy metal music that had not been approved by the Ministry of Culture of China
  • the arbitration tribunal awarded damages to the performers
  • ...12 more annotations...
  • the SPC concluded the performance did in fact violate China’s social public interest and, as such, the performers had breached the contract.
  • Case Study 2: Mandatory Administrative Regulations
  • Japanese company alleged the SOE was contractually obligated to pay back certain debt
  • SOE challenged the award in a Chinese court, arguing the award violated Chinese public policy because the repayment of the foreign debt to the Japanese company had not been approved by the State Administration on Foreign Exchange and this approval was compulsory. The lower court agreed and refused to enforce the award.
  • The SPC therefore reversed the lower court’s decision, ruling that the award could not be vacated on public policy grounds.
  • Case Study 3: Sovereignty of the Chinese Courts
  • a Chinese company and three foreign companies executed a contract to form a joint venture.
  • When a dispute subsequently arose between the Chinese company and the joint venture entity, the Chinese company commenced a lawsuit against the joint venture entity in the Chinese courts, which ruled in favour of the Chinese company and ordered the assets of the joint venture be impounded.
  • foreign tribunal held that the Chinese company had breached the joint venture contract by petitioning a Chinese court to impound the joint venture assets, and awarded damages to the foreign parties.
  • When the Chinese company did not pay these damages, the foreign parties brought suit in China, seeking enforcement of the arbitral award.
  • The Chinese court, however, held that the arbitration clause in the joint venture contract only covered disputes between the contracting parties and, therefore, did not cover the dispute between the Chinese party and the joint venture entity (which was not a party to the contract).
  • While no one can ever guarantee a foreign arbitral award will be enforced in China, the climate is better than many think.
  • Juha Lassila on 21 Dec 10
     
    "While no one can ever guarantee a foreign arbitral award will be enforced in China, the climate is better than many think."
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