On the afternoon of June 9, the “Cross-Border Dispute Resolution from China’s Perspective” event, co-hosted by JT&N and Wolters Kluwer, was successfully concluded at JT&N’s Beijing Office. JT&N’s Director Chen YANG, Senior Partners Jun PENG and Lan LI, and Consultant Tianyu ZUO shared their views on key and hot issues in cross-border dispute resolution from the perspective of Chinese attorneys and Chinese companies. More than 40 leaders from major state-owned enterprises, top 500 companies, and industry associations of various industries, including energy, manufacturing, finance, technology, and medicine, attended the event. Mr. Xuechi FAN, Deputy Director of Wolters Kluwer, also attended the event and gave an opening speech.
Prior to the discussion and exchange, JT&N’s Director Chen YANG introduced JT&N’s cross-border dispute resolution team. Since 2015, this “national team” on the international legal stage has been successively selected by China’s Ministry of Commerce to provide legal services in the areas of trade remedies, trade disputes involving WTO and regional trade agreements, international investment, trade barriers, and investigations conducted by the USITC under Section 337 of the Tariff Act of 1930 and related amendments. JT&N’s cross-border dispute resolution team has assisted the Chinese government in hundreds of international dispute resolution matters, including litigation, WTO dispute settlement, investment arbitration, and so on. In addition, the “national team” has also assisted the Chinese government in negotiating various international economic and trade agreements, including negotiations on a China-EU investment agreement, CPTPP negotiations, WTO e-commerce agreement negotiations, etc.
Attorney Chen YANG then shared his views on “How to handle cross-border dispute resolution cases”. Attorney YANG first defined the scope of this discussion, and elaborated on three aspects of case management objectives, case management contents, and case management misunderstandings. According to attorney YANG, in cross-border disputes, attorneys should reasonably manage clients’ expectations and ensure that the decision-making process remains compliant. At the same time, attorneys should manage the team with a sound mechanism, make document management a top priority, and do a good job of bill management to control costs.
Attorney Lan LI, Senior Partner of JT&N, shared with the guests the risk prevention of foreign-related contracts from the perspective of cross-border dispute resolution. Attorney LI analyzed the typical problems and solutions in various situations of foreign-related contracts, starting from the provisions that are prone to disputes in practice, such as the term and early termination clause and the limitation of liability clause. When it comes to managing contracts, companies can consider putting 80 percent of the effort into managing 20 percent of the key contract terms, LI said. At the same time, through repeated training and review, companies should seek to achieve a certain level of consensus among the legal department, the business department, and senior management on the risk points of these terms. Moreover, appropriate consideration should be given to raising the level of approval for scenarios involving “red lines (with significant risks)”.
Attorney Jun PENG, Senior Partner of JT&N, discussed the relationship between state-owned enterprises and the state in overseas litigation based on several recent cases. Attorney PENG first introduced the difficult problem of the independence of SOEs from the aspects of trade subsidies, national security review, and competition/investment subsidies. Based on the recent South African case, attorney PENG introduced the focus of the independence of the SOE and the difficulty of the legal debate in the case, and how to explain the reform of the authorized operation mechanism for the state capital in China to the South African judges, and how to finally get the judgment of recognizing the independence of SOEs.
Attorney Tianyu ZUO, a consultant of JT&N, shared with the guests the issues of preservation and enforcement in cross-border dispute resolution cases. First of all, attorney ZUO explained to the guests the methods of investigation, detection and preservation of foreign assets and, based on his practical experience, thoroughly analyzed the ways of capital recovery in various cases. Finally, attorney ZUO said that the future trend of recognition and enforcement of foreign judgments in the Chinese mainland may be more open and inclusive. In the meantime, the risk of domestic assets being executed will also increase, so companies should take precautions in the future in order to actively respond to possible risks.
The year 2023 marks the 45th anniversary of China’s reform and opening up, the 22nd year of China’s accession to the WTO, and the 10th anniversary of the Belt and Road Initiative. In China’s historic process of accelerating economic and social development, deepening opening-up and strengthening international cooperation, JT&N has not only witnessed many important moments, but has also been a participant, defender, and leader. JT&N has acted in a number of large, complex, and significant trade remedies and dispute resolution cases, and has also assisted Chinese companies in a number of benchmarking cross-border dispute resolution projects. In the future, JT&N will continue to accompany Chinese enterprises to “go global” and help Chinese enterprises to go further and stand higher in the international market.