International Commercial Dispute Resolution --- By SUN WEN JIE

1. International Commercial Dispute Resolution--- By SUN WEN JIE Lehman, Lee & Xu雷曼律师事务所 www.lehmanlaw.com May 12, 2006

2. Conceptual Analysis • International vs. Domestic • Commercial vs. Non-commercial • Dispute vs. Claim • Resolution vs. Waiver

3. Alternatives for ICDR • Settlement • Referral to expert • Mediation • Arbitration • Litigation • Any others?

4. Comparison On Alternatives • Cost – benefit analysis • Advantages and disadvantages • Required in certain circumstances • Binding vs. non-binding

5. Process of Dispute Management • Introduction & instruction from Client • Analysis • Communication & correspondences • Negotiation • Settlement or legal action

6. Strategies & Skills in the Process 1. Introduction & instruction from Client Key points: • What you heard from your client may not be true • Never start an action without authorization from your client • Grasp key elements in the story

7. 2. Analysis Key points • Facts • Laws • Commercial Perspective

8. 3. Communication & correspondences Key points • 5 W (who, whom, what, when, how) • Anticipate response • Start with the end in mind • Without prejudice • Confirm any oral agreement in writing • Collect evidence • Time limit in contract

9. 4. Negotiation Key points • Stand in the other’s shoes • Inner negotiation: Don not fear of persuading your client to compromise • Not necessary to win • Keep things in control • Friendly but aggressive

10. 5. Settlement Key points • A new agreement • Pre-action or post-action • Win-win situation: time, money, relationship • Key elements in Settlement Agreement: consideration, release of rights, no admission, confidentiality • Key consideration in Settlement Agreement: unilateral or mutual; whether covers all parties; whether covers all claims

11. Arbitration vs. Litigation • Why arbitration most acceptable ? • Independency • Flexibility • Confidentially • Enforceability • Party autonomy

12. Process Management for Arbitration/Litigation (1) Draft of arbitration agreement: • Venue • Appointment of arbitrator • Language • Procedure • Place • Rules • Final and binding

13. Process Management for Arbitration/Litigation (2) Preparation for hearing • All facts must be evidenced • Classify evidences: • Supporting evidences vs. Opposing evidences • Relevant vs. Irrelevant • Available vs. Unavailable • Assess your opponent’s evidences • Claim/counterclaim vs. counter defense/defense • Prepare to use opponent’s evidence to support your argument • Simplify facts

14. Process Management for Arbitration/Litigation (3) Presentation in hearing • Written arguments and oral argument • Confirm oral argument in writing • Focus on focus (not to go farer than your preparation) • Always know your audience

15. Some Golden Notes • Evidences will never be sufficient • Familiar with in-hand evidences • Keep thinking opponent’s response • Don’t submit an evidence until you know how to use it • Are evidences logically connected? • A good fact is more important than good law

16. Parties: US Buyer Buyer’s employee Manufacturer Freight forwarder Shipping company Consignee Chart 1 Case Study 1 Buyer Consignee Shipping Co. Employee Forwarder Manufacturer

17. Background of Case 1 • US Buyer made a purchase order to Manufacture through its Employee in China • Buyer used Forwarder as agent to ship goods to Consignee in New York • Forwarder on-loaded goods on a vessel of Shipping Co. • Employee took B/L from Forward after shipment by cheating and refused to send out the B/L • Employee said that Buyer owed payment to him as well as Manufacturer • Goods was on the ocean • You are representing US Buyer now

18. Background A US Distributor signed an exclusive distribution agreement with a Chinese Supplier There is a Sales Projection in the Agreement Based on the Projection Supplier built up workshops, hired employees, bought equipments and materials D failed to meet the Projection Supplier claimed D for multi-million compensation Chart 2 Case Study 2 US Distributor China Supplier