CIETAC HONG KONG MOCK ARBITRATION. 29 September 2016 Beijing

Transcription

1 CIETAC HONG KONG MOCK ARBITRATION 29 September 2016 Beijing

2 WELCOME REMARKS Dr. WANG Wenying Secretary General, CIETAC Hong Kong Arbitration Center Secretary General, CMAC Hong Kong Arbitration Center Council Member, CIETAC and CMAC

3 PARTICIPANTS

4 ON TPF DIALOGUE A. What is TPF and currently Hong Kong position towards it? B. Any observation from London? C. A question for member(s) of the Working group of CIETAC Hong Kong s Guideline to TPF in Arbitration, any comment from you regarding the guidelines and why do you think parties may find it helpful? D. It is mentioned in the dialogue that the costs for this arbitration follow the event, can anyone give further illustration on this principle? E. Question from the audience?

5 EXHIBIT 1 第 二部分通 用合同条款 Chapter II General Terms 17.1 和解 17.1 Conciliation 合同当事 人可以就争议 自 行行和解, 自 行行和解达成协议的经双 方签字并盖章后作为合同补充 文件, 双 方均应遵照执 行行 The Parties may work out their own conciliation scheme. Any agreement(s) reached from conciliation shall be signed and sealed by both Parties and become part of the Contract and bind the Parties 调解 17.2 Mediation 合同当事 人可以就争议请求中国国际经济贸易易仲裁委员会在北北京进 行行调解, 调解达成协议的, 经双 方签字并盖章后作为合同补充 文件, 双 方均应遵照执 行行 Parties may refer any dispute to the China International Economic and Trade Arbitration Commission to mediate in Beijing. Any agreement(s) reached from mediation shall be signed and sealed by both Parties and become part of the Contract and bind the Parties 仲裁或诉讼 17.4 Arbitration or Litigation 因合同及合同有关事项产 生的争议, 合同当事 人可以在专 用合同条款中约定以下 一种 方式解决争议 : Any dispute arising out of or in connection with this contract may be referred to either of the following according to the agreement in the Specific Terms: (1) 向 香港国际经济贸易易仲裁委员会申请仲裁 ; (1) Arbitration at Hong Kong China International Economic and Trade Arbitration Commission; (2) 向有北北京市有管辖权的 人 民法院起诉 (2) Litigation at a court which has jurisdiction in Beijing. Endorsed by: Claimant s Parent Company

6 EXHIBIT 2A HKX Procedural Order No.1 (Submission protocol and oral hearing arrangement) 2. Oral hearing 2.2 It has been agreed by Parties and approved by the Tribunal that the timetable for the First Part of the oral hearing: Guillotine procedure. 50 minutes on the jurisdictional challenge and 10 minutes (if possible, to be decided by the tribunal) on mediation No cross-examination over factual witnesses unless the Tribunal approves. The Tribunal may ask the Witnesses questions directly when they see appropriate.

7 EXHIBIT 2B HKX Joint submission over submission protocol and oral hearing arrangement To: Rachel Qin, Case Manager, CIETAC Hong Kong Att: the Tribunal (John Bishop, Nicolas Wiegand and Gavin Denton) Dear Ms Qin, For the purpose of time and cost saving for the first oral hearing, the Claimant and the Respondent hereby jointly submit the following for the consideration of the Tribunal. B. Guillotine procedure. 50 minutes on the jurisdictional challenge and 10 minutes (if possible, to be decided by the tribunal) on mediation. C. No cross-examination over factual witnesses unless the Tribunal approves. D. An update on China Law expert related to be submitted Warmly yours, Claimant and Respondent

8 EXHIBIT ALPHA

9 EXHIBIT BETA

10 EXHIBIT 10-C In the CIETAC Hong Kong Arbitration Center Affirmation a CIETAC Hong Kong Arbitration Center case with the Case no. HKX I, Brad Wang, General Manager of Claimant, solemnly and sincerely affirm and say as follows: I make this affidavit / affirmation in support of the Statement of Claim filed on 3 March The facts deposed to herein are true to the best of my knowledge, information and belief save where otherwise stated. 8 The contract made between us and the Respondent is modelled on a sample contract provided by MOHURD. In December 2012, the parent company of us instructed all its subsidiaries, including us, to use this MOHURD sample contract for all the construction project deals, save for exceptional circumstances, in which cases we need to seek approval from our parent company.in the previous dealings, in terms of dispute resolution clause, we usually insist on using CIETAC sample clause in every contract. And the other side would try to make changes such as seat, language and venue for oral hearing. 10. As a matter of fact, there was never such an intention from our side to have a mediation procedure outside the regime of CIETAC Hong Kong arbitration. 54. The I sent to the legal counsel, Kevin Walsh, dated 2 Feb 2012, is the best proof that mediation will only be handled in arbitration. AFFIRMED at the CIETAC Hong Kong Arbitration Center this day of ** 2016 **) Before me *** China-Appointed Attesting Officer

11 EXHIBIT 10-R In the CIETAC Hong Kong Arbitration Center Affirmation a CIETAC Hong Kong Arbitration Center case with the Case no. HKX I, Martin Wallace, General Manager of Claimant, solemnly and sincerely affirm and say as follows: I make this affirmation in support of the Statement of Defence filed on 11 April The facts deposed to herein are true to the best of my knowledge, information and belief save where otherwise stated. 15. Unfortunately, at that time, no legal counsel or lawyer was involved in the contract negotiation period. 17. I have conducted three meetings with the management team of the Respondent. During my second conference with Ms. Adele Corden, she admits that he AFFIRMED at the CIETAC Hong Kong Arbitration Center this day of ** 2016 **) Before me *** Public Notary

12 EXHIBIT 20-R-2 From: Adele Corden To: Ruth Bao Date: 11/11/ :45 Bao, Good news! One more issue here: We cannot agree on the current arbitration clause - it needs to be done in Hong Kong, if any. The weather is turning cold. Take care, Rgds, Ruth

13 EXHIBIT 20-R(C)-3 From: Ruth Bao To: Adele Corden Cc: Brad Wang Date: 21/11/ :45 Attachment: Contract (revised. 20/11). docx Dear Adele, Good news here too! 7. As requested, arbitration now goes to Hong Kong, if any. Any comments welcome before Friday as it would be really difficult for us to change any significant clauses once it is forwarded to the Headquarters. Warmly yours, Ruth

14 EXHIBIT 20-C-11 From: Brad Wang To: Adele Corden CC: Angelina Bolie Date: 30/11/ :45 Dear Adele, Plan C for the road project. Sorry that is as far as we can go. But it s very good news in a sense that Parent company approved the project and got it sealed. Therefore your concern of delay in payment, we don t think is a problem any longer. Warmly yours, Brad

15 ON ORAL HEARING(1) A. Working towards an agreed Procedural Order - comments from the arbitrators and practitioners. B. Cross examination of factual witnesses, experiences and pitfalls?

16 ON MEDIATION A. Arb-Med-Arb, overstated or overlooked? B. Practice of mediation under CIETAC Arbitration Rules in CIETAC Hong Kong.

17 ON ORAL HEARING(2) A. Expert witness, nuts and bolts. B. Cross examination of expert witnesses, experiences and pitfalls?

18 PARTICIPANTS

19 THANK YOU! SEE YOU IN HONG KONG SOON!