China and International Commercial Dispute Resolution


Editors: and
China and International Commercial Dispute Resolution presents important contributions from eminent legal scholars from Europe, the United States, Australia, South America, and China in a variety of areas of international commercial law with relevance to China. The authors provide expert analyses from a number of perspectives – doctrinal, comparative, empirical, economic, and legal – on an array of issues, private and public, involved in or arising from international commercial dispute resolution in China.

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Professor Dr Qiao Liu, Ph.D., University of Oxford, is Associate Professor at TC Beirne School of Law, University of Queensland, Australia and Professor of Law at Xi’an Jiaotong University School of Law, China, Lee Kai Shing Visiting Professor at McGill University Faculty of Law, Visiting Scholar at East Asian Legal Studies of Harvard Law School and the founding Executive Deputy-Editor-in-Chief of The Chinese Journal of Comparative Law. He has published monographs and articles in such journals as the MLR and CLJ.

Professor Dr Wenhua Shan, Ph.D., Trinity College, Cambridge, is the Ministry of Education Yangtze River Chair Professor of International Economic Law and the founding Dean of Xi'an Jiaotong University School of Law, Senior Fellow of Lauterpacht Centre for International Law, University of Cambridge, Professor of Law at the University of New South Wales and the founding Editor-in-Chief of The Chinese Journal of Comparative Law. He has published over ten monographs and numerous articles in such journals as the AJCL and EJIL

Xiang Ren (Cheyenne), Xi'an Jiaotong University, is a Ph.D. Candidate at Xi'an Jiaotong University School of Law and an Editorial Assistant of The Chinese Journal of Comparative Law.
Notes on Contributors

1 Introduction
Qiao Liu and Xiang Ren
Part I General Issues in International Commercial Arbitration
2 Specific Performance in International Arbitration
Ewan McKendrick and Iain Maxwell
2.1 The meaning of ‘specific performance’
2.2 Common law and civil law
2.3 Specific performance in an arbitral context
2.4 Xiamen Xinjingdi Group Ltd v Eton Properties Ltd
3 EU Law in Chinese International Commercial Arbitration
Jürgen Basedow
3.1 Arbitration in the Law of the European Union
3.2 Arbitral Proceedings and State Courts in the European Union
3.3 EU Law and the Merits of International Arbitration Proceedings
3.4 Arbitration Panels and the European Court of Justice
3.5 Conclusion
4 Using Soft Law in International Commercial Contract Arbitration
Larry A. DiMatteo
4.1 Introduction
4.2 Soft Law and International Commercial Arbitration
4.3 Normative Power of Soft Law
4.4 Types of Soft Law
4.5 Interpretive Methodologies
4.6 Soft Law Trumps Hard Law: Private Customary International Law
4.7 Hard and Soft Law in International Commercial Disputes
4.8 Conclusion
5 Independence and Impartiality of Arbitrators: A Comparative Perspective
Carlos Matheus López
5.1 Factors in Selection of Arbitrators
5.2 Background
5.3 Independence and Impartiality
5.4 Duty of Disclosure
5.5 Efforts to Systematize and Limits
5.6 Practical Analysis Factors
5.7 Means to Ensure Arbitrator Independence and Impartiality
5.8 Practical Steps to Select a Party-nominated Arbitrator
5.9 Pre-appointment Interview
5.10 Some Criteria to Challenge an Arbitrator
Part II Specific Issues in International Commercial Arbitration
6 China and Foreign Direct Investment: Looking Ahead
Leon Trakman
6.1 Introduction
6.2 Investment Claims and China
6.3 ISA Claims by Chinese Investors Abroad
6.4 ISA Claims Brought Against China
6.5 Chinese Arbitrators
6.6 Withdrawing From ISA?
6.7 A “China-made” Investment Jurisprudence?
6.8 China’s Distinctive History of “Liberalization”
6.9 China’s “Liberalization” of its BITs
6.10 The History of Chinese BITS
6.11 Modelling China’s Model BIT
6.12 “Alternative” Dispute Resolution
6.13 Conclusion
7 Arbitrability of Company Law Disputes
Andrew Johnston
7.1 Introduction
7.2 Arbitration under the statutory contract
7.3 Under shareholder agreements
7.4 Actions by the company against its directors
7.5 Derivative action by minority shareholder against directors
7.6 Unfair prejudice applications
7.7 Conclusion
8 Rules of Evidence in CIETAC International Arbitration
Song Lu
8.1 Introduction
8.2 General Approaches towards Disclosure and Investigation of facts
8.3 PRC Civil Procedure Law
8.4 Current PRC Statute on Rules of Evidence in Arbitration
8.5 Rules of Evidence Agreed by the Parties
8.6 Rules of Evidence for China – CIETAC Evidence Guidelines
8.7 Conclusion
Part III Issues in International Commercial Law and Non-Arbitration Dispute Resolution
9 A Critique of the European Contract Code ‘Project’
Roger Halson
9.1 Introduction
9.2 The General Background to Codification
9.3 Process and the creation of the CESL
9.4 Further outline of the CESL including available remedies
9.5 Key Arguments for Reform
9.6 Further Critique
9.7 Conclusion
10 CISG in Chinese Courts: The First Look
Qiao Liu and Xiang Ren
10.1 Introduction
10.2 Applicability of CISG in Chinese Courts
10.3 The Survey
10.4 Conclusion
11 State-owned Enterprises in the WTO Law: An Analysis of United States–Definitive Anti-dumping and Countervailing Duties on Certain Products from China
Ming Du
11.1 Introduction
11.2 State-owned Enterprises in the Law of World Trade Organization
11.3 The US- Antidumping and Countervailing Duties Case
11.4 Conclusion
12 Judicial Mediation: A Behavioural Law and Economics Perspective
Qi Zhou
12.1 Introduction
12.2 Mediation and Judicial Mediation
12.3 Judicial Mediation As Solutions
12.4 Evaluating the Role of Judicial Mediation
12.5 Evaluating the Efficiency of Judicial Mediation
12.6 Conclusion

Academics, law students and practicing lawyers interested in international commercial law and arbitration and its development in China.
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