L6-Dispute Resolution in ChinaWord

　　Dispute Resolution in ChinaLecture 6

　　Basic Dispute Resolution Mechanisms in China Negotiation Mediation Arbitration Litigation (civil, criminal, administrative)

　　To Litigate or Not to Litigate? A Micro-economic level litigation selection model Assumption: Litigation is costly (litigation fees, time cost, lawyer’s fees, etc.) Parties (plaintiff) go to court because they estimate the benefit of trial outcome outweighs the cost of private settlement. Priest and Klein (1984) suggested that where both parties are symmetrically informed of the court outcomes, they tend to settle instead of litigate (to avoid the litigation cost). This generates an ideal outcome in that the plaintiff’s win rate at trial would have a tendency towards 50 percent as the fraction of cases going to trial approaches zero.

　　The Implication of Litigation selection model: Prediction of Case Outcomes Hylton (1993, 2002) suggests that where parties are not symmetrically informed, the party with informational advantage will have a more rational estimate about the likelihood of success at trial and the decision on settlement or litigation reflects such information. Consequently, a higherthan-50% win rate should be observed for the party with informational advantage if the dispute finally goes to trial (the “informational asymmetry” hypothesis). Such information asymmetry can be due not only to the merit of the case, but also other factors such as parties’ imbalance of economic power, political connections, etc.

　　Factors outside case merit and applicable law Political interference in judicial processes Courts and Judges face pressure to rule in favor of political or economic entities, rather than in accordance with law. Political influence via threat, intimidation, manipulation of judicial appointments, salaries and conditions of service

　　Bribery Court officials may extort money for services that citizens are legally entitled. Judges may accept bribes delay or accelerate cases, accept or deny appeals, influence other judges, or decide a case in a certain way. Lawyers may charge additional ‘fees’ to expedite or delay a case, or direct clients to judges known to take bribes for favorable decisions.5

　　Why Arbitration? Less expensive? More time efficient? Neutrality Flexibility Confidentiality Enforceability Other reasons? Doubts about competency, fairness and independency of Chinese judiciary? Maintaining relationship, saving face12

　　What are the most popular international arbitration institutions? International Chamber of Commerce (ICC) China International Economic Trade Arbitration Commission (CIETAC) London Court of International Arbitration (LCIA): very light administration American Arbitration Association (AAA) Arbitration Institute of the Stockholm Chamber of Commerce (SCC) Permanent Court of Arbitration (PCA): founded by treaty, UNCITRAL Rules administered by PCA Hong Kong International Arbitration Center (HKIAC) Singapore International Arbitration Center (SIAC)14

　　CIETAC

　　About half of the disputes arbitrated by CIETAC is foreign-related.15

　　Civil Litigation Procedure Governing Law: The Civil Procedure Law (2007) 民事訴訟法 Scope of Application: civil litigations arising from disputes on property and personal relations between citizens, legal persons or other organizations Ordinary Procedure (一般程序) Summary Procedure (簡 易程序)

　　The ordinary procedure is the procedure commonly applied by the people’s court in trying civil cases at 1st instance. The summary procedure is applied by the Basic People’s courts when trying simple civil cases in which the facts are evident, the rights and obligations clear and the disputes trivial in character. Under the summary procedure, the plaintiff may lodge his complaints orally, the court may use simplified methods to summon the parties and witnesses at any time, and the case shall be tried by a s

　　ingle judge.

　　Ordinary Procedure - BasicsPlaintiff to file a Statement of Compliant to the competent court Court to conduct preliminary review and decide whether to accept the caseIf accepted by the court

　　Serve a copy of the Statement of Compliant to the defendantIf defense is filed by the defendant

　　Announce of judgmentWhere there is an appeal

　　Court hearing, including Mediation debate

　　Exchange of evidence

　　Serve a copy of defense to the plaintiff

　　No appeal Non performance

　　Trail at the 2nd instance court

　　Final judgment

　　Non performance

　　Application for enforcement by the court

　　Criminal Litigation Procedure Governing Law: The Criminal Procedure Law (1996) 刑事訴訟法 Important Principles Functional Jurisdiction Criminal cases are brought to the court by:– The People’s Procuratorates on behalf the State (in most cases) - Public Prosecution How is a public prosecution being initiated? – The victim or victim’s family member (in exceptional cases) – Private Prosecution

　　Death Sentence Review System

　　Functional Jurisdiction 職能管轄The general division of work among public security bureaus, procuratorates and courts in criminal cases: (Art. 3 Criminal Procedure Law 1996) – Public security bureau 公安局: investigation 侦查, detention 拘留, execution of arrests 执行逮捕, and conducting preliminary inquiry 预审

　　However, certain crimes, such as crimes of embezzlement and bribery, crimes involving violations of a citizen’s personal rights shall be investigated by the procuratorates directly.

　　– Procuratorates 检察院: procuratorial work, authorizing arrests, initiating public prosecution of cases (except for private prosecution cases) – Courts 法院: responsible for adjudication

　　Private Prosecution – 自訴 Cases of private prosecution shall be handled directly by the People’s Courts. (Art.18) Cases of private prosecution include the following:(Art.170)(1) cases to be handled only upon complaint; E.g. the crime of maltreating a family member (虐待家庭成員 罪) without causing serious injury or death (2) cases for which the victims have evidence to prove that those are minor criminal cases; and (3) cases for which the victims have evidence to prove that the defendants should be investigated for criminal liability according to law because their acts have infringed upon the victims’ personal or property rights, whereas, the public security organs or the People’s Procuratorates do not investigate the criminal liability of the accused