DOCSLIB.ORG

In the United States District Court for the Eastern District of Pennsylvania

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
In the United States District Court for the Eastern District of Pennsylvania IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CLIENTRON CORP., CIVIL ACTION Plaintiff NO. 13-05634 v. DEVON IT, INC., Defendant MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO STAY PROCEEDINGS Baylson, J. March 10, 2014 Plaintiff, Clientron Corp., a Taiwanese corporation, filed this action to enforce a foreign arbitration award against Defendant Devon IT, Inc., a Pennsylvania corporation, under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (commonly called the “NY Convention”), codified in 9 U.S.C. §§ 201-208, and Pennsylvania’s Uniform Foreign Money Judgment Recognition Act (“PUFMJRA”), 42 P.S. §§ 22001-22009. ECF 1. Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant has filed a Motion to Dismiss the enforcement complaint, arguing that it fails to state a claim on various grounds, including that the arbitration panel did not have authority to issue a final award. ECF 9. In the alternative, Defendant has requested that the Court stay the case while Defendant seeks to set aside the arbitration award in a parallel proceeding currently underway in Taiwan. ECF 9 ¶ 13. For the following reasons, Defendant’s Motion to Stay is denied. The Court reserves ruling on the remainder of Defendant’s Rule 12(b)(6) Motion pending the submission of evidence of relevant Taiwanese law, pursuant to Rule 44.1 . 1 I. Facts and Procedural History1 Clientron is a Taiwan-based manufacturer and distributor of computer components. Devon is an information technology company that sells computer hardware and software. In 2008, the parties entered into a Supply and Purchase Agreement (“Agreement”) in which Clientron agreed to manufacture and sell certain products to Devon. ECF 1 ¶ 7. Section 13.3 of the Agreement contains a dispute resolution provision, which states that disputes between the parties will be brought before the Taiwan Trade Arbitration Council in the event that informal dispute resolution attempts fail.2 The agreement also has a governing law provision, which states that the Agreement will be construed under Taiwanese law. ECF 1 at 21. On September 13, 2012, Clientron submitted a request for arbitration to the Chinese Arbitration Association, alleging Devon breached its obligations under the Agreement. ECF 1 ¶ 8. An arbitration panel was convened on November 29, 2012, and the parties then engaged in arbitration proceedings. ECF 1 ¶ 8. On August 5, 2013, the panel issued a “final award” in favor of Clientron for US$ 6,574,456.17, as well as 5% per annum interest and arbitration costs. ECF 1 ¶ 9. 1 These factual allegations are taken from the Complaint. They are presumed true for the purpose of evaluating Defendant’s Motion to Dismiss. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). 2 The dispute resolution provision reads in full: Dispute Resolution Parties intend that any dispute be resolved informally through good faith negotiations. Any party may initiate negotiations by written notice to the other stating the dispute details. Parties will jointly define the dispute and propose a remedy. If this process does not resolve the dispute, then either party may escalate the problem to senior management. Any dispute remaining after resolution efforts above relating to this Agreement shall be resolved in the Taiwan trade arbitration council and if this still not resolves the dispute then the problem finally has to be escalated to an appropriate court of law in Taipei, Taiwan for final determination. ECF 1 at 21 (grammatical errors in original). 2 On September 25, 2013, Clientron initiated this action to enforce the Taiwanese arbitration award against Devon. ECF 1. After the parties filed their Motion to Dismiss briefing, ECF 9, 11, 12, 17, the Court held a hearing on January 28, 2014 to entertain arguments about whether to grant Defendant’s Motion to Stay. ECF 25 (transcript of hearing). At the hearing, the Court posed four questions to the parties: Question 1: is the arbitration decision issued pursuant to § 13.3 of the Agreement binding on the parties and what is required to make that determination; Question 2: what is the nature of the proceeding in Taiwan initiated by Devon and how long will it take; Question 3: should the Court proceed under Rule 44.1 in making a review of Taiwanese law or should it stay the proceeding pending the results from the Taiwan court; and Question 4: if the Court were to issue a stay, should it require Devon to post a supersedeas bond. ECF 25 at 4-5. As to question 1, Clientron argued that the award is binding on Devon and that this Court was collaterally estopped from hearing some of Devon’s arguments because they had already been made before the arbitration tribunal. ECF 25 at 6. Devon argued that the award was not binding because the arbitration panel’s decision is not final under § 13.3. Devon also acknowledged that in order to prevail on its Motion to Dismiss it would have to present evidence that Taiwanese law supported its interpretation of § 13.3. ECF 25 at 17-18. Clientron had already implicitly recognized the need to provide evidence of relevant Taiwanese law and included an affidavit from a Taiwanese legal expert in its Response in opposition to the Motion to Dismiss. ECF 11-2. As to question 2, the parties described the nature of the proceeding in Taiwan. They represented that Taiwanese law does not permit an appeal of an arbitration award—only that a party may initiate what United States jurisprudence might regard as a collateral attack to set 3 aside the award—and that such a proceeding had been initiated by Devon. ECF 25 at 7, 20. Clientron further represented that the Taiwan proceeding could take as long as three years. ECF 25 at 10. As to question 3, both parties agreed that the Court had the authority to stay the case under the NY Convention, but Clientron suggested that the Court did not have power to stay the proceeding under § 7 of PUFMJRA.3 ECF 25 at 11. The parties indicated that the relevant standard to determine whether a stay should be granted under the NY Convention comes from the six-factor test in Europcar Italia, S.p.A. v. Maiellano Tours, Inc., 156 F.3d 310 (2d Cir. 1998), and Jorf Lasfar Energy Co., S.C.A. v. AMCI Exp. Corp., Case No. 05-cv-0423, 2005 WL 3533128 (W.D. Pa. Dec. 22, 2005). ECF 25 at 12, 22. Clientron argued against a stay, noting that (1) the objective of arbitration is to avoid lengthy litigation; (2) federal courts should proceed with the recognition of foreign awards in the interests of international comity; and (3) any additional delay would prejudice Clientron. Specifically, Clientron asserted that Devon had already sold the products made up of Clientron components that Devon claims were defective to a downstream vendor and is thus litigating with the money it owes Clientron. In Clientron’s view, any continued delay in this posture unfairly prejudices it. ECF at 13-16. Devon, on the other hand, argued that a stay was appropriate to preserve judicial resources because (1) a Taiwanese court is in the process of reviewing the exact 3 Section 7 of the PUFMJRA reads: If the defendant satisfies the court either than an appeal is pending or that he is entitled and intends to appeal from the foreign judgment, the court may stay the proceedings until the appeal has been determined or until the expiration of a period of time sufficient to enable the defendant to prosecute the appeal. 42 P.S. § 22007. According to Clientron, because Taiwan law does not allow for an appeal of an arbitration award, the Court has no power to issue a stay under § 7 of the PUFMJRA. ECF 25 at 11. Devon contends that, because Taiwanese law permits a collateral attack as the only means by which to contest an arbitration award, the collateral attack should be considered an appeal for the purposes of issuing a stay under the PUFMJRA. ECF 25 at 29. 4 same issues raised before this Court; (2) Taiwanese courts have greater expertise in applying Taiwanese law; and (3) continuation of the present proceedings runs the risk of inconsistent judgments. ECF 25 at 21-23. As to question 4, Clientron argued that a stay must be accompanied by Devon posting a supersedeas bond of approximately $8,000,000. ECF 25 at 13-16. Devon argued that it may have to post a surety in the Taiwanese court and that posting double surety would be unfair. Devon, however, was unsure what amount, if any, it would have to post. ECF 25 at 24-25. At the end of the hearing, the Court posed two questions of law to the parties and requested that they file their answers in writing: Question 1: If Devon loses its action to set aside the arbitration award in Taiwan, would the District Court have a duty to make some inquiry or take evidence as to the enforceability of the arbitration award, or could the District Court rely on the Taiwanese decision? Question 2: Can Devon post a bond in the amount of $7,000,000 if the District Court decides that it is going to grant a stay conditional on bond? Question 1 related to the Court’s concern about needless delay. That is, if Devon would be able to raise the same issues regardless of the outcome of the Taiwanese litigation, is there any benefit in delaying addressing Devon’s arguments? In its response, Devon asserted that it would be able to raise its arguments before the Court, even if it lost in Taiwan.
Load more

Recommended publications
  • Forging Taiwan's Legal Identity
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Brooklyn Law School: BrooklynWorks Brooklyn Journal of International Law Volume 44 Article 1 Issue 2 07/01/2019 7-1-2019 Forging Taiwan’s Legal Identity Margaret K. Lewis Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, International Law Commons, Law and Economics Commons, Law and Politics Commons, Law and Society Commons, Legal History Commons, Legal Profession Commons, Other Law Commons, Public Law and Legal Theory Commons, Rule of Law Commons, and the Transnational Law Commons Recommended Citation Margaret K. Lewis, Forging Taiwan’s Legal Identity, 44 Brook. J. Int'l L. 489 (). Available at: https://brooklynworks.brooklaw.edu/bjil/vol44/iss2/1 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. FORGING TAIWAN’S LEGAL IDENTITY Margaret K. Lewis* INTRODUCTION..................................................................489 I. THE COMPLICATED TERMINOLOGY OF TAIWAN ..............496 II. HISTORICAL DEVELOPMENT OF LAW IN TAIWAN ..........503 III. NEW DEVELOPMENTS IN TAIWAN’S LEGAL IDENTITY ..511 A. Transparency............................................................518 B. Clarity.......................................................................526 C. Participation.............................................................534
    [Show full text]
  • Taiwan-U.S. Relations: Developments and Policy Implications
    Taiwan-U.S. Relations: Developments and Policy Implications Kerry Dumbaugh Specialist in Asian Affairs November 2, 2009 Congressional Research Service 7-5700 www.crs.gov R40493 CRS Report for Congress Prepared for Members and Committees of Congress Taiwan-U.S. Relations: Developments and Policy Implications Summary U.S. policy toward Taiwan is unique. Since both the Chinese governments on Taiwan and on mainland China held that they alone were China’s legitimate ruling government, U.S. diplomatic relations with Taiwan had to be severed in 1979 when the United States recognized the People’s Republic of China (PRC) government as China’s sole legitimate government. While maintaining diplomatic relations with the PRC, the United States maintains extensive but unofficial relations with Taiwan based on the framework of the 1979 Taiwan Relations Act (TRA—P.L. 96-8) and shaped by three U.S.-PRC communiqués. U.S. interests in Taiwan include significant commercial ties, objections to PRC military threats against Taiwan, arms sales and security assurances, and support for Taiwan’s democratic development. U.S. policy remains rooted in a general notion of maintaining the “status quo” between the two sides. But other factors have changed dramatically since 1979, including growing PRC power and influence, Taiwan’s democratization, and the deepening of Taiwan-PRC economic and social linkages. These changes have led to periodic discussions about whether or not U.S. policy should be reviewed or changed. Taiwan’s current president, Ma Ying-jeou, elected in March 2008, moved quickly to jump start Taiwan-PRC talks that had been stalled since 1998.
    [Show full text]
  • Taiwanese Public Interest Lawyers in the 21St Century
    THE CURRENCY EXCHANGER: TAIWANESE PUBLIC INTEREST LAWYERS IN THE 21ST CENTURY Ching-Fang Hsu*± Abstract The rights discourse has become a common and powerful cur- rency in the public sphere. Public interest lawyers, who reason in law and facilitate the movements of legal rights, are the currency exchanger that converts power and political momentum, symbolic and formal, between different public entities. This paper adopts a relational framework to understand the presence of public interest lawyers in Taiwan and the complexity of their involvement in promoting, defending, or mobilizing for public good. I systematically analyze the bidirectional relationships that lawyers develop with government (both the administration and the parliament), political party, civil society (including NGOs and the gen- eral public), and the court. By examining two types of operation, lawyers in organizations and lawyers in mobilizations, I use the development of four NGOs and four social movements in Taiwan—gender, environment, labor, and China watch—to argue that the expertise of exchange leads to the prevalent role that public interest lawyers are able to play in the twenty-first century. Table of Contents Introduction: Public Interest Lawyer as the Currency Exchanger ...34 I. Standing Between Law and Politics: Lawyers in Organizations ...................................................................................36 A. Judicial Reform (1997–Today) ...................................................36 * Ching-Fang Hsu is a doctorate candidate in political science at the Univer- sity of Toronto. She received her LL.B from National Taiwan University, LL.M from UC Berkeley, and M.A. from the University of Chicago. Trained as a lawyer and social scientist, she works in the interdisciplinary area between political science and law, fo- cusing on the politics of judicial institutions and legal actors in various power settings.
    [Show full text]
  • Adjudicating the Intersection of Marital Immigration, Domestic Violence, and Spousal Murder: China-Taiwan Marriages and Competing Legal Domains
    Indiana Journal of Global Legal Studies Volume 19 Issue 1 Article 9 Winter 2012 Adjudicating the Intersection of Marital Immigration, Domestic Violence, and Spousal Murder: China-Taiwan Marriages and Competing Legal Domains Sara L. Friedman Indiana University, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/ijgls Part of the Comparative and Foreign Law Commons, Family Law Commons, Immigration Law Commons, and the International Law Commons Recommended Citation Friedman, Sara L. (2012) "Adjudicating the Intersection of Marital Immigration, Domestic Violence, and Spousal Murder: China-Taiwan Marriages and Competing Legal Domains," Indiana Journal of Global Legal Studies: Vol. 19 : Iss. 1 , Article 9. Available at: https://www.repository.law.indiana.edu/ijgls/vol19/iss1/9 This Symposium is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Journal of Global Legal Studies by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Adjudicating the Intersection of Marital Immigration, Domestic Violence, and Spousal Murder: China-Taiwan Marriages and Competing Legal Domains SARA L. FRIEDMAN* ABSTRACT Cross-border marriages and other forms of family reunification dominate officially recognized migratory flows around the world today, and they offer the most widely recognized path to naturalized citizenship in destination countries. At the same time, however, transnational marriages may also rest on shaky foundations precisely because immigrant spouses depend on their citizen partnerfor legal status. When marriagesfail due to domestic violence, they expose the incompatibility of different legal domains organized around domestic violence prevention and immigration regulation.
    [Show full text]
  • In the United States District Court for the District of Utah, Central Division
    Case 2:14-cv-00077-DN Document 38 Filed 07/21/15 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION UNITED STATES OF AMERICA, REPORT AND RECOMMENDATION Plaintiff, v. Case No. 2:14 CV 77 BENSON HSU, a.k.a. Hung Yen Hsu, a.k.a. Charles Hsu, District Judge David Nuffer Defendant. Magistrate Judge Dustin B. Pead This is an action under 8 U.S.C. § 1451(a) (2012) brought by Plaintiff, the United States of America (“United States”), against Defendant, Benson Hsu (“Hsu”), to revoke and set aside the order admitting Hsu as a United States citizen. (Docket No. 2.) On February 5, 2014, the District Court referred the case to this Court under 28 U.S.C. § 636(b)(1)(B) to hear dispositive motions and issue a Report and Recommendation. (Docket No. 7.) On November 7, 2014, the United States moved for summary judgment on Counts I and III of its complaint under Rule 56(a) of the Federal Rules of Civil Procedure. (Docket No. 19.) The United States argues that Hsu illegally procured citizenship because he committed unlawful acts that adversely reflected upon his moral character during the period he was required to show good moral character to naturalize. (Docket No. 2, 19.) The United States also argues that Hsu procured citizenship by misrepresenting or concealing material facts regarding his criminal history. (Id.) Case 2:14-cv-00077-DN Document 38 Filed 07/21/15 Page 2 of 14 Having reviewed the United States’ motion for summary judgment, Defendant’s opposition to the same, and holding oral argument, this Court RECOMMENDS to the District Court that the motion be GRANTED as to Count I of the Complaint and DENIED as to Count III of the Complaint.
    [Show full text]
  • Public Officials” and “Public Figures”: a Comparative Study of U.S
    “PUBLIC OFFICIALS” AND “PUBLIC FIGURES”: A COMPARATIVE STUDY OF U.S. AND TAIWAN DEFAMATION LAW * CHING-YUAN YEH I. Introduction The United States and Taiwan have very different approaches toward defamatory speech. Although both nations recognize freedom of speech as a constitutional right, Taiwan’s legal system provides for more protections of individuals’ reputations and fewer protections of defamatory speech. While civil liability regarding defamatory speech is limited in the United States in order to protect free speech, Taiwan maintains criminal sanctions for defamatory speech. In addition, name-calling is not actionable in the United States, as courts do not view the judicial forum as the proper arena for morality. However, name-calling and defamation to the dead are offenses under Taiwan’s criminal code, at least partially to promote and maintain good morals of the society.1 Moreover, U.S. law provides less protection of public figures regarding their reputations in order to encourage public discussion, but some courts in Taiwan award higher amount of damages to public figures than private figures, on the grounds that public figures, because of their fame, suffer more damage from speeches damaging their reputations. This paper will outline the defamation law of both the United States and Taiwan, and compare the two legal systems in the above-mentioned areas. The paper begins with a brief comparison of the two legal systems, in order to provide the readers with some basic understanding of Taiwan’s legal system. The paper will then discuss U.S. defamation law, * LL.M. and J.D. of University of Pennsylvania, LL.M.
    [Show full text]
  • Illegal Missionary Work Lawsuits and Exit Counseling for Unification Church Members
    Title Illegal missionary work lawsuits and exit counseling for Unification Church members Author(s) Sakurai, Yoshihide Citation Cultic studies review, 3(3), 183-201 Issue Date 2004 Doc URL http://hdl.handle.net/2115/754 Type article (author version) File Information CSR_vol3(3).pdf Instructions for use Hokkaido University Collection of Scholarly and Academic Papers : HUSCAP An Illegal Missionary Work Lawsuit and Exit Counseling for Unification Church Members Sakurai Yoshihide, Ph.D. Abstract This paper studies the recent cult controversy exemplified by the lawsuits filed by self-proclaimed "victims" damaged by the Unification Church and in reverse by so-called "cult" members who were also proclaimed "sufferers" whose personal right of religious freedom had been violated in deprogramming. To consider the contents of these rulings demonstrates the Japanese religious consciousness in reference to the recent cult controversy, because judges tend to consider in controversial cases of religious troubles the extent to which they deviate from socially accepted norms. In this paper I first will briefly explain the history of the Unification Church of Japan and introduce legal trials against this religion. Second, I will consider the lawsuits charging the Unification Church with illegal missionary activities, especially the ruling of the Sapporo District Court. And last, I will look at recent lawsuits against deprogrammers filed by ex-members of so-called "cults". This paper's research methodology is based on 1) document analysis of the referenced cases; 2) interviews with ex-members, the plaintiffs of these lawsuits, and parents and pastors accused by "cult" members; and 3) observation in the Sapporo District courtroom over a period of three years.
    [Show full text]
  • Cross-Strait Relations on Hold
    Comparative Connections A Triannual E-Journal on East Asian Bilateral Relations China-Taiwan Relations: Cross-Strait Relations on Hold David G. Brown, Johns Hopkins School of Advanced International Studies Kevin Scott, The Brookings Institution Campaigning for the local elections in Taiwan delayed any progress toward resolving the deadlock in the Legislative Yuan over cross-strait issues. While emphasizing continuity in its peaceful development policy, Beijing is concerned over the Democratic Progressive Party’s (DPP) increasing prospects and consequently has laid down markers aimed at the party. Student protests in Hong Kong underlined the fundamental political differences between Taiwan and the mainland and occasioned some sharp exchanges between the Ma administration and the Chinese Communist Party (CCP) leadership. The Kuomintang’s (KMT) unexpectedly large defeat in the local elections surprised everyone and creates new challenges for Beijing in the lead-up to Taiwan’s presidential and legislative elections in early 2016. Beijing policy continuity The deadlock in the Legislative Yuan (LY) over the services trade agreement (STA), the Sunflower Student Movement, reverberations from the Hong Kong democracy demonstrations, the Kuomintang’s stunning defeat in the November local elections and the strengthening sense of separate identity in Taiwan have created new challenges for Beijing. In response, Beijing has reaffirmed its patience and confidence in pursuing the peaceful development of cross-strait relations, but has also sent clear messages to the opposition DPP that there will be no change in the mainland’s insistence on a “one China” framework for relations. General Secretary Xi Jinping’s meeting with James Soong in June made clear Beijing’s determination to redouble efforts to promote the further development of cross-strait relations.
    [Show full text]
  • Criminal Court Reform in Taiwan: a Case of Fragmented Reform in a Not-Fragmented Court System
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UW Law Digital Commons (University of Washington) Washington International Law Journal Volume 27 Number 1 East Asian Court Reform on Trial 12-1-2017 Criminal Court Reform in Taiwan: A Case of Fragmented Reform in a Not-Fragmented Court System Kai-Ping Su Follow this and additional works at: https://digitalcommons.law.uw.edu/wilj Part of the Comparative and Foreign Law Commons, Courts Commons, and the Criminal Procedure Commons Recommended Citation Kai-Ping Su, Criminal Court Reform in Taiwan: A Case of Fragmented Reform in a Not-Fragmented Court System, 27 Wash. L. Rev. 203 (2017). Available at: https://digitalcommons.law.uw.edu/wilj/vol27/iss1/9 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington International Law Journal by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. Compilation © 2017 Washington International Law Journal Association CRIMINAL COURT REFORM IN TAIWAN: A CASE OF FRAGMENTED REFORM IN A NOT-FRAGMENTED COURT SYSTEM Kai-Ping Su† Abstract: This Article examines the character of Taiwan’s criminal court system and proposed court reforms. Taiwan’s criminal court is a not-fragmented system, distinct from the fragmented American criminal court. In fact, with hierarchical control in prosecutorial rulings and central administration of judicial decision-making, Taiwan’s criminal court system can be deemed a relatively centralized and bureaucratic organization.
    [Show full text]
  • U.S.-Taiwan Relationship: Overview of Policy Issues
    U.S.-Taiwan Relationship: Overview of Policy Issues Shirley A. Kan Specialist in Asian Security Affairs Wayne M. Morrison Specialist in Asian Trade and Finance December 11, 2014 Congressional Research Service 7-5700 www.crs.gov R41952 U.S.-Taiwan Relationship: Overview of Policy Issues Summary This CRS Report, updated through the 113th Congress, provides an overview with analysis of the major issues in U.S. policy on Taiwan. Taiwan formally calls itself the Republic of China (ROC), tracing its political lineage to the ROC set up after the revolution in 1911 in China. The ROC government retreated to Taipei in 1949. The United States recognized the ROC until the end of 1978 and has maintained a non-diplomatic relationship with Taiwan after recognition of the People’s Republic of China (PRC) in 1979. The Taiwan Relations Act (TRA) of 1979, P.L. 96-8, has governed policy in engagement with Taiwan in the absence of a diplomatic relationship or a defense treaty. Other key statements of policy are the three U.S.-PRC Joint Communiqués of 1972, 1979, and 1982; and the “Six Assurances” of 1982. (CRS Report RL30341, China/Taiwan: Evolution of the “One China” Policy—Key Statements from Washington, Beijing, and Taipei.) For decades, Taiwan has been of significant security, economic, and political interest to the United States. In 2013, Taiwan was the 12th-largest U.S. trading partner. Taiwan is a major innovator and producer of information technology (IT) products, many of which are assembled in the PRC by Taiwan-invested firms there. Ties or tension across the Taiwan Strait affect international security (with potential U.S.
    [Show full text]
  • Aufsätze Recognition and Enforcement of Foreign Judgments
    SONG, Recognition and Enforcement of Foreign Judgments in China, ZChinR 2017 Aufsätze Recognition and Enforcement of Foreign Judgments in China: Challenges and Developments SONG Jianli 1 Abstract The author analyses laws and regulations, current judicial practice, challenges and developments for the recognition and enforcement of foreign judgments in China against the backdrop of the increasing growth of China’s investments and trade with other countries. He particularly focuses on the different legal and cultural stages of economic development and the ruleof law as well as the lack of trust among jurisdictions, regions and countries. The author concludes that facilitating the reliable free movement of judgments for recognition and enforcement will benefit both China and its trading partners. Introduction ments for the recognition and enforcement of foreign judgments in China. Winning a court judgment is by no means the “happy ever after” ending; it is just the beginning of anot- I. General review of the recognition and enforce- her judicial procedure to recognize and enforce such ment laws for foreign judgments in China winning judgment. The prevailing party will seek the The laws regarding the recognition and enforcement most convenient and efficient way to achieve the awar- of foreign judgments in China are principally governed ded verdict. This presents special considerations when by its Civil Procedure Law (“CPL”), and the relevant judgment enforcement is due to occur in a foreign ju- Articles 281 and 282.2 risdiction. The different legal and cultural stages of 3 economic development and the rule of law, and par- According to Art 281 of CPL, it is obvious that a ticularly, the lack of trust among jurisdictions, regions legally effective judgment or ruling by a foreign court and countries, may result in foreign judgments easily requires the Chinese court to recognize it first, before it being refused recognition regardless of other interna- can be put into effect by Chinese enforcement procedu- tional cooperation matters.
    [Show full text]
  • Mediation in Mainland China and Hong Kong: Can They Learn from Each Other?
    Mediation in Mainland China and Hong Kong: Can They Learn from Each Other? Jeffrey K. L. Lee * I. INTRODUCTION ................................................................................. 101 II. MEDIATION SYSTEMS IN MAINLAND CHINA AND HONG KONG ............ 103 A. Mainland China’s Mediation Systems ......................................... 103 1. People’s Mediation ............................................................... 103 2. Administrative Mediation ..................................................... 104 3. Court Mediation .................................................................... 105 B. Hong Kong’s Mediation Systems ................................................. 105 1. Family and Community Mediation ...................................... 106 2. Private Sector Mediation ...................................................... 106 3. Court-annexed Mediation When Parties Have Already Resorted to Litigation ........................................................ 107 III. PROBLEMS OF THE MEDIATION SYSTEM IN MAINLAND CHINA ......... 108 A. Dual Roles of Judges in Court Mediation .................................. 108 1. Non-confidentiality of Mediation Affecting Parties’ Free Expression ......................................................................... 109 2. Abuse of Authority by Judges during Mediation .................. 109 B. Poor Quality of People’s Mediators ............................................. 111 IV. HOW THE MEDIATION SYSTEM IN MAINLAND CHINA CAN LEARN FROM HONG KONG ’S EXPERIENCE ....................................................112
    [Show full text]