Publish time: 2019-7-15
On June 28, 2019, the 2019 San Francisco Summit on Commercial Dispute Resolution in China (the “San Francisco Summit”) jointly hosted by the Beijing Arbitration Commission / Beijing International Arbitration Center (the “BAC”), the Judicial Arbitration and Mediation Services (the “JAMS”) and the Silicon Valley Arbitration & Mediation Center (the “SVAMC”) was successfully held in San Francisco, USA.
The San Francisco Summit
It was the first time the BAC holds such event in San Francisco, and the last stop of the 2019 North American summit series. The day before, the BAC delegation was invited to a welcome reception hosted by the JAMS at its San Francisco office, where representatives from the co-hosts, speakers and other distinguished guests were also present. Ms. Serena Lee, General Manager of JAMS San Francisco office, and Mr. Chris Poole, President and Chief Executive Officer of JAMS, welcomed the BAC's arrival, respectively. On behalf of the BAC, Deputy Secretary General Dr. Chen Fuyong extended thanks to the co-hosts, supporting organizations and speakers for their support. He reviewed the long-term cooperation between the BAC and the JAMS, and wished the San Francisco Summit a success.
The San Francisco Summit was sponsored by the Commerce & Finance Law Offices. The International Council for Commercial Arbitration (the “ICCA”), the CIarb North America Branch, the ABA Section of Resolution of Disputes, the ABA Section of International Law, the California International Arbitration of Council (the “CIAC”), the Northern California International Arbitration Club (the “NCIAC”), the International Dispute Resolution Academy (the “IDRA”) and the LexPR provided assistance and support to the event. As media partner, Wolters Kluwer was also engaged in the San Francisco Summit.
At the beginning of the San Francisco Summit, Dr. Chen Fuyong delivered an opening address. He expressed heartfelt thanks to the co-hosts and supporting organizations for their efforts and support in setting the agenda, inviting speakers and event promotion. Dr. Chen said that the original intention of the summit was to promote exchanges and mutual understandings and trust between Chinese and foreign legal practitioners by building up a professional dialogue platform. He hoped that the attendees could fully participate in and enjoy the discussion at the summit, so as to better cope with challenges of the future and safeguard the stability of international trade and business rules based on the exchange of different views.
Opening address by Dr. Chen Fuyong
Chris Poole, President and CEO of JAMS, said it was an honor to have the opportunity to co-host the San Francisco Summit along with the BAC. It was by no accident that the BAC has achieved a rapid growth. Looking back at the history of cooperation with the BAC, he warmly appreciated the BAC for its efficiency, vitality, ambition and creativity. Apart from that, Mr. Chris Poole believed that the discussions and exchanges at the summit would be of high practical significance in light of the promotion of international arbitration from a series of new legal policies, such as foreign lawyers being allowed to be engaged in international arbitrations in California, as well as the strong trade connection between China and the USA in California.
Opening address by Mr. Chris Poole
Based on his experience and observation in China, Mr. Gary Benton, Founder of the SVAMC, said that over the past 40 years, China has grown significantly from a manufacturing power to a leader in technology and innovation, and has made remarkable achievements in such areas as telecommunications, artificial intelligence and energy. Although China and the United States are now facing some economic and trade problems, it is clear that these problems can be resolved through dialogues, and today's discussion is just part of such dialogues. At last, Mr. Gary Benton said: "we don’t judge countries by their richest and their rulers, we judge a country by their people. China has a diverse, wonderful, rich culture, a culture that we can learn from. And that is what I hope we will be doing today and in the years ahead."
Opening Address by Mr. Gary Benton
In his opening address, Mr. Yang Yihang, Commercial Counsellor of PRC Consulate-General in San Francisco, firstly welcomed the BAC to hold this event in San Francisco. Mr. Yang said that as the two largest economies in the world, the economic and trade relations between China and the United States are very important. Since the establishment of diplomatic ties between China and the United States, the economic and trade volume between the two countries has increased 253 times. The United States is already the fastest-growing export market for China. It is therefore expected that China and the United States can keep strengthening their dialogues and win-win cooperation. Meanwhile, he said that the Commercial Office of the Consulate-General will, as always, provide service and support to the economic and trade exchanges between the two countries, and wished the summit a complete success.
Opening Address by Mr. Yang Yihang
Subsequently, the panel discussions of the San Francisco Summit convened. The panel discussions consisted of five sessions, including the session on arbitration and mediation themed “Innovative Practice and Guiding Policy in PRC’s Commercial Arbitration and Mediation: Balance between Market and Law”, the session on intellectual property dispute resolution themed “Lessons from the Tech Giant Battles: New Trends of Resolving Technology and Patent-related Disputes in the PRC”, the session on entertainment dispute resolution themed “The Impact of Regulatory Changes on Entertainment Sector in the PRC: Trends and Challenges”, the session on financial and investment dispute resolution themed “Restructuring in the Capital Market of PRC: Addressing the Global Change and New Economic Environment”, and the session on energy and construction dispute resolution themed “Selected Issues of Energy and Construction Dispute Resolution in the PRC”.
The San Francisco Summit
In the session on arbitration and mediation, Dr. Wang Xuehua, Partner of Beijing Huanzhong & Partners, and Mr. Fei Ning, Partner of Hui Zhong Law Firm, acted as the co-reporter, Prof. Thomas Stipanowich, BAC arbitrator and Professor of Law and Associate Dean of Pepperdine University School of Law, the moderator, and Mr. Robert Davidson, Executive Director of JAMS Arbitration Practice, and Ms. Maria Chedid, Partner of Arnold & Porter, the commentators. The panelists have discussed several important issues, including the innovation of the one-stop service mechanism of the International Commercial Court of the PRC Supreme People's Court, the latest development of the Singapore Convention, and the practice of Chinese courts in enforcing arbitral awards. They have also shared with the audience the development of the legal system of diversified dispute resolution mechanism in China as well as the overall development of the commercial arbitration and mediation industries. When talking about the “Arb-Med” practice and the one-stop service mechanism of the SPC International Commercial Court, Ms. Maria Chedid stressed, in particular, that it is different from the practice in the United States of having separate dispute resolution procedures. In order to meet the needs of dispute resolution users and improve dispute resolution efficiency, China has integrated all the merits of various dispute resolution mechanisms into a "one-stop" mechanism, which deserves attention and expectation.
Dr. Wang Xuehua
Mr. Fei Ning
Prof. Thomas Stipanowich
Mr. Robert Davidson
Ms. Maria Chedid
Group photo of panelists of the session on arbitration and mediation
In the session on intellectual property dispute resolution, Mr. Hu Ke, Partner of Jingtian & Gongcheng, acted as the reporter, The Hon. James Ware, retired Chief US District Judge of Northern District of California and JAMS mediator & arbitrator, the moderator, and Mr. Grant Kim, Partner of LimNexus LLP, and Mr. David Huebner, former U.S. Ambassador to China and JAMS mediator & arbitrator, and Mr. Paul Mason, BAC arbitrator and SVAMC technical expert, the commentators. First of all, Mr. Hu Ke presented an overview of the latest legislation of and amendments to intellectual property related laws in China in 2018, and a series of judicial reforms and practices such as the establishment of the SPC Intellectual Property Court, and then shared his views on such issues as "difficulty in evidence production, low level compensation and lengthy legal procedures", and China’s efforts to enhance the standards of statutory damage for infringement of intellectual property rights, and to promote the professionalism, consistency and predictability of the judgments. By referring to the IP cases shared by Mr. Hu Ke, the panelists discussed the standards of fair use in the live streaming industry, the allocation of the burden of proof in IP infringement cases, the preliminary injunction system in arbitration, the arbitrability of IP disputes and other issues, clarified and explained the controversial issues such as "IP theft" and mandatory technology transfer. There is no doubt that China is on the road to becoming a technology-oriented economy, and China and the United States share common interests in strengthening IPR protection. As The Hon. James Ware concluded in his remarks, "Intellectual property protection not only benefits the owner of the patent or copyright or trademark, but the society as a whole. And in a sense, we're all society. It's wonderful to hear about these reforms that are taking place in China, and I close with the words of Theodore Roosevelt, ‘Far better it is to dare mighty things, even though checkered with failure, than to take rank with timid souls who neither try much nor do much and hence know neither victory nor defeat’.”
Mr. Hu Ke
The Hon. James Ware
Mr. David Huebner
Mr. Grant Kim
Mr. Paul Mason
Group Photo of panelists of the session on IP dispute resolution
In the session on entertainment dispute resolution, Dr. James Tian, Legal Counsel of AllBright Law Offices Beijing Office, acted as the reporter, Mr. Jeffrey Benz, BAC arbitrator and JAMS mediator & arbitrator, the moderator, and Ms. Barbara Reeves, JAMS mediator and arbitrator, and Mr. Mathew Alderson, Partner of Harris Bricken Attorneys & Consultants, the commentators. First of all, Dr. Tian introduced the development and legal framework of China's film and television industry, shared the efforts made by the regulator to regulate the film and television industry with such examples as tax evasion of entertainers and Yin-Yang contracts within the industry, and analyzed the potential impacts of such changes of regulatory rules on the industry and dispute resolution thereof. By way of case studies, Dr. Tian also provided an analysis of key points regularly seen in dealing with disputes arising from film and television investment and financing contracts and entertainer brokerage contracts. Based on the practice in Hollywood, Ms. Barbara Reeves introduced the U. S. legal framework on entertainment, including contract law, copyright law, and industrial practices. Transactions such as film and television investment and financing are constantly changing, as Ms. Barbara Reeves added, and thus they require for flexibility and professionalism. Naturally, arbitration has been preferred to resolve entertainment dispute. On the ground common regulatory risks of the Chinese film and television industry, Mr. Mathew Alderson offered several suggestions to avoid such disputes, including being cautious when choosing the applicable law, adopting both Chinese and English as the contract languages, and choosing an appropriate dispute resolution method and dispute resolution institution.
Dr. James Tian
Mr. Jeffrey Benz
Ms. Barbara Reeves
Mr. Mathew Alderson
Group photo of panelists of the session on entertainment dispute resolution
With regard to financial and investment dispute resolution, Dr. Tao Xiuming, Partner of JunZeJun Law Offices, and Mr. Bao Zhi, Partner of Baker McKenzie FenXun, acted as co-reporters. Ms. Lorraine Brennan, JAMS mediator & arbitrator, the moderator, and Mr. Neil Popović, Partner of Sheppard Mullin the commentator. Based on the historical background of China's segregated supervision of the financial market, Dr. Tao Xiuming specifically analyzed the far-reaching influence of the PRC Trust Law on the development of the Chinese financial market. Commencing with the changes in the legal environment of investment, Mr. Bao Zhi pointed out that the Chinese government, on the one hand, took very significant deregulation measures on market access, but on the other hand, it had some enhanced regulatory measures for financial stability and national security, in such aspects as asset management and corporate operation. Mr. Bao also shared practical issues such as the criteria for determining the invalidity of investment contracts and the typical structure of equity repo agreements. Ms. Lorraine Brennan and Mr. Neil Popović had interactions with the co-reporters concerning the impact of frequent changes in financial market policies on contract stability and the arbitrability of anti-corruption and anti-bribery.
Mr. Tao Xiuming
Mr. Bao Zhi
Ms. Lorraine Brennan
Mr. Neil Popović
Group photo of panelists of the session on financial and investment dispute resolution
In the session on energy and construction dispute resolution, Dr. Zhou Xianfeng, Partner of JunHe LLP, and Mr. Cui Qiang, Partner of Commerce & Finance Law Offices, acted as co-reporters, Mr. John Hinchey, JAMS mediator and arbitrator, the moderator, and Mr. Patrick Zheng, Partner of Llinks Law Offices, the commentator. Dr. Zhou Xianfeng firstly introduced the status quo of overseas engineering projects of Chinese international engineering contractors, major dispute types thereof and statistics concerning dispute resolution institutions, seats of arbitration, contract forms and selection of applicable laws, and then focused on the reform and practice of “deregulation and service optimization” within the Chinese construction industry centered on two new policies issued by the National Development and Reform Commission (the “NDRC”) and the Ministry of Housing and Urban-Rural Development (the “MOHURD”) respectively, namely, the material reduction of the scope of construction projects subject to mandatory bidding and the cancellation of record filing system for construction contracts. In the field of energy, Mr. Cui Qiang firstly provided an overview of the Chinese energy market, where the oil prices fluctuated sharply due to the geopolitical impact and lower demand, and natural gas has been in a dominant position in the global energy transformation. Mr. Cui also shared the status quo of dispute resolution within the Chinese energy sector, the challenges to contract stability posed by Sino-US trade frictions and the arbitrability of PPP contracts. Mr. Hinchey was surprised at the similarities and consistency between China and the United States in areas of energy and construction. He believed that China's reform within the field of construction is aimed at reducing the over-intervention from the government, which is also worth learning by North American counterparts. Mr. Zheng shared his experience in dealing with issues regularly seen in construction disputes, such as multiple parties, multiple contracts and multiple jurisdictions, the standard of distinguishing force majeure from changed circumstances and the indemnity for damages resulted therefrom.
Dr. Zhou Xianfeng
Mr. Cui Qiang
Mr. John Hinchey
Mr. Patrick Zheng
Group photo of the session on energy and construction dispute resolution
The closing speech of the San Francisco Summit was delivered by Mr. Cedric Chao, Founder of Chao ADR and former Head of International Arbitration Practice of DLA Piper. Looking back at snapshots in time from 1980s to now, Mr. Cedric Chao shared what he has seen as the growth of the Chinese legal system out of nothing and its rise on the international stage. Mr. Cedric Chao believed that the San Francisco Summit has been a wonderful presentation of the overview of the legal profession in China, and the speakers were world class, who has revealed through their speeches the rule of law in China as well as the efforts of Chinese legal practitioners in improving the PRC legal system. At last, Mr. Cedric Chao expected that everyone at the summit could continue to strengthen exchanges, clear up misunderstandings, grow together, and jointly meet the challenges of the future.
Mr. Cedric Chao
Group photo of Chinese speakers
Group photo of part of attendees
An effective system to solve international commercial disputes plays a key role in the smooth running of international trade and commerce. We sincerely hope this event becomes a mental bridge connecting Chinese and American legal practitioners and reminding them of the significance of dialogues and exchanges, just like the Golden Gate Bridge in San Francisco. By the end of the San Francisco Summit, the 2019 North America Summit on Commercial Dispute Resolution in China organized by the BAC successfully concluded. Spanning three cities across North America, from Toronto to New York and to San Francisco, as Prof. Thomas Stipanowich commented in his remarks, "we are all children of our own cultures", we have witnessed legal systems of different countries that are deeply characterized by different cultures and legal traditions. Meanwhile, through dialogues, we are delighted to find more similarities and consistency in such different legal systems. The dialogues between China and the world will continue, and so will the exploration and practice of the BAC. You are welcome to pay attention to and participate in the 2019 Asia Summit on Commercial Dispute Resolution in China that is to be held in this October in Singapore, Kuala Lumpur and Hong Kong.