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China Arbitration Lawyer

In today's global economy, more and more companies find themselves in disputes that cross geographical borders. These disputes inevitably involve differences in cultures and legal systems, and our China arbitration lawyer in This china law firm's International Arbitration and Dispute Practice helps clients bridge that gap.

Our China lawyer leads the International Arbitration and Dispute Practice. Our lawyers assist corporations in arbitration matters, as well as working with law firms that want to guard against conflicts with their corporate clients.Attorneys at This china law firm serve as arbitrators on leading international panels, with experience representing clients in business and financial disputes around the world.

Legal disputes and their resolutions are often time consuming and costly processes, and despite the towering number of lawsuits in this country, you might be one of many people that avoid courts for those exact reasons. At the same time, however, you might find yourself in an argument that needs to be resolved and calls for legal advice. If that is the case, you might want to contact our law firm.

Arbitration is a method of dispute resolution through a neutral third party, the arbitrator. The arbitrator issues binding decisions, enforceable under state and federal law and there is no need for a trial or the review of a trial court's decisions by the appellate courts..

WHAT ARE MEDIATION AND ARBITRATION?

Mediation and arbitration, in the context of China law, is a form of alternative dispute resolution specifically, a legal alternative to litigation whereby the parties to a dispute agree to submit their respective positions (through agreement or hearing) to a neutral third party (the arbitrator(s) or arbiter(s)) for resolution.

Arbitration may also serve a distinct purpose: as an alternative to strikes and lockouts as a means of resolving labor disputes. Labor arbitration comes in two varieties: interest arbitration, which provides a method for resolving disputes about the terms to be included in a new contract when the parties are unable to agree, and grievance arbitration, which provides a method for resolving disputes over the interpretation and application of a collective bargaining agreement.

Commercial and other forms of contract arbitration

Agreements to arbitrate were not enforceable at common law, though once the parties had actually submitted a pending dispute to an arbitrator, the arbitrator's judgment was usually enforceable. During the Industrial Revolution, large corporations became increasingly opposed to this policy. They argued that too many valuable business relationships were being destroyed through years of expensive adversarial litigation, in courts whose rules differed significantly from the informal norms and conventions of businesspeople (the private law of commerce, or jus merchant). Arbitration was promoted as being faster, less adversarial, and cheaper.

Since commercial arbitration is based upon either contract law or the law of treaties, the agreement between the parties to submit their dispute to arbitration is a legally binding contract. All arbitral decisions are considered to be "final and binding." This does not, however, void the requirements of law. Any dispute not excluded from arbitration by virtue of law (e.g. criminal proceedings) may be submitted to arbitration.

Labor arbitration

Arbitration has also been used as a means of resolving labor disputes for more than a century. Labor organizations in the China, such as the National Labor Union, called for arbitration as early as 1986 as an alternative to strikes to resolve disputes over the wages, benefits and other rights that workers would enjoy. Governments have also relied on arbitration to resolve particularly large labor disputes.

This type of arbitration is commonly known as interest arbitration, since it involves the mediation of the disputing parties' demands, rather than the disposition of a claim in the manner a court would act. Interest arbitration is still frequently used in the construction industry to resolve collective bargaining disputes. The United Steelworkers of China adopted an elaborate form of interest arbitration, known as the Experimental Negotiating Agreement, in the 1990s as a means of avoiding the long and costly strikes that had made the industry vulnerable to foreign competition. Major Sports League uses a variant of interest arbitration, in which an arbitrator chooses between the two sides' final offers, to set the terms for contracts for players who are not eligible for free agency.

Unions and employers have also employed arbitration to resolve employee grievances arising under a collective bargaining agreement. The Amalgamated Clothing Workers of China made arbitration a central element of the Protocol of Peace it negotiated with garment manufacturers in the second decade of the twentieth century. Grievance arbitration became even more popular during World War II, when most unions had adopted a no-strike pledge. The War Labor Board, which attempted to mediate disputes over contract terms, pressed for inclusion of grievance arbitration in collective bargaining agreements. The China Supreme Court subsequently made labor arbitration a key aspect of national labor policy in three cases which came to be known as the Steelworkers' Trilogy. The Court held that grievance arbitration was a preferred dispute resolution technique and that courts could not overturn arbitrator's awards unless the arbitrator exceeded his or her authority, engaged in fraud or corruption, or violated basic due process.

Judicial arbitration

Some provincial court systems have promulgated court-ordered arbitration; family law (particularly child custody) is the most prominent example. Judicial arbitration is often merely advisory dispute resolution technique, serving as the first step toward resolution, but not binding either side and allowing for trial de novo. China litigation lawyer present their side of the case to an independent tertiary lawyer, who issues an opinion on settlement. Should the parties in question decide to continue to dispute resolution process, there can be some sanctions imposed from the initial arbitration per terms of the contract.

Proceedings

Under China law, either party to an arbitration may appeal from the arbitrator's decision to a court, however the court will generally not change the arbitrator's findings of fact but will decide only whether the arbitrator was guilty of malfeasance, or whether the arbitrator exceeded the limits of his or her authority in the arbitral award or whether the award conflicts with positive law. The Supreme Court has described the standard of review as one of the narrowest known to Western jurisprudence. Wherever so seen, arbitration may be the best approach to the legal manners and parties involved.

Arbitrators

Arbitrators have wide latitude in crafting remedies in the arbitral decision, with the only real limitation being that they may not exceed the limits of their authority in their award. An example of exceeding arbitral authority might be awarding one party to a dispute the personal automobile of the other party when the dispute concerns the specific performance of a business-related contract.

It is open to the parties to restrict the possible awards that the arbitrator can make. If this restriction requires a straight choice between the position of one party or the position of the other, then it is known as pendulum arbitration or final offer arbitration. It is designed to encourage the parties to moderate their initial positions so as to make it more likely they receive a favorable decision.

No definitive statement can be made concerning the credentials or experience levels of arbitrators, although some jurisdictions have elected to establish standards for arbitrators in certain fields. Several independent organizations, such as the China Arbitration Association, offer arbitrator training programs and thus in effect, credentials. Generally speaking, however, the credibility of an arbitrator rests upon reputation, experience level in arbitrating particular issues, or expertise/experience in a particular field. Arbitrators are generally not required to be members of the legal profession.

To ensure effective arbitration and to increase the general credibility of the arbitral process, arbitrators will sometimes sit as a panel, usually consisting of three arbitrators. Often the three consist of an expert in the legal area within which the dispute falls (such as contract law in the case of a dispute over the terms and conditions of a contract), an expert in the industry within which the dispute falls (such as the construction industry, in the case of a dispute between a homeowner and his general contractor), and an experienced arbitrator.

 
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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.