The Belt and Road Initiative possibly offers interesting opportunities for non-Chinese participation. However, knowledgeable investors know that with rewards come risks, says D’Andrea & Partners Legal Counsel. In this article, they discuss the question of how to effectively manage disputes that are not only cross-border but also high-capital, multi-party and multi-contractual have made legal resolution processes a priority.
Over 55 per cent of surveyed European Chamber members (not to mention 78 per cent of members involved in legal services) see opportunities in the BRI . However, knowledgeable investors know that with rewards come risks. They count on readily-available and fair access to courts to resolve disputes. Thus, the question of how to effectively manage disputes that are not only cross-border but also high-capital, multi-party and multi-contractual have made legal resolution processes a priority.
The primary concerns of contractual parties litigating in foreign courts include the nature of applicable law, the impartiality of local judges and international recognition and enforceability of local court judgments. As the BRI extends to many nations with different degrees of economic and political development, project participants face the possibility of dealing with underdeveloped and possibly-unreliable systems of law, as well as having to cope with the absence of specialised intermediaries, regulatory systems and contract-enforcing mechanisms. If contractual commitments cannot be enforced, BRI projects or partnerships could be placed in jeopardy.
BRI Projects – Complex by Nature
BRI agreements often require that local companies be involved in projects, which means establishing joint ventures (JVs). Traditionally the binary JV pairs will be a Chinese party and a party from the BRI partner country. If technical expertise is required for large and complex projects, the JVs may invite foreign companies to participate. Foreign consultants and experts may also be needed to conduct comprehensive research such as feasibility studies and environmental impact assessments. The growing need for additional parties to a project increases the risk of disputes, particularly if the contractual parties are not properly aware of the implications of their commitment.
Understandably, when disputes arise the parties involved will be most comfortable with the laws of their home country – a challenging situation when determining which laws will govern specific contracts with their multiple parties and preferences. The parties’ primary challenge in establishing a BRI project will be to secure joint commitments through comprehensive and enforceable contracts. Legal contracts are not going to be of any use if the laws and regulations keep shifting, which happens in many emerging markets. Apart from ensuring the tightness and clarity of the contract terms themselves, parties need to understand the legal environment of the relevant BRI partner country or the chosen system of law as agreed upon in the contract. Contracts need to be based on an agreed, stable and understandable system of laws from the outset.
In order to manage disputes and minimise litigation associated with projects along the Belt and Road, currently the most proactive and well-utilised method has been through arbitration. It has thus become imperative that contracts should include an arbitration or court jurisdiction clause providing for a place of arbitration in a jurisdiction which is a party to The New York Convention on the Recognition and Enforcement of Arbitral Awards 1958 (the Convention). This convention sets out the mechanism for reciprocal recognition and enforcement of arbitration awards between contracting states.
Approximately 92 per cent of the countries currently participating in the BRI are signatories to the Convention, with only five countries being non-signatories at the time of writing. The right to obtain an award from an arbitration tribunal in a Convention state that will be enforced in another Convention state will minimise the risks that parties may otherwise face in enforcement. Convention jurisdiction will help companies avoid local law issues that might impede enforcement.
The Hong Kong International Arbitration Centre (HKIAC), which has specific BRI arbitration clauses and rules to deal with BRI disputes, is a primary venue for adjudicating disputes. Since 2013 the HKIAC has accumulated extensive experience in handling arbitrations involving parties and countries along the BRI. To date, it has handled 362 cases involving parties in BRI jurisdictions.
However, there are circumstances in which it will be impossible to avoid becoming subject to local law and the jurisdiction of local courts. In such scenarios there is also an emerging dispute-resolution method developed by China’s Supreme People’s Court (SPC) in order to handle international disputes arising from BRI projects. On 29th June 2018, the SPC formally launched two branches of the International Commercial Court of China (CICC), one in Shenzhen, Guangdong and the other in Xi’an, Shaanxi.
The courts will consist of eight judges, all drawn from the SPC bench. They will be assisted by a panel of experts from jurisdictions that form part of the BRI, including China and the UK. While the expert panel will advise on disputes as well as provide mediation services, the final decision in any case will rest with the judges. As the CICC practices the ‘First Instance Being Final’ principle, all judgments and rulings are final and binding on the parties with legal effect.
It is envisaged that the Shenzhen Court will deal with disputes arising from the BRI Maritime Road while the Xi’an Court will deal with land-based BRI disputes. Although the courts have yet to hear any cases at the time of writing (the SPC is currently in the final stages of formalising the CICC’s rules and procedures), they have still raised a question: will international parties to BRI cases submit to the jurisdiction of Chinese courts? Presently, as there are no precedents for these newly established courts to draw effective comparisons from, the route of international arbitration would still be the best method of dispute resolution regarding BRI agreements.
While the establishment of the CICC marks the start of an ambitious attempt to enhance the appeal of Chinese courts to international businesses (especially regarding BRI arbitration proceedings), it remains to be seen whether its establishment will influence international legal experts drafting BRI agreements and offshore arbitration. However, in cases where international arbitration is unavailable to the parties (particularly where the location stipulated in the contract is outside the jurisdiction of The New York Convention) the CICC could be well-placed to resolve disputes emerging from BRI situations, especially regarding developing countries with less-sophisticated legal systems.
D’Andrea & Partners Legal Counsel, DP Group was founded in 2013 by Carlo Diego D’Andrea, and Matteo Hanbin Zhi, both with extensive backgrounds in Chinese and EU law.
DP Group currently has four service entities: D’ANDREA & PARTNERS Legal Counsel, PHC Tax & Accounting Advisory, EASTANT Communication and Events, and CHANCE & BETTER Education Consulting.
DP Group has a variety of branches around the world, with locations based in major developing economies.