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Resolution of Disputes Between Foreign Banks and Chinese Sovereign Borrowers : Public and Private International Law Aspects :  Public and Private International Law Aspects - Yiming Shen

Resolution of Disputes Between Foreign Banks and Chinese Sovereign Borrowers : Public and Private International Law Aspects

Public and Private International Law Aspects

Hardcover

Published: August 2000
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In recent years the People's Republic of China has experienced rapid economic growth, brought about in large measure by dramatic increases in foreign trade and investment. China's adoption of an 'open door' policy in the late 1970s also opened up its banking market to foreigners. As a result, there has been a sharp rise in the number of disputes between Chinese sovereign borrowers and foreign banks, making the availability of appropriate dispute resolution mechanisms for foreign banks a critical factor in the expansion of international finance in China.This book recognizes the need for a unique international dispute forum that addresses intricate political and diplomatic considerations and issues of state sovereignty, issues that typically arise from disputes regarding state contracts between national governments and private foreign parties. The work addresses several problematic private and public international law issues in sovereign debt litigation, including:the state immunity theorythe act of state doctrineforum non conveniensthe difficulty in enforcing foreign judgmentsIt offers a comprehensive survey of the many choices open to a foreign bank operator in planning a dispute resolution strategy in China, analyzing the strengths and weaknesses of each process, and examining a series of case studies by way of illustration.The author argues that the autonomy of each party in international arbitration circumvents potential cultural and conceptual difficulties and offers a flexible, mutually acceptable means of conflict resolution which in some circumstances can prove more effective than litigation. Arbitration and the recognition and enforcement of an arbitral award may be recognized as providing a level playing field for international financial transactions between states and foreign private parties, and the non-adversarial nature of the arbitration process makes it particularly appropriate in the Chinese context.

Preface
Foreword
Acknowledgements
Introductionp. 1
Confucianism and Tradition of Law - Chinese Philosophy and Culture Aspects of Dispute Resolutionp. 11
Confucianism and its Influence on the Dispute Resolution in Chinap. 11
Comparison between Chinese and Western Notion of Lawp. 14
International Arbitration: Balance between the Li and Fap. 16
Conclusionp. 18
Law and Practice of Foreign Banks in Chinap. 21
History and Backgroundp. 21
Regulation Regime of Foreign Banks in Chinap. 30
Lending to Projects and Enterprises in China: Special Requirements for Foreign Banksp. 39
Business Limitations and Legal Uncertainty Facing Foreign Banksp. 47
Mediation, Arbitration or Litigation?p. 51
Advantages and Disadvantages of Litigation, Arbitration, and Mediationp. 52
The Motives of the Parties to the Transactionp. 54
The Nature of the Disputes and Suitability of Arbitration for Financial Disputesp. 56
Conclusionp. 65
Mediation or Conciliationp. 69
Definition and Structure of Mediationp. 69
Institutional Rules Governing International Commercial Mediationp. 71
Mediation in Chinap. 75
Mediation in International Banking Dispute: Hong Kong and Shanghai Bank Corporation Casep. 79
Arbitrationp. 83
International Arbitration between States and Foreign Private Enterprisesp. 83
Law and Practice of International Arbitration in Chinap. 86
Conclusionp. 97
Judicial Proceedingp. 99
Governing Law Clauses, Jurisdiction Clauses and their Enforcement in American Courtsp. 99
Courts Proceedings in Chinap. 106
Forum Non Conveniensp. 112
First National Bank of Chicago Casep. 115
The Problems of Litigating International Financial Disputes in National Courtsp. 117
State Immunity and Sovereign Debtsp. 121
Sovereign Risk and State Immunity Doctrinep. 121
State Immunity Legislation in the United Statesp. 122
"Commercial Exception"p. 124
Execution after Judgment and Prejudgment Attachmentp. 127
The Case of Chinese Huguang Railway Bondsp. 129
Arbitrating Sovereign Debt Defaults - Solving the Waiver of Immunity from Jurisdiction and Execution Problemsp. 132
The Act of State Doctrinep. 139
Introductionp. 139
The Act of State Doctrine: Theory and Practicep. 140
Application of the Act of State Doctrine in International Banking Casesp. 143
Exchange Control Regulations and Article VII of IMF Articles of Agreementp. 149
Arbitration Clauses in International Financial Agreements - Circumventing the Act of State Doctrinep. 151
Recognition and Enforcement of Foreign Judgments and Arbitration Awards in Chinap. 155
The Law and Practice of Recognition and Enforcement of Foreign Judgment in Chinap. 155
Gomiakira Casep. 158
Deutsche Bank's Chinese Puzzlep. 159
The Law and Practice of Recognition and Enforcement of Foreign Arbitral Awards in Chinap. 162
China's Experience with the Enforcement of Foreign Arbitral Awardsp. 168
The Revpower Case: China's Breach of the New York Convention?p. 169
Conclusionp. 173
Conclusionp. 175
Bibliographyp. 181
Annexesp. 187
China International Economic and Trade Arbitration Commission CIETAC Arbitration Rulesp. 189
China International Economic and Trade Arbitration Commission Arbitration Fee Schedulep. 200
Administrative Rules of the People's Republic of China Governing Foreign-funded Financial Institutionsp. 201
Detailed Rules for the Implementation of the Administrative Rules of the People's Republic of China Governing Foreign-funded Financial Institutionsp. 209
Law of the People's Republic of China on the People's Bank of Chinap. 216
Administrative Measures on Securities Given to Foreign Parties by Domestic Institutionsp. 222
Provisional Measures on the Administration of the Overseas Financing of Projectsp. 226
Administrative Measures on Representative Offices in China of Foreign Financial Institutionsp. 230
Indexp. 237
Table of Contents provided by Blackwell. All Rights Reserved.

ISBN: 9789041197894
ISBN-10: 9041197893
Series: Studies in Comparative Corporate & Financial Law
Audience: Professional
Format: Hardcover
Language: English
Number Of Pages: 256
Published: August 2000
Publisher: Kluwer Law International
Country of Publication: NL
Dimensions (cm): 23.0 x 15.24  x 1.91
Weight (kg): 0.54