China and International Commercial Dispute Resolution

Professor Dr Qiao Liu, Ph.D., University of Oxford, is Associate Professor at TC Beirne School of Law, University of Queensland, Australia and Professor of Law at Xi’an Jiaotong University School of Law, China, Lee Kai Shing Visiting Professor at McGill University Faculty of Law, Visiting Scholar at East Asian Legal Studies of Harvard Law School and the founding Executive Deputy-Editor-in-Chief of The Chinese Journal of Comparative Law. He has published monographs and articles in such journals as the MLR and CLJ. Professor Dr Wenhua Shan, Ph.D., Trinity College, Cambridge, is the Ministry of Education Yangtze River Chair Professor of International Economic Law and the founding Dean of Xi'an Jiaotong University School of Law, Senior Fellow of Lauterpacht Centre for International Law, University of Cambridge, Professor of Law at the University of New South Wales and the founding Editor-in-Chief of The Chinese Journal of Comparative Law. He has published over ten monographs and numerous articles in such journals as the AJCL and EJILXiang Ren (Cheyenne), Xi'an Jiaotong University, is a Ph.D. Candidate at Xi'an Jiaotong University School of Law and an Editorial Assistant of The Chinese Journal of Comparative Law.

• Notes on Contributors1IntroductionQiao Liu and Xiang RenPart I General Issues in International Commercial Arbitration2Specific Performance in International ArbitrationEwan McKendrick and Iain Maxwell2.1The meaning of ‘specific performance’2.2Common law and civil law2.3Specific performance in an arbitral context2.4Xiamen Xinjingdi Group Ltd v Eton Properties Ltd3EU Law in Chinese International Commercial ArbitrationJürgen Basedow3.1Arbitration in the Law of the European Union3.2Arbitral Proceedings and State Courts in the European Union3.3EU Law and the Merits of International Arbitration Proceedings3.4Arbitration Panels and the European Court of Justice3.5Conclusion4Using Soft Law in International Commercial Contract ArbitrationLarry A. DiMatteo4.1Introduction4.2Soft Law and International Commercial Arbitration4.3Normative Power of Soft Law4.4Types of Soft Law4.5Interpretive Methodologies4.6Soft Law Trumps Hard Law: Private Customary International Law4.7Hard and Soft Law in International Commercial Disputes4.8Conclusion5Independence and Impartiality of Arbitrators: A Comparative PerspectiveCarlos Matheus López5.1Factors in Selection of Arbitrators5.2Background5.3Independence and Impartiality5.4Duty of Disclosure5.5Efforts to Systematize and Limits5.6Practical Analysis Factors5.7Means to Ensure Arbitrator Independence and Impartiality5.8Practical Steps to Select a Party-nominated Arbitrator5.9Pre-appointment Interview5.10Some Criteria to Challenge an ArbitratorPart II Specific Issues in International Commercial Arbitration6China and Foreign Direct Investment: Looking AheadLeon Trakman6.1Introduction6.2Investment Claims and China6.3ISA Claims by Chinese Investors Abroad6.4ISA Claims Brought Against China6.5Chinese Arbitrators6.6Withdrawing From ISA?6.7A “China-made” Investment Jurisprudence?6.8China’s Distinctive History of “Liberalization”6.9China’s “Liberalization” of its BITs6.10The History of Chinese BITS6.11Modelling China’s Model BIT6.12“Alternative” Dispute Resolution6.13Conclusion7Arbitrability of Company Law DisputesAndrew Johnston7.1Introduction7.2Arbitration under the statutory contract7.3Under shareholder agreements7.4Actions by the company against its directors7.5Derivative action by minority shareholder against directors7.6Unfair prejudice applications7.7Conclusion8Rules of Evidence in CIETAC International ArbitrationSong Lu8.1Introduction8.2General Approaches towards Disclosure and Investigation of facts 8.3PRC Civil Procedure Law 8.4Current PRC Statute on Rules of Evidence in Arbitration8.5Rules of Evidence Agreed by the Parties8.6Rules of Evidence for China – CIETAC Evidence Guidelines8.7ConclusionPart III Issues in International Commercial Law and Non-Arbitration Dispute Resolution9A Critique of the European Contract Code ‘Project’Roger Halson9.1Introduction9.2The General Background to Codification 9.3Process and the creation of the CESL9.4Further outline of the CESL including available remedies9.5Key Arguments for Reform9.6Further Critique9.7Conclusion10CISG in Chinese Courts: The First LookQiao Liu and Xiang Ren10.1Introduction10.2Applicability of CISG in Chinese Courts10.3The Survey10.4Conclusion11State-owned Enterprises in the WTO Law: An Analysis of United States–Definitive Anti-dumping and Countervailing Duties on Certain Products from ChinaMing Du11.1Introduction 11.2State-owned Enterprises in the Law of World Trade Organization11.3The US- Antidumping and Countervailing Duties Case11.4Conclusion12Judicial Mediation: A Behavioural Law and Economics PerspectiveQi Zhou12.1Introduction12.2Mediation and Judicial Mediation12.3Judicial Mediation As Solutions12.4Evaluating the Role of Judicial Mediation12.5Evaluating the Efficiency of Judicial Mediation12.6ConclusionINDEX