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China Litigation Lawyer

A Discuss About Business Litigation in China

Business litigation is a traditional area of practice for most of China litigation lawyers. Business litigation is different from employment dispute litigation and divorce litigation. When considering litigation, a business owner should be aware of his or her options. In addition to the courtroom, there are other forums that might be appropriate, depending on the specific needs of the business. Alternative dispute resolution (ADR), described below, may be a desirable alternative to litigation or, if the cause of action is of an eligible size, small-claims court may be another venue for an owner to consider. Class actions may also be utilized by a business in certain circumstances. Additionally, business owners must understand the basic features of class actions, in the event that they are named as defendants.

A business contemplating bringing or defending a lawsuit would be well served by consulting with a seasoned trial attorney like one from our Beijing litigation attorney, Shanghai litigation attorney,Guangzhou litigation lawyer, to better understand all of the legal options.

Litigation Procedure

There are many steps that a litigant must follow when pursuing a judicial resolution to an issue. The civil litigation process is relatively uniform and is controlled by federal or state court rules. The process itself involves a considerable volume of work, whether or not the case actually goes to trial. Required tasks include everything from filing an initial pleading such as a complaint, subsequent pleadings such as an answer or possibly counterclaims or third-party actions, to pursuing an appeal if the judgment is found to be unsatisfactory. The steps that are usually involved in litigation are:

 

Difference between deposition and affidavit rules in China litigation

Depositions and Affidavits in China litigation is similar with those in common law countries. Although China's deposition and affidavit procedure and requirement are somewhat named differently, they are similar in nature. Before a case goes to trial, both sides want to know what the witnesses will say. If a witness is friendly, the parties or their attorneys may talk to him and ask what he knows about the events that are relevant to the case. However, if the witness changes his mind before trial, the party questioning the witness at trial can do only one of two things. If the witness in court admits making the contradictory out-of-court statement, the trier of fact (judge or jury) might disregard all of the witness's testimony. However, if the witness does not admit making the contradictory statement, then the party questioning him might have to call another witness who heard the earlier statement. This creates a "swearing match" in which the trier of fact has to decide which witness is more credible.

A more effective way of avoiding such surprises and making sure that a witness does not change his story at trial is to get the first statement in writing and under oath.

Affidavits

An affidavit is merely a written record of a witness's out-of-court statement that is signed and sworn to by the witness in front of a notary public or other official authorized to administer oaths. A written statement that is not signed under oath (or "notarized") may be used in court under certain circumstances. It is a crime in most jurisdictions to lie under oath. Thus, witness affidavits may be used to impress upon a witness the importance of telling the truth in his out-of-court statement. The witness can then be asked whether he was lying when he made the first sworn statement out of court or when he gave the contradictory sworn testimony in court.

 

How to enforce or challenge CIETAC awards in China

China International Economic and Trade Arbitration Commission(CIETAC) is a regional international arbitration institution. As an China international arbitration lawyer, I have entensive experience in handling cases with CIETAC, especially its South China branch which is located in Shenzhen. This article is to briefly introduct how to enforce and challenge CIETAC awards in China court.

The circumstances in which a CIETAC award may be set aside or enforcement refused are set out in paragraph 1 of article 260 of the CPL. They are that:
• the parties neither included an arbitration clause in their contractnor subsequently concluded a written arbitration agreement;
• the party against whom enforcement is sought was not asked to appoint an arbitrator or to participate in the arbitration proceedings or failed to state its case for reasons for which it cannot be held responsible;
• the composition of the arbitral tribunal or the arbitral proceedings did not conform with the relevant arbitration rules; and
• certain items of the award exceeded the scope of the arbitration agreement or were outside the jurisdiction of the arbitration institution.

Article 260 also provides that if a People’s Court decides that enforcement of the award would be against the social and public interest, it shall refuse the enforcement application. Although the relevant provisions of the Arbitration Law do not refer to refusing to enforce an award on the grounds of social and public interest, this probably remains a valid ground for refusing enforcement.

 

How to becoma a China litigation lawyer - advice to law students

I have always want to write something about how to become a China  litigator for those law students. A litigation attorney works as an expert in cases that don’t settle outside the courtroom and go to trial. Litigation attorneys, also known as “litigators” or “trial lawyers,” represent plaintiffs and defendants in civil cases and manage all phases of the litigation process from investigation, pleadings and discovery to pre-trial, trial, settlement and appeal.

Law firms will typically hire a litigation attorney to help with cases and adapt to the specific needs of different clients. Litigation lawyers deal with various types of cases, including criminal cases, civil case, capital offenses or property disputes. A litigation attorney does not specialize in a specific branch of the law but yet can deal with any kind of trial. Litigation attorneys have to focus on what happens in the courtroom to convince the judge and the jury by sometimes putting on something of a show. A litigation lawyer has to have excellent public speaking skills and a versatile mind.

1. Develop excellent verbal skills from an early age. Join your school’s debate team to learn argumentation techniques and get accustomed to public speaking. Understand that becoming a lawyer will take a lot of work and studying, so get ready by developing good learning habits.

2. Go to college or university and follow a four-year undergraduate program. Most schools will not favor a specific major or minor, but they will ask for a wide-ranging liberal arts education. A philosophy major, for example, will help with your argumentation skills. Whatever you choose, make sure you have a high final GPA, which will factor heavily in your admission file.

3. Register for and take the China Judicial Qualification Test. Some students take the CJQT during their senior year of college, but in some situation this path is not allowed anymore. You want to get a high score, so you might have to retake it. You can sit for the test four times a year for a registration fee each time.

4. Register with the Law School Admission Office at the law school you want to attend. You’ll have to submit your school transcripts, letters of motivation, recommendation letters from teachers and any other documents the law school to which you want to apply requests. The LSAO will send your documents and test results to the law schools you choose.

5. It will take several months before you get an answer from the law schools and another several months before you can enroll in law school. Use the time to get some work experience. Accept any type of job in a law firm or legal office to start building your resume.

 
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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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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.