Early this year, Dan Harris of China Law Blog directed his attention to the erstwhile arbitration versus litigation debate. Dan Harris’s position, as of 2014, was that international arbitration was a bad idea when considering China-based enforcement. He seems to have softened his position since then, but without abandoning his priors. Logic and recent available statistics should favor international arbitration in China deals. This is the Introduction to five subsequent posts in a series which addresses the international arbitration process with a particular focus on China.
Dan Harris offered a guarded appraisal for international arbitration as a dispute resolution selection for US companies engaged in China deals:
Arbitration is usually not the best way to go when dealing with Chinese companies, but sometimes it is.
Arbitration acts as the form of alternative dispute resolution most similar to litigation. Just as in litigation, representatives advocate the merits for its party. Just like a court judgment, it is a formal and adversarial process that results in a written decision. A tribunal sits as ‘judges’ and comes to a final decision. But the representatives may be lawyers from any jurisdiction (or not licensed at all). The members of the Tribunal also may be from the United States, Canada, China, or any other country. Unlike litigation, arbitration only rarely allows for appeals on the merits. Most importantly, arbitration removes jurisdiction from a national court and places it in the hands of an institutional arbitration commission. And foreign arbitral awards experience routine enforcement, even in present-day China.