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Record W2030095932 · doi:10.1093/arbitration/29.4.641

Retrial Ruling of the Supreme People's Court Settles the Disputes on the Jurisdiction over Joint Tort Cases - Litigation or Arbitration

2013· article· en· W2030095932 on OpenAlexaboutno aff
Hui Liu, D. Brock, Q. Yue, L. Feldman

Bibliographic record

VenueArbitration International · 2013
Typearticle
Languageen
FieldSocial Sciences
TopicLegal principles and applications
Canadian institutionsnot available
Fundersnot available
KeywordsArbitrationArbitration clauseSupreme courtLawJurisdictionDispute resolutionFederal Arbitration ActTortPolitical scienceCompulsory arbitrationTribunalLaw and economicsBusinessEconomicsLiability

Abstract

fetched live from OpenAlex

A factual pattern forming the basis for a referral to arbitration arising from an appropriately worded arbitration clause may also give rise to tortious claim(s) brought jointly against parties and non-parties to the relevant agreement. In such cases, a recent judgment of the People's Republic of China's Supreme Court, known as the Retrial Decision, suggests that it is possible to circumvent referring the dispute to arbitration by showing prima facie evidence of the existence of the joint tort claim against signatories and non-signatories. The stark implication of the decision is that it raises the risk of disputes being referred to the courts, irrespective of an arbitration clause existing between certain parties to the proceedings. This article considers the background to the decision and its implications, and then undertakes a comparative analysis of the materially different approach to such cases adopted in other jurisdictions; namely, England, Hong Kong, Singapore and Canada. The article concludes by considering the implications of the Retrial Decision, the concerns which it raises, and sets out the authors' thoughts on how parties can address the risks which the judgment raises. It is often the case that commercial parties chose arbitration, as an alternative to litigation, as the preferred dispute resolution mechanism. However, when disputes arise between the parties, one or more of them may pursue litigation in a bid to avoid giving up a ‘home advantage’ in a local court system. This has led to cases where a signatory to an arbitration clause has brought a joint tort claim in the courts against another party to the arbitration clause, in addition to non-signatories. In the People's Republic of China (the ‘PRC’), there has been some uncertainty as to whether the courts have jurisdiction over such composite tort disputes, notwithstanding the arbitration clause. This is partly due to the divergent views presented in the Supreme People's Court judgments considering the issue. Nonetheless, a decision recently handed down by the Supreme People's Court (‘the Retrial Decision’) has given a clear answer to the question. This Article considers the decision, which will undoubtedly impact upon the future judicial practice of the PRC courts, and compares the approach to that adopted in other common law systems; namely, England, Hong Kong, Singapore and Canada.1 The Article concludes by considering the implications of the Retrial Decision and the concerns which it raises.

Fetched live from OpenAlex and de-inverted. Abstracts are not stored in this database: the inverted indexes are 8.6 GB of the frame’s 9.3 GB of text, and the host has 13 GB free.

How this classification was reachedexpand

Full frame distilled prediction

Teacher imitation

Not calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.

metaresearch head score (Codex)0.001
metaresearch head score (Gemma)0.001
Version: codex-gemma-dda1882f352aValidation status: machine_predicted_unvalidated
Candidate categoriesnone
Consensus categoriesnone
DomainCandidate signal: none · Consensus signal: none
Study designCandidate signal: Theoretical or conceptual · Consensus signal: none
GenreCandidate signal: Empirical · Consensus signal: Empirical
Teacher disagreement score0.890
Threshold uncertainty score0.928

Codex and Gemma teacher scores by category

CategoryCodexGemma
Metaresearch0.0010.001
Meta-epidemiology (narrow)0.0000.000
Meta-epidemiology (broad)0.0000.000
Bibliometrics0.0000.000
Science and technology studies0.0010.000
Scholarly communication0.0000.000
Open science0.0000.000
Research integrity0.0000.000
Insufficient payload (model declined to judge)0.0010.000

Machine scores (provisional)

The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.

Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.

Opus teacher head0.038
GPT teacher head0.301
Teacher spread0.263 · how far apart the two teachers sit on this one work
Validation statusscore_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from it

Classification

machine, unvalidated

Machine predicted; a candidate call from one teacher head, not a consensus.

The models applied no category: nothing in the taxonomy fit this work.
Study designTheoretical or conceptual
Domainnot available
GenreEmpirical

How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".

Quick stats

Citations2
Published2013
Admission routes1
Has abstractyes

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