"The international business community has formed a complete set of rules of the game for hundreds of years, which are different from the rules in China, and if enterprises do not understand it, they are easy to be punished for violating the rules, and even pay a high price.。On March 7, Yang Liangyi, a member of the Expert Committee of the International Commercial Tribunal of the Supreme People's Court, a member of the Beijing International Arbitration Commission, and honorary chairman of the Hong Kong International Arbitration Center, warned mainland enterprises at a lecture on international business rules that Chinese enterprises must master when going global。
Recently, due to the COVID-19 epidemic, force majeure has become a hot topic of foreign trade enterprises, which leads to a lot of attention to contract signing, evidence and so on。
International business rules cover three main areas: contract law, arbitration law, and evidence law。International commercial contracts are usually governed by common law and have absolute or strict liability for the performance of commitments under the contract, corresponding to the Chinese idiom "a word spoken is past recalling."。Yang Liangyi pointed out that unless it violates public policy, as long as the contract is concluded in accordance with the principle of autonomy of the parties' will, the judge or arbitrator cannot rewrite the contract between the two parties based on whether it is fair and reasonable。
Yang Liangyi stressed that "consumers, as a vulnerable group in negotiating power, have special legal protection, and international commercial contracts assume that both parties to the contract have the same level of knowledge and negotiating power.。Many Western companies tread carefully before signing a contract, and it is not surprising that a dozen lawyers have to negotiate for up to a year to hammer out the details。However, some domestic companies are not vigilant about the signing of contracts, and the probability of losing a lawsuit increases once a dispute occurs。”
"The contract is in the negotiation stage and either party can stop at any time。But if the watershed is crossed, the contract is formed and binding on both parties。Yang Liangyi suggested that enterprises should pay attention to the use of prerequisites and subsequent conditions and grasp the time of the establishment of contracts。The prerequisite is the condition for the creation of a contract, and the subsequent condition is the condition for the destruction of an already created contract for the performance of an obligation。For example, the shipbuilding contract is subject to the conclusion of the contract and the extensive consent, then the two parties can only establish a contractual relationship when the additional conditions are established。In practice, there are also cases where details are settled, reasonable changes are made, lawyers review, and a person or organization is satisfied。
In addition, "all business activities, litigation, regulation, etc., are based on information, and it is important to focus on the collection, use, or dissemination of relevant information, as well as information about competitors.。Yang Liangyi believes that enterprises should not only obtain competitors' information and third-party disclosure information at the international level through legal means, such as pre-litigation disclosure, applying to the court to obtain documents, but also protect their own information by asserting the right of privilege。In addition, documents are the memory of the company, the company should have good document management ability, but also regularly destroy unnecessary documents, such as sensitive documents。However, if it is required to disclose in a regulatory investigation or lawsuit, it must also be honest, otherwise it may be heavily fined for not cooperating with the investigation or belong to obstruction of justice。
"The adversarial procedure of the common law system represents the reality of international arbitration, and it is essential to be familiar with this system of 'writing and fighting'。Yang Liangyi pointed out that only when we have mastered the evidence law, we know how to deal with the evidence of the countersystem。For example, should disclosure be required, and what weight should be given to each piece of evidence in the admissibility rules。
Since the outbreak of COVID-19, a large number of different information has gone viral in society。A lot of this information is made up out of thin air, but it's also hard to tell。"Such information has no evidentiary value and will not be admissible in court proceedings or international arbitration.。Yang Liangyi said that the parties, especially expert witnesses, should have a sense of evidence when they participate in litigation or arbitration。
The focus of evidential consciousness is to distinguish the two concepts of "fact" and "opinion"。"Facts" are things that have existed and happened and are not owned by individuals。If there is a dispute, it is only the existence of this "fact", which needs to be proved by evidence。However, "opinions" are individuals' subjective views on certain facts, and it is very difficult or even impossible to prove whether opinions are right or wrong。Unless the author of the opinion himself admits his mistake, all the others can do is believe or disbelieve the opinion and to what extent。
Yang Liangyi introduced that because of the danger of "opinions", the court considers three main aspects when analyzing the opinions of expert witnesses: the expert opinions provided or made are good opinions from real experts;Expert witnesses are sincere in helping the court understand the expertise and will not give biased or otherwise misleading opinions。An expert witness is a person who makes a well-considered opinion after obtaining quality evidence through investigation, examination and testing, and after a thorough understanding of relevant facts。
It is understood that the British court's control and supervision of expert opinions in procedures are mainly through two means: first, through approval, and if not adopted, it will not be approved。The second is by giving different weight to expert opinion, that is, the degree of credibility。Other tools include cross-examination, cost penalties (including punishment of expert witnesses rather than just clients), criminal penalties for contempt of court and perjury。
Under the federal rules of evidence，If expert witness opinion evidence meets the following requirements，Admissibility: The scientific, technical and other expertise of the expert can help the person making the decision/finding of the disputed facts (i.e. the judge or jury member) to better understand the factual evidence;The expert evidence is supported by sufficient facts or data;Expert evidence is opinions and conclusions based on reliable/trustworthy principles and methods;Experts will reliably apply these principles and methods to cases in fact。