Litigation Support
Disputes and litigation are a part of modern life. In today’s environment, these disputes or potential disputes often involve complex financial, economic and business issues.
Whether in litigation or other dispute resolution means, clients and their counsel require the rapid mining, modelling and analysis of data in order to make case-critical decisions. We provide quantitative analytic solutions in instances where facts are disputed and answers are buried in voluminous, complex collections of transactional data.
At TGB, we take a creative approach to litigation and arbitration support, finding thoughtful solutions that are time-sensitive and tailored to our clients’ legal strategy. We partner with outside counsel and in-house teams to collect the information needed to get results, whether it’s evidence to support a legal position or for leverage against opponents.
TGB & Associates – Execution is the single most important part of the whole process, poor execution can result in a lot of lost time and money.
TGB team can assist in a wide range of areas:
- Claims relating to M&A transactions
- Investment disputes
- Claim against manufacturer or supplier
- International Arbitration
- Professional negligence claims
- Breach of contract, breach of warranty
- Construction and capital project disputes
We at TGB, follow three different approaches to solve any dispute in the interest of clients to save time and cost.
Negotiation is first and most cost effective means of dispute resolution. In fact, the majority of commercial contracts have a standard clause stipulating that negotiation should be pursued before other dispute settlement mechanisms are used. This is also the expectation within other business culture more generally and failure to adequately follow this may be interpreted as a lack of courtesy or goodwill, or a lack of cultural sensitivity.
Breach of contract generally results in termination of the contract and damages for any losses incurred. In Asian countries, a greater emphasis is placed on preserving business relationships or using personal connections to assist in resolving disputes. When a foreign firm experiences difficulty in directly negotiating a solution to a dispute with its counter party, companies sometimes seek assistance from government officials who can encourage the counter party to honor the terms of the contract. However, negotiations do not always lead to resolution.
What we do
- We meet your counter party and put all our efforts to honor the terms of the contract
- We negotiate between you and your counter party to reach at some mutually accepted level of resolution and follow up to ensure that party performs the obligation in stipulated time.
Arbitration is the next preferred method. Unless the parties can agree on arbitration after the dispute has arisen, the underlying contract or separate agreement must indicate that disputes will be resolved through arbitration. The Arbitration clause shall indicate the process of appointment of arbitrator, place of arbitration and number of arbitrators. In many instances, international arbitration is an effective though perhaps underutilised dispute resolution mechanism Especially in China and India. Arbitration also offers an advantage over litigation because of the finality of the rulings. Court rulings are subject to appeal, which means litigation may continue for a lengthy period of time.
Agreements to arbitrate usually specify a choice of arbitration body, which may be located in country of contract party or other country.
In China there are two Chinese government-sponsored arbitration bodies for handling cases involving at least one foreign party:
- China International Economic and Trade Arbitration Commission (CIETAC) and
- China Maritime Arbitration Commission (CMAC).
In India there are major three arbitration institute which provides alternate dispute resolution.
- Indian Council of Arbitration (ICA)
- Indian Institute of Arbitration & Mediation (IIAM)
- The International Centre for Alternative Dispute Resolution (ICADR)
In Hong Kong, there are three major arbitration institutions.
- The Hong Kong International Arbitration Centre (or HKIAC)
- Hong Kong Mediation and Arbitration Centre (HKMAAC)
- Hong Kong Institute of Arbitrators (HKIArb)
Companies should clearly mention in contract an alternative to any country base arbitration if they choose international body like Singapore Arbitration Centre.
A final step to resolve a commercial dispute is through litigation in courts. In China, foreign individuals and companies have the same ability to bring action in court as Chinese citizens and companies. There are three levels of courts in China. Every major city has basic courts and intermediate courts. Supervising these courts are the provincial high courts.
In Hong Kong Civil proceedings can be instituted by:
- the Government against individuals (including companies); or
- individuals against the Government; or
- Individuals against other individuals.
The standard of proof is based on the balance of probabilities. The main branches of civil law include contract, tort, property, administrative, family and revenue law.
Our lawyers have earned international acclaim for providing cutting-edge legal solutions to many foreign companies doing business in or with China & Hong Kong. Our vast experience handling China-Hong Kong specific entity formation, contracts, intellectual property matters, and dispute resolution gives our clients the security of knowing they have a truly seasoned legal team behind them.
Contact us at the CTS office nearest to you or submit a business inquiry online.
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Tips to avoid disputes
- Have clear contract terms. Specify exact terms of payment and performance standards. Set timelines. Include specific dispute resolution clauses, including details on the procedure and maintenance of operations during a pending dispute. Pay careful attention to details, such as initialing pages of contracts and signing properly. Make sure the Chinese version of the contract is consistent with the English version. Do not attempt to enter into an agreement without sound legal advice.
- Make certain your project is economically viable by its own terms. Profitability of a project or the sale of goods and services should be based on sound economic criteria. Do not rely on promises of subsidies, special considerations, or non-market related sources of income to generate a profit.
- Make sure you know your buyer/seller. Do your “due diligence,” and do it well. Choose your partner carefully and only after a careful examination of experience and dependability. Check the reliability of the data your partner or customer provides from independent sources.
- Make sure you get paid. A contract with an insolvent partner or customer is worthless. Pay careful attention to how you get paid, when you get paid and in which currency.
- Search for problems before they materialize. In addition to creating pro forma balance sheets, spend some time at the beginning of a project to examine what you will do if things go wrong. Try to anticipate possible problem areas. If you can’t find any, you are not looking hard enough. Create a strategy to deal with potential problems. You know how much profit you want to make. Know your company’s limits on losses as well.
- Do a thorough risk analysis. Be realistic about how much risk you are willing to accept in your business venture. Make sure you use reliable sources for this assessment. Use more than news media sources or your immediate partners to evaluate the risk.
- Limit your exposure. Set milestones for a particular sale or purchase transaction.