The practice of arbitration in China (Fr)
The practice of arbitration in China has experienced very rapid development in recent years. The purpose of this article is to present the main innovations of these Regulations, particularly with regard to the appointment of arbitrators.
I - The new CIETAC regulations
The main Chinese arbitration institution - the CIETAC (China international economic and trade arbitration commission) - adopted on January 11, 2005 a new arbitration regulation which entered into force on May 1 of the same year. The essential innovation of this New Regulation is to allow the parties to choose arbitrators outside the official list or "panel" published by the CIETAC. Under the influence of the old regulations, the choice of the parties was restricted to some seven hundred names registered on the CIETAC list. This limitation was one of the main criticisms leveled against the Chinese arbitral institution. Under the new regulations, the appointment of arbitrators outside the official list may apply to any arbitrator comprising an arbitral tribunal: to an arbitrator ruling alone or to the two co-arbitrators chosen by each of the parties, as well as to the arbitrator president of the arbitral tribunal, appointed by mutual agreement of the parties or, failing this, by the president of CIETAC.
Consequently, the parties are now able to appoint arbitrators outside the panel, subject to confirmation by the president of CIETAC. Although the criteria for confirmation are not set out, this procedure seems justifiable insofar as it allows the suitability of the arbitrator so appointed to be verified. It should be noted that a procedure for confirming arbitrators is also provided for in the ICC Rules of Arbitration. On the other hand, the New Regulations do not specify the procedures by which the parties can agree to choose arbitrators outside the CIETAC list. In the absence of contrary provisions, it therefore seems permissible to provide for this possibility from the arbitration clause before the start of a dispute.
One point that deserves to be raised is that CIETAC is very open to foreign arbitrators, since on the list of arbitrators, we find that a third of the arbitrators are of nationality other than Chinese. Article 13 of China's Arbitration Law provides that arbitrators must meet one of the following qualifications:
(1) have practiced arbitration for a minimum period of eight years;
(2) have been a lawyer for a minimum of eight years;
(3) have been a judge for a minimum period of eight years;
(4) have had a very high level of teaching or legal research;
(5) have legal knowledge, professional practice in the field of economic and commercial relations, professional activity at a very high level and be considered as such in professional circles.
II - Arbitrations before the ICC
Chinese law allows recourse to foreign arbitral institutions for disputes that have a foreign element. When the place of such arbitration is abroad, the arbitration clause and the corresponding awards are protected by the New York Convention, to which China is a party, which strictly limits the cases of their questioning. by the courts. On the other hand, when the place of arbitration is China, the arbitration clause and the corresponding award are not covered by the New York Convention and their validity is therefore assessed exclusively under domestic Chinese law.
Article 161 of the Chinese Arbitration Law stipulates that the mention of an “arbitration commission chosen by the parties” in an arbitration clause is a condition of its validity. In this regard, in order to mitigate the risk of seeing it "canceled on the grounds of an insufficiently explicit reference to the arbitration institution chosen", the CCI decided to adapt its standard clause for arbitrations taking place in China. This new wording is as follows: "All disputes arising from or in connection with this contract will be submitted to the International Court of Arbitration of the International Chamber of Commerce and will be decided according to the Arbitration Rules of the Chamber of Commerce international by one or more arbitrators appointed in accordance with these regulations. However, it appears that section 16 of China's arbitration law is often interpreted as requiring the mention of an arbitration board registered in China, which is not the case with any foreign arbitral institution. It follows that a risk of cancellation by the Chinese courts hangs over the clauses providing for arbitration in China in accordance with the rules of a foreign arbitral institution. As for the ICC, it is not clear until now whether a clause providing for arbitration in China according to the ICC arbitration rules and designating the International Court of Arbitration of the ICC as the competent arbitration commission would be valid in Chinese law. This uncertainty can cause problems in practice in negotiating an arbitration clause in a contract between a Chinese party and a non-Chinese party, if the Chinese party requires that the seat of arbitration be in China and the another party refuses to submit to a Chinese arbitration board.
A solution was proposed in a conference dedicated to arbitration in China, organized by AIA (Association for International Arbitration) in March 2009 in Brussels, it consists of designating Hong Kong as the place of arbitration because of its status as a Special Administrative Region and Chinese arbitration law not applicable there. Arbitral awards made in Hong Kong are not considered foreign awards in China. There is an agreement, which works well in practice, between China and Hong Kong of February 2, 2000 which provides for the enforcement in China of awards made in Hong Kong and vice versa under conditions very similar to those of the New York Convention.
In recent years, litigation involving a Chinese party before the ICC has increased considerably, although the proportion is not very high compared to arbitrations administered by the ICC, but the development is remarkable.
According to ICC statistics, about 60% of ICC arbitration awards to be executed in China are spontaneously executed by the Chinese side. The enforcement problem is no longer a major problem in China.
1. Article 16 of the Chinese Arbitration Law:
An arbitration agreement shall include the arbitration clauses provided in the contract and any other written form of agreement concluded before or after the disputes providing for submission to arbitration. The following contents shall be included in an arbitration agreement: the expression of the parties' wish to submit to arbitration; the matters to be arbitrated; and the Arbitration Commission selected by the parties.
- the expression of the parties' wish to submit to arbitration;
- the matters to be arbitrated; and
- the Arbitration Commission selected by the parties.