First Meeting for Amendment of PRC Arbitration Law

作者: 发布时间:2017-04-25 13:15:04
On April 9, 2017, the Non-governmental Virtual Group of 100 people for Amendment of PRC Arbitration Law, which is composed of experts and scholars in the field of arbitration, held its first meeting in a conference room of China Council for the Promotion of International Trade (CCPIT). More than 30 experts from Beijing, Shanghai, Hebei, Shandong, Hubei and Sichuan gave up their leisure time to attend the meeting at their own expenses on this Sunday.
 
Highlighting the urgency and necessity, the meeting discussed ideas and directions of the amendment of PRC Arbitration Law. Moreover, several consensuses were reached on how to proceed with the amendment along with its advocacy, how to schedule the timetable, how to structure the Working Group (including the set-up of the guiding committee of experts, secretary group, academic groups, amendment groups by expertise, advocacy groups, and regional groups) and other issues.
 
The meeting was chaired by Mr. Zhen’an Zhang, the sponsor of the Working Group. Mr. Pengqi Lu, Vice President of CCPIT, gave a welcome speech, and raised his ideas and suggestions on the Arbitration Law amendment.
 
The summary of the meeting:
 
Mr. Zhen’an Zhang
Senior Partner, Shanghai Co-effort Law Firm
Vice President, Shanghai Chamber of Commerce for Import and Export
 
The meeting, aiming at sparking a brainstorming of ideas, is scheduled to discuss the directions and principles of the amendment of PRC Arbitration Law, instead of the specific and detailed issues.
                                                                                   
I would like to share my views on the plans and suggestions for the proposed amendment. The Research Team is set up to study what the principles of PRC Arbitration Law should be. More specifically, the study should be based on the practice of domestic arbitration. After all, we have more than 20 years of arbitration practice on average, with China International Economic and Trade Arbitration Commission and China Maritime Arbitration Commission practicing even much longer. Also, the amendment should keep pace with the recent development and advanced ideas of international arbitration practice, as well as the legislative practice of arbitration in developed countries.
 
With the integration of Theory with Practice, the combination of common law and civil law legal system, the draft on the amendment would be eventually formed with Chinese characteristics.
 
It is necessary and urgent to advocate strongly for the amendment of PRC Arbitration Law. Take a step further, how to conduct the amendment? There are three possible options, an amendment with major or minor changes, or a tailored adoption of the UNCITRAL Model Law, or the maintenance of a unique system like UK and Ukraine and other countries.
 
Following the principle of getting things done, the Research Team is not set up for learning purposes. With regard to the structure of the Research Team, I propose to set up a guiding committee of experts, secretary group, academic group, amendment group by expertise, advocacy group, and regional group.
 
Specifically speaking, foreign professionals can join in the amendment group by expertise. A variety of topic groups can later be formed automatically, and should be supported by the respective academic groups, based on the topics developed along with the amendment and different interests of the experts involved.
 
The advocacy group should work at the same time when the amendment group work. The Advocacy group should have representatives of both the National People’s Congress (NPC) and Chinese People’s Political Consultative Conference (CPPCC). And it can be subdivided by region, industry, association or academic institution.
 
To a certain extent, we can introduce those good aspects of the PRC Arbitration to the world. And for those aspects in need of improvement, we can seek advice from foreign experts. This would not only attract widespread international attention but also promote the amendment.
 
Taking the legislation of next year into account, we should finish the drafting of the proposal within six months. The most important thing is to advocate, promote, and get the mass media involved.
 
The Research Team is initiated purely by and on interest,. There is no compensation, nor is there any personal economic advantage involved. The final product of the Research Team would be a proposal for the amendment to be submitted to all interested institutions and authorities, in the hope that it would be put on the agenda for the legislature branch as soon as possible.
 
If it is workable, we should post all our findings on a website specially established for the advocacy for the amendment as well as the publicity of arbitration.
 
Mr. Honglei Chang
Deputy Secretary-General, Arbitration Commission of Shijiazhuang
 
This first point that I want to share is the ideas of the amendment of PRC Arbitration Law. Under the idea of innovation, the amendment should equip the PRC Arbitration Law with a world vision, international standards, and Chinese characteristics
 
Second, about the drafting process, we should establish a reasonable system of division of work and set up detailed schedule for the amendment proposal drafting in order to have it put on the agenda of National People's Congress as soon as possible.
 
Third, about the advocacy, the amendment requires the participation of all walks of life. The whole process of the amendment proposal drafting should be under full coverage by making full use of traditional media and new media. The advocacy should try to make an impact on the National People's Congress, the relevant government departments, and institutions.
 
 
 
Dr. Jian Chen
Director, China International Economic and Trade Arbitration Commission
 
I support 95% of what Mr. Zhen’an Zhang has raised just now and want to raise several points.
 
About the guiding ideas that the proposal should follow, I want to share 5 observations. First, it should meet the needs of further development of market economy. Second, the arbitration itself, as one part of market economy activities, should also follow the laws of the market. Third, the amendment proposal should be as specific as possible. Fourth, we embrace the idea of coexistence of support and supervision over arbitration. Fifth, there should be vision of globalization (also referred to by Mr. Chang).
 
Then, about the principle of the amendment proposal, with respect to the form of the law, the status quo should be maintained. Do not try to break it. With regard to the content, texts that harm the market economy should be deleted and texts that would benefit market economy should be added.
 
The relevant provisions on the arbitral proceedings should be flexible and gap-filling, as with the contract law, to leave room for party autonomy. Finally, it is recommended that the Research Team should also be operated under a market-based approach.
 
Mr. Chenglin Li
Senior partner, Shanghai City Development (Tianjin) law firm
 
He shared his thoughts on the protection of Chinese companies investing overseas.
For the past more than 10 years, he found that those Chinese outbound investment companies were adversely impacted by the limitation of PRC Arbitration Law when they signed contracts and arbitration agreements for their outbound investments. He hoped that the amendment proposal would help protect those Chinese companies.
 
Besides, the current PRC Arbitration Law only allows cities with districts to set up arbitration commissions, which forms a geographical limitation and separation of the arbitration market. Ad hoc arbitration should also be recognized in China. He and another 10 international lawyers or so run a website on international law. The website is to change its content in both Chinese and English. He suggested that this platform could be used to advocate the amendment proposal and do some researches on the amendment of PRC Arbitration Law.
 
Mr. Kunshan Qu
Executive Director, China Academy of Arbitration Law
 
He made three suggestions on the proposed amendment of PRC Arbitration Law. First, one specific chapter on ad hoc arbitration should be added. Second, the more sketchy, the better. Third, legislative technique should be highlighted instead of principles. He shared a piece of good news that the Ad Hoc Arbitration committee has received formal approval from the China Academy of Arbitration Law and a generous    1 million CN¥ sponsorship from one Qingdao law firm has been affirmed. A series of activities are undergoing, including publication of papers on such topic.
 
Mr. Xuebin Chen
Senior Partner, Grandall Law Firm (Shanghai Office)
He offered three points. The first point is the timeliness of the discussion on the amendment of the arbitration law. Second, the necessity for amendment. Many problems have emerged since the issue of PRC Arbitration law more than 20 years ago, for example, issues on the seat of arbitration, ad hoc arbitration, property preservation, evidence preservation and enforcement. Third, recent development in the international arbitration community should be taken into consideration. There are many new developments reflecting the cutting-edge issues like emergency arbitrators, third party funding, TBS, investment arbitration, all of which deserve attention.
 
Dr. Ming Kang
Senior Partner, Fangda Law Firm
 
He agreed that the nature of arbitration should be understood from the perspective of the construction of market economy. The 1994 PRC Arbitration Law still had some traits of the planned economy, such as the provision on the conditions for the establishment of local municipal arbitration bodies. Arbitration law is not supposed to be like that. Most foreign countries recognize ad hoc arbitration, which, however, is not recognized here, creating an unfair legal environment for Chinese parties.
 
It is weird that an ad hoc arbitration award made in Hong Kong can be enforced in Mainland China whereas as hoc arbitration is not allowed in mainland China. Arbitrators lay the foundation for arbitration. Foreign countries do not establish a distinguished gap between ad hoc arbitration and institutional arbitration. Due to institutional reasons, those arbitral institutions regulate the whole process of arbitrations and there is no clear separation of arbitrator’s fees from the administrative fees. It is more scientific and reasonable to charge by the hour, like how those people in foreign countries do.
 
In Hong Kong, there are agreements including terms of default and charges signed between arbitrators and parties in the same way as the common practice in transactions.
 
Arbitration, by nature, is a kind of private service. It is not judicial. If you regulate it under the judicial or quasi-judicial standards, a lot of problems cannot be solved.
 
He had an arbitration case in London. If arbitration is held to be judicial or quasi-judicial, then why don’t the British intelligence agencies track you? Arbitration is actually a commercial service process. The state guarantees enforcement to maintain the stability of social order. The relationship between parties and arbitral institutions or arbitrators is actually contractual.
 
Ms. Chunmei Liu
Associate Professor, School of Law, Zhongnan University of Economics and Law
 
She had been mainly engaged in teaching and academic research. She volunteered to do some work on research and document collection for the amendment group. Macroscopically speaking, she shared five points of ideas on the proposed amendment.
 
First, she agreed that the amendment should delete those provisions that do not fully reflect the essence and advantages of arbitration, to fully respect party autonomy.
 
Second, the proposed amendment should be based on the reality of the development of our national arbitration practice, to meet the needs of the main users of arbitrations in commercial disputes. And we can do a much better job to define and clarify the scope of arbitrability, the formal requirement of the arbitration agreement and the separability of arbitration agreements, etc.
 
Third, the authority of the arbitration law should be enhanced. The proposed amendment should be consistent with the relevant provisions of the General Principles of Civil Law and the Civil Procedure Law.
 
Fourth, we should learn from the recent development of international commercial arbitration to adapt to the new emerging characteristics of commercial disputes.
 
Fifth, the proposed amendment should reflect the flexibility and efficiency of arbitration.
 
Sixth, the proposed amendment should strengthen the normalization, operability, and reasonableness of the procedure.
 
Prof. Xiaojuan Shi
Professor, School of Humanities and Law, Hebei University of Technology
 
She raised three points.
 
First, though the drawbacks in the current PRC Arbitration Law call for amendment, the amendment should be conducted in a way that is not so detailed. Telling from the legislative practice of other countries, the terms for arbitration law are not supposed to be complicated. Besides, there are differences between the arbitration law and arbitration rules. In fact, the main contents of arbitration laws deal with the following three aspects: the jurisdiction of the court and the arbitral tribunal, the court's support and supervision of the arbitration and the recognition and enforcement of the arbitration.
 
Second, the existing arbitration law should be amended in a way that adapts to the social development and respects the market economy. Through the analysis of court cases on the set-aside of arbitral awards, we can explore which part of the existing arbitration law needs amendment.
 
Third, the provisions of UNCITRAL Model Law should be learned from, especially those provisions on the challenges to arbitrators, emergency arbitration, the appointment of experts by the arbitration tribunal, and so on.
 
Mr. Yunguang Zhang
Director, Xi'an Han and Tang Dynasties Notary Office
 
He shared several thoughts. First, it is time for the proposed amendment. Our rate of losing in foreign arbitral institutions has aroused the attention in the central leadership. One of the reasons for the high rate of losing is that Chinese enterprises are not familiar with their arbitration rules.
 
It is advisable to increase the level of internationalization of our arbitration law through amendment. In the past the Chinese characteristics in arbitration were emphasized, discouraging foreign companies to choose arbitral institutions in China. The judicialization of arbitration also frustrates disputed parties both at home and abroad. When amending the arbitration law, the amendment should be based upon the UNCITRAL Model Law and the common points should be identified.
 
Notarization, lawyering and arbitration, all serve the promotion of trade, all are offering services. For the three types of services, advocacy ranks first, which we should continue to work harder. Making our law known through diplomatic channels might be workable to enhance our publicity.
 
Ad hoc arbitration should be added in the amendment. Finally, arbitrators and arbitral institutions should purchase occupational insurance, which would provide a strong backing for them.
 
 
During the free discussion period, the following experts made their comments.
 
Ms. Changqing Xie
Director, Business Development Office, China Maritime Arbitration Commission
Secretary-General, China Maritime Arbitration Commission (Tianjin Center)
 
She added two points.
                                                                      
First, from the perspective of the guiding idea, people should be forward-looking and open. The market should play more roles in the regulation of arbitration and establishment of arbitration mechanism.
 
In addition to institutional arbitration and ad hoc arbitration, there exists the possibility for a third type of arbitration, like arbitrations of different sectors of industries. If this Research Team succeeds in building a prestigious reputation through its findings and advocacy, some form of dispute resolution service mechanism may be created. It is not impossible.
 
Second, it is necessary to maintain and deepen those Chinese characteristics in our arbitration law, which, in practice, proved to be effective and efficient, such as the operational and regulatory rules for the secretary in institutional arbitration, the combination of mediation and arbitration, the unique role of the arbitral institutions in the procedure. The formalization and institutionalization of those characteristics can be valuable contributions to the world.
 
Mr. Yan Gu
Director, China International Economic and Trade Arbitration Commission
 
He set out four principles for the amendment proposal.
 
First, he agreed that when the law is amended, the first principle to be considered is the unique feature of the arbitration itself and its distinction from the litigation, such as the principle of party autonomy.
 
The second principle is to be in alignment with the world. The third principle deals with judicial supervision. Courts should be more pro-arbitration. The last principle is about the maintenance of those Chinese characteristics, where our national economic development and our country's major policy need to be taken into consideration.
 
Dr. Wenguang Zhang
Associate Research Scientist, Institute of International Law, Chinese Academy of Social Sciences
Deputy Director and Secretary-general, “One Belt, One Road” Judicial Base of PRC Supreme Court
 
He shared some of his reflections.
 
First, the proposal is an amendment, not a new legislation. The current legislative resources are scarce. The law should be amended with the smallest number of changes possible. At the same time, special attention should be paid to the collection of legal documents on amendment. Like what Mr. Zhang has proposed before, all versions of the proposed draft and the minutes should be collected to keep track of historical records.
 
Second, on the construction of the International Arbitration Center, it can be justly called "international" only if there is a high proportion of foreign-related case. Otherwise, the Center is still a domestic one. It should be considered how the amendment can contribute to the construction of the International Arbitration Center
 
Third, there should be more discussion, more advocacy to reach a consensus on the amendment and every possible means should be tried to raise the awareness of the leadership.
 
 
Dr. Jingjing He
Assistant Research Scientist, Institute of International Law, Chinese Academy of Social Sciences
Deputy Secretary-general of “One Belt, One Road” Judicial Base of PRC Supreme Court
 
I’ve just come back from Columbia Law School (, where I stayed as a visiting scholar for three months). I attended the arbitration class there and discussed with them in depth. Several seminars were held. Why do foreign parties avoid having arbitration in China? On the one hand, there is prejudice. They do not understand us. Due to historical reasons, we are not well understood in the foreign (international) arbitration community. One the other hand, they worry about our judicial system, in fear of non-recognition and non-enforcement. I told them that there is no problem like that at all. Finally, it was realized by all that our arbitration lacks publicity. So, we should spare no efforts to promote our publicity on arbitration in the international community by all means. I strongly agree with the idea of establishing an International Arbitration Center. As a part-time editor of Rule of Law of the People, I am thinking of devoting a whole volume to arbitration only. Welcome articles from all of you. 
 
Mr. Xugong Dong
Director, Sichuan Dongfang Dadi Law Firm
 
He shared some of his experience and thoughts. Institutional arbitration actually has many drawbacks, such as the rigidity of the arbitral proceedings and the administrative intervention. In addition, the compensation for arbitrators is very low. Those factors adversely affect the development of arbitration in China.
 
The competition brought by ad hoc arbitration is to stimulate institutional arbitration to make progress. The widely-spread notion of judicialization or quasi-judicialization of arbitrations and arbitrators inhibits the healthy development of arbitration. Some arbitrators from arbitral institutions in three-tier or four-tier cities are just making up the number, who misrepresent arbitration and play a negative role
 
Ms. Qiugang Ou
Retired judge and arbitrator
 
I am deeply moved by the high enthusiasm of the Research Team and want to share one concern as to who should lead the Research Team.
 
Amendment of law has always been the task of the legislature branch. The Research Team needs some kind of authorization, especially for external advocacy, thus we cannot ignore the issue of who should take the lead. And I suggest that CCPIT shall take the lead since your leadership participates actively in the process.
 
Dr. Chao Liu
Vice Director General, Legal Department of CCPIT
 
I am very pleased to be here today to discuss such a significant issue. The legislation is to some extent the essence of the country. It is definitely not something that can be accomplished by a single department, a unit or a group. Legislation should be done by the National People 's Congress.
 
In the field of arbitration, there are a few problems on the side of supply of legislature. The supply side has failed to meet the needs of the market, especially the international market after “One Belt, One Road” initiative was started.
 
From the national macro-level, “One Belt, One Road” initiative is pushed ahead at full speed. It is necessary to reflect on how we can satisfy the needs. Recently, some countries along “One Belt, One Road” route suggested that, since China initiated the program, China should also take the lead in creating a more flexible legal mechanism for international dispute resolution. It is time for us to take actions.
 
The second is about advocacy. I don’t think we have done a good job there. We should learn from those who have done it better in practice.
 
In fact, the problem now we face is how to integrate the characteristics of China into the international trend. If we really want to speak out our voice and take the lead in global governance, it cannot be justified as “lead” if there are no Chinese characteristics. What can those more than two hundred arbitral institutions contribute to the world with their decades of experience? We need dig out more. More broadly speaking, we should advocate our arbitration practice along with “One Belt, One Road” initiative and make an influence in the international community. The advocacy requires huge investments and open minds. For example, it has been proved in practice that we are good at dealing with economic and trade frictions because we have been respondents in so many disputes on that issue. It is critical for us to think about how to publicize arbitration practice in China in the international community.
 
Mr. Pengqi Lu
Vice President, China Council for the Promotion of International Trade
 
First, every citizen or every institution has the responsibility and the right to participate in the amendment.
 
Second, CCPIT has the responsibility and obligation to play a role in the amendment. Arbitration practice in China started from foreign-related arbitration. In 1954, the establishment of CIETAC was decided by State Council, and CIETAC was formally established in 1956. China Maritime Arbitration Commission was approved by the State Council at the end of 1958 and was formally established in January 1959. When looking back at the promulgation of China's first arbitration law in 1994, we can find that our arbitration practice has already provided a good foundation for the legislation. Now, from the perspective of CCPIT, we should continue to play a role.
 
And then from the perspective of national strategy, why should we attach great importance to this matter now? What is the winning rate for Chinese parties in overseas arbitrations? It is worthy of attention. Ten years ago, we did not pay attention to it. Twenty years ago, we even did not think about it. Now, as the world's largest trading nation and the second largest economy, China is striving to go through the transition to a strong nation of international trade. How is China going to develop its arbitration practice? In the “One Belt, One Road” strategic background, arbitration is very important for the leadership.
 
In this scenario of new economic environment how can arbitration be done? In terms of CCPIT's responsibilities, as China's earliest trade and investment promotion agency, arbitration is a very important part of our business. We need arbitration, inclusive of investor-state arbitration, to solve those disputes that are not conducive to trade and investment. Therefore, CCPIT supports the efforts for amendment.
 
In accordance with its mandate officially recognized, CCPIT endorses business and industry in foreign trade and economic community and reflects the voice of the business sector. We also represent our business community abroad to speak out our voice, fight for our rights to speak out, and participate in the rule-making in the international community. From this point of view, work may be done by both CCPIT and China Academy of Arbitration Law. The drafts on the amendment and proposals on the legislation may be put forward.
 
We have already done some work on publicity, in particular, on our good practices, and have been helping international community to understand us better. Those good practices not only include arbitration, but also mediation. Joint mediation mechanisms have been established, mediators experts for mediation only, already recruited. Actually, the dispute resolution mechanisms of trade disputes are diversified. We should put more efforts in publicity. We welcome any better suggestions on publicity in the future. Thanks for your support.

On April 9, 2017, the Non-governmental Virtual Group of 100 people for Amendment of PRC Arbitration Law, which is composed of experts and scholars in the field of arbitration, held its first meeting in a conference room of China Council for the Promotion of International Trade (CCPIT). More than 30 experts from Beijing, Shanghai, Hebei, Shandong, Hubei and Sichuan gave up their leisure time to attend the meeting at their own expenses on this Sunday.
 
Highlighting the urgency and necessity, the meeting discussed ideas and directions of the amendment of PRC Arbitration Law. Moreover, several consensuses were reached on how to proceed with the amendment along with its advocacy, how to schedule the timetable, how to structure the Working Group (including the set-up of the guiding committee of experts, secretary group, academic groups, amendment groups by expertise, advocacy groups, and regional groups) and other issues.
 
The meeting was chaired by Mr. Zhen’an Zhang, the sponsor of the Working Group. Mr. Pengqi Lu, Vice President of CCPIT, gave a welcome speech, and raised his ideas and suggestions on the Arbitration Law amendment.
 
The summary of the meeting:
 
Mr. Zhen’an Zhang
Senior Partner, Shanghai Co-effort Law Firm
Vice President, Shanghai Chamber of Commerce for Import and Export
 
The meeting, aiming at sparking a brainstorming of ideas, is scheduled to discuss the directions and principles of the amendment of PRC Arbitration Law, instead of the specific and detailed issues.
                                                                                   
I would like to share my views on the plans and suggestions for the proposed amendment. The Research Team is set up to study what the principles of PRC Arbitration Law should be. More specifically, the study should be based on the practice of domestic arbitration. After all, we have more than 20 years of arbitration practice on average, with China International Economic and Trade Arbitration Commission and China Maritime Arbitration Commission practicing even much longer. Also, the amendment should keep pace with the recent development and advanced ideas of international arbitration practice, as well as the legislative practice of arbitration in developed countries.
 
With the integration of Theory with Practice, the combination of common law and civil law legal system, the draft on the amendment would be eventually formed with Chinese characteristics.
 
It is necessary and urgent to advocate strongly for the amendment of PRC Arbitration Law. Take a step further, how to conduct the amendment? There are three possible options, an amendment with major or minor changes, or a tailored adoption of the UNCITRAL Model Law, or the maintenance of a unique system like UK and Ukraine and other countries.
 
Following the principle of getting things done, the Research Team is not set up for learning purposes. With regard to the structure of the Research Team, I propose to set up a guiding committee of experts, secretary group, academic group, amendment group by expertise, advocacy group, and regional group.
 
Specifically speaking, foreign professionals can join in the amendment group by expertise. A variety of topic groups can later be formed automatically, and should be supported by the respective academic groups, based on the topics developed along with the amendment and different interests of the experts involved.
 
The advocacy group should work at the same time when the amendment group work. The Advocacy group should have representatives of both the National People’s Congress (NPC) and Chinese People’s Political Consultative Conference (CPPCC). And it can be subdivided by region, industry, association or academic institution.
 
To a certain extent, we can introduce those good aspects of the PRC Arbitration to the world. And for those aspects in need of improvement, we can seek advice from foreign experts. This would not only attract widespread international attention but also promote the amendment.
 
Taking the legislation of next year into account, we should finish the drafting of the proposal within six months. The most important thing is to advocate, promote, and get the mass media involved.
 
The Research Team is initiated purely by and on interest,. There is no compensation, nor is there any personal economic advantage involved. The final product of the Research Team would be a proposal for the amendment to be submitted to all interested institutions and authorities, in the hope that it would be put on the agenda for the legislature branch as soon as possible.
 
If it is workable, we should post all our findings on a website specially established for the advocacy for the amendment as well as the publicity of arbitration.
 
Mr. Honglei Chang
Deputy Secretary-General, Arbitration Commission of Shijiazhuang
 
This first point that I want to share is the ideas of the amendment of PRC Arbitration Law. Under the idea of innovation, the amendment should equip the PRC Arbitration Law with a world vision, international standards, and Chinese characteristics
 
Second, about the drafting process, we should establish a reasonable system of division of work and set up detailed schedule for the amendment proposal drafting in order to have it put on the agenda of National People's Congress as soon as possible.
 
Third, about the advocacy, the amendment requires the participation of all walks of life. The whole process of the amendment proposal drafting should be under full coverage by making full use of traditional media and new media. The advocacy should try to make an impact on the National People's Congress, the relevant government departments, and institutions.
 
 
 
Dr. Jian Chen
Director, China International Economic and Trade Arbitration Commission
 
I support 95% of what Mr. Zhen’an Zhang has raised just now and want to raise several points.
 
About the guiding ideas that the proposal should follow, I want to share 5 observations. First, it should meet the needs of further development of market economy. Second, the arbitration itself, as one part of market economy activities, should also follow the laws of the market. Third, the amendment proposal should be as specific as possible. Fourth, we embrace the idea of coexistence of support and supervision over arbitration. Fifth, there should be vision of globalization (also referred to by Mr. Chang).
 
Then, about the principle of the amendment proposal, with respect to the form of the law, the status quo should be maintained. Do not try to break it. With regard to the content, texts that harm the market economy should be deleted and texts that would benefit market economy should be added.
 
The relevant provisions on the arbitral proceedings should be flexible and gap-filling, as with the contract law, to leave room for party autonomy. Finally, it is recommended that the Research Team should also be operated under a market-based approach.
 
Mr. Chenglin Li
Senior partner, Shanghai City Development (Tianjin) law firm
 
He shared his thoughts on the protection of Chinese companies investing overseas.
For the past more than 10 years, he found that those Chinese outbound investment companies were adversely impacted by the limitation of PRC Arbitration Law when they signed contracts and arbitration agreements for their outbound investments. He hoped that the amendment proposal would help protect those Chinese companies.
 
Besides, the current PRC Arbitration Law only allows cities with districts to set up arbitration commissions, which forms a geographical limitation and separation of the arbitration market. Ad hoc arbitration should also be recognized in China. He and another 10 international lawyers or so run a website on international law. The website is to change its content in both Chinese and English. He suggested that this platform could be used to advocate the amendment proposal and do some researches on the amendment of PRC Arbitration Law.
 
Mr. Kunshan Qu
Executive Director, China Academy of Arbitration Law
 
He made three suggestions on the proposed amendment of PRC Arbitration Law. First, one specific chapter on ad hoc arbitration should be added. Second, the more sketchy, the better. Third, legislative technique should be highlighted instead of principles. He shared a piece of good news that the Ad Hoc Arbitration committee has received formal approval from the China Academy of Arbitration Law and a generous    1 million CN¥ sponsorship from one Qingdao law firm has been affirmed. A series of activities are undergoing, including publication of papers on such topic.
 
Mr. Xuebin Chen
Senior Partner, Grandall Law Firm (Shanghai Office)
He offered three points. The first point is the timeliness of the discussion on the amendment of the arbitration law. Second, the necessity for amendment. Many problems have emerged since the issue of PRC Arbitration law more than 20 years ago, for example, issues on the seat of arbitration, ad hoc arbitration, property preservation, evidence preservation and enforcement. Third, recent development in the international arbitration community should be taken into consideration. There are many new developments reflecting the cutting-edge issues like emergency arbitrators, third party funding, TBS, investment arbitration, all of which deserve attention.
 
Dr. Ming Kang
Senior Partner, Fangda Law Firm
 
He agreed that the nature of arbitration should be understood from the perspective of the construction of market economy. The 1994 PRC Arbitration Law still had some traits of the planned economy, such as the provision on the conditions for the establishment of local municipal arbitration bodies. Arbitration law is not supposed to be like that. Most foreign countries recognize ad hoc arbitration, which, however, is not recognized here, creating an unfair legal environment for Chinese parties.
 
It is weird that an ad hoc arbitration award made in Hong Kong can be enforced in Mainland China whereas as hoc arbitration is not allowed in mainland China. Arbitrators lay the foundation for arbitration. Foreign countries do not establish a distinguished gap between ad hoc arbitration and institutional arbitration. Due to institutional reasons, those arbitral institutions regulate the whole process of arbitrations and there is no clear separation of arbitrator’s fees from the administrative fees. It is more scientific and reasonable to charge by the hour, like how those people in foreign countries do.
 
In Hong Kong, there are agreements including terms of default and charges signed between arbitrators and parties in the same way as the common practice in transactions.
 
Arbitration, by nature, is a kind of private service. It is not judicial. If you regulate it under the judicial or quasi-judicial standards, a lot of problems cannot be solved.
 
He had an arbitration case in London. If arbitration is held to be judicial or quasi-judicial, then why don’t the British intelligence agencies track you? Arbitration is actually a commercial service process. The state guarantees enforcement to maintain the stability of social order. The relationship between parties and arbitral institutions or arbitrators is actually contractual.
 
Ms. Chunmei Liu
Associate Professor, School of Law, Zhongnan University of Economics and Law
 
She had been mainly engaged in teaching and academic research. She volunteered to do some work on research and document collection for the amendment group. Macroscopically speaking, she shared five points of ideas on the proposed amendment.
 
First, she agreed that the amendment should delete those provisions that do not fully reflect the essence and advantages of arbitration, to fully respect party autonomy.
 
Second, the proposed amendment should be based on the reality of the development of our national arbitration practice, to meet the needs of the main users of arbitrations in commercial disputes. And we can do a much better job to define and clarify the scope of arbitrability, the formal requirement of the arbitration agreement and the separability of arbitration agreements, etc.
 
Third, the authority of the arbitration law should be enhanced. The proposed amendment should be consistent with the relevant provisions of the General Principles of Civil Law and the Civil Procedure Law.
 
Fourth, we should learn from the recent development of international commercial arbitration to adapt to the new emerging characteristics of commercial disputes.
 
Fifth, the proposed amendment should reflect the flexibility and efficiency of arbitration.
 
Sixth, the proposed amendment should strengthen the normalization, operability, and reasonableness of the procedure.
 
Prof. Xiaojuan Shi
Professor, School of Humanities and Law, Hebei University of Technology
 
She raised three points.
 
First, though the drawbacks in the current PRC Arbitration Law call for amendment, the amendment should be conducted in a way that is not so detailed. Telling from the legislative practice of other countries, the terms for arbitration law are not supposed to be complicated. Besides, there are differences between the arbitration law and arbitration rules. In fact, the main contents of arbitration laws deal with the following three aspects: the jurisdiction of the court and the arbitral tribunal, the court's support and supervision of the arbitration and the recognition and enforcement of the arbitration.
 
Second, the existing arbitration law should be amended in a way that adapts to the social development and respects the market economy. Through the analysis of court cases on the set-aside of arbitral awards, we can explore which part of the existing arbitration law needs amendment.
 
Third, the provisions of UNCITRAL Model Law should be learned from, especially those provisions on the challenges to arbitrators, emergency arbitration, the appointment of experts by the arbitration tribunal, and so on.
 
Mr. Yunguang Zhang
Director, Xi'an Han and Tang Dynasties Notary Office
 
He shared several thoughts. First, it is time for the proposed amendment. Our rate of losing in foreign arbitral institutions has aroused the attention in the central leadership. One of the reasons for the high rate of losing is that Chinese enterprises are not familiar with their arbitration rules.
 
It is advisable to increase the level of internationalization of our arbitration law through amendment. In the past the Chinese characteristics in arbitration were emphasized, discouraging foreign companies to choose arbitral institutions in China. The judicialization of arbitration also frustrates disputed parties both at home and abroad. When amending the arbitration law, the amendment should be based upon the UNCITRAL Model Law and the common points should be identified.
 
Notarization, lawyering and arbitration, all serve the promotion of trade, all are offering services. For the three types of services, advocacy ranks first, which we should continue to work harder. Making our law known through diplomatic channels might be workable to enhance our publicity.
 
Ad hoc arbitration should be added in the amendment. Finally, arbitrators and arbitral institutions should purchase occupational insurance, which would provide a strong backing for them.
 
 
During the free discussion period, the following experts made their comments.
 
Ms. Changqing Xie
Director, Business Development Office, China Maritime Arbitration Commission
Secretary-General, China Maritime Arbitration Commission (Tianjin Center)
 
She added two points.
                                                                      
First, from the perspective of the guiding idea, people should be forward-looking and open. The market should play more roles in the regulation of arbitration and establishment of arbitration mechanism.
 
In addition to institutional arbitration and ad hoc arbitration, there exists the possibility for a third type of arbitration, like arbitrations of different sectors of industries. If this Research Team succeeds in building a prestigious reputation through its findings and advocacy, some form of dispute resolution service mechanism may be created. It is not impossible.
 
Second, it is necessary to maintain and deepen those Chinese characteristics in our arbitration law, which, in practice, proved to be effective and efficient, such as the operational and regulatory rules for the secretary in institutional arbitration, the combination of mediation and arbitration, the unique role of the arbitral institutions in the procedure. The formalization and institutionalization of those characteristics can be valuable contributions to the world.
 
Mr. Yan Gu
Director, China International Economic and Trade Arbitration Commission
 
He set out four principles for the amendment proposal.
 
First, he agreed that when the law is amended, the first principle to be considered is the unique feature of the arbitration itself and its distinction from the litigation, such as the principle of party autonomy.
 
The second principle is to be in alignment with the world. The third principle deals with judicial supervision. Courts should be more pro-arbitration. The last principle is about the maintenance of those Chinese characteristics, where our national economic development and our country's major policy need to be taken into consideration.
 
Dr. Wenguang Zhang
Associate Research Scientist, Institute of International Law, Chinese Academy of Social Sciences
Deputy Director and Secretary-general, “One Belt, One Road” Judicial Base of PRC Supreme Court
 
He shared some of his reflections.
 
First, the proposal is an amendment, not a new legislation. The current legislative resources are scarce. The law should be amended with the smallest number of changes possible. At the same time, special attention should be paid to the collection of legal documents on amendment. Like what Mr. Zhang has proposed before, all versions of the proposed draft and the minutes should be collected to keep track of historical records.
 
Second, on the construction of the International Arbitration Center, it can be justly called "international" only if there is a high proportion of foreign-related case. Otherwise, the Center is still a domestic one. It should be considered how the amendment can contribute to the construction of the International Arbitration Center
 
Third, there should be more discussion, more advocacy to reach a consensus on the amendment and every possible means should be tried to raise the awareness of the leadership.
 
 
Dr. Jingjing He
Assistant Research Scientist, Institute of International Law, Chinese Academy of Social Sciences
Deputy Secretary-general of “One Belt, One Road" Judicial Base of PRC Supreme Court
 
I’ve just come back from Columbia Law School (, where I stayed as a visiting scholar for three months). I attended the arbitration class there and discussed with them in depth. Several seminars were held. Why do foreign parties avoid having arbitration in China? On the one hand, there is prejudice. They do not understand us. Due to historical reasons, we are not well understood in the foreign (international) arbitration community. One the other hand, they worry about our judicial system, in fear of non-recognition and non-enforcement. I told them that there is no problem like that at all. Finally, it was realized by all that our arbitration lacks publicity. So, we should spare no efforts to promote our publicity on arbitration in the international community by all means. I strongly agree with the idea of establishing an International Arbitration Center. As a part-time editor of Rule of Law of the People, I am thinking of devoting a whole volume to arbitration only. Welcome articles from all of you. 
 
Mr. Xugong Dong
Director, Sichuan Dongfang Dadi Law Firm
 
He shared some of his experience and thoughts. Institutional arbitration actually has many drawbacks, such as the rigidity of the arbitral proceedings and the administrative intervention. In addition, the compensation for arbitrators is very low. Those factors adversely affect the development of arbitration in China.
 
The competition brought by ad hoc arbitration is to stimulate institutional arbitration to make progress. The widely-spread notion of judicialization or quasi-judicialization of arbitrations and arbitrators inhibits the healthy development of arbitration. Some arbitrators from arbitral institutions in three-tier or four-tier cities are just making up the number, who misrepresent arbitration and play a negative role
 
Ms. Qiugang Ou
Retired judge and arbitrator
 
I am deeply moved by the high enthusiasm of the Research Team and want to share one concern as to who should lead the Research Team.
 
Amendment of law has always been the task of the legislature branch. The Research Team needs some kind of authorization, especially for external advocacy, thus we cannot ignore the issue of who should take the lead. And I suggest that CCPIT shall take the lead since your leadership participates actively in the process.
 
Dr. Chao Liu
Vice Director General, Legal Department of CCPIT
 
I am very pleased to be here today to discuss such a significant issue. The legislation is to some extent the essence of the country. It is definitely not something that can be accomplished by a single department, a unit or a group. Legislation should be done by the National People 's Congress.
 
In the field of arbitration, there are a few problems on the side of supply of legislature. The supply side has failed to meet the needs of the market, especially the international market after “One Belt, One Road” initiative was started.
 
From the national macro-level, “One Belt, One Road” initiative is pushed ahead at full speed. It is necessary to reflect on how we can satisfy the needs. Recently, some countries along “One Belt, One Road” route suggested that, since China initiated the program, China should also take the lead in creating a more flexible legal mechanism for international dispute resolution. It is time for us to take actions.
 
The second is about advocacy. I don’t think we have done a good job there. We should learn from those who have done it better in practice.
 
In fact, the problem now we face is how to integrate the characteristics of China into the international trend. If we really want to speak out our voice and take the lead in global governance, it cannot be justified as “lead” if there are no Chinese characteristics. What can those more than two hundred arbitral institutions contribute to the world with their decades of experience? We need dig out more. More broadly speaking, we should advocate our arbitration practice along with “One Belt, One Road” initiative and make an influence in the international community. The advocacy requires huge investments and open minds. For example, it has been proved in practice that we are good at dealing with economic and trade frictions because we have been respondents in so many disputes on that issue. It is critical for us to think about how to publicize arbitration practice in China in the international community.
 
Mr. Pengqi Lu
Vice President, China Council for the Promotion of International Trade
 
First, every citizen or every institution has the responsibility and the right to participate in the amendment.
 
Second, CCPIT has the responsibility and obligation to play a role in the amendment. Arbitration practice in China started from foreign-related arbitration. In 1954, the establishment of CIETAC was decided by State Council, and CIETAC was formally established in 1956. China Maritime Arbitration Commission was approved by the State Council at the end of 1958 and was formally established in January 1959. When looking back at the promulgation of China's first arbitration law in 1994, we can find that our arbitration practice has already provided a good foundation for the legislation. Now, from the perspective of CCPIT, we should continue to play a role.
 
And then from the perspective of national strategy, why should we attach great importance to this matter now? What is the winning rate for Chinese parties in overseas arbitrations? It is worthy of attention. Ten years ago, we did not pay attention to it. Twenty years ago, we even did not think about it. Now, as the world's largest trading nation and the second largest economy, China is striving to go through the transition to a strong nation of international trade. How is China going to develop its arbitration practice? In the “One Belt, One Road” strategic background, arbitration is very important for the leadership.
 
In this scenario of new economic environment how can arbitration be done? In terms of CCPIT's responsibilities, as China's earliest trade and investment promotion agency, arbitration is a very important part of our business. We need arbitration, inclusive of investor-state arbitration, to solve those disputes that are not conducive to trade and investment. Therefore, CCPIT supports the efforts for amendment.
 
In accordance with its mandate officially recognized, CCPIT endorses business and industry in foreign trade and economic community and reflects the voice of the business sector. We also represent our business community abroad to speak out our voice, fight for our rights to speak out, and participate in the rule-making in the international community. From this point of view, work may be done by both CCPIT and China Academy of Arbitration Law. The drafts on the amendment and proposals on the legislation may be put forward.
 
We have already done some work on publicity, in particular, on our good practices, and have been helping international community to understand us better. Those good practices not only include arbitration, but also mediation. Joint mediation mechanisms have been established, mediators experts for mediation only, already recruited. Actually, the dispute resolution mechanisms of trade disputes are diversified. We should put more efforts in publicity. We welcome any better suggestions on publicity in the future. Thanks for your support.
 

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