Publish time: Tue Nov 08 00:00:00 CST 2011 Contributor:Wangze
On November 3, 2011, the Fifth Session of the China Arbitration Forum, which was advocated and initiated by Professor Liang Huixing, a renowned scholar of civil law and commercial law, and co- sponsored by Beijing Arbitration Commission (the BAC)1 and Tsinghua University2, was held in the international conference hall of the BAC. Respected Officials of the Legislative Affairs Commission of the National People’s Congress3, the Supreme People’s Court of the People’s Republic of China 4, the State Commission Office for Public Sector Reform 5, and Ministry of Human Resources and Social Security of the People’s Republic of China6, as well as experts and scholars from a number of universities and research institutes such as Chinese Academy of Social Sciences 7, Chinese Academy Of Governance8, Tsinghua University, Peking University9, Renmin University Of China10, China University of Political Science and Law11, and Wuhan University12 were invited to the forum; and the chiefs of more than 20 arbitration organizations of China also attended the forum.
Wang Hongsong, the secretary-general of the BAC, Professor Che Pizhao, the secretary of the Party Commission of the School of Law of Tsinghua University, and Professor Liang Huixing, the academic committee member of the Chinese Academy of Social Sciences made their opening speeches respectively. They also gave a detailed description of the background of the forum and the significance of the topics to be talked about.
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Secretary-general Wang Hongsong Addressing the Forum | Professor Che Pizhao Addressing the Forum |
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Professor Liang Huixing Addressing the Forum | The Forum Premises |
The forum lasted for one day with two main topics --“the Judicial Review of Arbitration and the Amendment to Civil Procedure Law” and “the Reform of the Public Sector and the Development of Arbitration Organizations”.
Fu Yulin, professor from the School of Law of Peking University hosted the morning topical discussion: “the Judicial Review of Arbitration and the Amendment to the Civil Procedure Law”. Jia Dongming, vice-director of the Office for Civil Law of the Legislative Affairs Commission of the National People’s Congress, Hao Zuocheng, division chief of the National People’s Congress, Wu Zhaoxiang, chief of the Civil Law Division of the Research Chamber of the Supreme People’s Court of the People’s Republic of China, Gao Xiaoli, judge of the Fourth Civil Division of the Supreme People’s Court of the People’s Republic of China, Zhao Chengmin, lawyer and chief of Beijing Zhiheng Law Firm, Wang Yaxin, professor from the School of Law of Tsinghua University, Xiao Jianguo, professor from the School of Law of Renmin University of China, and Song Lianbin, professor from the School of Law of Wuhan University made their topical speeches respectively.
Director Jia Dongming made his point that in the current amendment to the Civil Procedure Law, the key part concerning arbitration was the unity of setting aside and refusal to enforce the arbitration award. He believed that the fundamental arbitration principles must be adhered to, including the arbitration upon agreement; one-tier arbitration structure, etc. We should always support arbitration by putting more weight on the development of the whole arbitration system, and evaluating the important role played by arbitration in resolving social disputes in terms of the whole system, so as to promote the competitiveness of China’s arbitration organizations globally.
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Professor Fu Yulin Hosting the Meeting | Vice-Director Jia Dongming Listening to Opinions |
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Division Chief Hao Zuocheng Making His Speech | Division Chief Wu Zhaoxiang Making His Speech |
Division Chief Hao Zuocheng presented in detail the reasons, principles and contents of the current amendment to the Civil Procedure Law, as well as some major problems that have not been settled yet. There were mainly three aspects concerning arbitration in the amendment: the first was how the system of setting aside and refusal to enforce the arbitration award should be designed-- whether the two should co-exist or one of them should be eliminated; whether the reasons for the two should be consistent. The second was whether the conditions to the refusal to enforce arbitration awards involving domestic and foreign party (parties) should be consistent. The third was how the court should offer its remedy after the decision of setting aside or refusal to enforce was made—whether the parties should be allowed to apply for reconsideration, appeal or retrial.
Division chief Wu Zhaoxiang, in light of the trial practices, made his point concerning the issues of improving arbitration procedures. He believed that since there were no explicit stipulations for the procedures for trying an arbitration case in court both in the Civil Procedure Law and the Arbitration Law, many problems had to be resolved by referring to the judicial interpretations of the Supreme Court. The judicial interpretations confirmed that decisions concerning arbitration agreements and arbitration award validity may not be appealed against and the cases may not be retried. As to the setting aside and refusal to enforce of the arbitration award, he suggested that the two co-exist since there had been some differences between their respective procedures; however, their reasons should be consistent. The examination standards for arbitration awards involving domestic and foreign party (parties) should also be consistent.
Judge Gao Xiaoli first presented the dilemmas encountered in practicing Article 267 of Civil Procedure Law by citing a specific case. She hoped to solve such kind of judicial problems with the amendment to the Civil Procedure law. She also hoped for consistency of the arbitration awards involving domestic or foreign party (parties), as well as their examination standards, and she suggested the standards of the arbitration award involving foreign parties be applied to both kinds of arbitration awards.
Based on one of his arbitration cases, Lawyer Zhao Chengmin voiced his opinions about what the standards the court should apply when it was examining the application for setting aside or refusal to enforce an arbitration award and whether the reasons for setting aside an arbitration award or re-arbitration should be written in the notice thereof.
Professor Wang Yaxin believed that as a special litigation procedure, setting aside arbitration award should have the one tier structure without allowing any appeal or retrial; however, as to the refusal to enforce procedure, he thought it did not have any theoretical ground that the original reached or confirmed decision should be overruled by such a simple procedure. As far as arbitration was concerned, the current Amendments to the Civil Procedure Law had changed nothing about it, so he called for solving the problems concerning arbitration through current legislation.
Professor Xiao Jianguo addressed the procedures of setting aside and refusal to enforce, and he was inclined to be in favor of maintaining the current two procedures. As to the reasons for refusal to enforce, he believed it was necessary to make the arbitration awards involving domestic and foreign party (parties) unified; parties should not apply for refusal to enforce for a number of times using different reasons.
Professor Song Lianbin argued that parties whose arbitration awards were set aside or refused to be enforced should be allowed to appeal, as most other countries of civil law stipulated procedures for appeal. However, on the grounds of promoting efficiency and bolstering arbitration, he made the point that different attitudes should be taken towards different appeals. An appeal might be allowed against a court’s decision to set aside or refusal to enforce, whereas the appeal against a court’s rejection of the decision of setting aside or refusal to enforce should not be allowed; meanwhile, he agreed that the standards of setting aside and refusal to enforce should be unified under the standards of the arbitration award involving foreign parties.
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Judge Gao Xiaoli Making Her Speech | Lawyer Zhao Chengmin Making His Speech |
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Professor WangYaxin Making His Speech | Professor Xiao Jianguo Making His Speech |
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Professor Xiao Jianguo Making His Speech | Vice Director Wang Xiaoli Making Her Speech |
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Secretary-general Zhao Liang Making His Speech | Vice Division Chief Yao Junyi |
During the free discussion time, Wang Hongsong, secretary-general of the BAC pointed out that a consensus reached by arbitration organizations would be beneficial for giving law makers advice, and the commonly accepted understandings should be adopted into the current amendments to the Civil Procedure Law. Moreover, she advocated the adherence to the fundamental policy to bolster the development of arbitration and to encourage resolving disputes by non-governmental means. Guo Xiaowen, vice chairman of China International Economic and Trade Arbitration Commission14 agreed with Professor Song Lianbin on the system design he suggested, and hoped it could be adopted into the Civil Procedure Law. Wang Xiaoli, vice chairman of Guangzhou Arbitration Commission called for the reform of the current system on the ground that the two systems of litigation and arbitration were different in their respective designs. The most stringent restriction on an arbitration case was the choice made by the parties, which was imposed by the market. Therefore, the conditions to setting aside or refusal to enforce should be strict, and if they could be made consistent with those of the arbitration award involving foreign parties, that would be conforming with the purpose of bolstering the development of arbitration. Zhao Liang, secretary-general of Hangzhou Arbitration Commission, made the point that the biggest difference between litigation and arbitration was the choice made by the parties. The institutions of setting aside and refusal to enforce implies the disbelief in arbitration, and when the court makes such decisions, it cuts off the wisdom of arbitrators, as well as the free choice of the parties.
The topic of “the Reform of Public Sector and the Development of Arbitration Organizations” in the afternoon was hosted by Guo Xiaowen, vice chairman of China International Economic and Trade Arbitration Commission, lectured by Hong Du, chief of the Research Center of the State Commission Office for Public Sector Reform and Wei Zhuo, director general of the Department of Public Institutions Personnel Administration of Ministry of Human Resources and Social Security of the People’s Republic of China respectively.
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Vice Chairman Guo Xiaowen Hosting the Meeting | Chief Hong Du Briefing on the Spirit of Advancing Classified Public Sector Reform |
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Director General Wei Zhuo Briefing On The Spirit of the Personnel Reform of the Public Sector | Professor Liu Xiaokang Making His Speech |
Chief Hong Du gave a detailed description of several issues, such as the basic information about the public sector of China and its reform; what direction should be chosen by arbitration organizations for their development, etc. He briefed that there were more than one million registered public institutes at all levels nationwide, most of which were subsidized by relevant financial departments. Arbitration organizations have been transforming gradually from the subsidized ones to the financially independent ones. As to the public sector reform, the Guiding Opinions on Advancing Classified Public Sector Reform, namely the No. 5 document of the Central Committee of the Communist Party of China, which was released in March 2011, was the highest level guiding opinions on the reform. He believed that since arbitration organizations had the characteristics of both public welfare undertakings and administrative institutions, and they also had some characteristics of integrating with the market, the property of arbitration commissions had to be determined before reforming them, and they should be categorized according their functions and duties.
Director general Wei Zhuo emphatically briefed on the personnel reform of the public sector. He pointed out that the reform was a whole system reform, but its name was classified reform, which denoted that the starting point of it was classification. He elaborated that it was necessary to retain public welfare organizations in terms of personnel, nevertheless, the purposes of the reform were to gradually optimize their the staff, clarify its functions, and bring back its public welfare property step by step.
During the free discussion time, Liu Xiaokang, professor from Chinese Academy Of Governance made the point that we should consider the reform of the public sector and the development of arbitration from a strategic and long term perspective. Arbitration was a third party decision with some characteristics of public bodies and was the guardian of public interest. Its competitiveness came from its reputation. Its independence should be stressed, which meant that the government should not interfere . He further gave his own opinions about the types of public sector reform. He believed that arbitration was non-profit and for the public interest; arbitration organizations should either be defined as statutory bodies with no interference of the government or be redefined in a more innovative way under current system, for example, transforming them into non-government run, non-enterprises might be taken into account for their reform. Professor Liang Huixing concluded at the end of the forum. He said that the two topics of the forum were very significant and critical for the development of arbitration, and would determine its future. As to the amendment to the Civil Procedure Law, the arbitration sector should prepare its own clear cut schemes so as to change the current situation that unfair judicial examination. We should take a long term view of the reform of the arbitration sector. Our arbitration sector should match our nation’s status as a great power, and be integrated with the international community.