Beijing Arbitration Commission

    In the afternoon of Oct. 18, 2013, Beijing Arbitration Commission (hereinafter refer to as the BAC) successfully held Professor Anselmo Reyes’ talk on “Towards Increasing Competition and Cost-Effectiveness in Arbitration”. The speaker, Anselmo stepped down from the Hong Kong Judiciary and became Professor of Legal Practice at the University of Hong Kong in 2012. Chen Lei, the associate professor at City University of Hong Kong School of Law, presided over the event. Legal personnel from more than 80 major enterprises, lawyers and others who are interested into the development of arbitration attended this event.

(Prof. Chen Lei host the event)	(Prof. Anselmo Reyes talks on the issues)

    Professor Anselmo Reyes became a judge of the Court of First Instance (Hong Kong SDR) on 15 September 2003. His major decisions involve many heated issues of international commercial arbitration, such as the admissibility of sovereign immunity in arbitration. He is also a fruitful academic author with many important publications like his representative work “Qiantan Zhongcai”<浅谈仲裁>. His decisions and perspectives have an impact on Asian arbitration industrial, or even to the extent of global arbitration community, in depth. Further, as the representative of Hague Conference, Asia Pacific Regional Office, he also has been recognized as a major figure in the field of private international law. He has a sound voice regard to diverse complex issues in the field. His articles guide lot of practitioners in their practice.

    During his talk, Professor Anselmo Reyes highlighted the integrity of arbitration at the opening. He said that”arbitration friendly” does not mean “rule out courts” at all. Judicial mechanism shall be regarded as a part of arbitration. In fact, he said, arbitration cannot operate at all without judicial arms. In other words, judicial support, including the availability of interim measures and procedural orders, enhances the efficiency and effectiveness of the arbitral process. Judicial review, including recognition and enforcement of an award, ensures the credibility of arbitration. The real questions are that in what way a court can polish, or at least, not sabotage, the advantages of arbitration and by what operation can satisfy the needs of international commercial circumstance and finally help build the credibility of arbitration.

    To be specific, Professor Anselmo Reyes stated that before the commencement of the arbitral tribunal, a court should not sustain parties’ tactic of delay. For example, concerning the issues of “Kompetenz-kompetenz”, a court shall respect the international discipline and always hand the issue to an arbitral tribunal. Professor Anselmo Reyes pointed out that, at this stage, less judicial reviews help saving cost and more judicial supports help expedite the process.

    Once an arbitral tribunal was established, Professor Anselmo Reyes thought a court shall only intervene when a misconduct or malpractice occurred. He said a court shall leave hands free and let the tribunal managing their own process. Minor mistakes or inexpert arrangements in the process management shall not be an excuse of judicial intervention. What a court should do at this stage is to offer guidance or advice or even workshop to improve the tribunal’s capability of better process management.

    The most controversial issue is about the judicial review on final awards. Professor Anselmo Reyes held positive attitude towards the necessity of judicial review. However, he noted three types of existing standards may still open to discuss: (1) Procedure examination only, regardless of the merit and the evidence; (2)Double-check with the evidence of the alleged flaws without duplicated hearings on the merit; (3) Substantive hearings of all the facts and evidence. Professor Anselmo Reyes cited PT Perusahaan Gas Negara (Persero) TBK v. CRW Joint Operation, AJT v. AJU, Gao Haiyan case and Pacific China Holdings Ltd. (In liquidation) v. Grand Pacific Holdings Ltd. to demonstrate the pros and cons of these three standards of judicial review. He thought that the second standard should prevail in most cases unless extreme circumstances which must resort to the third standard with a refined procedure of current judicial review.

    Professor Anselmo Reyes took Hong Kong as an example, putting forward seven suggestions to a refined procedure of current judicial review. First, all applications relating to awards should be monitored to enable directions for the disposal of an application to be given as soon as or shortly after the application is made. Second, patently hopeless challenges to an award should be weeded out at the directions stage so that such challenge proceeds no further and wastes no more time and money. Third, Challenges are to be set down for substantive hearing at the earliest opportunity, typically for a first instance hearing within two months of directions being given and for an appeal hearing within six months after determination at first instance. Fourth, on the premise that it is easier to give earlier dates for shorter than longer hearings, the court may consider limiting the time for the substantive hearing of run-of-the-mill challenges to between half-a-day and a day. Fifth, where on its face a challenge involves more complex issues, the court might consider limiting substantive hearings to two days. Sixth, to counter-balance any limits placed on hearing time, the court could allow the parties to put in advance written submissions of whatever length they deem appropriate. Seventh, to the extent possible, all hearings should be presided over by specialist judges who are fully familiar with commercial matters of the type under consideration in a challenge. The foregoing suggestions may not preclude the tactic of delays in all cases. As an example, in some cases, parties’ real purpose is to strengthen bargaining position or enlarge the other side’s cost. However, for most parties trying to solve problems within arbitration, judicial support and judicial review could not only help build credibility, but also keep in line with the efficiency and effectiveness of arbitration.

    In conclusion, Professor Anselmo Reyes pointed that properly judicial intervention, including judicial support and judicial review, was part of the concept of arbitration. The “arbitration friendly” means acknowledgement of the common sense of efficiency and effectiveness in commercial environment. Judicial intervention should be consistent with the common sense rather than put on duplicate procedures for arbitration—cost more for the disputes resolution. By an “arbitration friendly” way, judicial intervention lends credibility to arbitration. Judicial support is a guarantee of the integrity of the arbitration process. Judicial review certifies that an arbitral tribunal has proceeded in a fair manner and, even if it may have erred in some respects, its errors are not so “egregious” as to constitute a serious miscarriage of justice. During his talk, Professor Anselmo Reyes also mentioned the formation of broad legal community, and the role of judicature within. Professor Anselmo Reyes’ profound insights raised the audience’s interests. This event was successfully ended with a Q&A discussion.

(Discussing with the floor)	(Q&A section)

    BAC has always concerned about the developments of international commercial arbitration and kept eyes on various heated cases and issues. Professor Anselmo Reyes’ numerous decisions on arbitration awards made differences of the developments of Asian, or even international arbitration. The purpose of this event is aiming to spread his latest thoughts and experience within the field of international commercial disputes resolution. We do hope such activity could attract more legal professions to be concerned about the development of arbitration, and promote the healthy competition within. BAC does encourage arbitrators, relevant practitioners and other professions keep paying attention and participate in follow-up seminars.