Publish time: Tue Jun 24 00:00:00 CST 2014
Introduction
The 2014 Annual Summit on Commercial Dispute Resolution in China was jointly hosted by the ICC International Court of Arbitration (ICC Court) and the Beijing Arbitration Commission (BAC) on 4 June 2014 at the ICC Global Headquarters in Paris. Nearly 100 leading figures from the worldwide arbitration community participated in the Summit as speakers and delegates, including officials of arbitral institutions, scholars from academic and research institutions, and partners from leading international law firms. The Summit was supported by Herbert Smith Freehills and WunschArb.
The Summit featured the official release of the English language version of the BAC publication, Commercial Dispute Resolution in China: Annual Review and Preview (2014) (the Annual Review), which was prepared by leading Chinese experts from a number of different industries. The speakers discussed the latest commercial dispute resolution-related developments in China, covering (inter alia) arbitration, mediation, international trade, investment, construction, real estate, energy, intellectual property (IP) rights and finance.
Welcome Remarks and Opening Speech
In his Welcome Remarks, Mr. John Beechey, President of the ICC Court, expressed his appreciation for the BAC's commitment to promoting greater co-operation and communication between arbitral institutions worldwide, not least between the BAC and the ICC. The Vice Chairperson of the BAC, Ms Wang Hongsong, then introduced the 2014 edition of the Annual Review and summarised the highlights. She also expressed her thanks to all those who had contributed to its preparation.
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（Ms. Wang Hongsong）
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（Mr. John Beechey）
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First session
The Summit then moved into its first session, ‘Recent Developments in Chinese Arbitration and Mediation’, in which five specialist speakers reviewed and gave their prognoses on a number of hot topics. The Secretary-General of the ICC Court, Mr. Andrea Carlevaris moderated this session.
Dr. Chen Fuyong, the BAC’s Deputy Secretary General, reported on developments in arbitration in China during 2013 and provided a statistical analysis of the judicial supervision of arbitration, concluding that arbitration in China was growing healthily and that the Chinese judiciary were more and more pro-arbitration in outlook. Dr. Chen also briefly summarised the main features of the BAC Beijing Arbitration Commission Arbitration Rules - Revision Draft for Comments (31 October 2013),[1]which was intended to meet better the expectations of international users. The BAC had received comments from 17 prestigious arbitration groupings and experts.
Dr. Chen was followed by Ms Khong Cheng-Yee, Director of and Counsel to the Asia Office of ICC Court Secretariat in Hong Kong. Ms Khong discussed ICC cases involving Chinese parties, together with the provisions of the ICC Rules of Arbitration (2012 Edition) concerning emergency arbitration, consolidation of arbitrations and joinder of additional parties.
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（Mr. Andrea Carlevaris）
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（Dr. Chen Fuyong）
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（Ms. Khong Cheng-Yee）
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Ms Nadia Darwazeh, Counsel with Curtis, Mallet-Prevost, Colt & Mosle, Paris, discussed, in the light of her experience in international arbitration, the approaches adopted by China’s Supreme People's Court towards defining ‘foreign-related’ arbitration and the meaning and extent of public policy in China.
In the light of a great degree of interest in mediation in China, Mr. Peter Thorp, an international arbitrator based in Paris, presented the results of an annual research exercise on mediation and discussed the pros and cons of ‘mediation in arbitration’ (Med-Arb). Citing the provisions of the BAC Arbitration Rules (2008 Edition), Mr Thorp was of the view that effectively designed procedural rules could promote the advantageous use of Med-Arb and avoid its perceived disadvantages.
Mr. Joseph Tirado, a partner and global Co-Chair, International Arbitration Practice with Winston & Strawn law firm in London, shared his experiences of different cultures in dispute resolution. In his discussion, he emphasised the importance of all who were involved in mediation being aware of and respecting different cultures.
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（Ms. Nadia Darwazeh）
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（Mr. Peter Thorp）
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（Mr. Joseph Tirado）
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The speakers’ papers were well received and attracted questions on a number of subjects of interest, all of which were answered by Dr. Chen. These included the caseload of and types of cases accepted by the BAC, the percentage of cases settled and the reasons underlying settlement, the rate at which settlement agreements were rendered as agreed arbitral awards, party attitudes towards Med-Arb, and approaches to the appointment of international arbitrators.
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Second session
The second session, ‘Recent Developments in Dispute Resolution in International Trade and Investment Law’, focused on several hot topics in international commercial and investment dispute resolution. Mr. Tao Jingzhou, a partner with Dechert LLP, Beijing, moderated this session.
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（Mr. Tao Jingzhou）
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（Mr. Wang Xuehua）
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（Mr. Bao Zhi）
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Mr. Wang Xuehua, a partner with Huanzhong & Partners, Beijing, introduced the China (Shanghai) Pilot Free Trade Zone Arbitration Rules (2014 Edition)),[2] which took effect on 1 May 2014. Mr. Wang’s paper stimulated active discussion among participants, with experts from several different jurisdictions exchanging views on the new Rules and their impact on the selection of Chinese arbitration institutions.
Mr. Bao Zhi, a partner with FenXun Partners, Beijing, then discussed developments in investment-related laws of China, including amendments to the PRC Company Law, and significant investment disputes in 2013, including disputes arising from value adjustment mechanisms and variable interest entity structures.
Ms Carmen Nuñez-Lagos, a partner with the Paris office of Hogan Lovells, presented a comprehensive introduction to arbitration clauses contained in European Union (EU) bilateral investment treaties (BITs), both as between (i) EU nations and (ii) EU nations and other States, especially China.
Ms Carole Malinvaud, a partner with Gide, Paris, was of the view that various newly modified arbitration rules had become more and more similar and, in the process, had advantages in common. Differences between jurisdictions were also diminishing, with internationalisation and localisation now going hand in hand. The international community particularly welcomed China's efforts in adopting international standards.
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（Ms. Carmen Nuñez-Lagos）
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（Ms. Carole Malinvaud）
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Third session
The third session, ‘Recent Developments in Dispute Resolution in Infrastructure Projects’, was moderated by Mr. Ciccu Mukhopadhaya, a Senior Advocate in the Supreme Court of India, New Delhi, and addressed by five specialists.
Ms Tan Jinghui, a partner with the City Development Law Firm, Beijing, gave an overview of dispute resolution in China’s construction sector. She focused on the development of China's construction market and of the relevant law and policy, and discussed changes in forms of construction contract, predicting that a rise in the number of disputes would accompany these developments.
Mr. Sun Wei, a partner with the Zhong Lun Law Firm, Beijing, then gave a presentation on China's real estate laws, focusing on the perspectives of real estate enterprises, foreign investment, primary land development, the sale of residential properties, financing and taxation.
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（Mr. Ciccu Mukhopadhaya）
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（Ms Tan Jinghui ）
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（Mr. Sun Wei）
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With particular reference to China, Ms Annet van Hooft, a partner with the Paris office of Bird & Bird and Vice-Chair of the ICC Commission on Arbitration and ADR, shared her view that dispute resolution mechanisms in the construction sector were essentially similar, due to construction’s inherent characteristics. An example given was the use of the FIDIC clause. Differences still existed, however, between China and EU nations, both in the construction sector generally as well as in relation to dispute resolution mechanisms, and there was much that the respective nations could learn from each other.
Ms Bai Yan, an advocate with the Paris office of Vogel & Vogel, then gave an overview of Chinese legislation affecting the energy sector and discussed possible practical remedies.
Mr. Roland Ziadé, a partner with the Paris office of Linklaters, held the opinion that China, as a giant in energy generation, investment, and consumption, would face a large number of disputes arising out of the energy sector in future. He emphasised that arbitration had been welcomed as a dispute resolution mechanism by parties involved in energy sector disputes because of its professionalism, neutrality and confidentiality.
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（Ms. Annet van Hooft）
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（Ms. Bai Yan）
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（Mr. Roland Ziadé）
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Fourth session
The fourth session, ‘Recent Developments in IP Disputes’, was moderated by Mr. Pascal Hollander, a partner with Hanotiau & van den Berg of Brussels, and addressed by two specialists in the resolution of such disputes.
Mr. Xie Guanbin, a partner with Lifang & Partners, Beijing, was of the view that IP rights in China were still developing, albeit rapidly. He also highlighted revisions to the PRC Trademark Law as well as a number of noteworthy cases.
Mr. Phillip Groz, a partner with Schellenberg Wittmer of Zurich, was of the opinion that, due to its efficiency, enforceability, quality-guaranteed outcome and confidentiality, arbitration would play a more important role in the resolution of IP rights disputes in China. He also drew attention to a number of key factors to which parties should pay attention when drafting arbitration agreements. The participants then had vigorous exchanges of views with the speakers on the scope of IP arbitration and the arbitrability of IP disputes.
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（Mr. Pascal Hollander）
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（Mr. Xie Guanbin）
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（Mr. Philipp Groz）
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Fifth session
The fifth session, ‘Recent Developments in Financial Disputes’, which discussed new trends in the resolution of financial disputes, was moderated by Mr. Armstrong Chen Sheng, Deputy Director of the China Banking Regulatory Commission, Beijing.
Mr. Tao Xiuming, a partner with JunZeJun Law Offices, Beijing, presented an annual review of financial dispute resolution in China, pointing out that there exist significant challenges to dispute resolution with regard to complex/innovative financial transactions. He also pointed out that arbitration was a better choice for such disputes because of its efficiency, professionalism, flexibility/discretion and certainty, and its prevention of (systemic) market risk.
Mr. Francisco Prol Pérez, a partner with Prol & Asociados, Madrid, concurred with Mr. Tao's opinions, arguing that dispute resolution in the financial sector required professional experts. He also noted that in-house counsel to banks were not familiar with arbitration. It was therefore necessary to promote arbitration in the finance sector. Speakers and participants then had a vigorous discussion on (inter alia) overlaps between legislation and market needs and the role of mediation in financial disputes.
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（Mr. Armstrong Chen Sheng）
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（Mr. Tao Xiuming）
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（Mr. Francisco Prol Pérez）
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Closing speeches
Ms Emmanuelle Cabrol, a partner with the Paris office of Herbert Smith Freehills, and Dr. Clarisse von Wunschheim, Founding Partner of WunschArb, Beijing, presented the concluding remarks.
Ms Cabrol applauded the Summit for attracting arbitration practitioners from around the world. It had provided an excellent platform for experts and participants to get an overview of and exchange detailed views upon the current state and future development of arbitration law and practice in China. She also noted that arbitration in China was changing. Chinese arbitral institutions and arbitration practitioners were increasingly aligning with international standards and, in certain regards, were a step ahead. All concerned looked forward to learning more about current developments in arbitration in China.
Dr. Wunschheim's closing remarks pointed out that China should be deemed not only as a market for but also an active collaborator in international arbitration. Chinese enterprises parties were increasingly becoming parties to international arbitration cases. The ICC was the top international arbitral institution, not only because of its caseload but also because of the level of its co-operation and exchanges with other arbitral institutions worldwide. The ICC's openness to those institutions had deservedly been praised. As a developing arbitral institution, the BAC's influence in international arbitration was also growing. It had been pursuing state-of-the-art standards in international arbitration, was actively co-operating with other international arbitral institutions and was steadfast in the pursuit of its goal of internationalisation.
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（Dr. Clarisse von Wunschheim）
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（Ms. Emmanuelle Cabrol）
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Conclusion
The Summit was warmly received by the participants. It had conveyed the most recent developments in commercial dispute resolution in China to the international arbitration community, had provided a more comprehensive window on China to the wider world, promoted worldwide exchanges of views, and improved understanding as well as trust. The BAC would henceforth continue to promote arbitration in China to the international arbitration community by (inter alia) preparing the Annual Review and organising overseas seminars. It was committed to bridging the gap and promoting the exchange and sharing of experience in dispute resolution practice between China and other nations. The BAC would contribute towards improving the competitive strength of arbitration in China as well as co-operation with the international arbitration community.
The Chinese version of the 2014 Annual Review will be released shortly and discussed in seminars convened for Chinese language audiences.