Publish time: Fri May 11 09:41:22 CST 2018
Between April 15 and 18 2018, the 24th International Council of Commercial Arbitration (the “ICCA”) congress was successfully held in Sydney, Australia. This congress was themed “Evolution and Adaptation: The Future of International Arbitration”, and has attracted over 850 professionals from 65 countries over the world. As the sole diamond partner, the BAC dispatched a delegation consists of its Deputy Secretary General Dr. Chen Fuyong, BD director Mr. Xu Jie, case manager Mr. Yin Tong, Ms. Liu Yingying and Mr. Liu Wenpeng (the “BAC delegation”) to attend this congress. Through the worldwide open bidding organized by the ICCA Congress Programme Committee, Dr. Chen Fuyong was elected as a speaker and attended the panel discussion during the congress.
BAC delegation
On the morning of April 16, Prof. Doug Jones, President of the Organizing Committee of the 2018 ICCA Congress, Mr. Donald Francis Donovan, former ICCA President, Ms. Jean Kalick, President of the Congress Programme Committee, delivered welcome addresses and overviews of the programme, respectively, and reiterated the theme of this ICCA congress that is to sum up the challenges to arbitration and other ADR and to promote practitioners all over the world to have an active discussion on possible reforms of arbitration. In his speech, Prof. Doug Jones specifically extended thanks to the BAC and other institution’s sponsorship and support to this congress. The Honorable James Allsop AO, Chief Justice of the Federal Court of Australia, was invited to give a keynote speech. Starting from the similarities and differences between commercial arbitration and investment arbitration, he clarified that it is significant for the arbitration industry to get prepared for challenges.
Prof. Doug Jones
Mr. Donald Francis Donovan
Ms. Jean Kalick
The Honorable James Allsop AO
In the panel discussions during this ICCA congress, more than 80 speakers shared their views about various challenges to, and doubt of, arbitration. Speakers from Common Law jurisdictions particularly stressed the challenge to the justification of international arbitration’s law-making practice. In international arbitration, based on the identified substantive governing law, judgment is often needed to supplement the deficiency and ambiguity that lie in the applicable law or the contract, and the arbitral tribunal’s determination will usually leave an influence on the rules of subsequent transactions, which may even become some sort of “soft law”. However, it is disputed whether arbitration naturally has such a “law-making” function, which has been facing doubts about its legitimacy, and concerns that it may affect the normal functioning of the precedent system under the Common Law system. Meanwhile, once public institutions or public interest is concerned in international arbitration procedure, the balance between “confidentiality” and “transparency” will be further challenged. Apart from that, challenges to arbitrations efficiency and cost also attracted close attention from the speakers. Discussions were mainly focused on whether institutional advantages of other dispute resolution mechanisms can be adopted to review the relationship between party autonomy and arbitral proceedings led by the arbitral tribunal; how newly developed technologies and third party funding can be reasonably adopted to resolve the parties’ inequality of resources in their appointment of arbitrator, scope of evidence disclosure and procedural participation. In addition, speakers also paid attention to varying degrees to those hotspots concerning public sectors in investment arbitration and ad hoc arbitration, where Prof. Shan Wenhua, Assistant Principal of the Xi’an Jiaotong University, joined in the discussion.
The congress
Prof. Shan Wenhua of Xi’an Jiaotong University
To embrace the future, this ICCA Congress focused on the topic of “New Frontier in International Arbitration”, and organized discussion from the angles of “arbitration of new type disputes” and “arbitration concerning new subjects” on arbitration’s being adopted in new legal system and new dispute area, as well as the possibility of third parties participation in arbitration. Focusing on the topic of “Moving Face of Technology : Technology as Facilitation / Technology as Disruption”, the discussion was conducted to explore how the quickly developed technology can be used to facilitate arbitration’s impartiality and efficiency, and how the obsessions and challenges brought by scientific and technological development can be effectively dealt with. Focusing on the “Hot Topics and New Voices” in international arbitration, the discussion interpreted the hot topics such as the Belt and Road Initiative and investment arbitration, and encouraged youth dispute resolution practitioners to give their voices actively. It is worth mentioning that with regard to the application of AI in international arbitration, the Chinese smart court and smart arbitration may be said the cutting-edge practice of the conception of lowering the linguistic barrier by usage of technology raised in this ICCA congress.
In this respect, Ms. Shen Hongyu, Chief Judge of the Fourth Civil Division of the Supreme People’s Court of China, emphatically presented an introduction of Chinese practice from three perspectives of “PRC AI Court Planning”, “PRC Courts’ New Measures for Promotion of ADR Development” and “Experience and Revelation” in the panel discussion on “Building Better Arbitration Proceedings: Efficiency and the Lessons to be Learned from Other Dispute Resolution Frameworks”. Achievements of Chinese courts in informatization construction were truly impressive and won extensive attention from the audience. Ms. Shen pointed out that with the strong promotion of the Supreme People’s Court and relevant authorities, the positive outcomes in improving professionalism and transparency of case hearing resulted from the informatization practice of Chinese courts may, to a certain extent, help deal with the challenge to legitimacy as raised in this ICCA Congress. Meanwhile, she also introduced the Chinese courts’ efforts in promoting arbitration, mediation and other ADRs by referring to the newly promulgated SPC judicial interpretations and judicial policies. Ms. Shen’s speech re-stressed Chinese courts’ arbitration-friendliness, from which international arbitration practitioners are looking forward to China’s becoming a competitive seat of arbitration.
Ms. Shen Hongyu
In the session on “Building Better Arbitration Proceedings: Revisiting Conventional Wisdom in the Organisation of Arbitral Proceedings”, Dr. Chen Fuyong participated in the panel discussion from the angle of Chinese arbitration institutions and Chinese arbitration users, unveiling the exploration and deliberation of the Chinese arbitration circle. He pointed out that the so-called “Conventional Wisdom” normally means rules that are widely accepted in international arbitration practice; and yet many “widely accepted” rules in fact are practice of practitioners from a small part of countries. To other countries including China, such rules are far from being “widely accepted”. Therefore, it is necessary to review the so-called “Conventional Wisdom” from time to time. Based on emperical data analysis of Chinese arbitration users, Dr. Chen clarified that the primary reason Chinese users have a strong feeling about international arbitration’s high cost and low efficiency is that they usually have no problem with cost and efficiency in their Chinese domestic arbitrations. Taking the BAC as a sample, during the past five years, arbitration in ordinary procedure lasts for less than 140 days from the composition of arbitral tribunal to the conclusion of the case, and in summary procedure this figure is less than 70. Chinese users prefer institutional arbitration to ad hoc arbitration, which is because arbitration institutions can greatly help control the cost and enhance the efficiency. He also pointed out that the “arb-med” in Chinese practice is deemed by most arbitration users as a deviation from the international “conventional practice” due to local legal tradition and culture. To reduce such concern from international customers, the BAC Arbitration Rules specifically stipulate that in case the mediation conducted during arbitration procedure fails, the parties may request for replacement of arbitrators. With respect to the “clerk of arbitral tribunal” that has been widely used in international arbitration in recent years, Dr. Chen pointed out by reference to the change of responsibility of case managers in Chinese practice that some international norms which China has been constantly following up in fact are developing into those adopted in Chinese domestic regularities.
Speech by Dr. Chen Fuyong
Dr. Chen Fuyong in panel discussion
In the closing speech on April 18, the Honorable Thomas Frederick Bathurst AC, Chief Justice of the Supreme Court of New South Wales, reviewed and commented on the impressive speeches by the speakers. He was of the view that the speeches in this congress were highly constructive, and that voices from representatives of different countries were truly enlightening. He specifically mentioned Dr. Chen’s speech and believed that the Chinese arbitration experience as introduced by Dr. Chen with the sample practice of the BAC worth learning by the international arbitration community.
Speech by The Hon. Thomas Frederick Bathurst AC
In addition to its participation in the congress, the BAC delegation set its exhibition booth at the venue of the congress, where it has had in-depth exchange with professionals from various jurisdictions and introduced the BAC practice and the Chinese arbitration thereto. The “Visit BAC” booklet specifically made by the BAC delegation provided an introduction of the BAC’s leading position in the Chinese arbitration industry as well as the BAC’s effort in promoting the integration of the standards, practices and theories between the international arbitration and the Chinese arbitration to roughly two hundred visitors in a manner in conformity with the international criteria.
Dr. Chen Fuyong and Prof. Doug Jones, President of the Organizing Committee of the 2018 ICCA Congress (2nd left) and others
Dr. Chen Fuyong and Mr. Donald Francis Donovan, former ICCA President (2nd left) and others
Dr. Chen Fuyong and Ms. Gabrielle Kaufmann-Kohler, current ICCA President
Dr. Chen Fuyong and Prof. Albert Jan van den Berg, former ICCA President
Dr. Chen Fuyong and Ms. Shen Hongyu from Supreme People’s Court of China
Dr. Chen Fuyong and Prof. Julian Lew of Queen Mary University of London
Mr. David Huebner, former US Ambassador in New Zealand, visited the BAC booth
Prof. Jeffrey Waincymer of School of Law, Monash University, visited the BAC booth
Dr. Chen Fuyong and Ms. Kim M. Rooney, Barrister at Gilt Chambers
Dr. Chen Fuyong and Mr. Justin D'Agostino, Global Head of Disputes, Herbert Smith Freehills
Dr. Chen Fuyong and Mr. Brandon J Malone, President of Scottish Arbitration Centre
Dr. Chen Fuyong talked with Prof. Yasuhei Taniguchi, renowned Japanese Civil Procedure Law expert
Meanwhile, the BAC delegation based on the Commercial Dispute Resolution in China: An Annual Review and Preview (2017) organized by the BAC, provided a systematical introduction of the up-to-date development of the Chinese dispute resolution industry, covering sectors of commercial arbitration, commercial mediation, construction, real estate, energy, investment, international trade, finance, intellectual property, film and television and general aviation, which served as a bridge for exchange and mutual trust between Chinese and foreign arbitration practitioners. It also showcased the upcoming 2018 summits on Commercial Dispute Resolution in China to be held in Europe and Hong Kong to about 140 visitors including the ICCA President, members of the Governing Board of the ICCA, representative arbitration practitioners from European and Asian countries (including several members of governmental delegations to the Working Group II of the UNCITRAL).
 |
 |
 |
 |
| Presentation by BAC delegation to visitors | |
Apart from that, with the support of the organizer of this ICCA congress, the BAC held two breakfast seminars at the venue of the congress on the mornings of April 17 and 18, which has attracted dozens of arbitration practitioners from various countries. The BAC BD director Mr. Xu Jie introduced the statistics and practice of the BAC concerning business development, service quality, constitution of arbitrators, pre and post dispute services, and also the BAC’s achievements in improving its arbitration transparency and promoting diversified dispute resolution development under the theme of the ICCA congress. Dr. Chen Fuyong had a face-to-face exchange with the audience on the BAC administration of its arbitrators, the Belt and Road Initiative and the judicial review of arbitration in China, which directly attracted interest of international arbitration colleagues, including the former US Ambassador in New Zealand, in learning more about the BAC and having more cooperation therewith.
Mr. Xu Jie introduced the BAC practice
Dr. Chen Fuyong had exchange with audience
The ICCA congress is an international conference with the largest scale and influence in the area of international arbitration, and is praised as the “Olympic Game cc s” of the international arbitration community. The ICCA congress is a biennial event, and so far has been held for 24 sessions. This ICCA congress based its theme upon the hotspots and looked into the future, covering a number of important issues of the international arbitration. With the combination of professional voices from different jurisdictions, it helped conduct reconsideration and outlook of the existing rules in international arbitration, which is of far-reaching value, both in theory and in practice. The BAC delegation has proactively unveiled relevant practice and thought of Chinese arbitration institutions to the international arbitration community, and this is undoubtedly helpful to build the open and professional image of Chinese arbitration, and thereby to promote the overall development of the BAC and even the Chinese arbitration industry.
The BAC delegation at the BAC exhibition booth