Beijing Arbitration Commission

From January 16 to 17 2020, the Asia Pacific Regional Arbitration Group (the “APRAG”) Conference 2020 was successfully held in Bangkok, Thailand. Hosted by the Thailand Arbitration Center (the “THAC”), the Conference was themed as "Innovations and Challenges Facing the Arbitration Industry", and has attracted more than 200 professionals including representatives of arbitration institutions, experts, scholars and lawyers. As an APRAG member, the Beijing Arbitration Commission / Beijing International Arbitration Center (the “BAC”) dispatched its delegation consisted of Deputy Secretary General Dr. Chen Fuyong and Counsel Mr. Yin Tong to attend this event upon invitation. Dr. Chen Fuyong also delivered speeches in panel discussions on “Challenges to Arbitration from International Commercial Courts” and “Latest Developments of APRAG Members”.

To explore the application and influence of technical innovations in the area of dispute resolution and to respond to competitions and challenges newly emerged within the arbitration industry, this Conference successively held eight panel discussions as follows: “Artificial Intelligence in International Arbitration”, “Challenges to Arbitration from International Commercial Courts”, “New Trends of Challenges Made Against Arbitrators”, “The Impact of Singapore Convention on International Arbitration”, “How Can Arbitration Centres Co-Exist with Local Registered Lawyers”, “Ancillary Legislation to Support International Arbitration”, “Perennial Problems Faced by Lawyers and End-Users in Civil and Common Law Jurisdictions” and “Latest Developments of APRAG Members”.

In panel discussion on “Challenges to Arbitration from International Commercial Courts”, Dr. Chen delivered a speech on “An Overview of China International Commercial Court and Its Influence on Arbitration”. He firstly reviewed the background and process of the establishment of the China International Commercial Court (the “CICC”), and presented an detailed introduction of legal provisions on issues such as the scope of the CICC’s jurisdiction, the definition of international commercial cases, and the selection and appointment of judges, as well as the CICC’s practice thereof since its establishment. When talking about the innovations of the CICC, Dr. Chen said that although the tendency of “arbitration litigation” has been widely criticized, the birth of the CICC has, to a certain extent, reflected the trend of “litigation arbitration”. A number of procedural innovative approaches of the CICC actually adopted the rules and practice of the Chinese international arbitration. To name a few, dissent opinions could be stated in judgments, evidence sourced from outside the territory of China is not required to be notarized and legalized, Chinese translation is not required for evidence in English language upon consent of both parties.

As to whether the CICC will bring challenges to the Chinese arbitration industry, Dr. Chen said that the establishment of the CICC was not meant to compete with arbitration institutions. On the contrary, it was the CICC that proposed the concept of “one-stop” international commercial dispute resolution mechanism, and selected international commercial mediation and arbitration institutions that met specific requirements to build a dispute resolution platform jointly with the CICC to provide comprehensive services including mediation, arbitration and litigation. The BAC had the honor to be nominated as one of the first five arbitration institutions under the "one-stop" international commercial dispute diversified resolution mechanism of the Supreme People’s Court. The “one-stop” international commercial dispute diversified resolution mechanism was created to promote the dynamic integration of mediation, arbitration and litigation, and provide more options to dispute resolution clients, so as to promote the impartial and efficient resolution of international commercial disputes. With regard to the specific approaches of the said integration, in cases meet particular conditions, parties may apply for preservation of asset, evidence and behavior in arbitration, and apply for setting-aside or enforcement of arbitral awards, to the CICC. The connection between the CICC and arbitration has well reflected the CICC’s support to resolving international commercial disputes through arbitration.

In panel discussion on “Latest Developments of APRAG Members”, Dr. Chen Fuyong shared the status quo of the Chinese arbitration industry development and the latest practice of the BAC’s internationalization based on sufficient statistics. By referring to the revisions of the BAC Arbitration Rules in 2015 and 2019, Dr. Chen revealed the BAC’s efforts and reforms for maximizing party autonomy and meeting international clients’ expectations.

In respect of investment arbitration, extensive attention and discussion have been made on issues related to investment arbitration, such as its high costs, inconsistency of arbitral awards, the absence of correcting mechanism, arbitrators’ independence and impartiality, and the reform of investor-state dispute resolution mechanism. Referring to the BAC International Investment Arbitration Rules, Dr. Chen introduced the “Chinese approach” on investor-state dispute resolution reform that the BAC was trying to provide to the international community, including adopting an appeal system under limited circumstances; improving the correctness and consistency of arbitral awards; enhancing the efficiency and reducing the cost by setting a period for rendering arbitral award and the early dismissal mechanism; improving the transparency of investment arbitration by making specific stipulations on public hearings, joinder of third parties and the disclosure of important documents such as arbitral awards; raising higher requirements on arbitrators’ qualifications and code of behaviors; regulating third party funding and requiring the party being funded has mandatory obligation of continuous disclosure.

During the two-day Conference, over forty arbitration experts from all over the world participated in the discussion on cutting-edge issues of the arbitration industry. The topics thereof covered a wide range from multiple perspectives. Concerning how to build an arbitration-friendly seat of international arbitration, the panelists proposed to have more auxiliary legislation support from aspects of the reform of arbitration fee computation, foreign lawyers’ practice in arbitration, entry and exit administration, taxation, assistance and execution of interim measures. As to how local registered lawyers could integrate into international arbitration, the panelists were of the opinion that local lawyers should constantly learn about laws, rules, guidance on international arbitration, keep participating in international arbitration practice as co-counsels, so as to jointly promote international arbitration development, and thereby co-exist with the international arbitration community. With in-depth understanding of local practice, business and law and the capability of providing legal services to clients with international view, local lawyers will have bright prospects in the market of international arbitration.

The speakers also addressed on some problems of the arbitration industry that need prompt thinking and working out, such as whether international commercial courts and international commercial mediation would become strong competitors of international arbitration as a result of the establishment of international commercial courts in various jurisdictions and the emergence of the Singapore Convention, how AI could be practically applied in dispute resolution, how to make clearer standards of arbitrators’ disclosure and withdrawal. It is undoubted that these issues might not have answers simply and immediately, but on the ground of constant exchanges and discussions among arbitration practitioners within the Asia-Pacific region and all over the globe, as well as constant mutual learning and integration of arbitration theories and practices in different jurisdictions, we trust that more and more common senses will be reached on the industrial practice, and the BAC will keep sharing with and reveal to the international arbitration community the Chinese arbitration institutions’ practice experience and thoughts, build the open and professional image of Chinese arbitration, and endeavors to promote the application and development of arbitration in international commercial dispute resolution.