The Ministry of Justice has released the Revised Arbitration Law of the People's Republic of China (hereinafter referred to as the Draft) for public comment. "This revision is the third and most extensive revision of the Arbitration Law since it was promulgated in 1994. This revision takes into account the UnCITRAL Model Law on International Commercial Arbitration and the arbitration laws of popular arbitration sites, introducing a number of systems and concepts that are already widely used in international commercial arbitration." Ding Ding, a professor at the Law School of the University of International Business and Economics, said at a seminar held recently on major issues concerning the revision of the Arbitration Law.
One of the key changes to the draft is the exemption from the requirement that arbitration institutions be specified in arbitration agreements. It is understood that the current Arbitration Law stipulates that a valid arbitration agreement must have a selected arbitration organization. If the arbitration agreement only specifies the arbitration rules applicable to the dispute, it shall be deemed that no arbitration institution is included and the arbitration agreement shall be invalid. However, the draft follows the provisions of the New York Convention and the Model Law on arbitration agreements, and deletes the requirement that an arbitration agreement must include a selected arbitration institution.
"A number of international arbitration institutions, including ICC and THE Singapore International Arbitration Centre, initially did not specify the name of the arbitrator in their model arbitration clauses, resulting in cases where their awards could not be recognized and enforced in mainland China. In the end, a number of international arbitration institutions have to launch special demonstration arbitration clause specially apply to the Chinese mainland, and the meaning of "draft" emphasizes the arbitration said judge core elements as the effectiveness of arbitration agreement, be exempted from the need to clear the requirements of the contract arbitration institution, in line with the international arbitration practice, but also has provided a legal basis for AD hoc arbitration tribunal arbitral."
Delta Asia lawyer at TaoYuan pointed out that the difference in the arbitration law judicial interpretation will "only dispute applicable rules of arbitration agreement, the commission's arbitration rules in accordance with the contract will not be able to determine the arbitration institutions and the supplementary agreement on arbitration institution choice" situation as the arbitration agreement is invalid, "draft" regulation "cannot determine arbitration institution and fail to reach an arbitration agreement, It is accepted by the arbitration institution that first filed the case ", maximizing the effectiveness of arbitration agreement and reflecting the support of legislation for arbitration.
"In the practice of domestic arbitration, it is not uncommon for arbitration clauses to be invalid because the agreement of arbitration institutions is not clear. Either dispute resolution or transaction lawyers may, on more than one occasion, amend the client's arbitration clause from 'Beijing Arbitration Commission' to 'Beijing Arbitration Commission' and annotate the differences. According to the adjustment of the Draft, the confirmation of arbitration institutions will no longer be a prerequisite for the validity of arbitration agreements, greatly relaxing the standards for determining the validity of arbitration agreements, further reflecting the principle of respecting the arbitration will of the parties, and in line with the development trend of international commercial arbitration. Chengming Is the law firm partner Dong Geng pointed out.
In addition, a section on "interim measures" has been added to the Draft, which integrates the original contents of arbitration preservation with other interim measures, adds the act preservation and emergency arbitrator system, makes it clear that the arbitration tribunal has the power to decide interim measures, and standardizes the exercise of interim measures.
"It is worth noting that the subject with the right to choose the mode of temporary arbitration is limited to the parties to commercial disputes with foreign-related factors. Domestic arbitration still adopts the mode of agency arbitration, and there is no agreement on the right of temporary arbitration. "Draft" the ninety-third characteristic is defined for the temporary arbitration rules, the second paragraph requires not sign the award of the objection to the arbitrator must provide written comments, the third paragraph, the arbitration tribunal shall have the duty to the award to the party, and will be delivered to record the original to the place for arbitration and the award of the intermediate people's court for the record. These regulations can reflect the original intention of supervising temporary arbitration, but it remains to be seen whether the original arbitration award of the archival arbitration is in conflict with the confidentiality of the arbitration, and whether it will cause concerns of the parties concerned and affect the application of the temporary arbitration system." Dong said.
Shen Sibao, a law professor at the University of International Business and Economics, pointed out that the revised law is comprehensive, stable and innovative in content. On the basic idea of revising the law, it is suggested that more attention should be paid to the combination of multiple objectives and the integration with international practices. The draft for Soliciting opinions should reflect the characteristic of respecting the autonomy of parties' will by reducing mandatory provisions and increasing guiding provisions. In addition, attention should be paid to the reasonable arrangement of the structure of the legal provisions and the choice of the content.
