国际仲裁｜不受欢迎的仲裁地？驳Gary Born关于中国为潜在不利仲裁地的论断（二）

卡尤加湖南岸

2025-03-14

导读：用发展的眼光看待发展中的问题

近期重温了硕士期间写的一篇文章UNFAVORABLE OR POPULAR JURISDICTION: THE REAL SITUATION OF INTERNATIONAL ARBITRATION IN CHINA，讨论了国际仲裁大家Gary Born有关中国仲裁环境的观点。为与大家充分讨论，计划改分为四部分，以飨读者。

第一部分内容详见“国际仲裁｜不受欢迎的仲裁地？驳Gary Born关于中国为潜在不利仲裁地的论断（一）”。第二部分内容继续讨论Gary Born的其余三个论点。

C. The Concerns regarding Chinese Court’s Exercise of Authority to Annual Awards made in China-Seated Arbitrations

According to Article 274 of PRC Civil Procedure Law, there are only four grounds to annul awards: (a) the parties did not have an arbitration clause in the contract or did not reach a written arbitration agreement afterward; (b) the respondent was not notified of the appointment of the arbitrator or the conduct of the arbitration proceedings, or failed to be heard for other reasons not the responsibility of the respondent; (c) the composition of the tribunal or the procedure of the arbitration is not in conformity with the arbitration rules; (d) the matter to be decided does not fall within the scope of the arbitration agreement or the arbitration institution is not authorized to arbitrate. However, in judicial practice, courts may annul the awards beyond these legal grounds.

The UNI-TOP case is a vivid example to illustrate this. In 2005, International Exploration and Production Corporation (“SIEPC”) entered into an Agency Agreement with UNI-TOP, agreeing that the arbitration institution would be CIETAC.15 In 2012, UNI-TOP applied for arbitration with CIETAC based on the Agency Agreement, demanding SIEPC pay the losses due to its breach of contract. The Tribunal rejected all of UNI-TOP’s arbitration requests (hereinafter referred to as the former case). In 2015, UNI-TOP filed another arbitration with CIETAC on the ground that there were “new facts” after the award in the former case (hereinafter referred to as the latter case). In 2017, CIETAC awarded SIEPC to pay UNI-TOP the remuneration under the Agency Agreement.

SIEPC subsequently applied to the Beijing Fourth Intermediate Court to set aside the award in the latter case. The court held that the two cases were the “same dispute” for the following main reasons: the parties involved in the preceding case and subsequent case were the same, the subject matter of the two cases was the same, and the claims of the two cases were essentially the same.

The outcome of this case caused significant controversy in the industry. According to Article 274 of PRC Civil Procedure Law, the judicial review of arbitral awards by the courts is generally limited to procedural matters and should not interfere with an arbitral tribunal’s decision on substantive issues. Although there are heated discussions concerning the meaning of “new facts” and whether a violation of the “final decision” constitutes legal ground for annulment, the UNI-TOP case leaves an impression on foreign parties that Chinese court’s exercise of authority to annual awards is lack certainty and stability.

D. The Doubts about the Transparency of CIETAC Arbitrations

To determine whether an arbitration institution is transparent, several factors are usually involved: the costs of arbitration and the appointment of costs, the duration of arbitrations, the arbitrator challenge decisions, the role that tribunal secretary play, the procedure of appointing a presiding arbitrator, and the scrutiny process. One of the most important issues is the formation of a three-arbitrator tribunal, particularly the appointment of a presiding arbitrator.

CIETAC is criticized by experts and scholars for the non-transparent process of appointing the presiding arbitrator. Under Article 27 of CIETAC Arbitration Rules (2015), the parties should firstly recommend one to five arbitrators as candidates for the presiding arbitrator and then each submits a list of recommended candidates within the time period. If there is no common candidate on the lists, the presiding arbitrator shall be appointed by the Chairman of CIETAC. Further, according to Article 30, “the law applicable to the dispute, the place of arbitration, the language of arbitration, the nationalities of the parties” are factors that should be taken into consideration. Apart from these concerning factors, there are no other restrictions related to the appointment of a presiding arbitrator.

In practice, it is quite impossible to find a common candidate on the lists because parties all prefer to appoint arbitrators who are most likely to support their own arguments. Consequently, it is the Chairman of CIETAC that appoints the presiding arbitrator. CIETAC even admits that it generally chooses Chinese as presiding arbitrators in light of the cost. And CIETAC explains that “if either party proposes a non-Chinese presiding arbitrator and is willing to prepay his/her arbitrator’s fees”, it will respect the choice of the parties. However, this explanation is not conformed to its arbitration rules which do not request one party to pre-pay the fees for the presiding arbitrator.

Unlike ICC Arbitration Rules, which explicitly state that if the presiding arbitrator is appointed by ICC, the nationality of arbitrator should be different from parties in general, CIETAC Arbitration Rules simply consider nationality as one of the factors. Apart from the cost, CIETAC does not give any explanation why Chairman generally chooses Chinese as presiding arbitrator and how it balances those factors to ensure the impartiality and impendence of presiding arbitrator. Thus, the doubts about the transparency of CIETAC arbitrations are understandable in this regard.

E. The Concerns about Arbitration under CIETAC Rules Considering the Internal Disputes between CIETAC and CIETAC South China and Shanghai

Initially, CIETAC, CIETAC Shanghai, and CIETAC South China used to jointly promote the “CIETAC” brand and apply the same Arbitration Rules and Panel of Arbitrators. However, in February 2012, CIETAC announced that it would use a new version of Arbitration Rules (the “2012 Rules”). Under the 2012 Rules, some cases which would have been administered by CIETAC Shanghai or CIETAC South China according to the 2005 Rules shall instead be administered by CIETAC. As a result, both CIETAC Shanghai and CIETAC South China publicly expressed their refusal to implement the 2012 Rules, and one after the other announced that they would promulgate their own Arbitration Rules or temporarily use the 2005 Rules.

Several months later, CIETAC made an announcement prohibiting CIETAC Shanghai and CIETAC South China from further use of the CIETAC brand, prohibiting them from carrying out any arbitration activities in the name of CIETAC Shanghai and CIETAC South China, and declaring termination of its authorization for CIETAC Shanghai and CEITAC South China to accept and administer arbitration applications. In return, CIETAC Shanghai and CIETAC South China made a joint announcement on January 21, 2013, claiming that both of them are legally established arbitration institutions who may independently exercise arbitration functions.

Despite that, many respondents raised objections to jurisdiction based on relevant announcements under the “jurisdictional turf war,” some respondents even applied to the courts requesting a ruling that the arbitration agreements be declared null and void. The internal disputes created difficulties for CIETAC, CIETAC Shanghai and CIETAC South China in respect of accepting cases in those days.

第三部分将开始论述中国国际仲裁近期的发展，此外，为方便排版，所有文献引用均已省去，有兴趣者可后台私信交流～

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卡尤加湖南岸

踏足境内外资本市场、投融资并购、公司合规等非诉业务，兼顾涉外诉讼和仲裁、国际投资仲裁、国际商事仲裁等跨境争议解决项目，以比较法的视野审视中国法律。

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卡尤加湖南岸踏足境内外资本市场、投融资并购、公司合规等非诉业务，兼顾涉外诉讼和仲裁、国际投资仲裁、国际商事仲裁等跨境争议解决项目，以比较法的视野审视中国法律。

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