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中欧仲裁的最新发展:中欧争议解决研讨会实录(三)

2016-07-19 14:16:51     来源:     

编者按:2016年6月18日,由深圳国际仲裁院(又名“华南国际经济贸易仲裁委员会”,英文简称“SCIA”)和瑞士仲裁协会(英文简称“ASA”)共同主办的“中欧争议解决研讨会暨中欧国际仲裁合作签约仪式”在深圳前海举行。SCIA与ASA等机构签署了合作协议,将加强多元化争议解决机制的创新和交流。活动还得到深圳市律协、瑞士驻广州总领事馆、中国欧盟商会、瑞士商会仲裁院(英文简称“SCAI”)等机构的大力支持。来自瑞士、法国、德国、英国、加拿大、美国、香港和中国内地的境内外专家和专业人士共200余人参加了本次活动并对中欧国际仲裁相关问题进行了深入探讨。本微信公众号将陆续推出研讨会的英文实录稿。  

 

LATEST DEVELOPMENT OF CHINESE AND EUROPEAN ARBITRATION: 

THE TRANSCRIPTIONS OF SINO-EUROPEAN DISPUTE RESOLUTION SEMINAR (III)

中欧仲裁的最新发展 

—— 中欧争议解决研讨会实录(三)


6. The Speech by Prof Peter Malanczuk, SCIA Council Member



Ladies and gentlemen, I will say a few words about the historical background of the Shenzhen Court of International Arbitration (hereinafter the "SCIA") first, and then proceed to the legal framework, and then concentrate basically on the case statistics, because time is limited.

 

The idea to set up the arbitration center in Shenzhen is connected with the establishment in 1980 of the Shenzhen Special Economic Zone, and it was the Guangdong-Hong Kong cooperation, legal cooperation, that led to the establishment of the arbitration body. This occurred two years before the Hong Kong International Arbitration Center was established in 1985. President Liu has already mentioned that the SCIA, as it was later called, was the first arbitration institution in Mainland China to include foreign professionals on its panel of arbitrators and also the first institution of which an award was enforced under the New York Convention. That occurred in Hong Kong, actually.

 

The institution called itself CIETAC South China or CIETAC Shenzhen, originally, because the idea was to make use of and promote the brand name of CIETAC. But the issue was disputed whether CIETAC South China or CIETAC Shenzhen was really established as an independent arbitration commission or whether it was established as a dependent commission under the umbrella and direction of CIETAC Beijing, where the headquarters of CIETAC are located.

 

In 2012, CIETAC Beijing adopted new arbitration rules which led to an internal dispute within CIETAC, because CIETAC Shenzhen and CIETAC Shanghai thought that the purpose of these rules were to draw arbitration business away from Shanghai and from Shenzhen and to centralize it in Beijing, disregarding the party autonomy. Therefore, the cooperation among CIETAC Shanghai, CIETAC Shenzhen and CIETAC Beijing was terminated, which was one of the reasons for the renaming of CIETAC South China to Shenzhen Court of International Arbitration in October 2012.


 

This is a formula which emphasizes the continuity between the former CIETAC Shenzhen and CIETAC South China and the new Shenzhen Court of International Arbitration, which was at the same time called the South China International Economic and Trade Arbitration Commission. So we have a “double name”, and the intent to draw business under the older clauses to the new Shenzhen Court of International Arbitration as well.


In Shanghai, we have a similar development which led to the Shanghai International Arbitration Center and the Special Free Trade Zone Court later in October 2013.

 

Obviously, this led to conflicting local court decisions in different parts of China and it caused legal uncertainty because it was not clear where jurisdiction would lie, and it was also problematic for the enforcement of awards, because they would be challenged, of course, by the party which was not happy with the result.

 

Now, the Supreme Court stated in September 2013 by adopting the special reporting mechanism requiring local courts, if they have a problem, to report to the Supreme Court about the situation, but the legal situation was not clarified until July of 2015, where the position adopted by the Supreme People's Court on the jurisdiction issues were now more or less settled. In between, the Court confirmed the legality and independence of the Shenzhen Court of International Arbitration, so that was not a problem anymore from that perspective either.

 

Shenzhen Court of International Arbitration is governed by the general legal framework for arbitration in China. You are, of course, I'm sure, familiar with the PRC Arbitration Law, and the Civil Procedure Law which was reformed substantially in 2012. And then we have the Supreme People's Court Judicial Interpretations, which are very important in practice, and of course we have international treaties, including those treaties which provide for investor-state dispute resolution, like the bilateral investment treaties which China has concluded with many countries.

 

The important aspect for understanding SCIA is that it rests upon special legislation for Shenzhen, and that is related to the Qianhai Project. We are in Qianhai, as you are aware. And the purpose is to engage Hong Kong, Shenzhen and Guangdong within the broader framework of the Pearl River Delta area into close cooperation to develop a very much service-orientated economy for the Asia-Pacific and beyond. So this is a very important aspect, looking at the cooperation possibilities among Hong Kong, Shenzhen and Guangdong province in general, but also looking at specific and close cooperation in the field of international arbitration and in the field of legal cooperation in general.

 

We have more than 91,000 enterprises registered here already, of which 3,100 are Hong Kong enterprises, which provide about one-third of the tax revenue of the special zone. So one can see that there's considerable investment from Hong Kong, which has been very active generally in Guangdong in the past two or three decades, but also quite active now with respect to Qianhai.

 

I will just move directly to the special legislation. The State Council approved the general plan of the Qianhai Project in 2010, and then we have regulations adopted in 2012 which specifically provided for the need of establishing an international arbitration center with an independent governance structure. The jurisdiction of the Shenzhen Court of International Arbitration is based upon these regulations, so this is a quite unique feature in Chinese law. But also beyond China, it is, I think, difficult to find an example where specific legislation has established an arbitration commission in that sense. But be that as it may, the jurisdiction of the SCIA is broad: foreign-related countries and Hong Kong, Macau, Taiwan-related cases are covered, as well as domestic cases.

 

You will be aware that domestic cases in China, Chinese law, include cases where aparty or both parties may be wholly owned foreign investment enterprises, because under Chinese Company Law, they have to acquire Chinese nationality as a company and therefore they are not considered to be foreign-related cases; they are considered to be domestic cases. So many domestic cases may have, infact, foreign-related elements.

 

Now, there are a number of innovative features of SCIA. I think the most importantone is the independent and internationalized governance structure, which is laid down in the regulations I have already mentioned. So we have a statutory body which operates as an independent public institution, independent from the Shenzhen Municipal Government. That means the government does not have a say in the SCIA. This is governed by the main decision-making body, which is the Council, and it itself operates through the three special committees.

 

Among the Council members, at least one-third, by law, must be from jurisdictions outside Mainland China. That means they can come from Hong Kong also. That is considered to be an outside jurisdiction for those purposes, of course. And we have distinguished members, such as Elsie Leung, the former Secretary for Justice of Hong Kong; Anthony Neoh, senior counsel in Hong Kong and former chairman of the Hong Kong Securities and Futures Commission; and Huen Wong, who will be addressing us later, who is a former president of the Law Society of Hong Kong and a former chairman of the Hong Kong International Arbitration Center. So they are quite distinguished members trying to fulfill the legal requirements of having not less than one-third coming from outside jurisdictions.

 

 

The panel of arbitrators is also important as to the composition. We have a general panel and these three industry-specific panels of arbitrators in the fields of technology and intellectual property, maritime and logistics and financial arbitration. And this slide shows that more than 40% of the arbitrators come from outside jurisdictions, from jurisdictions outside of Mainland China. If you compare that with CIETAC, the general panel of CIETAC, you will see that CIETAC is less internationalized. It reaches only 27.5% of the arbitrators being from other jurisdictions. 

 

Also, the international degree is higher in the specific panels, 45% and 55%. The financial arbitration panel, it's not very relevant, because the arbitrations are mostly domestic and therefore the arbitrators are mostly domestic as well.

 

Party autonomy is another important feature under the arbitration rules of the South China International Economic and Trade Arbitration Commission. They give a very broad scope of discretion to the parties concerning the choice of the rules. They can also choose UNCITRAL Rules if they don't like the SCIA Rules. They can agree on the rules of evidence, on the language of arbitration, so there's not a preference necessarily for Chinese. And there is also less interference possible from the administrative part of the SCIA in the operations of the arbitral tribunal, and I think that's also an important aspect which one has to take into due consideration.

 

I'm not going into the arbitration rules or the procedures, the summary procedures and other aspects of conciliation and so forth which characterize modernarbitration rules. I will just say the rules adopted in 2012 are very much up to international standards, but they require, of course, review. The Council is currently occupied with reviewing a draft for a new set of arbitration rules and will have to take into account modernizations which have happened in the past years in other institutions.

 

Also in the future, which I cannot address here, is the important role of mediation and mediation-arbitration in the practice of the Shenzhen Court of International Arbitration. This is, of course, a strong Chinese tradition in general, but the practice has been very successful in combining mediation and arbitration in innovative ways and for the settlement of disputes, leading also to titles which can be enforced under the New York Convention in the form of award on agreed terms, or consent awards, as they are called in Hong Kong.

 

 

Now, statistics, finally. You can see that over the years, if one distinguishes between arbitration and mediation on this slide, that the cases have gone up to 838. That figure is a little bit inflated, I would say, because it comprises also 477 cases concerning Hong Kong parties with claims arising from real estate investment in Mainland China, so that is not necessarily a typical situation, in 2014. And we see in 2015, that went down to 582 cases. But this is still more than Hong Kong International Arbitration Center, for example, had. Hong Kong International Arbitration Center in 2014 had, I think, about 252 arbitration cases, not counting the domain-name disputes and not counting other disputes which are not really arbitration disputes but mediation disputes. So that is a significant successful development, and you can see that most of the cases are foreign-related, but as I have said, domestic cases can also have foreign-related elements. So the label is not necessarily conclusive.

 

 

You can see the categories. Most are financial disputes, 27.7%, and there is a sort of interest in developing the expertise of that area even further. And then the other types are sale of goods disputes, real estate and corporate and others.

 

 

Now, if one looks at the total number of cases in Mainland China, then the figure is very high and the percentage is low, but most of these are domestic cases. The total PRC cases is a large number, but many of the those would not be relevant for international trade and international business.

 

Here, I have finally put a slide together which looks at the breakdown of CIETAC. CIETAC now does not include the former CIETAC Shanghai Commission and CIETAC South China Commission anymore, but CIETAC itself has set up new secretariats under its own control in both Shanghai and Shenzhen. They are listed here as CIETAC South China Secretariat and Shanghai, and Beijing is of course the headquarters.

 

 

You can see the total number of CIETAC cases is 1,256, which makes it the leading institution in the world as to the number of cases. But you can see that about 375 of them are foreign-related. 

 

Whereas the other extensions or branches of CIETAC in Chongqing or Tianjin or the arbitration center established in Hong Kong in 2012 have not had that many cases yet, have much less cases than, for example, the Shenzhen Court of International Arbitration.

 

That brings me to the end. I would like to thank you for your interest and your patience.