Arbitrators and Lawyers Co-build a Pure Land of Arbitration
WANG Hongsong

As a non-official dispute resolution mechanism, arbitration has advantages that can not be rivaled by other means of dispute resolution. Beijing Arbitration Commission has been adhering to innovation with unremitting efforts since its establishment 15 years ago in the hope that we can co-build “a pure land of arbitration” with arbitrators, lawyers and other legal workers. Of course, the wording “pure land of arbitration” is just a metaphor to make it more concrete. Yet as a topic for discussion, we need to explain the meaning.

I. What is “a pure land of arbitration”?

A pure land of arbitration” should consist of the following aspects:

1. There is professional self-discipline for the arbitration commission, the arbitrators and the staff of the arbitration institute. The strength of ethics and the healthy atmosphere should be effective in restricting the corruption, the “hidden rules” and other illegal operations, keeping the independence and impartiality of arbitration as well as the integrity of arbitration practitioners.

2. The arbitrators should be well-trained and have high professional competence to timely deal with the case and resolute the dispute. Their professional competence should be recognized by the professional authorities.

3. The independence, impartiality and efficiency of arbitration should guaranteed by a system which includes a series of effective systems, mechanisms, measures and methods, as well as techniques.

4. In arbitration, there should be a positive interactive atmosphere among the arbitrators, the clients and the lawyers, making BAC a place where we can resolute the dispute with impartiality and high efficiency, a place which is filled with integrity, justice and healthy atmosphere, a place where people have faith in law and are rules by law, a place where people compete fairly in the spirit of professional dedication with their professional competence instead of their relationship with higher authorities, a place where people have hope for, expectation of and faith in the arbitration system and even the whole construction of ruling by law.

5. With BAC as a platform, we should integrate arbitrators, lawyers and other resources from all social circles to co-build BAC as a center for dispute resolution by social self-government, a platform where China’s higher talents of dispute resolution are cultivated, a center studying and spreading the pluralism of dispute resolution; therefore we can make better contribution to China’s progress of civilization in terms of the construction of democracy and the rule of law.

II. The reason for the proposal of “arbitrators and lawyers co-build a pure land of arbitration”

1. At present all aspects of the society is corroded by various kinds of corruption, and such a circumstance posed much more difficulty and challenge to the construction of the pure land of arbitration. The strength of arbitration institute and arbitrators is far from enough, so we also need to rely on the power of all possible sources, such as the lawyers and the enterprises.

2. Arbitrators and lawyers are all legal practitioners, not to say that some arbitrators are former lawyers. They are mostly well-educated and well-trained in law and share the common idea of value and interest. We all hope there is a fair and clean circumstance for the practice of laws, which is helpful for us to give full play of our professional skills and our intelligence. We can not only lead a decent and affluent life by our honest work, but also make contributions to society, establishing our public image as social elites and gaining due honors. Being social elites means to be responsible for the society, as well as for the present and the future of our nation by doing things that are beneficial to the society as much as possible. Building a pure land of arbitration and clean the professional circumstance is for the benefit of us, so we should be more active and positively promote the construction. If we just want to wait with complaints for the moment to enjoy the results without thinking of how much we can contribute, it means we deprive ourselves of the ability to choose to lead a more dignified life.

In fact, it’s not difficult to do the job. We do not need to sacrifice anything. All we need to do is to make ourselves the starting point of integrity in arbitration, and undertake our work with conscience and professional ethics, disciplining ourselves from corruption and from following the bad examples, i.e. we should not corrupt nor bribe, and we should not follow the “hidden rules” to gain illegal benefits by unfair ways and methods. On the basis of this, we should try our best to do things that are beneficial for the development of arbitration and law.

3. BAC has its commitment to social responsibility. In 2002 BAC proposed to build itself into an arbitration institute that has international status and influence, which means that BAC should not only reach the world-class level in terms of its size, its talents, its professional experience and the standards, but also contribute more to the arbitration industry and society than other institutes did. That is BAC’s expectation of itself, and also a commitment to its responsibility. In these years BAC has been upgrading and improving itself towards this goal, just as Peter Ferdinand Drucker once said, “to look for the unrealized success, and go along the path with persistence.”According to the mentioned development plan, with stronger power and higher self-confidence, BAC would like to make contribution not only by its sole effort, but also with the joint effort of all circles of the society with the aim of making greater contribution. It conforms to our goal to co-build a pure land of arbitration with the joint effort of the lawyers, and we also believe that the arbitration profession committee and the Directors and Deputy-directors here all have the intention and enthusiasm to do such things.

III. After years of effort, there has been a good foundation for the building of a pure land of arbitration.

Since the founding of BAC, it has proposed that BAC would be built into an independent, impartial, clean and efficient arbitration institute that has high public credibility. BAC has been adhering to its principle of independence and impartiality. Many people doubted whether the independent arbitration in the arbitration court will lead to the abuse of the authority and affect the justice of arbitration. To solve the problem, BAC took the following measures:

1. Build a professional arbitrator team with impartial and upright members.

First, we established the professional code of ethics for arbitrators. Since the founding of BAC on November 28, 1995, we have formulated the Beijing Arbitration Commission Arbitration Rules and revised the rules five times along with the development of the situation. We have done our best to publicize the Beijing Arbitration Commission Arbitration Rules through newspapers, magazines and websites to make it known and supervised by the clients, the agent and the social public.

Second, we constantly improved the employment standards of arbitrators. The Administrative Measures for the Engagement of Arbitrators of the Beijing Arbitration Commission （hereinafter referred to as the Administrative Measures） lays down a more strict standard for the talents of different professions on the basis of the Arbitration Law of China. For example, arbitrators who are engaged in the work of lawyers should not only “have comparatively higher professional competence and excellent credibility in the profession of lawyers, and have no history of violating the discipline or receiving any negative assessment from clients”, but also “be qualified to work as a presiding or sole arbitrator.”

 Up until now, BAC employed all together 732 arbitrators, and 362 of them did not extend their employment. The termination of their employment is either because of they violated the rule or due to the necessary adjustment to higher talents standards regarding the change of the market.

 Third, we perfected the Arbitration Challenge system. Since 1996, BAC has implemented the system of declaration of independence and impartiality, i.e. after the arbitrator is appointed or selected, he/she will sign declaration of independence and impartiality. “Before the receipt of the appointment /selection notification, Arbitrators should have given no opinion on the dispute to any party or representative of the case, and have no relationship of kinship, property or profession with the client or agent, which may affect the judge of the case, and have no personal interest in the case nor have any other challenge circumstances prescribed by the Beijing Arbitration Commission Arbitration Rules (hereinafter referred to as the Rules)and the Ethical Standard of Arbitrators of the BAC”(hereinafter referred to as the Standard), and promise to “fulfill arbitrators duty with independence, impartiality, diligence and efficiency, and to make no unilateral contact with any party and representative through any means (including telephone, fax, Email, etc.) and disclose no opinion of the case and no situation of the arbitration court to the client and the agent. The arbitrator will treat the parties of the case equally with impartiality, and make sure the case is processed with enough time and come to the conclusion of the case as soon as possible.” (see “Arbitrator’s Declaration of Independence and Impartiality in BAC”). The arbitrator should hand in the declaration to the committee. In 2001, when BAC revised the Beijing Arbitration Commission Arbitration Rules, it is prescribed that “arbitrators should transmit the declaration to each party” (see Article 26 in 2001’s Beijing Arbitration Commission Arbitration Rules), so that the parties will be informed of the content of the commitment and strengthen the outside supervision. In 2003 the revised Rules prescribed the system of disclosure by arbitrator---BAC is the first institute in China to enforce such a system. The second item of Article 20 prescribed that “Upon the receipt of the appointment or selection, if an arbitrator is aware of circumstances relating to the parties or their authorized representatives, which might lead any one of the parties to doubt his independence or impartiality, the arbitrator shall disclose those circumstances in writing.” And “if an arbitrator is aware of any circumstance that should be disclosed in the process of dealing with the case, he/she should disclose those circumstances in writing immediately. And at the same time, it listed 11 types of circumstances that the arbitrator should disclose.

To prevent any party from misuse of the procedure rights, in 2004 the Rules prescribed that “A party who, after being aware of the composition of the Arbitral Tribunal, appoints authorized representatives who may give rise to grounds for challenge of any arbitrator as set forth in this Chapter shall be deemed to have waived its right to challenge the arbitrator on those grounds. However, the other party’s right to challenge the arbitrator shall not be affected. The additional cost resulting from any delay to the arbitral proceedings shall be borne by the party responsible for causing the grounds of challenge.”

To improve the transparency of arbitrator information, BAC designed a computer information system, form which the parties can get information about the education, professional background, case experience about the arbitrator, as well as the situation about how the arbitrators are appointed by clients and their representative, thus improved the transparency of arbitrator information.

Fourth, BAC improved the transparency of the Award. Item 3 of Article 43 of the 2003 revised Rules prescribed that “An arbitrator who chooses not to sign the award shall issue a dissenting opinion in writing, which shall be sent to the parties together with the award but does not form part of the award. If the arbitrator who chooses not to sign the award does not issue a statement of personal opinion, the arbitrator shall be deemed to have refused to sign the award without any justifiable reason.” Therefore, the transparency of the award is improved and it also reminds the arbitrators of using their arbitration rights properly.

Fifth, BAC revised the Standard to forbid arbitrators from act as representative for arbitration cases in BAC to reduce the interest conflicts. In 2003 the Standard prescribed that “An arbitrator shall not act as a representative for any BAC’s arbitration cases (including an application to set aside or for non enforcement of an arbitral award rendered by the BAC), and shall also not make inquiries regarding a case on behalf of someone else nor lavish dinners and gifts or grant favors and benefits to member(s) of the arbitral tribunal or the secretary on behalf of someone else .” such prescriptions are to prevent the arbitrators from appointing each other, which may affect the impartiality of the arbitration.

Sixth, BAC established an interinhibitive feedback system. Upon the finishing of each case, 1) the secretary must send feedback forms to the parties to present their opinion of the arbitrators and secretaries; there should be feedback E-mail address and phone number of the personnel office in the form; 2) an assessment form should be sent to the arbitrator to assess the performance of the secretary; 3)the secretary should assess the arbitrator according to the performance of the arbitrator and the feedback of the clients, and record the assessment in computer. Through those means, we discovered and solved some problems.

Seventh, BAC perfected the mechanism of assessment and supervision of the arbitrators, including: 1) establish a feedback system to collect feedback opinions; assess and record the arbitrators in each case in terms of their abidance to the professional ethics and their expertise; 2) found the Arbitrator Discipline Committee to investigate arbitrators who violate the Standard, and perform the investigation of the arbitrator qualifications. Up until now we have dealt with several case of severe violation of the Standard. Since the founding of the Arbitrator Discipline Committee, it has investigated and punished several arbitrators who severely violated the professional ethics, which produced a good effect.

Eighth, BAC established a training and assessment program for arbitrators to improve their professional qualifications. 1) in February 2002, BAC decided to “implement a new arbitrator training program”, which required each arbitrator to attend the training about the Standards, arbitration rules, regulations of processing case, as well as the making of award, etc.”, and made it the condition for the pre-appointment of the director. On August 25, 2004, BAC issued the “Decisions about Strengthening the Training and Assessment of Arbitrators”, making the attending of the training and assessment a prerequisite for arbitrators who want to be employed by BAC.

Ninth, BAC organized arbitrator salon regularly. Since 2005, each month there is at least one professional report, or professional seminar, or international academic communication, or professional training. Up until now, a total of 68 various activities (salon or meeting) have been held, involving more than 5260 person-time, including arbitrators, lawyers, company legal consultants, as well as college professors and students.

Establish a capable and efficient secretary team

First, the secretaries are chosen from masters graduated from prestigious law schools home and abroad. They compete fairly with each other and the best ones will be employed. The system of engagement rules out the possibility of “iron rice bowl” and “the big pot system”, and avoids the bad bureaucratic habits and the bureaucratic style of work in the state-owned institutes.

Second, in BAC, the system prescribed that “directors and the office staffs should not concurrently serve as arbitrators; the deputy director and any commissioners will not accept the appointment as arbitrator by any one party, or by the commission except when he/she is appointed by both parties.”Therefore, the system guarantees that the arbitration commission supervises and administrates the impartiality of the arbitrator.

Third, BAC perfected its administration structure, improved the transparency of administration and decision-making. BAC perfected the system reform in the inside of the institution, establishing the enterprise culture of integrity and honesty, with every member striving for higher improvement and helping one another. Such a system will guide the staff members to realize self-administration, self-encouragement and self-development, improving their personal competence and realizing their personal value while boosting the development of BAC.

3. In terms of economy, BAC realizes the balance between income and expense, and practices the enterprise-mode administration to ensure the independence and impartiality of the institute.

4. BAC explores the pluralism of dispute resolution and tries to make innovation

Second, BAC formulated the rules for the Assessment of Construction Project Dispute and organized the training of construction project dispute assessors

5. BAC cooperated with other related departments to promote the plural dispute resolution patterns.

First, BAC offered course of economic contract practice program in Peking University, and the course was lectured by experienced arbitrators.

Second, BAC cooperated with the Bar Association and organized the new lawyers to simulate the arbitration court. The experienced arbitrators act as the member of tribunal and the experts, while senior lawyers and trainees act as the representatives in the simulated arbitration court.

Third, BAC held the lecture about the construction project management jointly with The British Royal Association of Cost Engineers

6. The excellent economic and social results

1) The situation of cases accepted by BAC and the disputed amount since its founding

2).The situation of international commercial arbitration cases accepted by BAC

3) The ranking of BAC’s accepted cases and their values among the arbitration institute of China.

7. The increasing international influence of BAC

First, Secretary General WANG Hongsong is frequently invited to introduce the practice of BAC in many international conference, and also invited to make the keynote speech in top international conferences.

Second, a number of research papers studying BAC has been published in some celebrated journals in international field, such as the “China’s Experience of Institute Arbitration” in British journal Construction Project Review, the case study about whether BAC is a independent and impartial qualified arbitration institute in American Review of International Arbitration; and furthermore, there is a review about the rules of BAC in the second edition of International Arbitration Newsletter.

Third, more and more international arbitration institutes, academic groups, celebrities from the legal profession, the business filed and political field are paying attention to BAC, and visit BAC.

（Dr. Bandar bin Salman M. Al-Saud, Prince & King’s Counselor of the Kingdom of Saudi Arabia and Chairman of Saudi Arabia Arbitration Commission, visited BAC accompanied by H. E. Mr. Yahya A. S. Alzaid, Ambassador Extraordinary and Plenipotentiary of the Kingdom of Saudi Arabia to China）

（The visiting group of Industry Federation of the four cities and counties of Tanwai, including HU Zhingqiang, Mayor of Taichung City, ZHUO Boyuan, Head of Changhua County, CHEN Zhaowang, Chief of Agriculture Department of Nantou County, HUANG Zhongsheng, Head of Taichung County, visit BAC upon invitation.）

Fourth, more and more foreign students apply to be intern in BAC. Since 2005, BAC accepted more than 30 foreign students from prestigious law schools to be interns in BAC, and exerted its positive influence in promoting the foreign countries to have objective knowledge of China’s arbitration.

Fifth, more and mote international famous arbitrators and mediators apply to be arbitrators and mediators of BAC and they are proud of that.

IV. How the arbitrators and lawyers co-build the pure land of arbitration

1. Arbitrators and lawyers should not only have better self-discipline in terms of impartiality and integrity, but also have better supervision and restriction to each other. First, we welcome the lawyers to supervise the arbitrators and the commission staff in terms of their integrity and discipline. Our Ethical Standard of the Arbitrators of BAC and engagement measures (which is applied to the secretaries and the whole staff of the commission) are all published in our website, and anyone who find problems or hear complaints in these respects can put forward their ideas to us (we hate the misbehavior of violating the discipline in our arbitrator team more than the clients do), because such behavior is just a single event and of restricted influence to the client, but it is a long-term negative influence on the whole arbitration commission. Therefore we hope that the lawyers who find anyone violating the related laws should better inform us and offer concrete clues (not the overgeneralization of “corruption here and there”, but about who and how). Please have faith in our sincerity and competence of dealing with such things. The biggest difference between arbitration and the court is that the arbitrators usually work part-time, and staffs of arbitration commission are employed. It’s comparatively easy to deal with their misbehavior.

In the engagement period, if evidences show that the commission has reason to doubt that the arbitrator violates the Standard and related regulations concerning independence and impartiality, the arbitrator will be fired and the circumstance that should be made clear will be investigated by the Discipline Committee. The discipline committee has the right to require the arbitrator to explain the facts that need to be clarified and provide related evidence. During the investigation, the name of the arbitrator will not be listed in the arbitrator name list (hereinafter referred to as the list); the period will be counted since the day the new name list is issued, with a maximum of one year. If doubt of the arbitrator is cleared after the investigation, the name of the arbitrator will be reenlisted; if the doubt of the arbitrator can not be cleared upon the end of the investigation, the arbitrator will not be enlisted. If the investigated fact is identified, the arbitrator will be fired.

For example, if one party offers evidence proving that the arbitrator has private contact with another party, the commission will carry out the investigation immediately and ask the related arbitrator to make an explanation. If the arbitrator can not give a reasonable explanation, we will punish him/her according to the rules listed above. Though we proposed the concept of “pure land”, we can not promise there is absolutely no violation of laws in the team. Yet as long as we do it seriously and make immediate resolution of the matter, the healthy atmosphere will be formed, while the illegal atmosphere will decline. Finally we hope to form such a healthy atmosphere in which all people are proud of abiding by the law. In the field of law, everyone will feel guilty of their misbehavior. If so, their professional career and even the whole life will be influenced. By the mutual influence, everyone will be improved in their integrity.

Second, we hope that the lawyers can strengthen their professional self-discipline in arbitration. If people have to do something against their intention in other circumstances, there is absolutely no need to do this in arbitration. Everyone is providing legal service according to facts and laws. They compete with each other by their real competence and diligence with dedication to the profession. No one tries to rely on the “relationship”, the hidden rules, not do they lie or make false witness. They do not delay the hearing of the case by some illegal ways, and every body will maintain the regular order and good atmosphere of arbitration. There is an article online written by ZHOU Dawei “What happens to Chinese Legal Practitioners?” One paragraph in the article is especially good. It says that “there is darkness in our life, because we lack the sunshine. Therefore we must disclose the darkness and tell the truth, and in the mean time eulogize the sunshine, encourage and praise those who has noble character and integrity.” Similar to this, I would like to say, if someone or some institution around you are doing good things, or claiming to do good things, you should encourage and support them whether you believe it or not. Our support to the good things and good people is a prevention of bad things and bad people. One more good person or one more good thing means one more piece of sunshine and one more hope in our life. It’s a blessing for the arbitration field and the lawyer field that BAC has adhered to the principle of independence, impartiality, integrity and high efficiency in arbitration since its founding 15 years ago. Therefore, we should support BAC instead of preventing it from doing things this way.At least the lawyers in Beijing should share the common idea and begin the action. BAC is to design a lawyer assessment system in the arbitration case management software. If the lawyer has poor performance in the arbitration cases represented by BAC, we will not consider his application for arbitrator in BAC. If he has severe violation of the lawyer’s professional ethics, we will inform the discipline committee of the Bar Association, and make the Bar Association investigate him.

2. BAC will carry out arbitration training course with other institutes. The course for new lawyer to simulate the arbitration court, jointly held by BAC, Beijing Bar Association, and Adult Education College of China University of Political Science and Law, is a new try in this respect. Up until now, the course has been held for sessions, and provided training for new lawyers. We hope the course will be continued, and become a model course and a brand of the nation. A number of arbitrators have participated in the course and we carefully selected and organized the cases, the members of the simulating tribunal and the experts. We will further summarize the experience and ensure that the quality of the course is constantly improved. We hope that the senior lawyers present give more attention and support to this program, and participate in it.

3. BAC hopes to study and revise the rules and standard with other institutes, and jointly organize training courses, academic research and professional communication concerning the arbitration procedures and arbitration laws, which will strengthen the professional cooperation.

4. BAC hopes to promote the pluralism of dispute resolution mechanism, including arbitration, mediation, and dispute assessment, etc. especially, we hope Chinese arbitration institutes will be recommended as much as possible in international commercial arbitration.

5. BAC hopes the have a close cooperation with the legal circles of foreign countries in the process of communication, jointly improving China’s competitiveness in the international market of law service. If some lawyers are conducting communication with foreign lawyers, BAC would like to participate in it at proper time and contribute our part if there is any problem concerning arbitration.

WANG Hongsong, Director of BAC office, Commissioner and Secretary General of BAC. This article is reorganized according to WANG Hongsong’s speech in the symposiumof Beijing Bar Association.