The 5^th China Arbitration Forum Held at the Beijing Arbitration Commission

On November 3, 2011, the 5^th China Arbitration Forum, proposed and launched by Professor Liang Huixing, a Chinese famous expert in Civil Law and Commercial Law, and jointly organized by the Beijing Arbitration Commission (the BAC) and Tsinghua University, was successfully convened in the international conference hall at the BAC. The Forum has invited related officers from the National People's Congress of the People’s Republic of China, the Supreme People's Court, State Commission Office for Public Sector Reform, and Ministry of Human Resources and Social Security of the People’s Republic of China, and experts and scholars from scientific research institutions of universities such as Chinese Academy of Social Sciences, Chinese Academy of Governance, Tsinghua University, Peking University, Renmin University of China, China University of Political Science and Law, and Wuhan University to present, as well as principals from more than 20 arbitration organizations across the country to participate.

Wang Hongsong, secretary general of the BAC, Professor Che Pizhao, secretary of the Party Committee of Tsinghua University School of Law, and Professor Liang Huixing, academician of Chinese Academy of Social Sciences gave opening speeches, respectively. The three guests illustrated the background of this Forum and the importance of topic to be discussed.

Secretary General Wang Hongsong’s oration	Professor Che Pizhao’s oration
Professor Liang Huixing’s oration	Site of Forum

The one-day forum took on two topics, namely “amendments for Judicial Review of Arbitration and Law of Civil Procedure” and “reformation of business organizations and development of arbitration organizations”.

The panel discussion of “amendments for Judicial Review of Arbitration and Law of Civil Procedure” launched in the morning was anchored by Professor Fu Yulin of Peking University School of Law, and then, Jia Dongming and Hao Zuocheng, deputy director and director of civil law division of the National People's Congress of the People’s Republic of China, Wu Zhaoxiang, director of civil law division of the Supreme People's Court, Gao Xiaoli, judge of 4th Civil Courtroom of Supreme People’s Court, Zhao Chengmin, director of Beijing Zhiheng Law Office, Wang Yaxin, professor of Tsinghua University School of Law, Xiao Jianguo, professor of Renmin University of China School of Law, and Song Lianbin, professor of Wuhan University School of Law gave their speeches successively.

Director Jia Dongming proposed that the most focusing problem about arbitration is the unification between revocation and non-enforcement of arbitration award in the amendment of Law of Civil Procedure this time. Jia Dongming deemed that the basic principles of arbitration, including consultative arbitration and single and final award, shall be adhered, and the arbitrations shall be consistently observed. From the angle of whole system, the development of arbitration shall be more considered, and the important role of arbitration played in the solutions of social dispute resolutions shall be valued, so as to promote the continuous improvements of domestic arbitration organization in the international arena.

Professor Fu Yulin conducting the meeting	Deputy Director Jia Dongming collecting opinions
Director Hao Zuocheng giving speech	Director Wu Zhaoxiang giving speech

 Director Hao Zuocheng gave detailed introductions to the reasons, principles, contents, and existing major issues of this amendment of Law of Civil Procedure in his speech. In the matter of arbitration, the amendment of Law of Civil Procedure mainly referred to three aspects：firstly, how to design the revocation and non-enforcement systems of arbitration award; whether they can be co-existing or alternative; and whether the reasons shall be consistent? Secondly, whether the non-enforcement conditions of the awards of domestic arbitration and arbitration concerning foreign affairs shall be consistent? Thirdly, how to apply for relief upon the Court’s awarded invocation or non-enforcement; whether the parties are allowed to reconsider, appeal, or apply for a retrial?

Director Wu Zhaoxiang stated his opinions on the aspects of completing solutions concerning arbitration procedures based on the judicial practices. Wu Zhaoxiang deemed that either Law of Civil Procedure or Arbitration Law has specific provision to the procedure for hearing the arbitration cases, so that many issues shall be specified by the judicial interpretation of the Supreme People's Court. The judicial interpretations concerning the arbitration agreement and the validity of arbitral awards confirmed that such adjudications shall not be allowed to appeal and review. With respect to apply invocation and non-enforcement of arbitration award, the opinions were that the two procedures can be co-existing even there are differences between them, but the reasons thereof shall be consistent. Meanwhile, Wu Zhaoxiang deemed that the standards of investigation shall be unified with respect to the domestic arbitration award and the arbitration award concerning foreign affairs.

At first, Gao Xiaoli stated the predicament occurring in the practice of applying Article 267 of Law of Civil Procedure in a real case, and then, the presiding judge expected that the issue in the judicial practice can be settled by this amendment of Law of Civil Procedure. In addition, Gao Xiaoli further expected that the domestic arbitration award and the arbitration award concerning foreign affairs can be parallel, and the standards of investigation shall be consistent.

Zhao Chengmin gave his opinions on the aspects of the investigation standards for applying invocation and non-enforcement to the Court, and whether to fill out reasons of the notice for invocation and re-arbitration requirement according to an arbitration case that he undertook.

Wang Yaxin deemed that the invocation of arbitration award is a special contentious procedure, which should be the final decision without appeal and review. But with respect to the procedure of non-enforcement, Professor Wang deemed that it does not make sense theoretically that the result of action of formation or action of confirmation can be reversed by such as simple procedure. In the case of arbitration, the existing amendment of Law of Civil Procedure has been not yet changed. Professor Wang appealed that the issues relating to the arbitration can be settled by this legislation.

Professor Xiao Jianguo proposed that he is inclined to retain the two existing systems for the question whether the non-enforcement and invocation procedures are co-existing or alternative. With respect to the reasons of non-enforcement, Professor Xiao deemed that the domestic arbitration award and the arbitration award concerning foreign affairs shall be consistent, and the parties shall not apply multiple non-enforcements for different reasons.

Professor Song Lianbin proposed that he deems the invocation and non-enforcement of arbitration award shall be allowed to appeal, because there are procedures for appeal specified in the laws applicable to the civil law countries. In the consideration of efficiency and supporting arbitration, Professor Song deemed that the appeal shall be treated differently, for example, the cases that are judged by the Court to accept the invocation and non-enforcement are allowed to appeal, and the cases that are decided by the Court to reject the invocation and non-enforcement are not allowed to appeal. Meanwhile, Professor Song deemed that the standards of invocation and non-enforcement shall be consistent, and cling to that of investigating the arbitration award concerning foreign affairs.

Judge Gao Xiaoli giving speech	Lawyer Zhao Chengmin giving speech
Professor Wang Yaxin giving speech	Professor Xiao Jianguo giving speech
Professor Song Lianbin giving speech	Deputy Director Wang Xiaoli giving speech
Secretary General Zhao Liang giving speech	Deputy Director Yao Junyi

 At the discussion session, Secretary General Wang Hongsong of the Commission indicated that the arbitration organizations shall achieve a common view, which contributes to the legislators for collecting opinions. For the views without disagreement, Secretary General Wang expected that these views can be reflected in this amendment of Law of Civil Procedure. Furthermore, the mode of supporting development of arbitration and encouraging nongovernmental dispute settlement of shall be always served as a basic principle. Guo Xiaowen, deputy director of China International Economic and Trade Arbitration Commission, agreed the design on the system of appeal proposed by Professor Song Lianbin, and expected that this system can be introduced into the Law of Civil Procedure. Wang Xiaoli, deputy director of Guangzhou Arbitration Commission, appealed to amend the existing system, for the differences between litigation and arbitration in design. The choice of parties shall be the most important constraint to arbitration, and also the constraint to market, as a result, the conditions for invocation and non-enforcement shall be extremely strict, and the conditions for invocation and enforcement of arbitration award concerning foreign affairs shall be consistent with the purpose of supporting arbitration. Zhao Liang, secretary general of Hangzhou Arbitration Commission, proposed that the biggest difference between litigation and arbitration is based on the choice of the parties, and the systems for invocation and non-enforcement reflect that the litigation has no confidence in arbitration; in addition, the Court obliterates not only the wisdom of arbitrator but also the freewill of the parties.

The Forum took on the topic “reformation of business organizations and development of arbitration organizations” in the afternoon, anchored by Guo Xiaowen, deputy director of China International Economic and Trade Arbitration Commission, meanwhile, Hong Du, director of Research Center of State Commission Office for Public Sector Reform, and Wei Zuo, chief of Department of Personnel Management of Ministry of Human Resources and Social Security of the People’s Republic of China were the key speakers in the session.

Deputy Director Guo Xiaowen conducting the meeting	Director Hong Du introducing the principles for systematically pushing forward reformations of nonprofit organizations
Chief Wei Zuo introducing the principles of reformations for personnel systems in nonprofit organizations	Professor Liu Xiaokang giving speech

Director Hong Du made a detailed discourse with respects to the basic information of national business organizations, reformation status of business organizations, and the development direction of arbitration organizations in future. Director Hong introduced that there are millions of registered governmental business organizations at all levels across the country. From the angle of appropriation, most of business organizations are in need of financial aid, and the arbitration organizations are gradually transformed from relying on financial aid in the past to self-controlling revenue and expenditure in present. With respect to the reformation method of business organizations, the General Office of the CPC Central Committee has issued Guidance for Systemically Pushing Forward Reformations of Business Organizations, also known as the No.5 Document of Central Committee, which is the guidance for reformations of business organizations at the highest level. Director Hong deemed that the arbitration organization has the characters of public welfare and administrative promotion, and features the function of marketization at the same time. As a result, the reformations shall be made on the judgment of functional attributes of arbitration committee, and classified according to responsibilities and duties.

Chief Wei Zuo emphatically introduced the reformation status of human resources in the reformations of business organizations. Chief Wei indicated that this reformation is the integral reformation of business organization with a name as “systemically pushing forward reformation”, and that suggests this reformation is based on a systemic principle. In addition, Chief Wei indicated that the welfare-oriented business organizations shall be preserved from the angle of human resource, and the target of reformation is to gradually optimize labor force and gradually make functions clear and to live up public spiritedness.
In the discussion session, Liu Xiaokang, professor of Chinese Academy of Governance proposed that the reformation of business organizations and the development of arbitration shall be considered strategically and plan for the future, so does the arbitration. The arbitration is an award of the third party, and the competitiveness of which derives from reputation, as a result, the arbitrator is the vindicator of public interest by virtue of its publicity. The arbitration shall be fully independent, which means no government intervention. In addition, Professor Liu proposed his opinions on the type of reformation for business organizations. He considered that the arbitration has the characters of non profit and public benefit, and the arbitration organization may be defined as statutory agency without government intervention, or defined under the existing system in a creative manner. For example, non-governmental non-business organization can be a referable thread.

At the end of the Forum, Professor Liang Huixing made a concluding speech. Professor Liang considered that both the two topics of this forum, which are of vital importance for arbitration, are so important that can determine the development prospects of arbitration. With respect to the amendment of Law of Civil Procedure, the arbitrational community shall find a specific solution to strive to change the situation that the arbitration is subjected to unjust judicial review. With respect to the reformation of arbitration organization, we shall have a long-term vision, and our arbitration system shall be in accordance with that of developed country and become compatible with the international convention.