Beijing Arbitration Commission (BAC) Attending First Members’ Representative Assembly of China International Economic and Trade Law Society, and Symposium on Reform of Chinese and International Economic and Legal Order
Chen Xi^*

“First Members’ Representative Assembly of China International Economic and Trade Law Society (CIETLS), and Symposium on Reform of Chinese and International Economic and Legal Order” was held on November 17-18, 2012 in Suzhou City and jointly organized by China International Economic and Trade Law Society and Law School of Shanghai University. The opening ceremony of the assembly was hosted by Prof. Ding Ding, the vice director of the society and secretary-general. Speeches were given by the head of research department of China Law Society; Li Qingwei, the executive president of Law School of Shanghai University; director of CIETLS; and Shen Sibao, president of Law School of Shanghai University. Beijing Arbitration Commission (hereinafter referred to as BAC) had appointed the representatives to attend the Symposium.

CIETLS was formally the International Economic and Trade Law Association of China Law Society and the national law study organization affiliated to China Law Society. Established in July 2005, CIETLS is headed by president of Law School of Shanghai University, the arbitrator of BAC and nationally outstanding teacher Prof. Shen Sibao. In 2012, subject to the Regulations on Registration and Administration of Social Organizations issued by State Council and requirements of China Law Society, it was renamed as “China International Economic and Trade Law Society” from “International Economic and Trade Law Association of China Law Society” and applied for registration in Ministry of Civil Affairs.

The conference mainly covers: convening “First Members’ Representative Assembly of China International Economic and Trade Law Society, and Symposium on Reform of Chinese and International Economic and Legal Order, in which the council of CIETLS was elected. The first council meeting had elected the executive directors and main principals of CIETLS. Prof. Shen Sibao, an arbitrator of BAC, was elected as the president of CIETLS; Che Pizhao, the vice director of BAC, was elected as the vice president, executive member and member of CIETLS; Ms. Wang Hongsong, vice director of BAC, was elected as the executive member and member of CIETLS. In addition, the arbitrators of BAC, Ms. Zhang Lixia, Ms. Zhao Xiuwen and Mr. Tao Xiuming were elected as executive members and members of CIETLS.

The topics of the Symposium include “Reform of Chinese and International Economic and Legal Order”, international trade law and WTO, international investment law, international finance law as well as theory and practice of extraterritorial jurisdiction of anti-monopoly law, etc. Nearly 200 experts and scholars from state organs such as the Supreme People’s Court, Ministry of Commerce, China Securities Regulatory Commission, China Banking Regulatory Commission, BAC, China International Economic and Trade Arbitration Commission, etc. and colleges and universities nationwide and research institutions, etc. got together to make extensive discussions and communications regarding multiple theories and practice of international economic law.

In the workshop of “International Economic and Trade Dispute Settlement Mechanism”, Judge Shen Hongyu, from the fourth court of supreme people’s court, raised two issues regarding foreign-related arbitration and juridical review system which are worthy of attention: the substantial difference between the domestic arbitration and foreign-related arbitration is narrowing down; the foreign-related arbitration defined in the foreign-related arbitration award remains to be clarified. Ms. Shen introduced the distinctions between foreign-related arbitrations and domestic arbitrations, analyzed the implications for the arbitration sector by combing the amendment to Civil Procedure Law, particularly emphasized the newly introduced property preservation prior to arbitration. She briefed and analyzed the internal reporting system and concentrated jurisdiction system in juridical review, and then elaborated the basic issues such as power distribution of arbitration tribunal and court over jurisdiction, applicable law of the validity of foreign-related arbitration agreements and explained her understanding on independence of arbitration agreement and the common defective arbitration agreement applicable to the Arbitration Law of China and its disposal principle, etc.

Prof. Zhang Shengcui, from the Law School of Shanghai University of Finance and Economics, gave a report themed Reflection on Legal System Standard of Arbitration Agencies in China and Reconstruction. Prof. Zhang, by analyzing the Arbitration Law of China and relevant regulations, raised the defects in the legal system standard of arbitration agencies in China and gave recommendations on reforms. According to Prof. Zhang, the arbitration agency should, by market selection, return to the private nature. In particular, Prof. Zhang mentioned that some of the arbitration agencies are still receiving subsidies from the government, which is against the WTO rules. In addition to that, Prof. Zhang believes that the reform of legal system standard of arbitration agencies in China mainly covers a range of issues such as establishment of arbitration commission, organization setup, nature and orientation, charging management and tax preference, etc., and analyzed the direction of the reform of arbitration agencies in China by taking the reform of arbitration agencies in Cambodia for example. The legal construction of arbitration agencies shall be closely subject to the times development and demands and play its role in and exert its influence on the socialized legal space.

Associate Prof. Gan Ying, from the International Law School of East China University of Political Science and Law gave a report themed New Study on Arbitrators’ Independence in International Investment Arbitration. Prof. Gan pointed out that the arbitrator in international investment arbitration is the fundamental component in guaranteeing the smooth trial of international investment arbitration proceedings, whose independence is the core foundation of guaranteeing the fairness of the cases. Prof. Gan firstly analyzed some vulnerabilities of ICSID in the rules of arbitrator’s independence, pointed out the difficulties to maintain the arbitrator’s independence in practice, proposed several suggestions on solution and made the specific statement from the definition of arbitrator’s “independence”, detailed rules in dealing with the arbitrators’ potential role conflicts, nationalities and selection of arbitrators in the hope of guaranteeing the arbitrator’s independence and maintaining the public trust of ICSID arbitration rules.

Associate Prof. He Zhihui, from the International Law School of Southwest University of Political Science and Law gave a report themed Study on Jurisdiction over Mental Damage Compensation in ICSID Investment Dispute Arbitration. As a new and hot topic in international law study, Prof. He pointed out ICSID as the basis in exercising jurisdiction power over the mental damage compensation, and proposed that the original ICSID arbitrators were inclined to protect the investors’ interests with specific cases. However, with more scholars from most of developing countries joining in ICSID arbitrators’ team, the arbitral tribunal at present gradually tends to protect the interests of host countries. At last, Prof. He pointed out that ICSID arbitration was the most effective way to settle the disputes between the investors and states, and processed a large amount of cases relating to mental damage compensation. The study on jurisdiction, the leading issue in arbitration award, could better promote the development and improvement of the mechanism.

Lecturer Wang Bingqian, from the Law School of University of International Business and Economics, gave a report themed Inspirations and Reference of Construction Engineering Review System in Great Britain. Dr. Wang pointed out that due to the industrial particularity of dispute settlement in the construction engineering sector, mediation, arbitration and lawsuit were inadaptable to some extent. Dr. Wang introduced the construction engineering review system originated from Great Britain in details; in particular the system establishment demonstrated the positive interaction between the industry and juridical sector and mainly analyzed the advantages of the system. He pointed out that under the current legal environment and mechanism concept in China, there are some problems on construction engineering review system and he proposed some considerations and recommendations on improving the construction engineering review mechanism in China, including highly valuing the dispute diversification in construction engineering sector and continuing to make new based on the traditional form. The legislation and amendment to Construction Law should take the review system into consideration and the juridical organs in China should actively take part in the establishment and development of construction engineering review mechanism.

Dr. Mu Ziyi, from the Law School of City University of Hong Kong, gave a report themed Opinions and Suggestions on Constructing Dispute Settlement Mechanism under ECFA Framework. Firstly, Dr. Mu explained the background information on ECFA, introduced ECFA with electronic game terms, pointed out the dispute settlement mechanism of ECFA as the important content in regional economic cooperation and is able to enrich the practice of regional economic cooperation, which won wide attention. However, he stated that the mechanism development is not so refined, or even at a low standard. On such basis, Dr. Mu proposed the following opinions and suggestions on dispute settlement mechanism under constructing ECFA: paying attention to tradition and characteristics, model selection in ECFA dispute settlement mechanism and specific rules on ascertaining ECFA dispute settlement mechanism.

On review, Associate Professor Xue Yuan, from University of International Business and Economics, commented on the speeches given by the foregoing scholars. During the free discussion, Chen Sheng (the arbitrator of BAC), the deputy section chief of department of regulations of China Banking Regulatory Commission, supplemented the following information regarding arbitration: in the Gazette of ICSID last year, five Chinese arbitrators were appointed. Compared with US, France and Great Britain, the Chinese arbitrators were appointed less frequently; nevertheless, from the appointment of Chinese arbitrators last year, the Chinese arbitrators may be more and more frequently appointed in the future. To enhance the possibility of Chinese arbitrators being appointed as ICSID arbitrators, he proposed to enhance communications with ICSID and advocated national support, etc. Zhang Zhi, the section chief of Zhengzhou Arbitration Commission, pointed out that the legislation of world arbitration law was liberalized, internationalized and localized.

Liberalization is demonstrated on widened arbitration of subject and object, extension of form of arbitration agreement and support of juridical review from the previous supervision; the internationalization refers to forming an international standard whereas the localization is to revise and supplement the model law on the basis of absorbing the international standard. He also pointed out that in the next stage of arbitration agencies improvement in China, the focuses should be on the one hand to refine the arbitration law and on the other hand to strengthen the establishment of arbitration agencies.