A meeting of the ways

Chinese arbitration has its own development track. Riding high on the goals and undertakings of making home-grown arbitration practices more international, the country also charts its course of introducing “China’s experience” and “Oriental wisdom” onto the international arbitration stage. We asked the region’s major player for their views − and their wisdom. Read the full interview with the leaders of six arbitration centres here.

In China, arbitration is something transplanted from other countries. Bringing the arbitration rules in line with international practice has long been a mainstream topic in the field. However, if we look at all the proposals so far to improve the “widely accepted” norms in international arbitration, we may find that some of the international norms that China is trying to learn may be in the process of evolving towards the domestic norms that China currently follows.

A basic mode

Beyond the differences between civil and common law. The continual efforts in encouraging the internationalization of Chinese arbitration have made it possible for foreign lawyers to argue arbitration cases in Beijing in a similar fashion to the way they do before tribunals in other leading arbitration centres such as Hong Kong, Singapore, London and Paris. According to GAR’s Guide to Regional Arbitration 2018, the BAC rules are the most flexible of those offered in China in terms of party autonomy, where they approach the international norm. You are very likely able to arbitrate a dispute pretty much in any way you want, even when it comes to the vexed topic of which laws should apply.

It is not, however, safe to assume that all relevant procedural matters are the same, or that they are simply a complete transplantation of international norms. Although China is seen as a civil law jurisdiction, this does not mean that Chinese arbitration proceedings will necessarily always apply the core civil law principles, such as the inquisitorial approach and a focus on documents, which are often referred to as some of the key features of Chinese litigation practice.

Rather, the BAC Arbitration Rules clearly state that, in respect of any matters not expressly provided for in the rules, the BAC may administer, and the arbitral tribunal may conduct, the arbitration in such manner as they consider appropriate to ensure the efficient and fair resolution of the dispute between the parties.

This does not mean that common law procedures will automatically be adopted by the tribunal either. For users who prefer common law procedures, it is advisable to put in a special agreement on the specific procedures that will make sure that common law procedures or international arbitration practices are adopted in the Chinese arbitration.

Style of pleading

There is a tendency for the tribunal in international arbitration to require the parties to limit their submissions to a certain number of pages (as appropriate), and focus their pleadings on the key issues. The style and approach to pleading in China is generally shorter and more concise than equivalents in international arbitration outside China. A party is expected to serve supporting witness statements along with its pleading and the documentary evidence that supports its case.

Unless as a matter of procedure already agreed upon by the parties or decided upon by the arbitral tribunal, there is no specific provision or limitation on the rounds of pleadings. However, the usual expectation in practice is not only to set out the basics, but also to include the content of a full statement of the case/statement of defence in the request for arbitration/defence and the answer.