With the rapid development of China’s economy, and the deepening of the public’s understanding and recognition of arbitration rules, arbitration has become an indispensable dispute resolution mechanism in current commercial society. The entire arbitration procedure provides the parties with many opportunities to grasp, but two of the rights are particularly important. One is to choose a lawyer who completely stands for the point of view of the parties concerned, and protects the legal rights and interests of the client; the other is to choose an arbitrator before the arbitration tribunal is formed, whose duty is to protect the legal rights and interests of both parties, to hear the case independently and impartially, and to resolve disputes between the parties. Grasping the opportunity of making these two choices is crucial for the parties to strive for the most ideal ruling.
In arbitration cases, the goal of the entrusted lawyer is to pursue a ruling that is as beneficial to the parties as possible. The parties should choose a lawyer based on the characteristics of the case and their own demands
First, it should be noted whether the types of cases and the industries involved are consistent with the lawyer’s fields of expertise. Arbitration cases in different industries have different characteristics. Among the vast range of laws, a lawyer can usually only be specialised in one certain industry field. One lawyer’s experience in a certain industry can effectively ensure an accurate judgment of facts and applicable laws.
For example, in one arbitration case, the respondent deliberately omitted a technical aspect when stating the technical problems of a set of equipment, which made the applicant more liable. The lawyer representing the applicant tried to explain the technical issue once again to the arbitration tribunal. Although the lawyer did preparation in relation to the technical issue before the hearing, it was obvious that this lawyer was not as professional as the lawyer of the respondent.
As a result, after the applicant’s lawyers rebutted, the respondent easily raised a series of new technical problems, which not only made the rebuttal of the applicant’s lawyer appear to be weak, but also further strengthened the respondent’s point of view. From the perspective of the arbitration tribunal, which did not know the technical details, it was obvious that the respondent’s explanation was more convincing than that of the applicant’s lawyer. The applicant’s lawyer lacked relevant industry experience and was dragged into an unfamiliar battlefield by the other party, resulting in a passive situation.
Second, the lawyer’s experience often determines his or her professional judgment in the case. Arbitrators of different backgrounds usually have their own unique mindset in case judgment. A lawyer needs a lot of judicial practice to think about and make a judgment, in order to accurately analyse and grasp the arbitrator’s logic in making his or her judgment. A complex dispute usually contains several different controversial points. Lawyers with professional qualities and ample experience can quickly make judgments, rationally analyse most solutions, and use discreet comparisons and quick-witted responses to choose the best solutions for the parties.
Finally, the parties should be careful when choosing their lawyers to avoid procedural problems that may be caused by the identity of the lawyer in the arbitration. Some arbitration commissions and local lawyer’s associations expressly prohibit lawyers from representing the cases accepted by the arbitration commission of which they are arbitrators. Choosing an existing arbitrator to act as the lawyer for a case heard by the arbitration commission may be identified as a procedural defect and cause the ruling to be set aside.
When the parties choose arbitrators, it is not only a choice of their professional knowledge in arbitration, but also an approval of their experience in the practice of law, as well as trust in the credibility of the arbitrators
First, the parties should choose an arbitrator who is familiar with the professional field involved in the dispute. Since there are many types of arbitration cases, arbitrators usually only have high attainments in the industry field they have declared to the arbitration authority. They are not only familiar with the legal knowledge, but are also equipped with the professional knowledge related to that industry field.
An arbitration tribunal composed of arbitrators familiar with professional knowledge can more quickly and accurately grasp the focus of the dispute and propose the best solution. If the parties choose an arbitrator who is unfamiliar with the professional knowledge, even if the arbitrator is quite responsible, it is often difficult for him or her to be competent for the job due to the lack of professional knowledge. Therefore, it is very common for the parties to select experts in related fields as arbitrators.
Second, when choosing arbitrators, the parties must also consider whether the arbitrators have conflicts of interest, that is, whether there are issues with the arbitrators’ impartiality and independence. If the arbitrator has a conflict of interest, it will not only affect the impartiality of the arbitration procedure, but may likely cause delays due to the withdrawal procedure, or lead to the ruling being revoked or unenforceable due to procedural defects in the arbitration. The parties may also run the risk of being prejudiced against by the arbitrator, and therefore need to carefully examine and avoid appointing arbitrators with conflicts of interest.
Finally, the parties must choose arbitrators whose logic in making judgments is beneficial to them. When the arbitration tribunal deliberates, out of habitual thinking, arbitrators often express their opinions in accordance with the inherent logic in making judgments. The arbitrator’s logic in making judgments directly affects his or her approach to, and conclusion of, the disputed issues, and ultimately affects the ruling.
In practice, many factors need to be considered when selecting arbitrators. Arbitration is a final decision. If the selected arbitrators do not have suitable experience, or have insufficient professionalism, the procedures and results may be hard to predict. Moreover, once the parties express their written intention to choose a certain arbitrator, without sufficient reason this choice cannot be changed. Therefore, parties should be very cautious when choosing an arbitrator.
Sun Wan is the head of the management committee of Chen & Co Law Firm (Shenzhen branch). She is also an arbitrator of the Shenzhen Court of International Arbitration (SCIA)
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