13 Summary Procedure: (Articles 56 to 64)

This chapter examines the Summary Procedure under the CIETAC Rules, which resembles most expedited procedures of other institutions in that the arbitral procedure is expedited for cases with a relatively small amount in dispute or where the parties agree to the application of the special procedure. While the Summary Procedure can be highly efficient, there is always a tension between the need for efficient and expeditious dispute resolution and the right of parties to present their cases, and failure to afford a party the right to present case could give rise to an application to set aside or resist recognition and enforcement of an award. Articles 56 to 64 of the CIETAC Rules are designed to maintain the balance between efficiency and parties’ right to be heard. These articles set forth special provisions of the Summary Procedure. These special provisions include: the application; notice of arbitration; formation of the arbitral tribunal; defence and counterclaim; conduct of hearing; notice of oral hearing; time period for rendering the award; change of procedure; and context reference.

5 Arbitration Agreement: (Articles 5 and 6)

This chapter discusses the important subject of arbitration agreement, covering Article 5 and Article 6 of the CIETAC Rules. Article 5.1 defines ‘arbitration agreement’ as ‘an arbitration clause in a contract or any other form of a written agreement concluded between the parties providing for the settlement of disputes by arbitration’. In practice, arbitration agreements may be established in one of the following three ways in China: contract clause; submission agreement; and incorporation by reference. The chapter then looks at the statutory requirements for a valid arbitration agreement; the common defects of arbitration agreements; the separability of arbitration agreements; and the binding effect of an arbitration agreement on non-signatory parties. Meanwhile, Article 6 sets forth provisions with regard to objection to arbitration agreement and/or arbitral jurisdiction. The chapter considers several aspects of the court’s procedure in deciding on objection to arbitration agreement, and the Reporting Mechanism of the PRC courts in regard to deciding on arbitration-related matters.

2 The Arbitration Commission: Structure and Duties: (Articles 1 and 2)

This chapter reflects on the history and organization of the China International Economic and Trade Arbitration Commission (‘CIETAC’) and the role it plays in the administration of arbitrations under the CIETAC Rules. The CIETAC is organized as an arbitration commission under the Arbitration Law of the People’s Republic of China (‘PRC Arbitration Law’). Its internal rules of governance are set out in the Articles of Association of the CIETAC. The chapter then considers the previous and concurrent names of the CIETAC—including the China Council for the Promotion of International Trade (‘CCPIT’) and the China Chamber of International Commerce (‘CCOIC’)—and the rule concerning reference to the CIETAC’s other names in the arbitration agreement. It also discusses the structure and duties of the CIETAC, including: (i) the duties of the Chairman, Vice Chairmen, and the Arbitration Court; (ii) the establishment and organs of sub-commissions/arbitration centres under the CIETAC; and (iii) the allocation of jurisdiction among the CIETAC and its various sub-commissions and/or arbitration centres.

12 Arbitration Fees and Costs: (Article 82 and Appendix II)

This chapter discusses arbitration fees and costs, covering Article 82 and Appendix II of the CIETAC Rules. Article 82.1 empowers the CIETAC to charge arbitration fees and other actual costs incurred in the course of arbitration. The other additional and reasonable actual costs include arbitrators’ ‘special remuneration’; their travel and accommodation expenses incurred for handling the case; fees of stenographers; as well as the costs and expenses of experts, appraisers, or interpreters appointed by the arbitral tribunal. Appendix II of the CIETAC Rules sets forth three fee schedules with regard to arbitration fees. Under Schedule I, the CIETAC is to charge a ‘registration fee’ and an ‘arbitration fee’; under Schedule II, the CIETAC is to charge a ‘registration fee’ and a ‘handling fee’; and under Schedule III, the CIETAC is to charge a ‘registration fee’, an ‘administrative fee’, and ‘arbitrator’s fees and expenses’.

3 General Provisions: (Articles 4, 7 to 10, 83, and 84)

This chapter examines some of the general provisions of the current CIETAC Rules. It covers the Scope of Application (Article 4), the Interpretations of the Rules (Article 83), and Coming into Force of the Rules (Article 84), which are necessary provisions for any set of rules. In accordance with Article 4.1, the CIETAC Rules will be applied uniformly to all arbitrations administered by the CIETAC headquarters in Beijing or by the CIETAC’s sub-commissions and arbitration centres, including the CIETAC Hong Kong Arbitration Center. Article 4.2 provides that whenever parties have agreed to ‘arbitration by CIETAC’, they will be deemed to have agreed to the application of the CIETAC Rules. The chapter then describes other general but important provisions, including: Place of Arbitration (Article 7); Service of Documents and Periods of Time (Article 8); and Language (Article 81). Undoubtedly, the place of arbitration, the service of process, and the language of arbitration are fundamental aspects for any arbitration case. Lastly, the chapter looks at two general principles for commercial arbitration: Good Faith (Article 9); and Waiver of Right to Object (Article 10).

9 Interim Measures of Protection/Emergency Arbitrator Procedures: (Article 23 and Appendix III)

This chapter addresses the subject of interim measures of protection, including emergency arbitrator procedures. Interim measures provide means to parties to preserve the status quo as between themselves pending the resolution of their dispute. Article 23 of the CIETAC Rules sets forth some general provisions on conservatory and interim measures in the context of CIETAC arbitration, covering such aspects as conservatory measures from PRC Court (Article 23.1), emergency reliefs from emergency arbitrator (Article 23.2), and interim measures from arbitral tribunal (Article 23.3). The interim measures available from the PRC court are limited to three types: evidence preservation; property preservation; and conduct preservation. Meanwhile, contained in Appendix III of the CIETAC Rules are detailed provisions relating to emergency arbitrator procedures.

7 Arbitral Tribunal: (Articles 24 to 34)

This chapter highlights the arbitral tribunal. The right of parties to select arbitrators for arbitrating their disputes is probably the most important aspect of party autonomy in international arbitration. The chapter discusses: the duties of an arbitral tribunal (Article 24); the number of arbitrators (Article 25); the nomination and appointment of arbitrator (Articles 26 to 31); challenge to the arbitrator (Article 32); and the replacement of arbitrator (Article 33) in CIETAC arbitrations. Article 24 clarifies that arbitrators, particularly party-nominated arbitrators, shall not represent either party, shall handle the case independently, and treat both parties equally. In order to understand this provision it is necessary to look into the relevant statutory provisions in the PRC Arbitration Law and the CIETAC’s specific regulations on the ethical issues of arbitrators. The chapter concludes by discussing the ability of the majority of the arbitral tribunal to continue with the arbitration after the conclusion of the last hearing (Article 34).

15 Special Provisions for CIETAC Hong Kong Arbitration: (Articles 73 to 80)

This chapter highlights the special provisions for CIETAC Hong Kong Arbitration. The establishment of the CIETAC Hong Kong marks the CIETAC’s first step in its global strategy. It was also a recognition of the importance and popularity of Hong Kong as a place for arbitration of China-related international disputes. However, arbitration in Hong Kong entails several important differences from arbitration in mainland China. The new Chapter VI of the 2015 CIETAC Rules comprises the CIETAC’s special provisions for Hong Kong Arbitration which are intended to address these differences. The key provisions of Chapter VI deal with the application, place of arbitration, law applicable to the arbitral proceedings, decisions on jurisdiction, nomination/appointment of the tribunal, interim measures and emergency relief, seal on award, and arbitration fees of CIETAC Hong Kong proceedings. The chapter concludes by discussing two necessary topics: the enforcement of CIETAC Hong Kong awards; and the recent initiatives of the CIETAC Hong Kong.

4 The CIETAC’s Jurisdiction: (Article 3)

This chapter focuses on the CIETAC’s jurisdiction. Article 3.1 of the CIETAC Rules provides that the CIETAC accepts cases involving economic, trade, and other disputes of a contractual or non-contractual nature, based on an agreement of the parties. There are three types of cases accepted by the CIETAC: (1) international or foreign-related disputes; (2) disputes related to the Hong Kong Special Administrative Region, the Macao Special Administrative Region, and the Taiwan Region; and (3) domestic disputes. However, both the CIETAC and local arbitration commissions are prohibited by the PRC Arbitration Law from assuming jurisdiction over certain types of disputes. The chapter addresses these non-arbitrable matters under PRC law. It then traces the evolution of the CIETAC’s scope of jurisdiction. Lastly, the chapter assesses the jurisdiction of local arbitration commissions.

8 Conduct of Arbitral Proceedings: (Articles 35 to 47)

This chapter details the conduct of arbitral proceedings under the CIETAC Rules. It considers important procedural matters regarding the conduct of oral hearings, such as: principles on conduct of hearing; place of oral hearing; notice of oral hearing; confidentiality; default from arbitral proceedings; and record of oral hearing (Articles 35 to 40); some rules in regard to evidentiary issues (Articles 41 to 44); suspension of arbitral proceedings (Article 45); a party’s withdrawal of its claim and the associated consequences (Article 46); as well as the unique practice of combining conciliation and arbitration (Article 47). Article 35.1 provides that the arbitral tribunal shall examine the case in any way it deems appropriate unless otherwise agreed by the parties. Under all circumstances, the arbitral tribunal shall act impartially and fairly and shall afford a reasonable opportunity to both parties to present their case. As a principle, the arbitral tribunal is required to hold an oral hearing under the CIETAC Rules. However, there are two exceptional situations where the arbitral tribunal may examine the case on the basis of documents only, namely: (1) where all the parties agree and the arbitral tribunal consents; and (2) where the arbitral tribunal deems that oral hearings are unnecessary and the parties so agree.