Adding a little China wisdom

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.

I think the concept of “Sinicization of international arbitration” should be understood in a way that, during the course of integrating with international arbitration and moving onto the global stage, while learning from the advanced practices in other countries, Chinese arbitration unreservedly exports its unique experience, formed and developed in line with the fundamental reality of the country, to share, exchange and improve with counterparts in the international arbitration community, carving out a path for the joint development of international arbitration with China’s wisdom.

In the past decades of development, based on the fundamental reality of the country, Chinese arbitration has formed and developed several unique practices and experiences in the following aspects:

(1) The combination of arbitration and conciliation. The China International Economic and Trade Arbitration Commission (CIETAC) first put forward such an idea and took the lead to put it into practice. With full respect to the principle of party autonomy, that is, under the premise of express consent by both parties, the efficient and fair resolution of the dispute is given top priority.

A conciliation procedure is introduced during the arbitration, allowing the arbitral tribunal to conciliate the case during the arbitral proceedings. If a settlement agreement has been reached, the parties may request the arbitral tribunal to make an award or conciliation statement based on the settlement agreement, or withdraw the case. Both parties may also agree on a settlement during or outside the arbitration, and apply to the arbitral tribunal for an award or conciliation statement, based on the settlement agreement or withdrawal of the case.

If no settlement agreement can be reached, arbitration proceedings will resume. Such practice greatly enhances the autonomy and engagement of the parties in the dispute resolution, further increases the flexibility of the arbitration proceedings, largely reduces the time, and cuts down on the monetary cost.

In the meantime, such practice takes both the confidentiality of procedures and independence of judgment into account. The conciliation statement, consent award and award are equally enforceable, ensuring that the legitimate interests of the parties can be effectively protected.

Over more than 60 years of arbitration, such a practice has been adopted by most arbitral institutions in mainland China, and quite a few internationally renowned arbitration bodies, standing as the widely recognized and accepted the “China experience” and “Oriental wisdom”. Apart from combining traditional commercial arbitration and conciliation, CIETAC seeks to promote the experience to the field of investment arbitration via the newly launched investment arbitration rules, hoping to offer a new idea to solve the issue concerning the rigid mechanism of investor-state dispute settlement.