The China International Economic and Trade Arbitration Commission’s (CIETAC) Hong Kong Arbitration Centre Rules as Appointing Authority in Ad Hoc Arbitration came into effect on 1 July 2017. The appointing authority rules are to be implemented by CIETAC Hong Kong Arbitration Centre.
The drafting of the appointing authority rules benefited greatly from the wealth of arbitration experience and extensive research efforts of CIETAC, as well as valued input from learned CIETAC arbitrators, judiciaries and legal experts. The rules also combined valuable elements of the 2013 United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules and the International Bar Association’s (IBA) Guidelines on Conflicts of Interest in International Arbitration, and so offer arbitration users comprehensive services, conforming with international practice, to cater for the needs and preferences of parties from different jurisdictions in the dispute resolution process.
Answering parties’ demands for effective dispute resolution services. Designed with the interests of arbitration users in mind, the appointing authority rules are drafted to facilitate efficient and effective dispute resolution in ad hoc arbitrations based on parties’ agreement.
Parties may select the appointing authority rules and designate the CIETAC Hong Kong Arbitration Centre as appointing authority to appoint arbitrator(s), among its other functions, under the appointing authority rules in ad hoc arbitrations, beyond those under the UNCITRAL arbitration rules. CIETAC may also provide parties with the relevant arbitration services under the appointing authority rules, in accordance with relevant provisions of the applicable law.
Multi-faceted function as appointing authority. When acting as appointing authority under the appointing authority rules, the CIETAC Hong Kong Arbitration Centre serves a multi-faceted function at the request of a party, and at the request of an arbitrator or an arbitral tribunal, where applicable.
The roles include: appointment of arbitrator and decision on the number of arbitrators to be appointed; decision on challenges; determination of arbitrators’ fees and verification of terms of appointment; undertaking of financial management of arbitrations; provision of oral hearing services, tribunal secretary services and other services in relation to arbitrations carried out under the appointing authority rules.
Appointment committee in place to facilitate appointment process. Under the appointing authority rules, the functions of CIETAC Hong Kong Arbitration Centre as appointing authority are carried out by an appointment committee, which consists of five to seven experienced arbitration professionals appointed by CIETAC. The appointment committee is chaired by the vice chairman of CIETAC, as authorized by CIETAC’s chairman.
When appointing an arbitrator, or when deciding on the number of arbitrators to be appointed, the appointment committee must take into account, inter alia, the nature of the dispute, the nationality or nationalities of the parties, the amount in dispute, the complexity of the dispute, and the urgency of the case. This practice ensures that skilled and qualified arbitrators are appointed to provide parties with tailor-made arbitration services suited to their specific dispute. The nomination of arbitrators may be made from the CIETAC panel of arbitrators in effect, or from outside CIETAC’s panel.
List procedure in conformity with international standards. A list procedure in line with international practice is also available as part of the appointment process, unless otherwise agreed by the parties. Under the list procedure, parties may strike out and rank named candidates for appointment in their order of preference. The list procedure offers parties an opportunity to be heard during the appointment process, while putting in place stringent deadlines for each step of the procedure to ensure efficiency in the dispute resolution process.
Determining arbitrator’s fees and expenses with option to incorporate terms of appointment. The CIETAC Hong Kong Arbitration Centre may determine arbitrators’ fees and actual expenses upon request, where agreement cannot be made between the parties and the arbitrators. The parties and arbitrators may also agree to sign terms of appointment in this regard, which may be verified by the CIETAC Hong Kong Arbitration Centre at request.
Factors for consideration in deciding on number of arbitrators. Upon any party’s request, the CIETAC Hong Kong Arbitration Centre may decide on whether the arbitral tribunal must be composed of a sole arbitrator, or three arbitrators. A comprehensive list of factors would be taken into account when making such decisions, including the amount in dispute, complexity of the dispute, nationalities of the parties, the availability of suitable candidate arbitrators and the urgency of the case. In particular, parties are given an opportunity to express their views during the decision-making process, hence also taking into consideration the individual needs of all parties.
Decision on challenges in accordance with applicable arbitration law and rules. Unless otherwise agreed by the parties, the CIETAC Hong Kong Arbitration Centre must decide on all challenges to arbitrators under the appointing authority rules. Such decisions must be made in accordance with the relevant provisions on challenge of arbitrators in the applicable arbitration law and arbitration rules. Where necessary, the appointing authority may refer to the IBA guidelines on conflicts of interest. These approaches ensure that applicable protocols are observed every step of the way in the decision-making process.
Bringing in most relevant provisions of UNCITRAL arbitration rules to suit parties’ varying needs. In order to meet the individual needs of parties in ad hoc arbitrations under the UNCITRAL arbitration rules, the appointing authority rules provide that the CIETAC Hong Kong Arbitration Centre must perform its functions regarding procedural management of arbitrations in accordance with the request of the parties or arbitral tribunals, under the relevant UNCITRAL arbitration rules provisions.
The appointing authority rules were designed with the prime objective of answering parties’ demands for efficient and effective dispute resolution services through a refinement of ad hoc arbitration services provided by CIETAC. Considering the rapid economic development in place, as catalyzed by the Belt and Road initiative, the fulfilment of comprehensive arbitration services available at the CIETAC Hong Kong Arbitration Centre can satisfy the need for practicable solutions to international dispute resolution.
The appointing authority rules are available in English and Chinese on the CIETAC Hong Kong Arbitration Centre website: http://www.cietachk.org
Wang Wenying is the secretary-general and Theresa Tseung is the deputy counsel at the CIETAC Hong Kong Arbitration Centre