ICC arbitration in China Patrick Zheng The conciliation

ICC arbitration in China Patrick Zheng

The conciliation culture in China… A specific type of ICC arbitration?

Nevertheless, ICC arbitration in Mainland China… Dangerous ?

Context of ICC arbitration in Mainland China Chinese law: silence vs. compulsory

Validity of the ICC arbitration clause Requirement for an Explicit selection

Validity of the ICC arbitration clause Standard ICC Clause: “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. ”

Validity of the ICC arbitration clause Problem: Züblin International Gmb. H v. Wuxi Woke General Engineering Rubber Co; "The arbitration clause in the contract in this case provides that Arbitration: ICC Rules, Shanghai, shall apply'. According to the well-established principle, the law of the place of arbitration shall apply where the contract is silent on the governing law for the validity of the arbitration clause. Therefore, Chinese law shall be applied to determine the validity of the arbitration clause in the present case. Pursuant to the relevant provisions of the Arbitration Law of China, a valid arbitration clause shall contain three particulars, i. e. , an expression of intention to apply for arbitration, matters for arbitration, and a designated arbitral institution. From the wording of the arbitration clause in this case, there an expression of intention to apply for arbitration, applicable arbitration rules and the place of arbitration, but there is no explicit designation of an arbitration institution. Thus, this arbitration clause shall be held as invalid. "

Validity of the ICC arbitration clause Amended by the ICC Court: "All disputes arising out of or in connection with the present contract shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. "

Validity of the ICC arbitration clause Requirement for an “Arbitration Commission”?

Validity of the ICC arbitration clause What is an arbitration commission? -> … paddling in murky waters

Validity of the ICC arbitration clause Is the ICC institution an arbitration commission? • Original function >< actual function • Influence of having seat in China • Seat of arbitration >< seat of institution/commission

The enforcement of ICC awards in Mainland China • 3 Systems: Domestic awards Foreign-related awards Foreign awards • Two Reservations to New York Convention • High chances of success • Reporting system

Relations between arbitral tribunals and the Court system See you later litigator?

Relations between arbitral tribunals and the Court system • Valid arbitration agreement => no action before Court • Parties cannot agree to Court jurisdiction and arbitration • System of single and final award • Full Kompetenz-Kompetenz principle? • Application of SPC interpretations • Courts assist (e. g. interim measures) • Courts scrutinize arbitral awards • Reporting system before setting aside the award

Ad hoc arbitration and institutional arbitration in China Ad hoc arbitration is not possible in Mainland China!; 1. Need for “Arbitration Commission” + 2. Selection procedure for arbitrators =

Foreign arbitral institutions take their chance… Foreign ad hoc arbitrations can be enforced! ÞA strategic advantage for competing arbitral institutions Condition: Check applicable law

ICC Arbitration in Hong-Kong • New opportunities • New competitors for arbitration commissions • New incentives

ICC arbitration in China Patrick Zheng