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International Arbitration – China

posted 2 months ago

Author

Xuehua Wang

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Dr. Xuehua Wang is the Founding Partner of Beijing Huanzhong & Partners (BHP). He obtained his Doctor of Laws, Master of Laws and Bachelor of Economics from the University of International Business & Economics (UlBE). He previously served as the Deputy Dean of the UlBE Law School. Today, Dr. Wang serves as the Vice Chairman of the China International Investment Arbitration Forum, the Executive Director of the China Academy of Arbitration Law, the Executive Director of the WTO Law Research Society of China Law Society, as well as the Director of the Chinese Society of International Law.

In addition, Dr. Wang is an arbitrator at the International Centre for Settlement of Investment Disputes (ICSID) (one of only three in China), China International Economic & Trade Arbitration Commission (CIETAC), Beijing Arbitration Commission / Beijing International Arbitration Center (BAC/BIAC), Shanghai International Arbitration Center (SHIAC), Shenzhen Court of International Arbitration (SCIA), Hainan International Arbitration Court (HNAC), Hong Kong International Arbitration Centre (HKIAC), International Chamber of Commerce (lCC) International Court of Arbitration, as well as the Arbitration Center Across the Straits (ACAS).

In the field of litigation and arbitration, Dr. Wang has represented many well-known corporations in hundreds of complex cases, including those before CIETAC, BAC/BIAC, HKIAC, ICC International Court of Arbitration, Arbitration Institute of the Stockholm Chamber of Commerce (SCC), Asian International Arbitration Center (AlAC) and other arbitration institutions, as well as litigation cases in the Supreme People’s Court of China and provincial high people’s courts. He has further assisted clients as a Chinese law expert witness in various overseas arbitration and litigation cases.

Chambers has rated Dr. Wang as an “Eminent Practitioner” or a “Senior Statesperson” in international trade law for consecutive years (2010–present), and as one of the “Most in Demand Arbitrators” in China from 2022. He has been recognised as a National Outstanding Lawyer, Outstanding Lawyer and Outstanding Firm Director by All China Lawyers Association, Beijing Municipal Bureau of Justice and the Beijing Lawyers Association on many occasions.

In 2015, Dr. Wang founded the “Huanzhong Commercial Arbitration” WeChat official account, serving as its chief editor and contributor. Since its inception, the account has published more than 600 articles on such topics as arbitration, international trade and investment arbitration.

In January 2024, Dr. Wang served as the chief editor for the publication of “Cases and Materials on Chinese Arbitration Judicial Review”.

In May 2024, Dr. Wang was redesignated by the Chinese government as an arbitrator for the latest term at the ICSID. This marks Dr. Wang’s second term as an ICSID arbitrator, following his initial designation in August 2017.

Our typical client base is diverse and includes Chinese state-owned enterprises, foreign-invested enterprises, cross-border enterprises, overseas enterprises, as well as Chinese domestic enterprises expanding their international operations.

Recently, we represented a complex international arbitration case involving foreign parties and obtained a favourable award. The case involved a dispute between two Sino-foreign joint ventures, Company A and Company B (both with French companies as their foreign shareholders), based on an “Operation and Maintenance Agreement” they had jointly signed. We were the counsel of Company B, the respondent. Ultimately, with our efforts, the tribunal upheld Company B’s (our client’s) claims and dismissed all of Company A’s arbitration claims.

The arbitration was conducted in English and followed international arbitration procedures. As the counsel, we independently engaged in all stages of the proceedings and, through detailed preparation, effectively secured tribunal endorsement for our client’s principal arguments. This significant victory not only protected our client’s legal rights but also demonstrated our professional competence and practical skills in the field of international arbitration.

In China, alongside the traditional judicial system of the People’s Courts, a diversified and internationalised dispute resolution system has been established. This includes 282 arbitration institutions, such as the China International Economic & Trade Arbitration Commission (CIETAC), Beijing Arbitration Commission (BAC), Shanghai International Arbitration Center (SHIAC), Shanghai Arbitration Commission (SHAC), Shenzhen Court of International Arbitration (SCIA), China Maritime Arbitration Commission (CMAC), as well as Hainan International Arbitration Court (HIAC), providing businesses with efficient and professional services for arbitration and combined arbitration-mediation dispute resolution.

Meanwhile, mediation institutions like the China Council for the Promotion of International Trade Mediation Center also play a crucial role by offering mediation services to help businesses resolve disputes quickly and harmoniously. Furthermore, non-governmental international organisations, such as the International Commercial Dispute Prevention & Settlement Organization (ICDPASO), offer various dispute resolution methods, including dispute prevention, consultation, mediation and arbitration, creating a one-stop dispute resolution platform that enhances the convenience and efficiency of resolving disputes.

Arbitration, compared to other ADR mechanisms, is distinguished primarily by the enforceability of its awards. This primary advantage arises from the widespread adoption of the New York Convention by a majority of global jurisdictions, which establishes a legal foundation for the international enforcement of foreign arbitral awards. Moreover, arbitration provides several key benefits, including neutrality, confidentiality and procedural flexibility.

It is generally observed that arbitration is particularly well-suited for multinational enterprises or international trading companies engaged in frequent foreign transactions. One reason is the enforceability of arbitral awards. In addition, in the context of international disputes, parties often prefer not to be subject to the jurisdiction of the domestic courts of the opposing party, due to concerns of judicial partiality. Arbitration permits the disputing parties to select a neutral jurisdiction as the seat of arbitration, and to agree on the arbitration rules and language, thereby enhancing the fairness of arbitral proceedings. Similarly, the specialised expertise of arbitrators makes arbitration a preferable option for resolving disputes in specific fields requiring specialised knowledge, such as maritime, pharmaceutical and construction industries.

China is actively committed to building a diversified dispute resolution mechanism. By establishing a tiered and progressive system, streamlining the integration of litigation with mediation and enhancing multi-channel dispute resolution platforms, the country promotes non-litigation methods, such as arbitration, for resolving disputes.

For example, in 2023, the Supreme People’s Court issued the Guidelines for the “One-Stop” Diversified International Commercial Dispute Resolution Platform (for Trial Implementation), which clarified the operational processes for providing “one-stop” services to institutions and parties, integrating mechanisms like neutral evaluation, mediation, arbitration and litigation. Such initiatives aim to improve the quality and efficiency of dispute resolution, reduce consumption of judicial resources, lower costs, alleviate the courts’ burden and ensure seamless integration between litigation and non-litigation dispute resolution processes.

Through these developments, China is progressively establishing a multifaceted, efficient and accessible dispute resolution system.

Over the past 30 years, the arbitration market has undergone substantial changes, marked by a significant increase in both the number and value of disputes. Arbitration rules have been systematically updated and refined, boosting efficiency, flexibility and transparency. At the same time, technological advancements have streamlined arbitration services, making them more digital and cost-effective, thereby enhancing overall productivity. Furthermore, arbitration is becoming more specialised and global, with better-trained arbitrators and stronger international cooperation. Amendments to arbitration laws have also been introduced to meet the needs of the evolving landscape.

These developments have collectively modernised and internationalised the arbitration market, improving its effectiveness and quality.

Recently, the draft version of the revised Arbitration Law of the PRC was opened for public consultation. This marks a significant revision of the law since its enactment in 1995. The amendment aims to enhance the credibility and international competitiveness of arbitration in China. This is reflected in several key changes, such as expanding the scope of foreign-related arbitration, introducing the concept of “seat of arbitration”, permitting “ad hoc arbitration” under specific conditions and clarifying that Chinese arbitration commissions and tribunals are authorised to handle investor-state arbitration cases.

Arbitration proceedings are actively transitioning towards greener and more sustainable practices. Key changes, which include replacing paper documents with electronic filings, have helped reduce resource use while improving efficiency. Also, the adoption of virtual hearings – especially during the pandemic – has significantly reduced travel costs for parties and minimised carbon emissions.

Looking ahead, advancements in technology and growing environmental awareness will continue to drive arbitration towards becoming more eco-friendly, efficient and convenient.

Arbitrators dealing with cross-cultural issues must demonstrate a high level of cultural sensitivity and adaptability. They should deeply understand and respect the values, beliefs and customs of differing cultures. Mastering cross-cultural communication skills is also essential to facilitate accurate and effective interactions among all parties.

Arbitrators should adapt their procedures as necessary, offering multilingual services and support to overcome cultural barriers and promote the fair and efficient resolution of disputes. Through continuous learning and practice, arbitrators can improve their cross-cultural skills, contributing their expertise and insights to the resolution of disputes in a globalised world.

Before entering this profession, it is important to reflect on why one wants to become a lawyer. Understanding the sense of mission inherent in the legal profession is crucial, as only when a person truly realises the significance of this career can they maintain long-lasting passion and motivation.

From a professional perspective, lawyers specialising in international arbitration must build a solid foundation in both theory and practice. Aspiring young lawyers are encouraged to read extensively, both in Chinese and English, delving into laws and arbitration rules – as well as domestic and international case law – to accumulate a deep reservoir of theoretical knowledge. To the same end, they should actively learn how to utilise legal technology to enhance their competitiveness. Furthermore, such qualities as humility, a collaborative mindset, a strong desire to learn, diligence and courage are key factors for achieving success in the legal profession.

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