Author: Fuyong Chen*
Published: January 2009
Independence and Impartiality
Composition of Arbitral Tribunal
Description: The emergence in China of local arbitration commissions (“LACs”), and in particular their growing role as a forum of choice for dispute resolution, is a phenomenon that has received inadequate scholarly attention. Outside of China, research focusing on LACs is almost nonexistent, and articles dealing with LACs are characterized both by an absence of direct sources of knowledge as well as skepticism regarding the potential independence, competence and fairness of LACs. This article intends to present an analysis of LACs based on a case study of the Beijing Arbitration Commission (“BAC”), for which the author worked as a part-time case-handling secretary from April 2005 to April 2007. The case study describes how the BAC maneuvers within the legal and policy framework to obtain independence, raise standards, strengthen competence, and build effective mechanisms to maintain integrity. The findings of this case study suggest that the BAC’s employment system and its full financial independence are two fundamental factors bolstering the quality and efficiency of its arbitration. However, the achievement of these two factors requires a strong executive, which explains the challenges both for the BAC itself in its early years, and later for other LACs that wish to model themselves on the BAC.
Since the Arbitration Law of the People’s Republic of China came into force in 1995, 183 new arbitration institutions have been founded, in addition to the China International Economic and Trade Arbitration Commission (“CIETAC”), established in 1954, and the China Maritime Arbitration Commission (“CMAC”), established in 1959. These new arbitration institutions are called local arbitration commissions (“LACs”), generally named after the administrative area in which they are registered. However, their jurisdiction is not confined to their respective administrative areas; any Chinese arbitration institution can arbitrate domestic and international cases regardless of the location of the dispute or parties. Although LACs are a relatively recent phenomenon in China, they are growing in importance and influence. As shown in the table below, LACs have developed at a very quick pace and their caseload has risen steeply in recent years, reaching 47,314 cases in 2005.
*Fuyong Chen is a Ph.D. candidate at Tsinghua University School of Law and a Visiting Research (2007-2008) at the Center for the Study of Law and Society, UC-Berkeley. The author wishes to thank Malcolm Feeley, Jerome Cohen, Stanley Lubman, Gerald Clark, Robert Baum, Benjamin Liebman, David Anderson, Yaxin Wang and Yu Fan for their constructive comments on earlier versions of this article. The author also wants to acknowledge the support of the staff in the office of the Beijing Arbitration Commission during the field study and the financing by the China Scholarship Council Resolution Mechanisms and the Construction of Harmonious Society funded by the Chinese Ministry of Education (Grant No. 05JZD0004).