深圳国际仲裁院（又称“华南国际经济贸易仲裁委员会”）于2016年10月26日发布了新规则，在中国率先规定受理案件范围扩大到东道国政府与他国投资者之间的投资纠纷仲裁案件，同时出台了关于适用《联合国贸法会仲裁规则》的程序指引，引起境内外法律界关注。国际著名仲裁杂志《环球仲裁评论》（Global Arbitration Review) 对此创新进行了报导。

TheKK100 skyscraper in Shenzhen (istock.com/NiQin)

The Shenzhen Court of International Arbitration has updated its rules, becoming the first institution in mainland China that will hear investor-state arbitrations and administer cases under UNCITRAL rules.

The new rules – which were unveiled on 26 October and take effect on 1 December – are intended to increase party autonomy and the international appeal of the centre. A copy of the rules is available  in English.

Wang Shengchang, senior consultant at major Chinese law firm Hui Zhong in Beijing and a member of the drafting committee of the new rules, describes them as “the most advanced arbitration rules in mainland China.”

It is the first time that the SCIA has revised its rules since its launch four years ago. The centre was first established in 1983 as the Shenzhen subcommission of the China International Economic and Trade Arbitration Commission in Beijing. In 2012, the Shenzhen and Shanghai subcommissions broke away after CIETAC revised its rules in a way that the local branches claimed centralised administration of arbitrations in Beijing.

Since that time, the Shenzhen and Shanghai subcommissions have reinvented themselves as the Shenzhen Court of International Arbitration (also known as the South China International Economic and Trade Arbitration Commission) and the Shanghai International Arbitration Center, respectively. China’s supreme court confirmed the jurisdiction of both institutions in 2015.

Under the new rules, the Shenzhen centre has expanded its jurisdiction to hear investor-state arbitrations provided they are under UNCITRAL rules and all parties involved – including the arbitrators and counsel– follow newly drafted procedural guidelines explaining how the rules apply to the court’s cases.

According to the guidelines, if the parties have not agreed on the seat of arbitration and the tribunal does not decide otherwise, the seat of arbitration shall be Hong Kong – another arbitral hub only 17 kilometres away from Shenzhen.

It will also hear international commercial cases under UNCITRAL rules.

The SCIA’s decision to increase the scope of its cases follows a growing trend among centres originally dedicated to hearing international commercial disputes. Institutions such as the ICC International Court of Arbitration and the Singapore International Arbitration Centre have also revised their rules recently to cater for investment arbitration.

Another departure in the Shenzhen centre’s new rules is the introduction of a duty of “bona fide cooperation” on the parties. Legal counsel must act in good faith and cooperate with each other to ensure a fair, efficient and cost-effective arbitration. If counsel breach their duty, causing procedural delays or an increase in costs, the tribunal has the power to punish legal counsel for their poor conduct.

The rules, however, stop short of specifying any sanctions and instead indicate that arbitrators may determine the “consequences” of the offending party’s actions.

Wang tells GAR that the duty of bona fide cooperation is an improvement on similar provisions found in the rules of other Chinese arbitral institutions such as CIETAC and the Beijing Arbitration Commission.

While those institutions include good faith provisions as a “general principle,” they go no further, he explains. The Shenzhen centre provides scope for tribunals to use the principle as “a useful tool or leverage in exercising its power for the benefit of a good arbitration.”

The rules further provide a new procedure for appointing emergency arbitrators, bringing the institution in line with the practice of major international arbitration institutions. If found to be necessary, an arbitrator will be appointed within two days of a party’s request and will issue a decision within 14 days of appointment.

The procedure does not apply to cases where the law of the People’s Republic of China applies, as this does not provide for emergency proceedings. It is available, however, for parties who have agreed to apply the law of Hong Kong or other jurisdictions.  

The rules also uphold the autonomy of the parties by clarifying the procedure for nominating a presiding arbitrator and submitting a claim for a second arbitration to be heard by the original tribunal. In addition, the rules explain how an arbitration is affected if the parties reach a settlement through the institution’s soon-to-be-established negotiation facilitation centre.

An option for online arbitration can be used at the behest of the parties.

Liu Xiaochun, president of the Shenzhen centre, tells GAR that the new rules are “not only more international, but also more practical,” describing them as a “breakthrough” for developing international arbitration under UNCITRAL rules in China.

He says that he is proud of all the legal professionals who helped shape the rules, including members of the centre’s council and drafting committee.

Fei Ning, Chinese arbitrator and managing partner at Hui Zhong law firm in Beijing, says that it is “exciting” to see the centre embrace fresh provisions to facilitate fair, transparent, efficient and cost-effective arbitration.

He says that the rules allow practitioners to tailor cases to the needs of their clients and he predicts that the centre’s new jurisdiction to hear investor-state arbitration “will inspire other Chinese arbitration institutions to seriously consider whether they will follow suit in the future.”

或点击“阅读原文”

华南国际经济贸易仲裁委员会（深圳国际仲裁院）总部办公地址：深圳市福田区深南大道1012号深圳证劵交易所西广场41层

华南国际经济贸易仲裁委员会（深圳国际仲裁院）分部办公地址：深圳市福田区彩田路5015号中银大厦B座19层

电话：0755-83501700

———————————————————

华南国仲　独立、公正、创新