CHINA Trends and Developments Contributed by: Peibing Qi, Na Gao and Shanshan Heng, Fangda Partners
of the National Symposium on Foreign-Related Com- mercial and Maritime Trial Work of Courts, its legal effect was limited, as it did not have the status of formal legislation. The New Arbitration Law codifies the approach reflected in the aforementioned judicial documents and, for the first time, establishes the concept of the “seat of arbitration”. It formally clarifies the criteria for determining the seat of arbitration and related rules at the legislative level. Parties now enjoy the autonomy to select the seat of arbitration, thereby clarifying the applicable procedural law and the competent court for judicial review. This development significantly enhances the stability and predictability of arbitration proceedings and arbitral awards. The provisions on the “seat of arbitration” in the New Arbitration Law is largely consistent with international- ly accepted standards, including the UNCITRAL Mod- el Law on International Commercial Arbitration and the New York Convention. It is expected to promote greater alignment between China’s domestic arbi- tration regime and international arbitration practice, enhancing the attractiveness and competitiveness of China as a venue for foreign-related arbitration. Establishment of the Ad Hoc Arbitration (Special Arbitration) System for the First Time Arbitration is generally divided into institutional arbitra- tion and ad hoc arbitration. Compared with institution- al arbitration, which is conducted under established institutional rules and administrative frameworks, ad hoc arbitration serves as a complement by offering greater flexibility and confidentiality. It effectively fills the gaps left by institutional arbitration, and affords parties greater control over the arbitration proceed- ings to meet the personalised dispute resolution needs of special commercial transactions. China’s previous Arbitration Law did not provide for ad hoc arbitration. However, since 2016, China has successively issued a series of instruments, such as the Opinions of the Supreme People’s Court on Pro- viding Judicial Guarantee for the Construction of Pilot Free Trade Zones, the Several Provisions of Hainan Free Trade Port on the Development of International Commercial Arbitration, and the Measures of Shang-
hai Municipality for Promoting Ad hoc Arbitration in Foreign-related Commercial and Maritime Fields. These measures initiated pilot programmes for ad hoc arbitration in pilot free trade zones, Shanghai and the Hainan Free Trade Port. Building on the practical experience of ad hoc arbi- tration from these pilot programmes, Article 82 of the New Arbitration Law introduces ad hoc arbitra- tion (special arbitration) at the legislative level for the first time. This development aligns with internationally accepted arbitration rules, responds to the practical needs of arbitration practice, expands the range of dispute resolution options available to parties, and significantly enhances the flexibility and profession- alism of China’s arbitration system. Notably, the New Arbitration Law adopts a prudent attitude of “gradual opening-up” towards ad hoc arbitration, resulting in a framework with distinct Chi- nese characteristics. First, the scope of ad hoc arbi- tration is limited to foreign-related maritime disputes and foreign-related disputes involving enterprises in designated regions. Second, an ad hoc arbitral tribunal is required to file relevant case information with the Arbitration Association within three working days of its constitution. This institutional framework reflects China’s careful balance between openness and standardisation in ad hoc arbitration, safeguard- ing the impartiality of arbitration while enhancing the inclusiveness of the arbitration system. That said, the specific rules, procedures and sup- porting mechanisms for ad hoc arbitration remain to be clarified. Important issues, such as the scope of institutional support for ad hoc arbitration, the role and authority of the Arbitration Association in ad hoc arbitration, and mechanisms for resolving procedural deadlocks in ad hoc arbitration, have not yet been addressed in detail, and will require further research and exploration through future legislation and judicial practice. Strengthening Judicial Support for Arbitration Support for conduct preservation in arbitration Conduct preservation refers to measures whereby a party requests the court to order the opposing party to take or refrain from taking certain actions. Such
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