CHINA Trends and Developments Contributed by: Peibing Qi, Na Gao and Shanshan Heng, Fangda Partners
measures help prevent the expansion of losses to par- ties and avoid situations where an arbitral award may become unenforceable. China’s previous Arbitration Law only provided for property preservation and evidence preservation in arbitration, without addressing conduct preservation. Article 39 of the New Arbitration Law now formally introduces conduct preservation, providing a clearer legal basis for parties seeking such relief. This devel- opment enhances the availability and effectiveness of remedies for parties and further promotes the accept- ance and credibility of commercial arbitration as a dis- pute resolution mechanism. Support for pre-arbitration preservation China’s previous Arbitration Law did not provide for preservation measures prior to the commencement of arbitration. Articles 39 and 58 of the New Arbitration Law now expressly introduce pre-arbitration preservation, ena- bling parties to seek more timely and effective judi- cial protection in urgent circumstances. This greatly enhances the effectiveness of the preservation regime and better protects the legitimate rights and interests of arbitration parties. Support for evidence investigation and collection by arbitral tribunals China’s previous Arbitration Law only provided in principle that arbitral tribunals have the power to col- lect evidence on their own, but did not specify the procedures or scope of such powers for investigation and collection of evidence. In judicial practice, most administrative authorities did not recognise requests for investigation assistance issued directly by arbitral institutions. In recent years, several High People’s Courts in China – such as those in Shanghai and Guangdong – have sought to address this issue by introducing mecha- nisms such as investigation orders for arbitration. Under these mechanisms, arbitration institutions may apply to the court for an investigation order, which parties may then use to obtain relevant evidence.
Article 55 of the New Arbitration Law now provides that arbitral tribunals have the right to request relevant authorities to assist in investigation and collection of evidence in accordance with the laws and regulations. This represents the first legislative recognition of such assistance and provides a legal basis for arbitral insti- tutions to seek co-operation from administrative and judicial authorities, thereby alleviating practical diffi- culties in investigating and collecting evidence. However, the relevant provisions of the New Arbitra- tion Law remain relatively general. Key issues, such as the specific procedures for assisting in evidence investigation and collection, the legal consequences of non-cooperation, and whether arbitral institutions may directly approach administrative authorities or must first seek a court-issued investigation order, remain unresolved and will require further clarification through future legislation and judicial practice. Improving Judicial Supervision of Arbitration The setting aside of arbitral awards constitutes a key mechanism of judicial supervision and a crucial safe- guard for ensuring the integrity of arbitration. Article 72 of the New Arbitration Law shortens the time limit for applying to set aside an arbitral award from six months to three months. This amendment is intended to encourage parties to exercise their remedial rights in a timely manner, while also enhancing the finality and stability of arbitration awards and improving the overall credibility and efficiency of the arbitration sys- tem. In addition, the revised time limit for setting aside arbitration awards is consistent with the UNCITRAL Model Law on International Commercial Arbitration, thereby promoting greater alignment between China’s arbitration legislation and internationally accepted standards. Encouraging Arbitration Institutions to “Go Global” and “Bring In” In recent years, China has encouraged domestic arbi- tration institutions to establish overseas branches and to develop into internationally competitive arbitration institutions with Chinese characteristics. Against this background, several leading domestic arbitration institutions are accelerating their internationalisation efforts. For example, the China International Eco- nomic and Trade Arbitration Commission (CIETAC)
119 CHAMBERS.COM
Powered by FlippingBook