CHINA Law and Practice Contributed by: Tim Yimin Liu, Sybil Xueting Yuan and Cassie Wenjing Li, Global Law Office
• From the panel list – Parties may select arbitrators from the institution’s official panel of arbitrators. • Outside the panel list – If permitted under insti - tutional rules, parties may also nominate arbitra - tors outside the panel, subject to approval by the arbitration institution or its chairperson. This flex - ibility is expressly provided in the rules of CIETAC, SHIAC, SCIA and BAC. • Assistance by institution – If the agreed method of appointment is deemed manifestly unfair, some institutions (such as CIETAC) reserve the right to properly intervene and adjust the appointment mechanism to uphold procedural fairness. 4.2 Default Procedures If the parties’ chosen method for selecting arbitra - tors fails, the default appointment procedures under Chinese law and institutional rules shall apply instead (see Articles 31 and 32 of the PRC Arbitration Law). • In cases where the parties have agreed to a three- member tribunal, each party appoints one arbitra - tor or entrusts the chairperson of the arbitration institution to do so on their behalf. The third arbi - trator, who acts as the presiding arbitrator, shall be jointly appointed by the parties or jointly entrusted to the chairperson of the institution for designation. • If the parties have agreed to a sole arbitrator, they must jointly appoint the arbitrator or entrust the chairperson of the arbitration institution to make the appointment. • If the parties fail to agree on the method of con - stituting the arbitral tribunal or fail to appoint arbitrators within the time limit prescribed by the applicable arbitration rules, the chairperson of the arbitration institution will make the appointment. The rules of mainstream arbitration institutions in Chi - na provide that if one party fails to appoint an arbitra - tor within the specified period, the chairperson of the institution will appoint one on that party’s behalf. While the PRC Arbitration Law does not set up a default procedure that applies in the case of multi - party arbitrations, institution rules (such as those of CIETAC and SHIAC) contain specific provisions. For example, under the SHIAC Arbitration Rules, if there are multiple claimants or respondents, each side is
required to jointly agree on and nominate an arbitrator. This joint nomination must be confirmed in writing and submitted to the institution’s registrar. 4.3 Court Intervention Chinese courts do not intervene in the selection of arbitrators, even in the event of a failure of the party- agreed appointment process. However, after an arbi - tral award has been rendered, any subsequent judicial review proceedings may serve as a basis for setting aside the arbitral award or resisting its enforcement. A Chinese court may review the legality of the arbi - trator appointment process as part of its procedural examination. For example, if the composition of the arbitral tribunal seriously violated the arbitration rules or the parties’ agreement, it may be deemed a ground for refusing enforcement or setting aside the award. 4.4 Challenge and Removal of Arbitrators Parties have the right to challenge or remove arbitra - tors on the following grounds: • the arbitrator is a party in the case or a close rela - tive or attorney-at-law (or representative) of a party; • the arbitrator has personal interests in the case; • the arbitrator has any other relationship with a party or their attorney-at-law (or representative) that may affect the impartiality of the arbitration; or • the arbitrator has privately met with a party or their attorney-at-law (or representative), or accepted gifts or hospitality from them. A party applying for recusal must state the grounds and generally make the application before the first hearing. If the grounds for recusal are discovered after the first hearing, the application may be submitted before the final hearing concludes. The decision on whether an arbitrator should be recused is made by the chairperson of the arbitration institution. If the chairperson is acting as an arbitrator in the case, the decision is made collectively by the arbitration institution. If an arbitrator is recused or otherwise unable to per - form their duties, a replacement must be selected or appointed in accordance with the law. After the
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