CHINA Law and Practice Contributed by: Tim Yimin Liu, Sybil Xueting Yuan and Cassie Wenjing Li, Global Law Office
• Recusal of arbitrators – A party may request the recusal of an arbitrator by stating the grounds, typically before the first hearing. If the grounds become known only after the first hearing, the request may still be submitted before the final hearing concludes. (See Article 35.) • Hearings – Arbitration is typically conducted through hearing unless the parties agree otherwise. Hearings are not open to the public unless other - wise agreed or if state secrets are involved. (See Article 39.) • Evidence – Each party bears the burden of proof for its claims. Evidence is presented during the hearing and is subject to cross-examination. (See Articles 43 and 44.) • Partial awards – If part of the dispute is clear, the arbitral tribunal may render a partial award. (See Article 55.) • Finality of awards – China adopts a “one-final- award” system, meaning that once an award is rendered, parties may not re-arbitrate or litigate the same dispute. (See Article 9.) 7.3 Powers and Duties of Arbitrators Under Chinese law, the powers and duties of arbi - trators are primarily governed by the PRC Arbitration Law and the arbitration rules of the relevant arbitration institutions. Powers of Arbitrators Arbitrators have the following powers. • Conduct of proceedings – Arbitrators have the authority to preside over hearings. They may also render awards based on written submissions if agreed by the parties (see Article 39). They may also decide on adjournments (see Article 41) and proceed with default awards if a duly notified respondent fails to appear without justification or withdraws from the hearing without permission (see Article 42). • Evaluation of evidence and fact-finding – Arbitra - tors have the discretion to assess the admissibility, relevance and weight of evidence. Unless other - wise agreed, the tribunal may instruct parties to produce evidence or collect evidence on its own initiative. For technical matters, expert opinions
may be obtained either by party agreement or by tribunal appointment. (See Articles 43–44.) • Mediation and confirmation of settlements – Arbi - trators may render an award based on a settlement agreement upon party request (see Article 49). Dur - ing proceedings, the tribunal may mediate if both parties consent and may issue a conciliation state - ment or an award reflecting the mediated outcome (see Article 51). • Rendering of binding awards – Based on ascer - tained facts and applicable law, arbitrators may render legally binding decisions (see Article 53). Duties of Arbitrators The following duties are imposed on arbitrators. • Independence and impartiality – Arbitrators must act independently and impartially, treating all par - ties equally and refraining from representing or favouring any side (see Article 8). • Ongoing duty of disclosure – If an arbitrator becomes aware of any circumstance that may affect their impartiality (eg, conflicts of interest, private contact with a party), they must promptly disclose such information in writing and request recusal (see Article 34). 7.4 Legal Representatives Foreign qualified lawyers can serve as attorneys appearing in international commercial arbitrations in China, provided they hold a valid power of attorney from parties. 8. Evidence 8.1 Collection and Submission of Evidence In China, the collection and submission of evidence is mostly carried out by the party with the burden of proof, following the principle that whoever makes the claim bears the burden of proof. Evidence types are diverse and include party statements, documentary evidence, physical evidence, audiovisual materials, electronic data, witness testimony, expert opinions and inspection records. (See Articles 66 and 67 of the PRC Civil Procedure Law.)
149 CHAMBERS.COM
Powered by FlippingBook