CHINA Law and Practice Contributed by: Tim Yimin Liu, Sybil Xueting Yuan and Cassie Wenjing Li, Global Law Office
Mandatory legal disclosure Where laws explicitly require disclosure, confidential - ity must yield. For example, under the Measures for the Administration of Information Disclosure of Listed Companies, listed companies must disclose signifi - cant arbitration cases related to the company. Court orders Confidentiality may also be overridden to a certain extent by court orders in subsequent court proceed - ings. For instance, in judicial review proceedings for setting aside arbitral awards or for recognition and enforcement applications, or in criminal cases, courts may require the disclosure of arbitration documents and information relevant to the matters under review. An arbitral award shall be rendered in writing and must state the parties’ claims, the facts of the dispute, the reasoning of the award, the dispositive part, the allo - cation of arbitration costs, and the date of issuance. However, where the parties agree not to include the facts or reasoning, such content may be omitted. The award must bear the signatures of the arbitrators and the seal of the arbitration institution. An arbitrator who dissents may choose whether to sign the award. The award becomes legally effective on the date of issu - ance. (See Articles 54 and 57 of the PRC Arbitration Law.) 10. The Award 10.1 Legal Requirements Where the parties reach a settlement during arbitra - tion, they may request the arbitral tribunal to render an award based on the terms of settlement (see Article 49 of the PRC Arbitration Law). If the tribunal facilitates successful mediation, it shall either issue a concilia - tion statement or render a consent award in accord - ance with the mediated terms. Both the conciliation statement and the arbitral award have the same legal effect (see Article 51 of the PRC Arbitration Law). While the PRC Arbitration Law does not specify a statutory time limit for issuing an award, most arbitral institutions impose time limits in their arbitration rules. For instance, under the current CIETAC Arbitration Rules, tribunals are generally required to render an
Compulsion of Non-Parties The tribunal’s powers differ between parties and non- parties. While letters of assistance for evidence col - lection issued by arbitral tribunals are generally not compulsory on non-parties, if a court supports the arbitration by issuing an investigation order, the third party is legally obliged to disclose relevant information in accordance with court orders.
9. Confidentiality 9.1 Extent of Confidentiality Confidentiality of Arbitration Proceedings Principle of non-public hearings
Pursuant to Article 40 of the PRC Arbitration Law, unless the parties agree otherwise, the arbitration proceedings – including parties’ statements, submis - sions and examination of evidence – are not open to the public. In practice, attendance by third parties at hearings requires the parties’ consent; otherwise, no attendance is permitted. Confidentiality of arbitration information and documents Although the PRC Arbitration Law does not explicitly impose confidentiality obligations on arbitration par - ticipants, the principle of non-public hearings implic - itly acknowledges the confidentiality of arbitration. Many arbitration institutions’ rules—such as those of CIETAC—explicitly provide for the confidentiality of arbitration proceedings and impose confidentiality duties on arbitrators and staff of the arbitration insti - tution. Confidentiality of arbitral awards Arbitral awards are generally disclosed only to the parties and are not made public. Where agreed by the parties, the award need not disclose the factual background of the dispute or the reasoning for the decision. Possibility of Disclosure of Information in Subsequent Proceedings While arbitration proceedings are confidential, infor - mation disclosed therein may be revealed in subse - quent proceedings under limited circumstances.
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