We reported in our March 2011 issue that we anticipated that the China International Economic and Trade Arbitration Commission (CIETAC) would revise its rules. Its Arbitration Rules have now been revised and were adopted by the China Chamber of International Commerce on 3 February 2012 (the 2012 Rules). The 2012 Rules will come into effect on 1 May 2012. Some of the most important changes are detailed below.
1. Conservatory and Interim Measures
One of the most significant changes brought in by the 2012 Rules is that the arbitral tribunal will be able to grant conservatory and interim measures, by way of procedural order or interlocutory award. A new Article 21 provides that at the request of a party, the arbitral tribunal may order any interim measure it deems necessary or proper in accordance with the applicable law and may require the requesting party to provide security in connection with that measure. At present, the existing rules only provide for applications to court for property preservation and protection of evidence.
2. Considerations in Appointing Arbitrators
The 2012 Rules add a new provision (Article 28) specifying the factors to be considered when appointing arbitrators. It states that when appointing arbitrators, the Chairman of CIETAC shall take into consideration the law as it applies to the dispute, the place of arbitration, the language of the arbitration, the nationalities of the parties and any other factors the Chairman considers relevant.
3. Three-Arbitrator Tribunal
The 2012 Rules in respect of Three-Arbitrator Tribunals (Article 25) allow each party to nominate one to five arbitrators as candidates for presiding arbitrator (under the existing rules only one to three can be nominated). As under the existing rules, if the parties nominate a common candidate, then that candidate shall be appointed as presiding arbitrator. If the parties nominate more than one common arbitrator or where no common arbitrator is nominated, the Chairman of CIETAC shall appoint the presiding arbitrator.
4. Consolidation of arbitrations
The 2012 Rules provide for the consolidation of arbitrations, under a new Article 17. At the request of a party and with the agreement of all other parties or where CIETAC believes it is necessary and all parties have agreed, CIETAC may consolidate two or more arbitrations pending under its rules into a single arbitration. Factors to be considered by CIETAC when deciding whether to consolidate include whether the claims are made under the same arbitration agreement, whether the arbitrations are between the same parties or whether one or more of the arbitrators have been nominated or appointed in the different arbitrations. Unless otherwise agreed by all parties, the arbitrations will be consolidated into the arbitration which was commenced first.
5. Language of the arbitration
Under the existing rules parties can agree the language of the arbitration and in the absence of such agreement, the language of the arbitration proceedings shall be Chinese. As under the existing rules, the 2012 Rules provide that the parties can agree the language of the arbitration. However, under the 2012 Rules (Article 71) in the absence of agreement by the parties, the language of the arbitration will be Chinese or any other language designated by CIETAC, having regard to the circumstances of the case.
6. Arbitration Agreement
The 2012 Rules contain a new provision (Article 5(3)) stating that where the law as it applies to the arbitration agreement has different provisions as to the form and validity of the arbitration agreement, those provisions shall prevail.
7. Applicable Law
A new provision has been added to the 2012 Rules (Article 47(2)), stating that where the parties have agreed on the law as it applies to the merits of their dispute, the parties' agreement shall prevail. In the absence of such agreement, or where such agreement is in conflict with a mandatory provision of the law, the arbitral tribunal shall determine the law as it applies to the merits of the dispute.
8. Examination of evidence
Under the existing rules, if a case is to be examined by way of an oral hearing, the evidence is required to be exhibited at the hearing and examined by the parties. Under the 2012 Rules, it appears that it is no longer mandatory for the parties to examine the evidence produced during an oral hearing because the new rules provide that where a case is examined by way of an oral hearing, the evidence shall be produced at the hearing and “may” be examined by the parties. Another change relates to cases to be decided on the basis of documents only or where the evidence is submitted after the hearing. The existing rules provide that where evidence is submitted after the hearing, the arbitral tribunal can decide to admit such evidence without holding further hearings and may require the parties to submit their opinions in writing. The 2012 Rules (Article 40) provide that where a case is to be decided on the basis of documents only, or where evidence is submitted after the hearing, if both parties agree, there may be examination of evidence by means of writing and without an oral hearing, in which case the parties shall submit their written opinions on the evidence.
9. Postponement of oral hearing
As under the existing rules, the 2012 Rules permit a party (with justified reasons) to request a postponement of the first oral hearing. Under the 2012 Rules (Article 35), such request must now be made in writing and within five days of receipt of the notice of oral hearing. The existing rules do not specify that the request must be in writing and state that the request must be made at least ten days in advance of the oral hearing.
10. Suspension of proceedings
Article 43 of the 2012 Rules provides that arbitration proceedings may be suspended at the parties' request or under circumstances where such suspension is necessary. The arbitral tribunal shall decide whether to suspend or resume the arbitration proceedings. Where the arbitral tribunal has not yet been formed, that decision will be made by the Secretary General of CIETAC.
11. Summary procedure
Under the 2012 Rules (Article 54), unless otherwise agreed by the parties, the summary procedure will apply to cases where the amount in dispute does not exceed RMB 2,000,000 yuan. It will also apply to cases where although the amount in dispute exceeds that amount, the parties agree to the summary procedure applying. Under the existing rules, the summary procedure applies, unless otherwise agreed by the parties where the amount in dispute does not exceed RMB 500,000 yuan or where the amount in dispute exceeds that amount, but the parties agree to the summary procedure applying.
As well as adding some new provisions, the 2012 Rules clarify some of the existing rules. The revisions are welcomed and should facilitate increased use of CIETAC for international arbitrations.