International Chamber of Commerce Arbitration Research

Author: Wang Zuoxing
Publisher:
Publish Date: 2005-06-01
Features: Today, resolving civil and commercial disputes, especially international commercial disputes, through arbitration has become the preferred method for those engaged in international commercial transactions. However, as a legal institution, arbitration in China is underdeveloped, and its theoretical research is also weak. In this context, the theoretical and practical significance of this book is particularly important and far-reaching. The book is actually divided into two parts: Part (i.e., the chapters of this book) is based on the fundamental theories and new developments of international commercial arbitration, guiding readers to understand the operational mechanisms and current rules of the International Chamber of Commerce (ICC) Arbitration Court. The second part (i.e., Chapters 2 to 7 of this book) focuses on several important issues in ICC arbitration that are distinctive, contentious, but also universally significant in international commercial arbitration. This part is the main thread of the book and represents the author's research findings, which were painstakingly obtained from foreign sources. Part is the author's purpose in researching this topic. The ICC Arbitration Court demonstrates its strong superiority in adapting to parties from different countries, languages, social systems, and legal systems. Strengthening research on it not only benefits the theoretical and practical development of arbitration in China but also significantly improves the practical operational level of Chinese enterprises in ICC arbitration. Through a historical review of international commercial arbitration, the author summarizes the new developments and trends of international commercial arbitration, including the acceleration of unification in arbitration law and rules, the increasing de-domestication or de-localization of procedural and substantive laws applicable to arbitration, the growth in the number of permanent arbitration institutions, their expansion of power, and the declining intervention of courts in arbitration. Mediation is also increasingly adopted in arbitration. The author then introduces the roles of the ICC, the ICC Arbitration Court, and the ICC Arbitration Court Secretariat, as well as the evolution of the ICC Arbitration Rules. He evaluates the current rules (i.e., the 1998 Arbitration Rules) as follows: (1) Respecting the fundamental characteristics of ICC arbitration; (2) Strengthening the decision-making power of the Arbitration Court; (3) Reducing delays in arbitration proceedings; (4) Making substantive modifications and additions to address new issues. The second part consists of six chapters and is the core content of ICC arbitration, as well as the main part of the book. First, research on the arbitration agreement. In this section, the author primarily elaborates on the basic concepts, types, constituent elements, legal effects, and alienation and rectification of arbitration agreements, which are one of the most important and core aspects of ICC arbitration. In defining the basic nature of an arbitration agreement, it should be understood from four aspects: the result of party autonomy, the reality and potential of the dispute, the commercial nature of dispute resolution, and the written form. Among the theories on the nature of arbitration agreements—such as the litigation contract theory, the substantive law contract theory, the mixed theory, and the independent type contract theory—the independent type contract theory is considered the most reasonable. In terms of the types of arbitration agreements, the author briefly introduces the categories of arbitration agreements based on formal and arbitrator standards. In the constituent elements of arbitration agreements, the content is based on the original practice of ICC arbitration, pointing out that the elements of an arbitration agreement can be divided into three levels: Level 1 is the essential elements of an arbitration agreement, the absence of which renders the agreement invalid or uncertain in effect; Level 2 is the general elements, which should ideally be included but are not mandatory; their absence merely requires the agreement to be perfected but does not affect its validity; Level 3 is the special elements of an arbitration agreement, which serve specific functions, such as adding mediation or settlement procedures or making special provisions for certain procedural details. The author elaborates on the traditional legal effects of arbitration agreements and analyzes recent academic trends and practical operations, pointing out that arbitration agreements have autonomous and expansive legal effects. Traditionally, arbitration agreements bind parties, arbitral tribunals, and judicial authorities in different ways; autonomously, arbitration agreements have legal effects independent of the main contract and are not invalidated by the nullification, termination, or non-existence of the main contract; expansively, arbitration agreements gradually break free from formal constraints and begin to bind third parties who did not sign them. In the section on the alienation and rectification of arbitration agreements, the author analyzes irredeemable invalid arbitration agreements and valid but rectifiable arbitration agreements, identifies their causes, and proposes corresponding solutions. Next, research on the arbitral tribunal. The author believes that the relationship between arbitrators and parties is a special "contractual" relationship, with arbitrators acting like "private judges," entrusted with the same trust from both parties and independent of any single party. Arbitrators should also follow the model of national judicial responsibility while enjoying the same rights as national judges. Arbitrators and arbitral institutions have specific mutual obligations under certain circumstances. Although the relationship between arbitrators and arbitral institutions appears to be based on a "contract," this contractual nature is not obvious. The primary obligation of arbitrators to arbitral institutions (and in turn to parties) is to comply with the provisions of the arbitration rules. The author fully elaborates on the rights and duties of arbitrators, including disclosure of conflicts of interest, appropriate communication with parties, conducting arbitration proceedings, making fair and public decisions, and the right to dissent from the award. Arbitrators also have duties to maintain the integrity and fairness of arbitration proceedings, disclose conflicts of interest, avoid private communications with parties, provide equal treatment to parties, and conduct arbitration proceedings diligently and carefully. The author also explains the qualifications of arbitrators, including the criteria for determining qualifications and various scenarios of disqualification. At the end of this chapter, the author evaluates the specific provisions of ICC arbitration tribunals. Next, research on the statement of scope of work. The author discusses the origin and evolution of the statement of scope of work and emphasizes its important role and special significance. What is most important is that the author, through an examination of the ICC rules, proposes the drafting procedures for the statement of scope of work, such as general principles for drafting, the selection of drafting methods, and the determination of joint drafting dates. The author also proposes the content of the statement of scope of work, including the basic information of the parties and arbitrators, summaries of the respective claims of the parties, a list of pending issues, the arbitration location, and the specific procedural rules to be applied. The author then proposes his own views on the handling of two special issues arising from the statement of scope of work. At the end of this chapter, the author provides a basic evaluation of the ICC current arbitration rules on the statement of scope of work, expressing his own opinions. Next, research on the arbitration proceedings. The globalization of ICC arbitration makes the rules and laws governing arbitration proceedings particularly important. The author, drawing on many specific cases in international commercial arbitration, elaborates on major issues such as the procedural rules chosen or agreed upon by the parties, procedural rules decided by the arbitral tribunal, and the influence of domestic laws. He provides detailed and specific experiences and suggestions on several key aspects, including appropriate methods and timeframes for confirming the facts of the case, the concept of arbitration evidence, written materials, organizational work in the evidence process, preparation before hearings, details during hearings, and the handling of special situations in arbitration proceedings. These are also the author's long-term working experiences, which have certain guiding significance for arbitration in China, especially for international commercial arbitration. Next, research on the applicable law in arbitration. The applicable law in arbitration is primarily discussed from two aspects: procedural and substantive. The legal rules for procedural issues in arbitration mainly include two rules: first, applying the procedural rules chosen or agreed upon by the parties; otherwise, applying the procedural rules decided by the arbitral tribunal. Of course, regardless of the situation, the procedural law of the arbitration location imposes constraints on the legal application of procedural issues. However, the ICC rules exhibit a unique hierarchical characteristic: first, applying the ICC arbitration rules; second, applying the procedural rules chosen or agreed upon by the parties; and third, applying the procedural rules decided by the arbitral tribunal. The legal rules for substantive issues in arbitration mainly include two rules: first, applying the law chosen or agreed upon by the parties; second, applying the law decided by the arbitral tribunal. The article focuses on analyzing several specific practices of the arbitral tribunal in determining the applicable law for substantive issues, which is inspiring for international commercial arbitration in China. Finally, research on the arbitral award. The article mainly introduces three aspects: the types of arbitral awards, the making of arbitral awards, and the administrative supervision of the ICC Arbitration Court over arbitral awards. The most important part is the third section, which is a distinctive feature of ICC arbitration. In terms of the types of arbitral awards, the article briefly introduces the characteristics and similarities and differences between temporary arbitral awards, partial arbitral awards, unanimous awards, majority vote awards, and awards by the presiding arbitrator. Second, it fully introduces the time limits, procedures, and legal effects of the making of arbitral awards. At the end of this chapter, the author focuses on explaining the administrative supervision of the ICC Arbitration Court. ICC arbitration is a supervised institution-based arbitration, and the control and supervision of the Arbitration Court over arbitral awards constitute a distinctive feature of ICC arbitration. Due to the assistance of a highly experienced administrative center, the global recognition of ICC arbitral awards is not surprising. The cooperation between the ICC Arbitration Court and the arbitral tribunal, the resolution of conflicts between them, the evaluation by national judicial authorities, the assessment of the supervisory functions of the ICC Arbitration Court by parties, and the balance between the independence of the arbitral tribunal and the supervision of the ICC Arbitration Court—these are complex and fascinating issues. The author of this book guides readers through these issues in a relaxed and fluent manner, providing insightful analysis of the ICC-related arbitration rules and practices.