CIETAC Arbitration Rules 2012

CIETAC has announced that effective May 1, 2012, the CIETAC Arbitration Rules (2012) shall uniformly apply to the CIETAC and its sub-commissions.

CIETAC started the rules revision back in early 2010. During early 2010 I was in CIETAC (as reported in this blog) and had an opportunity to gain valuable insights into the workings of CIETAC, to which I am most grateful to the Director of the International Division. The approach taken on the rules revision was open and thorough via a working group.

As an arbitration institution, established since 1956, CIETAC has vast experience of not only arbitration but also conciliation (or mediation). In the (old) 2005 rules Article 40 allows for the combination of conciliation and arbitration (throughout the arbitration proceeding), a unique feature which the Western world finds rather alien. Alien as the role of a mediator is perceived to be different or separate from an arbitrator, and as such the potential for conflict of interests and/or impartiality issues. The (old) CIETAC rules have served the arbitration community well, and according to CIETAC, 20% to 30% of its annual caseload is resolved through this med-arb process. Furthermore, the new 2012 rules have incorporated additional safeguards (Article 45.8 and 45.10) to strengthen the combination of conciliation and arbitration provision. My guess is that these safeguards are to address and avoid the issues of impartiality, and to prevent a repeat of the case of Gao Haiyan v Keeneye Holdings Limited, whereby a Chinese arbitral award was enforced in Hong Kong after a failed med-arb (due to arbitrator impartiality). Also, Article 45.1 to 45.10 amendments to the old 2005 rules on med-arb are clearer in terms of separation of the role of CIETAC, the parties and the tribunal.

On the subject of ‘service of document’, the new rules have added ‘periods of time’ in Article 8.4 perhaps to clarify the starting (time) or commencement of the arbitration. The efficiency of document (paper intensive) handling and administration as performed by the staff at CIETAC are reflected in the new provision, Article 18 Submissions and Exchange of Arbitration Documents. This is perhaps another unique feature of CIETAC in that document exchange is managed by the Secretariat of CIETAC, unless otherwise agreed by the parties and with the consent of the arbitral tribunal or otherwise decided by the arbitral tribunal (Article 18.2).

For a detailed commentary on the rules changes, Herbert Smith provides a good breakdown.

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