Interview: Dr Wang Wenying, Secretary General of CIETAC Hong Kong
Reporters: Wilfred Ho (Skadden) and Andrew Chin (DLA Piper)
1. In recent years we have seen the proliferation of Asia-based arbitral institutions and seats. In your opinion, what makes CIETAC better equipped than your competitors to handle cross-border infrastructure, construction and project disputes?
A: It is true that more and more parties choose the Asia-Pacific region as the place of arbitration. There are also many premium arbitration institutions in the region. The advantages of CIETAC, however, are very clear:
- Since its establishment in 1956, CIETAC has focused solely on handling cross-border disputes prior to 2000. Up to now, CIETAC has accumulated more than 60 years of experience in cross-border dispute settlement, which arbitration institutions in the region cannot match. This practical experience accumulated over a long period of time makes CIETAC proficient in dealing with cross-border disputes.
- High-quality Arbitrators. The quality and capability of an arbitration institution depends heavily on the quality and capability of its arbitrators. CIETAC has a panel of outstanding arbitrators. At the same time, CIETAC provides a flexible option for parties to appoint arbitrators from CIETAC’s panel of arbitrators or outside the panel.
- Internationalisation of the Case Management Team. CIETAC has been attracting international professionals and making improvements to stay ahead of the needs of the international market, becoming ever more speedy, convenient, efficient, and user-friendly. Currently, CIETAC has more than 100 case managers.
- Efficient Case Management. While respecting the independence of arbitral tribunals, where necessary, the case manager of CIETAC will give timely reminders and urge arbitral tribunals to abide by the rules and procedures, so that the arbitration can be speedier and more efficient and that the arbitral award can be successfully enforced.
- Unique East-West Characteristics. Established by CIETAC in 2012, CIETAC Hong Kong is not only an arbitration institution established by CIETAC in Hong Kong, but is also an important part of Hong Kong’s market for resolution of cross-border disputes. Due to CIETAC's unique East-West characteristics and with the ever-increasing number of China-related cases, CIETAC Hong Kong is becoming increasingly attractive to Mainland and foreign parties.
2. With the recent Arrangement on Enforcement of Court-ordered Interim Measures between the Mainland and Hong Kong, how do you think that this Arrangement will affect the flow of arbitrations for CIETAC HK?
A: Although the application for interim measures by the parties of CIETAC Hong Kong cases have been approved and enforced by Mainland courts before the signing of this Agreement, we still welcome the Arrangement. It demonstrates the PRC Supreme People's Court’s strong support for Hong Kong and is a major boost to the attractiveness of Hong Kong arbitration.
3. You have previously referred to the "brunch" feature of CIETAC Hong Kong, as it carries both the characteristics of a Hong Kong seat and a sub-commission of a Chinese arbitration commission. Given the increased internationalisation of the Chinese arbitration market, do you think we can expect to see other international arbitration centres adopting certain Mainland legal characteristics in an attempt to attract China-related foreign investment and project disputes?
A: This is certainly possible.In fact, it is already happening. With an ever-increasing number of cases involving Mainland parties or other Chinese elements, some international arbitration institutions have been considering amendments to their rules to incorporate more "Mainland features" to attract more Mainland parties.However, as mentioned before, CIETAC Hong Kong’s advantages remain very clear. Compared with other Mainland arbitration institutions, we, and particularly CIETAC Hong Kong, are more internationalised.Compared with other non-Mainland arbitration institutions, we have a better understanding of PRC law.These advantages enable CIETAC to provide better service to parties of arbitration cases with “Mainland features”.In 2018, CIETAC administered a total of 2,962 cases. The total amount in dispute exceeded CNY 100 billion.Parties came from 60 countries and regions, including 23 Belt and Road countries.
4. What role do you envisage CIETAC Hong Kong playing in the development of the Greater Bay Area initiative and the aim of establishing Hong Kong as the centre for international legal and dispute resolution services in the Asia-Pacific region?
A: As mentioned earlier, as an arbitration institution established by CIETAC in Hong Kong, CIETAC Hong Kong serves as a bridge and a link to Mainland China. We hope to work with the dispute resolution institutions in the Greater Bay Area to build a more efficient dispute resolution platform. Given Hong Kong’s geographical advantages and common law system, Hong Kong is in a unique position. CIETAC Hong Kong will continue make good use of our unique East-West characteristics in order to provide parties with better services.
Arbitration in the Greater China region
5. In January 2018, the Supreme People's Court issued two new provisions on issues relating to the judicial review of arbitration and the reporting and review of cases involving the judicial review of arbitration. For the enforcement of foreign arbitral awards, do you think these recent legal developments have made the Chinese legal system more reliable for foreign commercial players in China?
A: The answer is definitely yes. There have been many commentaries and articles on the highlights and importance of the two judicial interpretations by practitioners and academics.Briefly, the two judicial interpretations have improved the judicial review system for arbitrations by the PRC court. These judicial interpretations once again demonstrate the Supreme People's Court pro-arbitration attitude, and will be of benefit to the development of Chinese arbitration and will enhance others’ confidence in the PRC legal system.
6. Following the introduction of the new Arrangement concerning mutual assistance in Court-ordered interim measures between the Mainland and Hong Kong, do you think we can expect to see any new trends in the Chinese arbitration sphere?
A: The Arrangement contributes greatly to the development of Hong Kong arbitration, while the impact to Mainland Chinese arbitrations is limited because Hong Kong arbitration law has always permitted parties to Mainland arbitrations to apply to the Hong Kong courts for interim measures, such as preservation of evidence and property, and conduct preservation.We also should do more to publicise and explain how the Arrangement works and to promote the advantages of Hong Kong, so as to attract more parties to arbitrate their disputes in Hong Kong.
7. The Belt and Road Initiative ("BRI") involves many state participants from lower-income or developing economies which may have a relatively less robust tradition of the rule of law. How has the BRI, and the increased importance of these state participants in the dispute resolution market, impacted arbitration in the region and in particular, the practices and case administration of CIETAC?
A: The impact is enormous. The use of arbitration to resolve disputes is based on the parties’ consent. When a country’s legal system is not adequate, parties would prefer to have their disputes resolved in a place in which the parties are more familiar with and whose legal system is more robust, such as Hong Kong. As mentioned earlier, last year, parties to CIETAC arbitrations came from over 60 countries, including 23 Belt and Road countries. This shows that the demand for arbitration in this area is significant. As for whether the parties will ultimately choose arbitration and if so, where to arbitrate, this will depend on the parties’ familiarity with arbitration and their respective bargaining power during contractual negotiations.
8. The 2019 Belt and Road Forum stressed the importance of dispute settlement instruments. In 2018, China began setting up the Chinese International Commercial Courts, which adjudicate cross-border commercial disputes and are aimed at servicing BRI disputes. Does CIETAC see this continued interest from the Central People’s Government in BRI dispute resolution as an opportunity for growth or as competing venues for the lucrative market of BRI dispute resolution?
A: CIETAC is not concerned that the establishment of the Chinese International Commercial Courts might diminish CIETAC’s market. The Chinese International Commercial Courts provide the parties another dispute resolution option. The establishment of diverse dispute resolution options is also a good thing for parties.However, arbitration still has advantages over the international commercial courts and other dispute resolution methods, such as the enforcement of foreign arbitral awards according to the New York Convention, the flexibility of the proceedings and the diversity in the expertise of arbitrators.
A: 贸仲不担心中国国际商事法庭的成立会消减贸仲的市场。中国国际商事法庭将为双方提供另一种争议解决方案。 多元化争议解决机制的建立对当事人而言是件好事。 仲裁具有商事法庭和其他争议解决方式所不具备的优势，例如根据《纽约公约》仲裁裁决的域外执行力、灵活的争议解决程序和仲裁员专业知识的多样性等。
9. A signing ceremony for the Singapore Convention on Mediation has taken place in August 2019. If China ratifies this new Convention, do you expect to see mediation emerge as an equally attractive dispute resolution mechanism alongside arbitration?
A: The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention has achieved great success in the 60 years since it was signed. The Convention of on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the Hague Convention) and the Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) are now also open for signature. The two conventions will bring many benefits to cross-border dispute resolution. I do not think that the two conventions will undermine the advantages of arbitration or result in the replacement of arbitration by other dispute resolution methods. CIETAC has always recognised the importance of mediation. One of the unique features of CIETAC arbitration is the use of med-arb. We believe the widespread use of mediation can provide another means of dispute resolution for parties, so as to allow parties to freely choose the most appropriate means to resolve their disputes.