发布时间： 2019-8-30 供稿人：闻戒（笔名）
Comments on the Latest Amendment of BAC/BIAC’s Arbitration Rules
Recently, BAC/BIAC announced the latest amendment of its Arbitration Rules (hereinafter the New Rules). The New Rules mark the dawning of a new age for arbitration in China, bringing about striking improvement in the industry’s credibility and sparking high hopes for its global ambition. Some scholars have even commended the Chinese arbitration community for realizing such groundbreaking change. Their compliments are echoed here.
The New Rules, which will come into effect on September 1, 2019, mainly focus on the reform of the arbitration fees schedule. Case acceptance fees and handling fees are no longer the two categories of arbitration fees. Instead, arbitration fees comprise two separate parts, namely, arbitrator remunerations and institutional fees. The BAC/BIAC states in its explanatory notes on the New Rules that “such division is conducive to clarifying arbitration fees for the parties. It will elevate the arbitrators’ performance by allowing equivalent remunerations of the arbitrators’ professional contribution to a specific arbitration case. ”
Prior to the New Rules, the allocation of remuneration has already been made transparent internally for BAC/BIAC’s arbitrators. Nearly half of the arbitration fees are the tribunal’s remunerations and the allocation of fees among the three arbitrators are well controlled by BAC/BIAC’s internal norms. The New Rules take further initiative of formalizing such internal norms and publicizing them to the world in a well-stated manner. This reform, with far-reaching impacts, may be a small step for BAC/BIAC but certainly a giant leap for the Chinese arbitration community.
First of all, the New Rules foreground the importance of arbitrators who decide the outcome of cases in the arbitration process. As the saying goes, “arbitration is only as good as its arbitrators”. While arbitrators play a leading role in guiding the arbitration process, fees were often collected by the institution rather than the individual arbitrator in a typical arbitration case. The system used to be silent on the allocation of arbitration fees between the institution and arbitrators. Some institutions allocate only a small part of the fees to the arbitrators despite high total costs, thinning the arbitrators’ benefit. Some consider arbitrators employees and pay remuneration as salary. Some claim that arbitration is a non-profit business so arbitrators should do good on a pro bono basis.
Thirteen years ago, Professor Huixing Liang investigated the practice among Chinese arbitration institutions and raised the question: Are the arbitrators providing arbitration service? Or are they serving the arbitration institutions? The New Rules give a two-pronged answer. One, the New Rules clarify payable arbitrators’ remuneration and institutional fees, ensuring that the former is higher than the latter. Two, the New Rules revolutionized the way arbitration institutions administer remuneration to arbitrators. Although institutions collect all arbitration fees including what is payable as remuneration to arbitrators, such remuneration is not charged by the institution and is fully pocketed by the arbitrator. This illuminates how, in essence, arbitration fees flow directly from client to arbitrator, thereby giving recognition to the importance of the arbitrator’s work.
Second, the New Rules institutionalize the Chinese arbitration practice and emphasize its non-profit quality. With the advent of the New Rules, gone are the times when most arbitration institutions apart from few, such as BAC/BIAC, would keep their profit margins under wraps while simultaneously boasting about the number of cases they were handling. The New Rules eliminate the arbitration community's opacity when it comes to reporting income, rendering the arbitration practice in China more institutionalized and transparent. Further, alongside active discussions amongst the Chinese arbitration community about the rising credibility of arbitration, authorities have also come to define Chinese arbitration institutions as non-profit legal persons. The New Rules augment the non-profit nature of arbitration by increasing the minimum amount of arbitrators' remunerations as well as the proportion of such remunerations in the total arbitration fees, without increasing the cost borne by the parties involved.
Third, the New Rules propel the internationalization of Chinese arbitration to new heights. Internationalization is an ambition in the eyes of many industries in China. This is no exception for the Chinese arbitration community. In pursuit of this, many arbitration institutions have adopted international names and set up international branches in recent years. Yet, the internationalization of Chinese arbitration is not a matter of name or of how many foreign arbitrators there are on the panel. True internationalization occurs when foreign arbitration users embrace the Chinese arbitration practice, the crux of which lies in aligning Chinese arbitration principles and practices with international standards. In this light, BAC/BIAC’s New Rules are one step in the right direction. The New Rules reconciliate the long-standing difference between Chinese and international arbitration practice regarding arbitration fees by encouraging institutions to look beyond self-interests and prioritize the quality of service they provide. Such reform launches Chinese arbitration to greater heights and enhances its status in the international arena, attracting the recognition of foreign enterprises, lawyers and arbitrators.
Finally, the New Rules provide solid groundwork for promoting the professionalization of arbitration in China. This is crucial as the quality of arbitration services rely upon the professionalism and moral integrity of arbitrators. Yet, China has long suffered from a shortage of professional arbitrators who treat arbitration as their full-time career, which has proven to be a struggle for Chinese arbitration institutions seeking high-calibre arbitrators. Meanwhile, international arbitrators have long regarded arbitration as their main career. With their job at stake, international arbitrators are therefore much more committed to maintaining an excellent reputation by working diligently and providing impeccable service. What is it, then, that keeps China from having such professional arbitration teams? One of the most prominent limitations is the flawed remuneration system for arbitrators, a problem which the New Rules effectively tackle. A more transparent allocation of arbitration fees encourages the development of professionals in the field, providing fertile grounds for the nurturing of professional arbitration teams in China.
Despite the benefits introduced by the New Rules, they also pose challenges to BAC/BIAC’s practice. BAC/BIAC will be faced with questions such as how it would maintain the high quality of institutional case management with less institutional fees, as well as how it would balance institutional quality control with arbitrators’ independent decision-making.
Concluding with a quote by French novelist Honoré de Balzac, who once said “there is no such thing as a great talent without great willpower”, I hereby pay tribute to the BAC/BIAC’s unwavering determination in pursuing self-enhancement and innovative reforms.
The author is one of the listed arbitrators of Beijing Arbitration Commission/Beijing International Arbitration Center（BAC/BIAC）.
Ms. Odessa Ng from the University of Oxford and BAC/BIAC’s senior manager Terence Xu also contributed to the article.