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Strength International Cooperation, and Promote Arbitration Development Together
——In Memorization of the End of International Commercial Arbitration Beijing Forum for the 50th Anniversary of “New York Convention”
On Oct 27th, 2008, organized by Beijing Arbitration Committee (“BAC”), assisted by China Academy of Law of Nations and American Arbitration Association, and jointly supported by International Lawyers Association, Japan Association of Commercial Arbitration, Royal Approved Arbitrator Academy in the UK, Arbitration Court of Stockholm Chamber of Commerce, Singapore International Arbitration Center and Hong Kong International Arbitration Center, the “International Commercial Arbitration Beijing Forum--- The 50th Anniversary for Establishment of “The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards”” was held in BAC International Conference Hall.
On the 12th printing plate in the Total No.8365 issue on Nov 9th, 2008, “Legal Daily” released a special report on “BAC Commemorating the 50th Anniversary of “New York Convention” with Its Practical Actions”. The official website of Legal Daily also published the full article. For more details, please visit:
http://www.legaldaily.com.cn/bm/2008-11/09/content_977445.htm
Seven Major Problems to be Solved after 21 Years of Implementation of “New York Convention” in China
On Oct 27th, 2008, organized by Beijing Arbitration Committee (“BAC”), assisted by China Academy of Law of Nations and American Arbitration Association, and jointly supported by International Lawyers Association, Japan Association of Commercial Arbitration, Royal Approved Arbitrator Academy in the UK, Arbitration Court of Stockholm Chamber of Commerce, Singapore International Arbitration Center and Hong Kong International Arbitration Center, the “International Commercial Arbitration Beijing Forum--- The 50th Anniversary for Establishment of “The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards” was held in BAC International Conference Hall.
Leaders from related authorities including People’s Supreme Court, the Ministry of Finance, State-owned Assets Regulatory & Administration Committee in the State Council, and China Academy of International Law, etc were invited attending the conference. Shanghai Arbitration Committee and Guangzhou Arbitration Committee attended this conference through remote video connection. Over 100 participants including members of International Chamber of Commerce, International Attorneys Association and dispute resolution bodies from countries including USA, Japan and Mongolia, etc, as well as VIP guests from arbitration organizations including China Arbitration Committee for International Economic Trade and Weinan Arbitration Committee, etc and legal advisors of some large state-owned enterprises and multinational companies, attorneys from famous lawyers firms at home and abroad and research fellows from R&D institutions in universities and colleges, gathered in Beijing, at the moment of the 50th anniversary of “The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards”, reviewing the development course of the convention and its important significance, researching the problems encountered during the execution course of the convention in various countries for the past fifty years, prospecting and analyzing the new trends and new problems in the field of dispute resolution, so as to together promote development and progress of resolution of international commercial disputes.
The 1958 International Commercial Arbitration Conference was held in the UN Headquarters in New York, and this conference passed the “New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards”, i.e. “New York Convention”. During the 50 years afterwards, the short 16 articles in the convention, by directing and promoting the theories and juridical practices for recognition and enforcement of foreign arbitral awards, have had the great functions for legislations in various countries, especially for the international arbitration legislation. At present, there have been 142 countries and regions concluding the convention.
 Mr. Jiang Ping, BAC Director and a legal expert, expressed that, the attitude and execution ability of one country for recognition of foreign arbitral awards are one of the important components of international impression for the legal system construction in this country, and China joined this convention in 1987, and while enjoying the rich results brought by the “New York Convention”, we should also not ignore the various problems existing in the execution process of the convention. The resolution of these problems depends on the common efforts by practitioners of international commercial arbitration in various countries in the world. Jointly promoting development of resolution mechanism for international commercial disputes is the mission for various arbitration organizations and dispute resolution institutions including BAC, and is also the purpose of BAC organizing this conference who applies the advanced concepts in international commercial arbitration to direct its own practices, and we should commemorate the 50th anniversary of the “New York Convention” with our practical actions.
 Mr. Wang Yun, Deputy Presiding Judge of No.4 Civil Court in the People’s Supreme Court, expressed, there are some new issues during the juridical review process of arbitration in recent years that need to be solved urgently.
Firstly, it is the issue of independence and default quote of arbitration agreement. For example, after disappearance of the original subjects in the contract, whether the arbitration clauses stipulated in the past are still restrictive for the individual members after its disassembly.
Secondly, it is the issue of interpretation and applicability of “Non-domestic arbitration verdict”. This concept involves the issue of nationality of arbitration verdict, i.e. whether we should rely on arbitration body or arbitration location to determine nationality of arbitration verdict?
Thirdly, Item (5) in the fist paragraph of Clause V in the “New York Convention” indicates “The verdict that has been cancelled or suspended for execution by the administrative authority in the country of verdict location or the country of law reference”. At this point, whether the “Laws referred to by the verdict” includes the subject laws referred to by the verdict? Thereby, can the courts in China act as a court accepting the appeal to cancel an arbitration verdict made due to misunderstanding the Chinese laws?
Fourthly, it is the issue of arbitration court with default of members. If there are some members in an arbitration court who do not attend the hearing, some stage of sitting or do not sign at the end, how about the justice of the verdict made therefore?
Fifthly, it is a prerequisite stipulated in the arbitration agreement. What dimensions should this prerequisite be examined with? This prerequisite is that it is stipulated that the agreement should be amicably negotiated, and even the duration of the amicable negotiation is stipulated for 90 days.
Sixthly, for the default arbitration caused due to delivery. If one party has no chance to defend and express his opinions due to different reasons such as inappropriate delivery means or intentional obviation by the parties, etc, then how to consider distinctively reasonability, legality and justice here?
Seventhly, about marine arbitration. After the arbitration clauses in the ship lease contract are combined into the bill of lading without arbitration clauses, are they still restrictive for any third parties? Is the insurer restricted?
(“Legal Daily”, Nov 9th, 2008, the 12th printing plate, author: Wang Jing)
Digestions of addresses
 Mr. Ulf Franke, Secretary General – Arbitration Institute of the Stockholm Chamber of Commerce:
What I’ve seen so far, I’m very impressed of BAC, the promises which are very nice, well equipped, which I think is important for modern arbitration. I met quite a few of the staff and also impressed of their knowledge in arbitration. I’ve seen this conference which I think also is great step forward to get together people from all over the world to discuss international commercial arbitration. So again what I’ve seen so far I think is very interesting and promising for the institution.
（Zhang Jiechao）
 Mr. JUN BAUTISTA, Director of ICDR Asian division of American Arbitration Association:
I know with a lot of pride for BAC that they are not just being incredible, and you’ve getting a lot of participation from international arbitration institutions from all over the world. So I think it’s remarkable what BAC has accomplished throughout the years.
The BAC is very impressive arbitration institution, not just in China, but worldwide. It has a lot of strength, particularly even though it is fairly new around 13 years, if I’m not mistaken, started in1995. But it has grown immensely, with a caseload around almost 2000 cases, and so I think again that shows how successful that the organization has progressing in such a short span of time. I believe that AAA, which is being in existence since 1926, can learn a lot from BAC.
（Guxuan）
 Ms. Khong Cheng-Yee, Director – ICC Arbitration & ADR Asia:
I think that it’s not a problem for Chinese parties to go to Chinese arbitration Commission. In fact, that’s what they want because there is something they are familiar with and something they know. However, the problem remains to convince non-Chinese parties to agree arbitration with Chinese arbitration commissions. And I think for non-Chinese parties to want to go to Chinese arbitration commissions needs the commissions to prove that they have sufficient independence of the government, the state, and prove that they have sufficient experience in administering arbitrations in a fair and mutual way and prove they are able to find necessary competent arbitrators who are experienced in the subject matter of dispute. Any development, progress and steps that BAC takes to improve its services for Chinese users, for foreign users would be very good.I look forward to hopefully cooperating more with BAC.
（ Wang Tong）
Mr. Lawrence Boo, Deputy Chairman – Singapore International Arbitration Centre:
I’m totally impressed by what BAC is doing. I have known BAC more in depth in the recent years. But in these few years, I’ve seen how BAC has grown, not just in numbers, but in the professional development of arbitrators in the professional handling a mass of cases. BAC is now internationally known. It is represented in many international seminars and conferences; its membership in Asia-Pacific Region Group. BAC is in a lot of events and I think this is a sign that it has grown of age, and is ready to compete on the international arena. I congratulate BAC for that.
（ Kong Yuan）
Prof. Gabriel Moens, Deputy Secretary-General – Australian Centre for International Commercial Arbitration:
It’s the first time that I’m visiting BAC and today I’m learning a lot about the activities that BAC is involved in. I’m truly amazed to hear that you have so many cases that you deal with on the yearly basis and obviously this is a major arbitration institution in China, definitely one of the biggest and certainly far bigger than the one that I’m involved, namely the Australian Center for International Commercial Arbitration, so obviously you are doing an excellent job.
（ Zhang Haoliang）
 Ms. Sally Harpole, Chair –International Bar Association, Arbitration Committee:
Anybody who reads the arbitration rules of Beijing Arbitration Commission will immediately recognize that BAC is striving to take a very international approach. The rules in their most recent form come as close to international norms as any rules you’ll find in China. I think it is very admirable that Beijing Arbitration Commission is really one of the leaders in creating an international environment, where parties from any place in the world can come to China, have arbitration and seek the applicable rules are fairly close to the international norm.
（Fang Jian）
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