I. Purpose of Amendment
Beijing Arbitration Commission (BAC) aims to build itself into an impartial, clean and creditable arbitration body with top services, quality, efficiency and teams. This requires unremitting efforts of sessions of arbitration committee in selecting, training and building a top-class team of arbitrators. The Beijing Arbitration Commission Ethical Standards for Arbitrators (the “Ethical Standards”) should reflect this aim and requirement. In addition, with the development of practice, the Ethical Standards amended and passed on December 27, 1996 has encountered some new challenges, for example, the lack of the sense of responsibility and low case handling efficiency among a handful of arbitrators. Therefore it is necessary to adjust the provisions in the Ethical Standards accordingly to improve the transparency of the recruitment and management of arbitrators and enhance their morality and professional skills. The amended version of the Ethical Standards (the “Amended Version”) takes the arbitration rules of foreign arbitral institutions and the Several Provisions on Reform of Trial Styles in Civil and Economic Cases promulgated by the Supreme People’s Court on July 18, 1998 as references.
II. Main Modifications
1. The Amended Version strengthens the responsibility of the arbitral tribunal and adds requirements on arbitrators’ sense of responsibility in handling cases. See Articles 2, 13 and 14 in the Amended Version. In addition to impartiality and integrity, dedication, prudence, diligence and fulfillment of duties and responsibilities are also included in the ethical standards of arbitrators. The reasoning for this is: the justice of arbitration is reflected not only in the arbitral procedures but ultimately in the results of the arbitration - the arbitration awards. If an arbitrator lacks dedication and half-heartedly handles cases, his/her competence cannot be given full play to, the quality of arbitration cannot be ensured and thus the justice of arbitration cannot be achieved. It is out of the high expectations on the competence of arbitrators that parties choose arbitration. The lack of conscientiousness and responsibility in an arbitrator would affect not only the parties’ views on the individual arbitrator, but also their comments on the arbitration committee. An arbitrator may decline to accept a case when too occupied, but upon accepting the nomination of parties or the appointment of the Chairman of BAC, he/she should handle cases conscientiously and responsibly.
The provision in Article 13 of the Amended Version and Article 9 of the original Ethical Standards, which reads, “An application may be made to the Secretariat of BAC for assistance and services where necessary”, is now amended as: “the presiding arbitrator may also appoint another arbitrator to draft all or part of the award where he/she deems it necessary” and “the arbitral tribunal shall propose clear opinions on its findings, reasoning and decision in advance where it deems necessary to apply for assistance from the Secretariat of BAC.” This is to further clarify the responsibility of arbitrators in making awards, which is a major component of the arbitration work and an important part of the responsibilities of arbitrators. By making an award, an arbitrator, especially a presiding arbitrator, may not only help the arbitral tribunal get a whole picture on the case hearing and improve the quality of case handling but also improve his/her own competence.
Article 14 of the Amended Version reads, “the members of an arbitral tribunal must jointly participate in case hearing and conscientiously give opinions on thefacts, evidence, nature, liability, applicable law and result of hearing of the case.”This is to require each member of an arbitral tribunal to fulfill their duties by participating in case hearing and conscientiously giving their own opinions on the facts, facts, evidence, nature, liability, applicable law and result of hearing of the case, and thus to avoid over-reliance on the presiding arbitrator or indifferent and perfunctory hearing of cases.
2. The Amended Version emphasizes that arbitrators should be punctual and more efficient in case handling. See Articles 5, 9 and 16 in the Amended Version. Impartiality and timeliness are two inseparable aspects in arbitration. Without impartiality, arbitration would lose its value of existence; and impartiality without timeliness would greatly reduce the effectiveness of arbitration. It is by maintaining the advantage in efficiency while ensuring the quality of case handling that Beijing Arbitration Commission has been growing fast in recent years. This is something that we should cherish and carry forward. A necessary condition to maintain this advantage is that an arbitrator must be punctual and aware of efficiency.
Therefore the words “those fail to appear in the tribunal for case hearing without any justifiable reason for three times” in Paragraph 3, Article 16 of the Amended Version are amended to “those fail to appear in the tribunal for case hearing without any justifiable reason”, omitting the limit on number of occurrence, out of the following consideration: The failure of an arbitrator to appear in the tribunal for case hearing without any justifiable reason should be regarded as a serious misconduct. According to the Arbitration Law and the Arbitration Rules, any party that "fails to appear at the hearing without any justifiable reason or withdraws from an ongoing hearing without the permission of the arbitral tribunal" will bear the legal consequence that it “may be deemed to have withdrawn its application for arbitration” or “the arbitral tribunal may proceed with the hearing”. But an arbitrator bears no liability for “failing to appear for case hearing”. This is unfair to the parties and contrary to the professional ethics of arbitrators. Such a requirement in the Ethical Standards is to be responsible for both arbitrators and the arbitration career as a whole.
3. The Amended Version makes more specific requirements on the impartiality of arbitration. See Articles 6, 10 and 11 in the Amended Version. The content of Article 6 is actually a practice in our daily work, which is now institutionalized in the Ethical Standards. Articles 10 and 11 actually deal with procedural issues. Impartiality of arbitration involves not only the ethical standards of arbitrators but also the ways of arbitration hearing. As BAC is still a young arbitration committee, its arbitrators lack experience in procedures and case hearing. Therefore it is necessary to make provisions on the basic practice and main cautions in the tribunal hearing, which arbitrators may follow during their hearing.
4. Other amendments. Article 4 of the Amended Version requires that arbitrators should keep learning to improve their own competence and skills. Arbitration is a highly professional work demanding high skills in various aspects. Arbitrators cannot meet the requirements of arbitration only by constantly learning laws, regulations and legal theories and knowledge, studying and summarizing the experience and lessons in arbitration and striving to improve their skills of case hearing and award making.
Article 12 of the Amended Version requires that arbitrators should pay attention to maintain a good appearance when hearing cases.
Article 16 of the Amended Version contains two aspects: first, it puts forward the criteria for the renewal of an arbitrator’s term of office, that is, to conscientiously fulfill his/her duties under the Beijing Arbitration Commission Arbitration Rules and the Ethical Standards for Arbitrators; and second, it expressly provides that whether an arbitrator may get his/her term of office renewed depends on the extent of his/her conscientiousness in following the Beijing Arbitration Commission Arbitration Rules and the Ethical Standards as well as his/her competence and skills. The positions of arbitrators should not be fixed but be under merit-based competition.