Tips for Composing CIETAC Arbitration Agreements
董纯钢 印舒琳
【关键词】CIETAC,arbitration agreement
【全文】
For China-related business and transactions, China International Economic and Trade Arbitration Commission (“CIETAC”) is a frequently selected institute for dispute resolution. When composing an arbitration agreement for that purpose, lawyers often take CIETAC’s Model Arbitration Agreementfor reference. However, the Model Arbitration Agreement provides no more than legitimacy and effectiveness. In order to reflect the characteristics of a particular dispute or better safeguard the interests of a certain party, lawyers may modify the model arbitration agreement to embrace more information in an arbitration agreement.
Given the arbitration proceedings are subject to the Arbitration Law of China, lawyers are advised to follow the listed four steps to compose and improve arbitration agreements:
First, make clear and definite in the arbitration agreement that the dispute shall only be submitted for arbitration. Parties are not permitted in an arbitration agreement to agree on bringing their dispute to the court after an arbitral award is made. Moreover, an arbitration agreement saying the claimant has the right to submit their dispute to the CIETAC or the court is also risky and there were some precedents that such arbitration agreements were nullified by the courts in China.
Second, designate the CIETAC as the arbitration commission. Even though it is still open to discussion, the arbitration agreements with ambiguous provisions on the selection of arbitration commission may be nullified by China’s courts. It is unsafe to bring foreign customs to China such as only stipulating to apply the arbitration rules of CIETAC or providing an alternative of another arbitration commission.
Third, pay attention to the nature of the dispute and the various arbitration rules applied to different kinds of disputes. Besides its ordinary rules, CIETAC provides particular arbitration rules for financial disputes and is planning to forward some other arbitration rules for certain kinds of disputes such as food, construction and securities. If parties plan to submit a financial dispute to CIETAC for arbitration under the Arbitration Rules for Financial Dispute, clear provision about the Arbitration Rules for Financial Dispute is a must, otherwise general arbitration rule of CIETAC will apply.
