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郑若骅：外国从业者为何要参与中国内地的国际仲裁？

发布时间：2024-06-12 12:01:51

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2024年5月9日，由深圳国际仲裁院（SCIA）和华南（香港）国际仲裁院（SCIA HK）携手香港特区政府律政司、香港国际仲裁中心（HKIAC）举办的第二十六届国际商事仲裁理事会（ICCA Congress）深圳边会（下称“深圳边会”）在深圳前海国际仲裁大厦（SCIA Tower）举行。香港特区政府律政司前司长、ICCA大会顾问委员会成员郑若骅以“Why Should Foreign Practitioners Be Involved in International Arbitration Market in Chinese mainland？”为主题发表演讲。现将其主题演讲摘录如下。

Dr Liu (Liu Xiaochun, President of SCIA & Executive Chairman of the Board of SCIA HK) has effectively given everything you need to know about the subject. However, I will now give you some context and answer why, as a foreign practitioner, you should be involved or be more involved in the international arbitration market here in the Chinese mainland.

Just now, I was introduced as an ICCA advisory member. For those of you who may not be aware, let me tell you how it all began. You are aware that there is an ICCA governing board. Later on, there is a set-up of the Young ICCA. The Young ICCA is a very important body which I encourage all young practitioners to join. However, the old ICCA will have to find a place to put themselves, which is why we established the ICCA advisory board. So that’s why when Dr Liu introduced me as coming from ICCA, it was the old ICCA I am from now.

There have been so many thanks that have been given to people who have worked together to make the ICCA Hong Kong a success, and I won’t repeat it. But I am sure you will all remember all these important people and the meeting of old and new friends.

Now, I said I would like to give you some context because I see a number of foreign practitioners here who may not be fully aware of some of the important developments in the Chinese mainland. Therefore, I think this topic is particularly germane and important. In the speech from the Director of the Bureau of Public Legal Services Administration of the Ministry of Justice of the PRC, Mr. Yang Xiangbin, he mentioned three important points on the development in China, in terms of international arbitration. There is one other thing, if I may add, that is one of the policies to develop China as an international commercial arbitration center with four specific areas being focused on: Beijing, Shanghai, the Greater Bay Area and Hainan Island.

Those have been specifically highlighted in the general policy of developing international commercial arbitration in China. You've also heard about the changes in the Arbitration Law that are being undergone here in the Chinese mainland as well. Now, many of you have heard but with every opportunity I have, I repeat my views openly, which is that this is a golden opportunity for China to really hit the right place in terms of international arbitration. I strongly advocate that when amending the Arbitration Law, they should adopt a dual system. Namely, one set of laws and rules applicable to domestic arbitration and another set of laws and rules for international arbitration. For international arbitration, you only need to adopt the UNCITRAL Model Law, and you will be completely in line with a number of major arbitration jurisdictions around the world. I think this is a very important step and a very important opportunity to actually make a clear distinction between the two systems using different sets of rules to govern it.

Therefore, I think that is a very important point when we’re looking at the developments of China in terms of its arbitration practice and international arbitration practice. For clarification purposes, you should be aware that the Chinese mainland uses the term “foreign-related” instead of “international”. Some background information would be that China operates under a “one country, two systems” structure, and under the two systems, there are the Hong Kong SAR and the Macao SAR, which are well-established and very clearly defined. In this particular context, Hong Kong SAR and Macao SAR would be seen as outside of the Chinese mainland. There is a phrase called “境内、境外”, meaning being outside of the Chinese mainland. Of course, we are not international because we are one country, but because of these two systems, we tend to call it “foreign-related”, and that would include the Hong Kong elements.

Hence, if you look at the Arbitration Laws, you probably will not see the exact word “international”. It will be called “foreign-related”, but the context and the meaning are exactly the same. So, those are the bigger picture that you need to have in mind when you look into the roles that we are talking about here.

Then I condescend a little bit, if I may, to where we are, Shenzhen. Just now, I mentioned the four arbitration centers; one of which is being specifically looked at is called the Greater Bay Area. The Greater Bay Area comes from a development plan from the CPC Central Committee and the State Council in order to develop nine cities in the Guangdong province and the two Special Administrative Regions (hereinafter, “SARs”). That was a policy that was promulgated in February 2019 and has been pushed forward very successfully. You may have already seen some of the developments that have taken place here in Shenzhen.

Now with this Greater Bay Area, the nine cities and two SARs, there is a lot of collaboration that can be done both in terms of trade as well as legal services, and other services as well. Insofar as legal services are concerned, another thing that is also very important to bear in mind in the Greater Bay Area is that in 2020, there is a system that has an arrangement for Hong Kong lawyers to take a certain exam that will qualify them to practice PRC law in commercial areas here in the Greater Bay Area.

So, if you get a name card from a Hong Kong lawyer, and the name card includes “solicitors” and “barristers”, you may see some of them have a phrase called “GBA lawyer”, meaning that not only would they be qualified in Hong Kong SAR, but they are also qualified to practice PRC law in the Greater Bay Area. And I would also have to say we must thank the Guangdong Lawyers Society, as well as the relevant departments, for allowing that to happen, because training has been done along those lines. So, the Greater Bay Area also gives you this particular context.

Now, another thing about the Greater Bay Area is the huge push and growth in terms of its commercial transactions. For arbitration lawyers or for dispute lawyers, we all know that we follow deals. And that’s why I think in the Hong Kong SAR, we have been saying “deal-making and dispute resolution”. Without deals, it is very difficult to have disputes. So, the Greater Bay Area has a very large potential. It is one of the largest in terms of the population among a number of bay areas around the world, including the Tokyo Bay and the San Francisco Bay. The GDP produced in the Greater Bay Area is comparable to some states in Asia.

With the transactional opportunities, the arising of disputes becomes very likely and probable. So, focusing here and the SCIA bringing all of you here is the very right thing to do, especially for those coming from abroad. So, having put the context of how China is developing, and how the Greater Bay Area is developing, let me try and say why you should all try and join some of the roles that Dr. Liu has described.

The first role is called the “Decision Maker”, which is perhaps a very important role. People may not appreciate it because it guides the development of a particular institution. They make policy, and they ensure the proper governance of the institution and, hence, the credibility of the same. Therefore, I think for practitioners who have experience abroad, in particular, having experience in other governing bodies, their experience will be extremely valued by organizations such as the SCIA and others. Because others are also following through, including foreign practitioners in their governing or decision-making body or policy-making body.

I think you will also find it very rewarding because my own experience is that when you give them some very good suggestions, they are genuine listeners, and would try to adopt it. And if it is not a good enough suggestion, they will at least put it in their minds for their future development, because there may be difficulties in allowing that to happen. So, I think this is very rewarding. And as we are in this arbitration practice, to a certain extent, we are all in the public service and it is not purely about making money. It is all in a way for public service, part of the judges or the judicial cases come into the arbitration sector, and we want it to be good.

The second role of arbitrator is again, very important. The number of foreign arbitrators has grown quite significantly over the years, and my first encounter with arbitration in China was back in the 1990s. At that stage, it was just the CIETAC, and thereafter, in 1995, the Arbitration Law came into place. And you’ve heard from Mr. Yang, that there are 279 arbitration institutions now. So, the number of arbitrators, especially foreign arbitrators, is growing. And why is that good from your perspective? It is because, you will see how the Chinese practice can actually help you to also streamline some of the international arbitration practices that are more akin to the common law/adversarial system. So here, it may be considered as “too easy, too simple, too straightforward, too streamlined, not enough details”. But on the other hand, you have the far extreme of far too detailed. So having learned some of these skills and some of the ways it’s being done, it will actually help you in your own international arbitration practice in other jurisdictions as well. Therefore, I think it is very important to become an arbitrator today.

Some may raise the concern that arbitrators are paid so little, hence doubting the reasons for doing it. Here, it appears to be your sense of providing public service. Many of you have been lawyers for a long time and have come to a stage where you can help contribute to the development of arbitration internationally. And that is one angle. But it is actually very interesting, as in the last year, the cases I have done were huge sums of money. They are very important in the sense that it has a great impact on certain companies and developments in various areas. So, when you come across really large cases, you will help to enhance the development, and therefore, you are also able to learn from it.

The third role is “Mediator”. I would not normally mention this specifically, because it is an “Arb-Med” scenario, double hatting. I have no problem with that myself, and I could give a talk about why it works separately. It is very interesting, as mediation is going to take a firmer ground here in China and in Asia. So, I think your experience elsewhere, for example, the civil law jurisdiction like Switzerland, Germany, in particular, that practices a lot of mediation/litigation/arbitration situation type of situation. So, your experience will, I think, be particularly useful.

The fourth role is “Expert Witness”. I think apart from being a tribunal secretary, I somehow have been involved personally in one or another. Expert witnesses are another different category that used to be more tribunal experts. So, your role is no longer that of being cross-examined by the other side but actually helping the decision maker, the arbitrator, to decide based on your relevant provisions of law or your particular area of technicalities. So again, that is a very unique experience.

Now, I think it is becoming a little bit more with party-appointed experts, but it is still not quite far from what it is like in the international arbitration that some of you may see in the adversarial systems. So, I think the expert witness is interesting. There is a lot less cross-examination or sometimes even hardly. As an arbitrator, I’ve received expert reports from an expert tribunal.

The next one is “Counsel”. Now there is a limitation, and I believe it is still a limitation. Foreign counsel cannot advocate in relation to matters involving PRC law. So, you can be an attorney of fact but cannot advocate PRC law. Now, it is unfortunate that this has not changed. But I have seen how it has worked. In practice, foreign counsel and Chinese law firms/Chinese lawyers work together as co-counsels, as most of you would have seen in international arbitrations.

So, as co-counsels, they would be able to provide the facts and make the important submissions. We heard about advocating, narrative, and persuasion, which I think some of the adversarial system’s lawyers would be more familiar with but backed by the PRC lawyer giving the relevant legal advice. So, whilst it isn’t quite like some other jurisdictions, for example, Japan, where you can actually advocate on Japanese law, even if you are not a Japanese lawyer, and even if you do not call a Japanese law expert, you can still work as a team. And this, I think, is the flexibility of international arbitration here in China.

The last one is “Tribunal Secretary”. I agree with Peter (Peter Malanczuk, Council Member of SCIA) that this is a very important step for young practitioners. But a word of warning is that I am seeing that it seems to be “abused”. Some arbitrators would still want a tribunal secretary for very simple cases. Although it is good to train young people and give them opportunities to learn, we must also bear in mind that they are not your personal assistants and must be paid. Of course, if you do not adopt a tribunal secretary, and use your own assistant, it is good that it be divulged to the parties.

I hope that I am able to follow from Dr Liu’s explanation of these six roles to give you the context and hopefully persuade you to participate more in international arbitration or foreign-related arbitration in China.

Thank you very much.

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