2021年10月27日，第十届香港仲裁周“中国仲裁专场”活动——中国仲裁的未来：《仲裁法（修订）（征求意见稿）》的研讨于线上举行。来自全球31个司法管辖区共559位人士参与本次活动。
After 26 years, China released the landmark Draft Amendments to the PRC Arbitration Law (the “Draft Amendments”) for public consultation. These amendments promulgated a wide range of ground-breaking changes to the existing arbitration system and would likely bring Mainland China in line with international best practices. As part of the 10th Hong Kong Arbitration Week, HKIAC held a webinar in which noted experts discussed the key developments in the Draft Amendments and the future of Mainland arbitration.
After opening remarks by Mr Rimsky Yuen, GBM, SC, JP, Co-Chair of the HKIAC, and a keynote speech by Mr Jing Jiang, Representative of Ministry of Justice of PRC, three panel sessions were held. These practitioners drew on their experience to provide an in-depth perspective on the positive impact of the Draft Amendments on both domestic and foreign users and the related practical challenges the Draft Amendments may face. Highlights From the Opening StatementsMr Yuen began the day with some opening remarks. Hong Kong has remained one of the most popular arbitration seats worldwide, and in 2021, HKIAC was ranked the third-most preferred and used arbitral institution worldwide by the Queen Mary Survey. Mr Yuen emphasized that HKIAC has long supported the development of a robust arbitration practice in Mainland China and wishes to contribute more in this regard. HKIAC is the first foreign arbitration institution to set up a representative office in Mainland China, and is the only arbitration institution that has released practice notes on the Arrangement Concerning Mutual Assistance in Court-Ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and Hong Kong. Mr Jiang then delivered the keynote address, during which he shared his personal knowledge of the Draft Amendments’ legislative background. He explained that the Draft Amendments are based not only on the unique nature of China’s arbitration practice, but also reference prevailing international standards for best practices, including the UNCITRAL Model Law. Mr Jiang also added that the Ministry of Justice is further revising the Draft Amendments based upon over 2000 comments received from the public. According to Mr Jiang, once finalized, the Draft Amendments will be submitted to the PRC State Council for further review, and, if approved, the State Council will submit the draft to the Standing Committee of the National People's Congress for final review. Thus, it will take at least several more months before the Draft Amendments are enacted. Session 1: The Key Breakthroughs of the Draft Amendments Dr Arthur Dong of AnJie Law Firm (HKIAC Council member) moderated the initial panel, ‘The Draft Amendments: Major Steps Forward’ This discussion also featured insights from Ms Helen Shi of Fangda Partners and Dr Helena Chen of Chen & Chang, Attorneys-at-Law. The panellists each shared three critical highlights of the Draft Amendments.Ms Shi focused her comments on three ground-breaking changes. First, the Draft Amendments explicitly allow foreign arbitral institutions to set up offices in Mainland China to “conduct foreign-related arbitration business.” This important change addresses a long-lasting issue in practice. Moreover, the Draft Amendments establish the kompetenz-kompetenz doctrine, which allows arbitrators to determine their own jurisdiction. This is a substantial improvement that falls in line with international standards. Also of note, the Draft Amendments provide a means for setting aside a judgment as the exclusive recourse against an arbitral award, whereas the current law stipulates that refusing enforcement can be another recourse. This change addresses the concern of duplicative review of arbitral awards by PRC courts in set-aside and non-enforcement proceedings. It also prevents respondents from delaying the proceedings by using this tactic.Ms Chen also raised three positive developments. She began by mentioning that, in relation to the scope of arbitration, the Draft Amendments remove the “equal subjects” requirement and replace “citizens” with “natural persons,” thereby reflecting the acceptance of investor-state arbitration and sports arbitration that, as a practical matter, already exist. She next stated that the Draft Amendments introduce detailed provisions on the arbitrators’ independence and impartiality, which provide more precise guidance to the parties and the tribunal. Lastly, she described how the Draft Amendments expressly adopt the term “seat of arbitration,” one of the most critical concepts within international arbitration.After the panel, Dr Dong expressed his agreement with the panellists’ points and made additional observations based on his experiences, such as the interaction between the Draft Amendments and the PRC Civil Code. Session 2: Room for Improvements in the Draft AmendmentsDr Ling Yang of HKIAC moderated the second panel, ‘The Draft Amendments: Further Steps Needed’ It also featured a discussion between Mr Lijun Cao of Zhonglun Law Firm and Ms Ariel Ye of King & Wood Mallesons. Both panellists identified three key areas that could be further improved under the Draft Amendments.Mr Cao noted that foreign arbitration institutions shall be allowed to conduct foreign-related arbitration businesses in Mainland China, irrespective of whether the institutions have an operational branch in Mainland China. This move could facilitate international arbitration being conducted via a Mainland China seat. Additionally, the Draft Amendments provide that the court, when asked to set aside an award based upon the misconduct of the arbitrators or the improper constitution of the tribunal, may remand the case to a newly constituted tribunal. Mr Cao stated that in this situation, directly setting aside the award is a more appropriate approach than remanding. Lastly, Mr Cao described how, in relation to the interim measures, more detailed provisions should be adopted, including distinguishing between ex parte and multiparty applications, and adding the commonly adopted standard of granting interim measures in international arbitration.Ms Ye suggested that the required arbitrator qualifications should be further clarified to ensure a high-quality group of arbitrators. Ms Ye then commented on the ad hoc proceedings, which is a major revision under the Draft Amendments. She stated that it is not necessary to adopt ad hoc arbitration in Mainland China at the current stage, given that there are more than 270 arbitration institutions in the Mainland and that these arbitration institutions play an essential role in quality control when it comes to arbitration awards. Ms Ye asserted that ad hoc arbitration may create a lot of practical issues and that an alternative approach would be to set a higher bar for the qualifications of the arbitrators or the arbitration agreements in ad hoc cases. On a related point, Ms Ye recommended imposing comprehensive requirements on the format and content of the awards. Finally, Ms Ye suggested that the tribunal be allowed to refuse to consider a respondent’s late pleadings and evidence. In practice, many respondents take improper advantage of the current regime by submitting their pleadings at the last minute or even during or after the hearing.Dr Yang thanked the panellists for their excellent presentations and shared her belief that whether the Draft Amendments strengthen China’s arbitration practice depends on whether the new arbitration law will attract more domestic and foreign users.Session 3: How Far Do the Draft Amendments Go in Making Mainland China a UNCITRAL Model Law Jurisdiction?The final session was a debate moderated by Dr Dong. Ms Jingjing Chen of Hui Zhong Law Firm and Ms Qiqi Wei of Quinn Emanuel Urquhart & Sullivan, LLP advocated for the position that the Draft Amendments will make Mainland China a Model Law Jurisdiction, while Mr Edward Liu of Hill Dickinson and Mr Linyong Fu of T&C Law Firm argued for the opposite position. There is no official standard for achieving the designation of UNCITRAL Model Law jurisdiction, so the debaters began by arguing about what such a standard should be. They next turned to the significant improvements and deviations under the Draft Amendments and compared the Draft Amendments with the arbitration laws in other UNCITRL Model Law jurisdictions. The debate attracted great attention, and around 140 people attended the final voting, during which the audience offered its collective opinion on which side won.Drawing upon their respective experiences, the speakers all agreed that the Draft Amendments have made significant progress and demonstrated legislators’ intention of creating a pro-arbitration environment in Mainland China.
关于卫绮骐美国昆鹰律师事务所律师卫绮骐是昆鹰上海办公室的一名律师。她的主要业务领域是内部调查、政府执法、国际仲裁和诉讼。
绮骐对于协助客户处理敏感内部调查具有丰富的经验，包括美国《反海外腐败法》调查、美国证券管理委员会的执法、美国贸易管制、及中国反贿赂法律合规等事项。
在加入昆鹰之前，绮骐是香港国际仲裁中心（HKIAC）的顾问。在HKIAC期间，绮骐管理了超过100起适用HKIAC规则和UNCITRAL规则的机构仲裁案件以及几十起临时仲裁案件。期间，绮骐曾在多起复杂HKIAC仲裁中担任仲裁庭秘书。
此外，绮骐曾担任马赛诸塞州联邦法院资深法官Mark L. Wolf的法官助理，处理刑事和民事案件。