In our Commentary in August 2012, we reported on the
dispute between the China International Economic and Trade
Arbitration Commission in Beijing ("CIETAC") and its
Shanghai and South China (Shenzhen) Sub-Commissions.
To recap, the dispute came about because CIETAC's amended
2012 Arbitration Rules contain a requirement that all cases
submitted to CIETAC should be administered in Beijing, unless the
parties have expressly submitted them to a sub-commission in their
arbitration agreement. This was a departure from past practice,
which saw disputes allocated based on regional connection, party
convenience, or cost. In other words, if an arbitration agreement
simply refers to CIETAC and states that the hearing should be held
in Shanghai, for example, the past practice was that the CIETAC
Shanghai Sub-Commission would administer the case. However, the
amended 2012 Arbitration Rules now suggest that such an arbitration
agreement would require the case to be administered by Beijing,
with the hearing held in Shanghai, thus leaving the Shanghai
Sub-Commission out of the picture.
Perhaps not surprisingly, Shanghai and Shenzhen objected to the centralizing effect of the amended 2012 Arbitration Rules, most likely because they feared that they would lose revenue as a result, but also because most arbitration agreements in practice simply refer to CIETAC and do not specifically refer to arbitrations being administered expressly by either sub-commission.
CIETAC attempted to resolve the impasse with its two sub-commissions, without success, and on August 1, 2012, effectively disqualified its Shanghai Sub-Commission and its Shenzhen Sub-Commission from accepting and administering arbitration cases with effect from that date. In practice, both Shanghai and Shenzhen have ignored this edict and have continued to accept cases referred to CIETAC in Shanghai and Shenzhen respectively. This has led to considerable confusion as to which institution is legally qualified to administer CIETAC arbitrations in Shanghai and Shenzhen.
The "New" Institutions—A Solution?
Both of the former CIETAC sub-commisions have now rebranded
themselves, with Shanghai now being known as the Shanghai
International Arbitration Commission ("SHIAC") and the
slightly longer Shanghai International Economic and Trade
Arbitration Commission. Interestingly, its web site remains
www.cietac-sh.org. Shenzhen is now known as the South China
International Economic and Trade Arbitration Commission and the
Shenzhen Court of International Arbitration ("SCIA"), and
its web site also remains www.sccietac.org.
The SCIA launched new rules and a new panel of arbitrators on December 1, 2012, and the SHIAC started using new arbitration rules and a new panel of arbitrators on May 1, 2013.
Thus far, this seems to provide a solution to the confusion. However, this is not necessarily the case because both the SHIAC and the SCIA have said that they will continue to accept disputes where the parties have agreed to arbitrate through CIETAC Shanghai or CIETAC Shenzhen respectively.
It is unclear how CIETAC in Beijing will respond to this approach, or whether there will continue to be debate over where proceedings should be filed if the reference is simply to CIETAC. In this regard, we have recently seen a number of cases—where the arbitration clause specifies CIETAC as the institution and Shanghai as the venue for the arbitration hearing—that have been accepted by SHIAC and that have been disputed by CIETAC Beijing.
Parties should also be aware that apart from SHIAC, there is a new CIETAC sub-commission in Shanghai and the existing Shanghai Arbitration Commission (and the same applies in Shenzen). This complicates matters because where an arbitration agreement provides for a dispute to be submitted to an arbitration institution at a specific locality, and there are two or more institutions at that locality, then the parties must agree on the selection of one of the institutions. In the event that the parties cannot agree (which is often the case in a dispute), then the arbitration agreement will be invalid according to the interpretation of the Supreme People's Court on Certain Issues Relating to the Application of the Arbitration Law in 2006. This is a nightmare scenario!
Going forward, if you wish to have your disputes arbitrated before CIETAC, then it is probably best to refer to CIETAC in Beijing, or alternatively you can expressly refer to SHIAC or SCIA if you wish to use one of the two "new" institutions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.