Other sources

Some reference is also be made to certain internationally recognized instruments of soft law, such as those produced by the International Bar Association (“IBA”). The IBA is an association of international legal practitioners, bar associations, and law societies from around the world. Furthermore, since institutional arbitration is a central focus of this thesis, institutional rules of particular arbitration institutions will support the discussion as well. This refers especially to the arbitration rules of the HKIAC and the SIAC.

Finally, an occasional reference is made to jurisdictions other than Hong Kong and Singapore, which are also generally perceived as arbitration-friendly. This relates in particular to Chapter 7, which deals with evidence taking in arbitration.⁸⁵ A reference there is made to Switzerland in order to provide an

82 As of 20 November 2018, there were 159 signatory parties to the New York Convention; see the official website of the New York Convention: http://newyorkconvention.org/contracting-states/list-of-contracting-states (last accessed: 20 November 2018).

83 Born, 100.

84 Two types of reservations are available under the New York Convention and hence, a contracting state can choose to apply the New York Convention in a restrictive way. One reservations is called “reciprocity

reservations” and it means that states can limit the application of the New York Convention to awards from other contracting states. The other one is called “commercial reservation” and it means that states may limit the application of the New York Convention to awards relating to commercial matters (see Art. 1(3) of the New York Convention).

85 See Chapter 7 p. 173-174.

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example of a civil law jurisdiction, in contrast to common law jurisdictions of Hong Kong and Singapore.

It is done so, since traditionally civil and common law systems have had differing approaches as to evidence taking, and this can have an impact on the distribution of power in the area of evidence taking in arbitration.

1.3.4. The China Arbitration Survey

In the course of preparation of this thesis, a survey titled “China Arbitration Survey” was conducted by the author to support this research. The China Arbitration Survey was designed to collect data on the practice of China in the areas of this thesis. It features both experiences and expectations of various participants of arbitration proceedings involving foreign elements, but seated in China. The China Arbitration Survey concentrated mainly on the division of power among the arbitral tribunal, the state courts, and the arbitration institution in the pre-award stage of arbitration proceedings in China. It surveyed respondents from mainland China, Hong Kong/Taiwan/Macau, and all other regions of the world, of various age, various types of involvement in arbitration proceedings, as well as with various amounts of experience. The survey consisting of 41 questions was created in a form of an online questionnaire, and resulted in 64 fully completed responses. Eventually, 58 responses were taken into account, due to the fact that six respondents lacked the relevant experience with the cases involving foreign elements and seated in China.

The author is aware of empirical research on the state’s participation in the post-award stage of arbitration in China.⁸⁶ However, to the best of the author’s knowledge, empirical research on the state’s participation in the pre-award stage of arbitration has been more limited. Therefore, this survey can provide some insights into the pre-award area. This survey’s findings support particular arguments in the following parts of this thesis. Also, a detailed section dedicated to the China Arbitration Survey, including its methodology and all of the findings, can be found in Chapter 9 of this thesis, as well as in Appendix 1 attached to it.

1.3.5. Outline of the thesis

This thesis consists of three Parts and ten Chapters. In Part I, there are three Chapters. The present Chapter provides a general introduction, presents the research questions, describes the employed methodology, and offers a brief outline of the thesis. Chapter 2 provides an overview of the Chinese

86 See, for example, Peerenboom, 249 et seq.; Liu and Shen, 1 et seq.; Ku, Alford, and Bei. (last accessed: 20 November 2018).

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arbitration system and presents a brief history of arbitration in China, sources of law, relevant features of arbitration in China and main actors on the Chinese arbitration stage. Chapter 3 deals with the general question of the state’s involvement in arbitration and the functions and powers shared among the parties, the arbitral tribunal, the state court, and the arbitration institutions in international commercial arbitration.

In Part II, there are five Chapters. The first four Chapters discuss four situations, where the interaction between arbitration and the state can take place in the pre-award stage of international commercial arbitration. This interaction happens because it is either needed for the supervision of arbitration or it is desirable for assisting in the arbitration proceeding. These four Chapters (Chapters 4 to 7) deal with:

(1) the enforcement of an arbitration agreement and objections to jurisdiction of arbitrators; (2) interim measures in aid of arbitration; (3) forming an arbitral tribunal; and (4) evidence taking in arbitration. The discussion in each of these Chapters follows the same pattern: it starts with a general introduction of the issue and transnational standards in the area discussed, followed by an analysis of the Chinese situation, and concluding with critical observations on the Chinese law and practice, plus ways of possibly improving the Chinese system, where applicable. In addition, Chapter 8 deals with the question of the status and powers of foreign arbitration institutions in states other than where they are established. The discussion in this Chapter also follows the pattern set above.

Part III consists of two Chapters. Chapter 9 discusses in greater detail the China Arbitration Survey.

Final Chapter 10 provides the summary of recommendations for the direction of changes in China, as well as other possible responses to the existing shortcomings of the Chinese arbitration system.

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