昨天跟大家分享了【CLECSS法律#93】《律师学英语》的文章。今天很高兴收到中国国际经济贸易仲裁委员会香港仲裁中心Wang Haocheng 的英文投稿。Haocheng 访问了 Norton Rose Fulbright 合伙人 James Rogers，关于对他中国大陆相关国际商业仲裁的观察。近年来，一方当事人为中国企业，并选定香港作为仲裁地的国际仲裁案件数量显著增多。香港的法律体系和地缘优势，使其逐渐成为当下内地当事人考虑在境外开展国际仲裁的首选。从律师和仲裁员角度来看，香港的仲裁程序法《香港仲裁条例》植入了被大量普通法国家适用的《联合国国际贸易法委员会国际商事仲裁示范法》，通俗易懂，便于操作。香港高等法院，也一直高度支持仲裁活动。Haocheng将在未来三个月采访一批在香港执业多年的优秀仲裁员或者仲裁律师。大家可以了解国际仲裁的同时，一边练习英语阅读。
Observations from Hong Kong Practitioners on the Mainland-related International Commercial Arbitration (Series) - An interview with Mr. James ROGERS, Partner of Norton Rose Fulbright, Hong Kong and Beijing
James ROGERS and WANG Haocheng
WANG Haocheng: Good morning, James. Thank you for taking time to join in this initiative. It is aimed at bridging arbitration practitioners between Hong Kong and the Mainland, and sharing thoughts and experience on China-related international commercial arbitration. Since the goal of this initiative is about learning and sharing, would you mind starting by illustrating an interesting case you have been involved with when collaborating with Mainland counsels in an arbitration case, and tell us why do you think such cooperation is helpful and actually of necessity?
James ROGERS: We regularly act with Chinese counsels, both in ancillary proceedings in the Chinese courts arising from arbitrations on which we are acting and in co-counsel roles in international arbitrations. We need to work together as a matter of necessity when proceedings are in the Chinese courts or where important issues of Chinese law arise. However, there are other benefits of working together with Chinese counsels who bring different legal and cultural perspectives to a case whichare often very valuable in developing strategy and in the decision making process. One interesting recent case working with mainland counsel involved an arbitration agreement providing for UNCITRAL arbitration in Beijing under the administration of CIETAC. Working with local counsel, we succeeded in upholdingthe validity of the arbitration agreement before the Chinese courts. This case was commenced in Ningbo, but followed by a referral to the SPC in Beijing. It was a well thought through decision of the Chinese courts and reflects well on the court reporting system which sees issues on the validity of arbitration agreements and challenges to awards referred to the SPC. In this case, we are acting as lead counsel to the client, but are working with Cao Lijun at Zhong Lun in Beijing. While we also instructed Beijing Dacheng (Ningbo) Law Offices to assist before the Ningbo Courts, this was a real team effort.
WANG Haocheng: If I get you correctly, this is a case containing a typical “hybrid arbitration clause”. I am aware that CIETAC Arbitration Rules (2012) explicitly allow parties to adopt“other arbitration rules”, and under which circumstance, CIETAC will keep on performing its administrative duties in that case. The question lies in Chinese courts’ attitude towards “PRC arbitration law plus CIETAC administration plus UNCITRAL Rules” model. What is the courts’ decision in this case and what can we learn from it?
James ROGERS: The clause in question provided that, “[t]he arbitration shall take place at China International Economic Trade Arbitration Centre [sic] (CIETAC), Beijing, P.R. China and shall be settled according to the UNCITRAL Arbitration Rules as at present in force.”The court therefore focused on whether the reference to arbitration “at” CIETAC was sufficient to meet the Chinese law requirement for institutionally administered arbitration. The court found that it was sufficient, thereby confirming the validity of such hybrid clauses under Chinese law. While the use of the “at” designation could arguably be understood to refer to the place of arbitration rather than the administering arbitral institution, the Court found it was possible in these circumstances to interpret the clauses differently. In particular, the court sought to recognize the intent and purpose of the parties, in this case to designate an administering institution so as to ensure a binding arbitration agreementunder PRC law. The court’s decision was well thought through and ultimately correct. However, the case itself highlights the need to carefully draft all arbitration clauses, especially in the Chinese context. Too often claims are delayed while disputes over the arbitration agreement are resolved at great additional expense.
WANG Haocheng: Let’s move from the case to the people. What do you think are the strengths Hong Kong lawyers and Mainland lawyers each carry?
James ROGERS: Often there is little to differentiate between the technical talents of the best international practitioners, whether from mainland China, Hong Kong or elsewhere. However, I would say that international practitioners tend to be better written and oral advocates. We most commonly work in international arbitrations conducted in English, so have the advantage of working in our first language. But there are differences in training and practical experience that give us advantages in this area. That said, the Chinese approach to arbitration can be more direct and the procedure less burdensome. As a result, the Chinese practitioners we work with are usually well focused on the important issues.
WANG Haocheng: I understandand agree with you in that lawyers from mainland China and for example, from a common law country or place have taken different trainings and practices to advocate before corresponding courts and each may have advantages under his orher “turf”. In the context of today’s China-related international commercial arbitration though, we see the arbitral tribunal, especially of the cases administered by CIETAC or CIETAC’s newest sub-commission in Hong Kong, mixed up by arbitrators of different nationalities, making arbitration proceeding carried out in a style that is neither only adversarial nor just inquisitorial. Do you believe this means we could see lawyers of different countries sitting at one side more often than before, to provide a comprehensive procedural package service to a party?
James ROGERS: Yes. Arbitral panels are increasingly cross cultural. But more relevant is that most of the disputes we work on involve parties from several jurisdictions with multiple legal systems at play. As a result, cases are often staffed by teams of lawyers from different cultures and legal backgrounds. This is one great advantage of our firm, Norton Rose Fulbright, where we have arbitration specialists on every continent and with experience of most legal systems.
WANG Haocheng: I see. Now I would also like to hear your view on seats of arbitration. What do you see as the key challenges or trend facing the Mainland or Hong Kong arbitration industry?
James ROGERS: It is an interesting time for arbitration in China. Institutions such as CIETAC and BACare bringing themselves closely in line with the best international institutions. There is still work to do, but with new rules and an offshore office in Hong Kong, CIETAC is well placed to continue its remarkable growth and play an in important role in the international arbitration market. The Chinese courts have made some interesting decisions of late, suggesting a more international approach to arbitration. If international arbitration in China is to continuing growing, the courts must maintain this pro-arbitration stance and continue developing a strong reputation for independence and impartiality. This remains a problem, particular in the lower, provincial courts. Hong Kong’s greatest asset as a seat of arbitration is its close connection to the Mainland which, given its legal independence, makes it an obvious place to arbitrateChina-related disputes. However, Hong Kong must ensure that it remains a neutral place for arbitration, especially as perceived by outsiders.
WANG Haocheng: Last question, and this is asked for the young lawyers in the Mainland who want to pursue their legal career globally. I know James you have been engaged in Asia-related commercial arbitration in the past in London, the U.S and Hong Kong for more than a decade, strong in energy and construction sectors. And you are listed in the CIETAC Panel of Arbitrators. Given your experience, is there anything you want to say to the young mainland litigation or arbitration lawyers, something you thought you could’ve realized or learned ten years ago?
James ROGERS: I don’t have one secret tip for the budding disputes lawyers out there. But I would say, be inquisitive. Our profession is ultimately about problem solving. With broader knowledge and experience you will be better able to deal more creatively with the problems you are faced with throughout your career and so better able to serve your clients.
WANG Haocheng: Thank you very much James.