Court Supervision and Assistance in International Arbitration - Research Paper Example

TOPIC: COURTS SUPERVISION AND ASSISTANCE IN INTERNATIONAL ARBITRATION-COMPARE AND CONTRAST WITH PEOPLE’S REPUBLIC OF CHINA AND HONG KONG The court in any state is a respected institution because of the position it holds in the nation. In many countries today it is the national court that decides on most of the crucial matters regarding the welfare of the citizens as well as foreigners in that nation. Mainland China and Hong Kong are not ruled out in this and each of them has a court that judges the various cases that arise within the country. This research proposal is a light of what is expected out a research on the court’s supervision and assistance in international arbitration comparing and contrasting with the People’s Republic of China and Hong Kong. It is not a surprise that the research compares the two, though they are more of a single state, China and Hong Kong have different ways of tackling international cases and in this research states the differences and similarities, the advantages and disadvantages that arise because of those differences and similarities. In Hong Kong, the court ensures minimum interference in international arbitration and everything to do with supervising legal matters of international arbitration is done by the Hong Kong International Arbitration Center and the other bodies within it. The company took over all the responsibilities in international arbitration that would have been carried out by the Hong Kong court. The case is different for China where the People’s court is also in part responsible for dealing with international arbitration though it also has an independent body with which it works. So this is meant to give all these details and come up with the best means of court’s involvement in international arbitration and cases of the like. Research results will be based on the literature that is available about the two states but also on the answers and responses that will be received from the interviews and questionnaires that will be distributed. Introduction This research is meant to explain China’s and Hong Kong’s courts’ supervision and assistance in international arbitration, the position of the court in international arbitration, what their law states as regards to international arbitration and whether it is the full responsibility of the respective courts to supervise and complete arbitration for international cases. The research will also try to compare the local arbitration procedures to international procedures in order to assist in getting a difference between the procedures of handling local cases and those of handling international cases. The research aims at pointing out areas that need improvement and therefore come up with suggestions to improve the Chinese court’s involvement in international arbitration as compared to Hong Kong’s. The Objective of the Research With detailed information on the involvement of the court of the people’s republic of China in international arbitration, this research will also bring to light the position of Hong Kong’s court in international arbitration. Just as for the people’s republic of China so shall it be for Hong Kong, the research seeks to find out Hong Kong’s courts involvement in terms of supervision and assistance in international arbitration. From the findings a comparison will be made of the two involvements i.e. the involvement of the court of People’s Republic of China in international arbitration and the involvement of the Hong Kong court in supervising international arbitration. Therefore the main objective of this research is to compare the involvement of the two courts in international arbitration, analyze the advantages and disadvantages of the degree of the court’s involvement in international arbitration and from these come up with suggestions on what the court could do to improve international arbitration. Both for the people’s republic of China and for Hong Kong. The Scope of the Research The scope of the study will be the court of the People’s Republic of China and the Hong Kong court, only in the area of international arbitration. The research will focus only on laws governing court’s involvement in international arbitration for mainland China and Hong Kong and other bodies are involved in the same. Research Questions: 1. To what degree does the court of the united republic of china assist in and supervise international arbitration? 2. To what degree does the court in Hong Kong assist in and supervise international arbitration? 3. What are the similarities and differences in the involvements of the two states in international arbitration? 4. What are the weak points and what suggestions does the researcher have to improve international arbitration in the two states? Significance to Knowledge The knowledge of the degree to which the court is involved in international arbitration at present will aid in comparing with the standard degree to which the court is expected to assist and supervise international arbitration according to the Chinese laws and hence any this research will bring to light the missing points that have long been ignored by the court and the government. At the end of these findings, it is expected that the court in China and the court in Hong Kong will seek to understand more its responsibilities in international arbitration and therefore improve in handling international cases in the respective states. This knowledge will improve the handling of international cases in the two states and it hopes to be an eye opener to the citizens as well as judges and lawyers in the two states. Literature review International Arbitration in Hong Kong Formally international arbitration was entirely the responsibility of the Hong Kong court. In 1985, the Hong Kong International Arbitration Centre (HKIAC) was formed and most of the responsibilities to do with international arbitration were shifted to this body. The company was formed to provide advisory and support services for the resolution of local and international disputes by arbitration, adjudication and mediation. This body is an independent body, it does not belong to the government but it assists the government in issues of arbitration. www.hkiac.org. The Hong Kong Arbitration Ordinance (Chapter 341 of the Laws of Hong Kong), stipulates the court’s position in matters of arbitration. It is widely recognized as being one of the most advanced arbitration statutes in the world. This law supports the arbitration process but with a minimum of interference by the court or any other law enforcement bodies. www.hkiac.org. Even then this doesn’t mean that the Hong Kong International Arbitration Centre carries out arbitration its way as far as international matters are concerned, no, the Hong Kong legal system has incorporated the UNCITRAL Model Law on International Commercial Arbitration, which is what is applied by the HKIAC. But when it comes to local matters, the HKIAC has its own domestic arbitration rules. Previously, the Hong Kong court was responsible for appointing arbitrators but right now that is the responsibility of the Hong Kong International Arbitration Centre, which greatly limits the Hong Kong court’s involvement in international arbitration. Another responsibility that was shifted is that of deciding whether an arbitral tribunal should consist of one or three arbitrators in international arbitrations if the parties cannot agree on such numbers. The Hong Kong courts only support the idea of arbitration and deem it very important not to interfere in international arbitration in any way. The Hong Kong courts have left the issues of supervising international arbitration to the HKIAC and other bodies formulated within that company. In Hong Kong parties to arbitration may be represented by anyone they choose, there is no restrictions on lawyers acting in Hong Kong as arbitrators or representatives. www.hkiac.org. Some of the bodies that were formulated to assist in arbitration. With these bodies in place, the Hong Kong court has minimum involvement in international arbitration. 1. The Hong Kong Mediation Council In 1994, a need arose to start up another body to assist in matters of arbitration and this is the Hong Kong Mediation council. This council was set up within the HKIAC in January 1994. The main objective of this council is to promote the development and use of mediation as a means of resolving disputes, note that this is out of the Hong Kong court. 2. The Hong Kong Maritime Arbitration Group This is another group that was set up within the HKIAC and this was set up to promote maritime arbitration and to encourage those who are involved in the shipping industry to become arbitrators. www.hksoa.org/links/maritime_arbitation. Below are the responsibilities that would rather have been carried out by the Hong Kong court but are now under the HKIAC: Answering inquiries concerning any proposed conciliation, mediation, adjudication or arbitration in Hong Kong. Providing information on arbitration law and procedures relating to international arbitrations in Hong Kong. Assisting in connecting with both international and domestic dispute resolution. Giving information on appropriate forms of arbitration and alternative dispute resolution clauses. Advising on arbitrators’ fees. Making any relevant inquiries of and arrangements with arbitration centers elsewhere in the world. Accrediting mediators for use on the Court Annexed Family Scheme. Administering the mediation service for Hong Kong government contracts. Literature from the official website of HKIAC generally depicts that the Hong Kong court has left all the work on international arbitration to an independent company in the state. The court ensures minimum interference as possible and almost all of the supervision and work of international arbitration is carried out by the HKIAC and the other bodies formed within it. International Arbitration in the United Republic of China The Chinese Government in 1956 set up an arbitration body whose sole purpose was to settle international commercial disputes. This authority was called the China International Economic and Trade Arbitration Commission (CIETAC). CIETAC was established as the countrys principal arbitration institute for resolving disputes between foreign firms and Chinese legal persons. [Paglee, Charles D., Institute for Trans-national ArbitrationsNews and Notes, "China Consolidates Arbitration Law, Amends CIETAC Rules and Joins I.C.C.", January 1995, Southern Methodist University (USA), School of Law, p. 1] However, until 1995 there had been no comprehensive set of arbitration legislation established in China. Conducting arbitration between local Chinese concerns and foreign concerns was done in a piece-meal fashion by borrowing relevant provisions from the different statutes that governed commercial transactions. With the implementation of its open-door policy, the Chinese Government came under increasing pressure to rectify the existing arbitration laws. As a result, Chinas first Arbitration Law ("the Law") was promulgated on 31 October 1994 and came into effect on 1 September 1995[Clifford Chance Newsletter, "Domestic Arbitration in China", December 1996, Vol. C16, p.1.]. The purpose of the Arbitration Law is to provide a system of arbitration in China that meets both foreign and domestic demands for efficient resolution of disputes. China International Economic and Trade Arbitration Commission China International Economic and Trade Arbitration Commission ("CIETAC") is the most important permanent arbitration institution in China. CIETAC was set up in April 1956 within the China Council for the Promotion of International Trade ("CCPIT"). Since 2000, CIETAC is also known as the Arbitration Court of China Chamber of International Commerce ("CCOIC"). CIETAC independently and impartially resolves economic and trade disputes by means of arbitration and conciliation (mediation). CIETACs headquarters are located in Beijing with two Sub-Commissions in Shenzhen and Shanghai respectively. CIETAC has also established 21 liaison offices around China to promote arbitration in their geographical area or in their special trade. At the same time, the liaison offices can provide parties with arbitration advice in time. CIETAC resolves, by means of arbitration, disputes arising from economic and trade transactions of a contractual or non-contractual nature. These disputes include: international or foreign-related disputes; disputes related to the Hong Kong Sar, the Macao SAR, or the Taiwan region; and domestic disputes Research Methodology The research will take on both a qualitative and quantitative approach. Data collection Data to be collected More information on court’s involvement in international arbitration in China and Hong Kong Opinions of judges, lawyers and others in the law departments about international arbitration and the court, for the two different states. Methods of data collection Available literature In order to address the ideas in question; one of the ways of getting information will be by using the available literature on international arbitration in the two states. This will mean approaching courts and other bodies for necessary information. Interviews In order to get the people’s views on the supervision and assistance of courts in international arbitration in the two states, interviews will be carried out with a few key people, that is; judges, lawyers, arbitrators and lay men. Questionnaires Questionnaires will also be used to get the people’s degree of knowledge on the whole matter of international arbitration, their views on the current assistance and supervision of the court as far as China is concerned and the non involvement of the court as far as Hong Kong is concerned. This questionnaire will also be used to collect ideas for different professionals on the issue of international arbitration. Data analysis The quantitative data will be analyzed using graphs and tables to establish opinions in terms of percentages which will help in determining what society thinks of the court’s assistance and supervision in international arbitration. This means data from questionnaires will be compiled into graphs, charts and tables for easy. Other opinions will be taken for what they are and they will assist in final judgments. The SPSS method will be used to compile the quantitative data. Data interpretation The data will be interpreted according to the questions to be answered. The literature collected will be interpreted to assist in establishing the current state of the court in China as far as assisting and supervising international arbitration is concerned, the same literature will help in establishing the state of the court in Hong Kong in assisting and supervising international arbitration. Then this current state will be used to establish the holes and leaking points in the systems of the two states in dealing with international cases. From the literature one can tell how the system in place either positively affects the state or negatively affects it. To this note all literature collected will be carefully studied to make sure it is the truth in order to avoid wrong deductions because this literature will also be used in the final suggestions. Literature collected will also assist in interpreting and comparing the court’s involvement in China and Hong Kong, which will help to answer question three of our research questions and therefore meet our main objective of comparing the two systems. The data collected using interviews and questionnaires will be an interpretation of what the stakeholders think of the system being used by the courts in the different states and this will help in establishing to which level the citizens and foreigners appreciate or dislike the court’s involvement or non involvement in international arbitration. This information will also dictate the need to adjust the law or to leave it as it is in the two states in order to meet the cries of the citizens. The comparisons between the two states will establish the differences and this coupled with opinions from the judges in the different states, it will be easier to deduce the better way in which the court can assist and supervise international arbitration if need be. The same information will determine whether there is no need for the court to supervise in international arbitration as it is in Hong Kong. Expected Results From this research, we expect to get all the information regarding the assistance and supervision offered by the Chinese court in international arbitration as well the same for Hong king. From each degree of assistance offered according to the research, we expect to analyze the positive side of the court’s involvement and the negative side and come up with suggestions for improvement. In general we wish to come up with results of whether it is better for the court to assist and supervise international arbitration or it is better for it to stay out of it and have minimum interference in matters pertaining to international arbitration. Bibliography 1. Civil Procedure Law of the People’s Republic of China（2007） 2. Clifford Chance Newsletter, "Domestic Arbitration in China", December 1996, Vol. C16, p.1. 3. Hong Kong International Arbitration Center Website. www.hkiac.org. 4. Paglee, Charles D., Institute for Trans-national Arbitration’s News and Notes, "China Consolidates Arbitration Law, Amends CIETAC Rules and Joins I.C.C.",January 1995, Southern Methodist University(USA), School of Law, p. 1] 5. www.hksoa.org/links/maritime_arbitation. Read More