1、What are the advantages of arbitration over other methods of dispute resolution?

Party Autonomy

The principle of “Party Autonomy” forms a cornerstone of international arbitration conventions, national arbitration legislation and institutional arbitration rules. When drafting the arbitration clause, parties may agree upon the seat of arbitration, applicable law and the arbitration procedures, unless such agreement is inoperative or against mandatory provisions of the law applicable to the arbitral proceedings. Once the arbitration procedure is started, each party has the right to appoint independent arbitrators to make sure that the tribunal is impartial.

Confidentiality

Arbitration hearings are conducted in private. In these cases, no substantive or procedural matters relating to the case will be disclosed to the public.

Efficiency

Arbitration is very efficient in contrast to the time-consuming litigation. In most jurisdictions, the parties are not granted the right to appeal against an arbitral award, and the courts usually will only exercise their power to refuse to recognize or enforce an arbitral award on limited grounds.

Enforceablity

Under the New York Convention signed by more than 150 jurisdictions, each of the Convention parties undertakes to recognize and enforce arbitral awards made in other signatory parties.

 

2、Which cases can be accepted by CMAC?

According to its Rules, CMAC accepts cases based on the agreement of the parties,

including:

(a) disputes arising from admiralty, maritime;

(b) related disputes arising from aviation, railways, highways, etc.;

(c) other commercial disputes arising from trade, investment,

finance, insurance, construction, etc.;

(d) other cases where the parties have agreed to refer their disputes

to CMAC for arbitration.

The preceding cases include:

(a) international or foreign-related disputes;

(b) disputes related to the Hong Kong Special Administrative Region,

the Macao Special Administrative Region and the Taiwan region;

and

(c) domestic disputes.

 

3、Is it necessary that the substantivelaw governing the disputes should be Chinese law if I agree upon arbitration at CMAC?

No. The applicable law of substantial disputes is determined by the parties. For instance, CMAC has administered a number of cases whose seat of arbitration is China while the applicable law is British Law.

 

4、Is it necessary that the arbitration rules be CMAC rules and the procedurallaw be Chinese law if we agree upon arbitration at CMAC?

Where the parties have agreed to refer their disputes to CMAC for arbitration, they shall be deemed to have agreed to arbitration in accordance with its Rules. If they have agreed on a modification of its Rules or have agreed on the application of other arbitration rules, the parties’ agreement shall prevail unless such agreement is inoperative or in conflict with a mandatory provision of the law applicable to the arbitral proceedings.

 

5、What are the costs of arbitration? How are arbitration fees calculated?

Basically, we charge for registration and handling.

(http://www.cmac.org.cn/?page_id=1357&lang=en)

(http://www.cmac.org.cn/?page_id=1672&lang=en)

 

6、Can I adopt English as the arbitration language?

Yes, you can.

All staff, foreign arbitrators and most of our Chinese arbitrators can use English as working language. In our Panel of Arbitrators, foreign arbitrators come from Britain, Canada and other countries and areas, accounting for about 1/5 of the total arbitrators.

 

7、Can I engage a foreign lawyer?

Yes, you can. A party may be represented by its authorized Chinese and/or foreign

representative(s) in handling matters relating to the arbitration. In such a case, a Power of Attorney shall be forwarded to the arbitration tribunal by the party or its authorized representative(s).

 

8、Can I nominate a foreign arbitrator? What if I want to nominate an arbitrator outside the Panel of Arbitrators?

Yes, you can. Around 1/5 of our arbitrators in the Panel of Arbitrators are from other countries and areas. If parties have agreed to nominate arbitrators from outside our Panel of Arbitrators, an arbitrator so nominated by the parties or nominated according to the agreement of the parties may act as arbitrator subject to the confirmation by the Chairman of CMAC.

 

9、Are arbitrators impartial? Is there a supervisory mechanism or other related remedies?

CMAC has implemented Rules for Evaluating the Behavior of Arbitrators

(http://www.cmac.org.cn/?page_id=4398&lang=en) and Code of Conduct for Arbitrators

(http://www.cmac.org.cn/?page_id=1403&lang=en) in accordance with Arbitration Law of the People’s Republic of China to ensure that the arbitrator shall hear cases independently and impartially. For instance, the arbitrator is forbidden to take bribes or any kinds of gifts from the parties during his or her term of service, or meet either party in private to discuss matters or accept materials relating to the case, except where the arbitrator meets either party separately according to the decision of the Arbitral Tribunal during the mediation process. If an arbitrator has been confirmed to have misconduct in the process of arbitration, he or she will be removed out of Panel of Arbitrators.

 

10、Is there property preservation in Chinamaritime arbitration? Can I apply for property preservation to a mainland China court if the arbitration venue is outside mainland China?

Yes, there is property preservation. According to Special Maritime Procedure Law of P.R.C, the parties may apply for property preservation to the maritime court of the place where the property subjected to preservation is located, even if the arbitration venue is outside mainland China.

The parties should apply directly to the court if a pre-arbitration property preservation is needed and apply for arbitration in 30 days after the measures are taken by the court.

If you submit the application for property preservation at the same time as submitting the arbitration or at any stage prior to the award, CMAC will submit the application of the party to the relevant court in accordance with the relevant provisions of Article 23 of the CMAC Arbitration Rules. You shall first verify the courts of its own jurisdiction. CMAC shall transfer the property preservation materials to the corresponding courts according to the instructions of the parties.

 

11、Is arbitration award in China a final award?

Yes, it is.

 

12、Is an arbitration award in China enforceable? How is it different from a court judgment?

Yes, it is. If one party fails to comply with the award of CMAC, the other party may apply to the people’s court having jurisdiction for enforcement.

In principle, awards made in China are enforceable in all contracting parties to the New York Convention. However, a judgment of the court may be very difficult to be enforced by a foreign court if there is no bilateral or multilateral judicial assistance protocol between the two countries.

 

13、Is a CMAC award confidential or open to the public?

In general, all arbitral proceedings and substantial matters at CMAC are confidential.