On 9 October 2021, China Maritime Arbitration Commission (CMAC) held a press conference in Beijing to release the latest CMAC Arbitration Rules(the 2021 Rules), which came into force on 1 October 2021. The press conference was presided over by Ms Huang Wei , Deputy Secretary-General of CPC branch of CMAC,. Dr Hu Li (Vice Chairman of CMAC) and Dr Chen Bo (Deputy Secretary-General of CMAC and Vice President of CMAC Arbitration Court) answered questions from reporters.
On behalf of CMAC, Dr Li Hu introduced the 2021 Rules. He addressed that the launch of the 2021 Rules marked the efforts of CMAC to keep itself relevant to the envolving international arbitration and business landscape. With a heightened focus upon party autonomy and procedural transparency, the 2021 Rules gave full play to the advantages of institutional arbitration and would eventually add to the public credibility of arbitration.
The 2021 Rules consists of 86 articles in which noteworthy changes and new additions are highlighted:
Legal Tech in Arbitration: The 2021 Rules pave the way for smooth and steady transition to virtual hearing and virtual case management in response to the COVID-19 pandemic. In a dynamic world with increasing interactions in virtual forums, Articles (8.2, 39.4, 39.6, 45.1, 51 and 81) provide for electronic delivery, video conferencing for hearings and witness examination, electronic signatures, cyber security, privacy and data protection, in order to best meet the needs of the parties.
Rules of Evidence: A new addition to the 2021 Rules as the previous version did not contain a complete set of provisions regarding rules of evidence. Articles (46, 47, 48, 49, 50, 51, 52) set forth clear directions for the arbitral tribunals and the parties to identify the facts and issues in dispute more effectively..
Tribunal Secretary: Under CMAC Arbitration Rules(2018), a case manager would be appointed by the Secretariat to assist the arbitral procedure and he/she would work for both the tribunal and the arbitration institution. To some extent, this mechanism may blur the line between the former and the latter. Article 40 provides a detailed instruction regarding the appointment, tasks, requirements and supervision of tribunal secretary who would, on behalf of the tribunal, work together with the case manager who represents the arbitration institution. Any decisions made by the tribunal would be communicated by the secretary to the case manager.
Advisory Council: Article 61 provides that the arbitral tribunal or CMAC may submit any significant or complex procedural and substantive matters in an arbitration to the Advisory Council for consultation and advice. The arbitral tribunal has the discretion to decide on whether or not to follow the consultation and advice as issued by the Advisory Council. This practice actually has been followed for many years in CMAC arbitrations while it is for the first time explicitly provided in the arbitration rules so as to increase the transparency of the arbitral procedure.
Agreed Publication: Pursuant to the consent of all parties, CMAC may publish the awards encrypted to disguise the names of the parties and any other identifying details (Article 58.10).
Delivery Service: To meet the special needs of maritime arbitration, Article 8.2 provides that the arbitral documents may be sent to the Captain of the concerned vessel.
Change in Representatives: In order to ensure due process, the arbitral tribunal may take necessary measures to avoid conflict of interest due to the change in a party’s representative, including excluding a newly authorized representative of a party from participating in the arbitral proceedings in whole or in part (Article 22.2).
Limitation of Liability: Article 84 provides an overall limit on liability for the arbitral tribunal, tribunal secretaries, tribunal appointed-experts, the Arbitration Court itself and its employees. None of the abovementioned is under any legal obligation to any party for any act in connection with the arbitration unless otherwise provided by the law of the seat of arbitration.
Fees & Costs of Arbitration: CMAC Fee Schedule II provides an additional option for the parties in case they have agreed to fix the fees of arbitral tribunal departing from CMAC’s administrative fees.
Constitution of the Arbitral Tribunal: The 2021 Rules have kept the option of appointing an arbitrator out of the CMAC’s Panel of Arbitrators, yet the Sole Arbitrator or Presiding Arbitrator shall be appointed from CMAC’s Panel of Arbitrators under Article 30. Pursuant to Articles (31.4, 31.5), if the parties fail to jointly nominate/appoint the Presiding Arbitrator, the two nominated/appointed arbitrators shall nominate the Presiding Arbitrator jointly; if the two nominated/appointed arbitrators fail to do so within 15 days from the date of their appointment, the appointment shall be made by the CMAC Chairman.
Expedited Procedures: With the "summary procedure" renamed "expedited procedure", the 2021 Rules become more consistent with the global arbitration practice in terms of wording. Additionally, the 2021 Rules expand the scope of application of the Expedited Procedure provisions by raising the opt-out threshold from RMB 2 million to RMB 5 million. Expedited Procedures are applicable to any disputes that do not exceed RMB 5 million or if the parties agreed in writing to apply the Expedited Procedures to disputes that exceed RMB 5 million (Article 66.1), under which a sole-arbitrator tribunal shall issue a final award no later than 3 months from the date of constitution of the tribunal (Article 72).
Dr Li Hu concluded that the launch of the new CMAC Arbitration Rules is very timely to meet the need of the hour. CMAC will continue to provide efficient, high-quality and practical arbitration legal services worldwide, and work with other local, regional and international arbitration instructions to accelerate the growth of international arbitration in dispute resolution.