The Study Of Necessity And Feasibility Of Introducing International Commercial Arbitration Institutions Into Mainland China

International commercial arbitration institutions can compete in the Chinese arbitration market in two ways.First,international commercial arbitration institutions engage in China's arbitration business by means of establishing commercial institutions in China and compete with Chinese arbitration institutions.Second,the foreign arbitration institution does not set up an institution in China,but selects the place of arbitration as China according to the arbitration rules to be applied in a particular arbitration case or the agreement between the parties in the arbitration agreement.It should be noted that this paper analyzes the necessity and feasibility of introducing international commercial arbitration institutions in China from the perspective of the aforementioned first way.Therefore,this article refers to the introduction of international commercial arbitration institutions in China,specifically referring to the establishment of permanent institutions in China by international commercial arbitration institutions.In April 2015,the State Council promulgated the Notice on Further Deepening the Reform and Opening-up Plan of the China(Shanghai)Pilot Free Trade Zone(hereinafter referred to as the “Deepening Reform Plan”),clearly stipulating that“supporting internationally renowned commercial dispute resolution agencies to settlein and improve internationalization of domestic commercial dispute arbitration.” After the publication of the "Deepening Reform Plan",some international commercial arbitration institutions began to enter the Shanghai Free Trade Zone.This is the first time that a permanent establishment established by an international commercial arbitration institution in China has entered the public eye,which has aroused widespread concern from all walks of life.But in fact,this is not the first time competent Chinese government have tried to introduce an international commercial arbitration institution in China.Prior to this,the 2011 Shenzhen-Shenzhen Shenzhen-Hong Kong Modern Service Industry Cooperation Zone has tried to introduce Hong Kong arbitration institutions.Thereafter,in 2017,the State Council approved the establishment of a representative office in Beijing on the premise of meeting the overall requirements of the Beijing-Tianjin-Hebei coordinated development strategy.In addition,under the unified coordination of the Chinese Law Society,the China-Africa Joint Dispute Resolution Mechanism was established.Although compared with the practice in Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperation Zone,Shanghai Free Trade Zone and Beijing Municipality,the China-Africa Joint Arbitration Beijing Center,Nairobi Center and Shenzhen Center established under the China-Africa Joint Dispute Resolution Mechanism are not strictly speaking.The permanent establishment(substantially the arbitration institution in China,adopting the "two sets of brand" approach),but provided new ideas for the introduction of international commercial arbitration institutions in China.All in all,these innovative measures reflect the positive attempts of China to allow international commercial arbitration institutions to establish permanent institutions in China,but these measures are only carried out in specific regions,and most of the relevant provisions are only principled,and the introduction of international commercial arbitration institutions is progressing slow.The second chapter mainly studies the necessity of introducing international commercial arbitration institutions in China.First,a major concern of the introduction of international commercial arbitration institutions in China is that internationalcommercial arbitration institutions will intensify competition in the domestic arbitration market after establishing permanent establishments in China,which will have an impact on the arbitration market in China.According to the latest information from the Ministry of Justice,as of the end of 2018,a total of 255 arbitration committees were established nationwide,an increase of 127% over 2017.This shows that the arbitration market in China is at a stage of rapid development.At the same time,however,the arbitration system in China is far from perfect.In addition,the strong competitiveness of internationally renowned commercial arbitration institutions has also made China face greater challenges.In addition,the current construction of the “Belt and Road” requires China to improve the level of China's arbitration industry in order to improve the voice of China in the construction of disputes related to the “Belt and Road”.Therefore,the author believes that although the introduction of international commercial arbitration institutions may bring risks to the commercial arbitration industry in China,China is also facing such risks in the process of reform and opening up other industries.In order to improve the competitiveness of China's commercial arbitration institutions in the international arbitration market,fully participate in the construction of the dispute resolution mechanism in the construction of the “Belt and Road” and to improve Chinese competitiveness in the construction of the “Belt and Road”,allowing international commercial arbitration institutions to establish permanent institutions in China is a viable option.Secondly,it is undeniable that allowing international commercial arbitration institutions to establish permanent establishments in China is not the only way to introduce international commercial arbitration institutions in China.Previously,the academic community focused more on the aforementioned second way(although the different paths are not absolutely exclusive).At present,although the domestic courts have not directly responded to the opening of the arbitration market in China,the court has approved the arbitration agreement of the parties to submit foreign-related cases in China to international commercial arbitration institutions.Effectively,and in the “Gerco Steel Company Case”,the arbitral award made by the international commercial arbitration institution was recognized as “non-internationalruling” and was recognized and implemented.So far,in a non-strict sense,international commercial arbitration institutions have been able to participate in the arbitration competition in China's domestic market by accepting arbitration cases from domestic parties in China.However,it is undeniable that there is still controversy surrounding the recognition and enforcement of arbitral awards under this model and judicial supervision.This model is facing some obstacles as well in China.In addition,for market access and economic considerations,it is not uncommon for international commercial arbitration institutions to establish permanent establishments outside their respective countries.For example,the China International Economic has set up branches in Hong Kong,but the permanent establishment has not accepted and managed cases in Hong Kong.However,there has been a tendency to attach importance to arbitration institutions in China,and also have the history and inclination to manage and supervise arbitration institutions.Chinese competent authorities have also enjoyed the powers stipulated in the Arbitration Law and some invisible in the process of forming an arbitration institution,managing and supervising the power of the arbitration institution.Therefore,considering this aspect,combined with the attitude of China's distrust of arbitration,it is more likely to be accepted by competent Chinese authorities in China to establish permanent institutions in China and to make these permanent institutions exposed to the management and supervision of relevant departments in China.In the third chapter,this paper mainly discusses the feasibility of introducing international commercial arbitration institutions in China.First,the market access of international commercial arbitration institutions is the first problem that international commercial arbitration institutions must face when setting up permanent institutions in China.At present,although the Shanghai Pilot Free Trade Zone and Beijing(need to meet certain conditions)allow international commercial arbitration institutions to settle in,this is only an attempt by our country in a specific region during the reform process.In other regions of the Mainland,the market access of international commercial arbitration institutions is still controversial.First of all,the nature of arbitration is controversial.At present,the doctrines on the nature of arbitrationmainly include judicial power,autonomy,mixed theory and contract theory.These doctrines reflect the evolution of the relationship between public power and private rights in the process of arbitration development.The particularity of arbitration itself determines its differentiation from other services,affecting the nature of arbitration in China and other countries,and thus affecting the attitude of China in introducing international commercial arbitration institutions.Secondly,there is also controversy over whether arbitration services are in the scope of international trade services.When mainland scholars in China talk about the opening up of the arbitration market,most scholars in China will analyze the provisions of the General Agreement on Trade in Services.In this regard,the author analyzes the definition of "service trade" in the General Agreement on Trade in Services,the "Special Commitment Schedule for Service Trade" submitted by China in the General Agreement on Trade in Services,and internationally renowned commercial arbitration,the provisions of the “Special Commitments for Service Trade Concessions” submitted by the country where the organization is located,and the “Legal Services” opened in the “Special Commitments for Service Trade Concessions” submitted by China's accession to the General Agreement on Trade in Services.The stipulations submitted by China when joining the General Agreement on Trade in Services,it did not regard arbitration as a category of service trade that was open to the outside world.In addition,in international treaties signed with other countries in China,there is no mention of the market access of international commercial arbitration institutions.Based on the above research results,the author believes that at the level of international law,China does not have the obligation to enter into commercial arbitration institutions in China,and it is possible to decide whether to introduce an international commercial arbitration institution.Finally,the author analyzes the relevant regulations in China,and believes that some of the provisions in China have the tendency to regard arbitration as a legal service,but the “Negative List(2018 Edition)” does not regulate the market access for commercial arbitration.Therefore,except in the Shanghai Free Trade Zone and special areas such as Beijing,China's domestic market regulations for international commercial arbitration are not clear,but in fact there is no access.Second,based onthe fact that the arbitration system in China is not perfect,international commercial arbitration institutions will encounter many problems in setting up permanent institutions in China.In this regard,the author chooses two aspects to study,that is,the organization of these permanent establishments and the issue of nationality determination of arbitral awards made after admission.The first is the organizational form of these permanent institutions.At present,the relevant legislation in China has not clearly defined the organization form of domestic arbitration institutions.In practice,there have been some normative legal documents to manage the arbitration institutions in China as institutions.When many international commercial arbitration institutions entered the Shanghai Pilot Free Trade Zone,they registered as commercial representative offices of foreign companies in China,but because international commercial arbitration institutions are not part of the "The foreign enterprise" specified in the Regulations on the Registration and Administration of Permanent Representatives of Foreign Enterprises(2013),so this arrangement does not comply with the law.After the promulgation of the Law on the Administration of Domestic Activities of Non-Governmental Organizations Outside the People's Republic of China(2016)on April 28,2016,these international commercial arbitration institutions stationed in the Shanghai Pilot Free Trade Zone were registered as non-governmental organizations.So far,the issue of the organizational form of the permanent establishments established by international commercial arbitration institutions in China has been resolved.Secondly,it is the issue of the nationality of the arbitral awards of these permanent establishments in China.At present,the domesticity of the arbitration award in China is based on the location of the arbitration institution.The problem is that the location of these permanent establishments is the location of the international commercial arbitration institution in China or the establishment of the permanent establishment.The results of the nationality determination of such arbitral awards will affect the judicial supervision power and the recognition and enforcement mode adopted by the courts in China.All in all,before clarifying the market access issues of international commercial arbitration institutions,international commercial arbitration institutions cannot establish permanent establishments in China(except forspecial areas such as the Shanghai Pilot Free Trade Zone).Before laws and regulations clearly stipulated the nationality of the arbitration awards made by these permanent institutions,the recognition and enforcement of arbitration awards made by international commercial arbitration institutions in China and the judicial supervision faced obstacles.