On The Scope Of Arbitrators’ Disclosure Duty In China

Arbitrators are usually not a specialized profession,and arbitrators often have dual or even multiple identities.An arbitrator is also usually a lawyer,corporate legal affairs,college teachers,consultants,and experts in certain industries.Before becoming an arbitrator in a particular case,the person may have previously approached the parties to the case,provided them with legal services,and even provided advice on the disputes in the case;they may have a personal relationship with the case parties or have other Occupational exposure.In addition,after the appearance of arbitrators becoming more and more professional choices for some professionals,that is,professional arbitrators(specialized in the arbitrator profession and no longer have other professional status),an arbitrator may be elected by a party multiple times,possibly It is a different case,or it may be multiple related cases.In this case,the other party is likely to raise concerns as to whether the arbitrator will favor the party with whom he has had previous contact.Arbitrators need to maintain independence and impartiality,and their independence and impartiality must be recognized by the parties.The parties need to be fully aware of the previous contact between the arbitrator and the other party,and make their own judgment in a timely manner to decide whether to agree to the trial of the case by the arbitrator who has contact with the other party.This requires an arbitrator’s disclosure obligation.Arbitrators’ disclosure obligations have long been followed by the international arbitration community as well as national legislatures and arbitration associations,and there is a relatively complete system design—UNCITRAL Model Law on International Commercial Arbitration(International law);the International Bar Association International Arbitration Conflict of Interest Guidelines(Not binding,but widely used by various arbitration institutions and national courts),and arbitration rules,arbitrators’ codes and codes of conduct of various arbitration institutions,as well as national legislation,relevant regulations,and case law in many countries.Regarding the arbitrator’s disclosure obligation system,the subject of the disclosure obligation,the object of the disclosure,the time of disclosure,the form of disclosure,and the adverse consequences of the violation are all relatively determined.When the arbitrator is appointed until the end of the arbitration process,the disclosure obligation is a continuous obligation;the disclosure is mostly in the form of written disclosure,and is mostly disclosed in the independent statement of the arbitrator;the adverse consequences of violating the arbitrator’s disclosure obligation may lead the arbitrator to avoid Even the arbitral award was set aside.The hardest and most important part of the arbitrator’s disclosure obligation is the scope of the arbitrator’s disclosure obligation.Even if the arbitrator’s non-disclosure does not necessarily affect the appearance of the arbitrator’s independence and impartiality,it is necessary to specifically review the undisclosed matters of the arbitrator.Although there are general and more uniform expressions "facts or circumstances that may cause a reasonable doubt about the impartiality and independence of the arbitrator",in practice,what has been determined as the scope of the arbitrator’s disclosure obligation and which does not require the arbitrator to disclose Which can be used as a reference for the scope of the arbitrator’s disclosure obligation and which criteria are used to specifically determine the reasonableness of the suspicion need to be learned through analysis of the rules and arbitration and judicial practice.This article intends to help author to understand the scope of arbitrators’ disclosure obligations in practice by taking the Chinese court’s ruling on the parties’ application of the arbitrator’s incomplete disclosure obligations as an entry point to understand the scope of arbitrators’ disclosure obligations in practice,and to compare the arbitrator system and practice outside the region with a view to provide some suggestions for reference to the arbitrators,parties,arbitration institutions and the courts regarding determination of scope of the arbitrator disclosure obligation.This article consists of three parts:The first chapter mainly takes the Chinese court’s ruling on the parties’ application of the arbitrator’s unfulfilled disclosure obligation as the point of application to revoke the arbitral award.It first introduces and analyzes the arbitrator’s disclosure obligation system determined in China’s judicial practice.The subject matter and the subject matter that the arbitrator need not disclose.By sorting out the relevant provisions of the arbitration institutions involved in the rulings,we have learned about the more uniform scope of arbitrators’ disclosure obligations determined at the arbitration institution level in China;comparing the causes determined at the practical level,we have concluded that in conclusion.In addition,through analysis of the ruling,it can be concluded that in the judicial practice,the court has unclear judgment standards when judging the arbitrator’s disclosure obligations,which is mainly reflected in the confusion between the arbitrator’s disclosure obligation standard and the arbitrator’s avoidance standard and the absence of specific standards Determine the reasonableness of the parties’ doubts about the impartiality and independence of the arbitrator.The second chapter analyzes the characteristics of the rules and practice of the scope of the arbitrator’s disclosure obligations abroad.By analyzing the UNCITRAL Model Law,ICC,LCIA,SIAC,HKIAC,SCC,and AAA rules,it can be found that the rules of arbitration institutions mostly include the general provisions of arbitrators’ disclosure obligations,and the specific details of the practice.The IBA Guidelines,as the best practice on conflicts of interest of arbitrators in the field of international arbitration,provides the richest and most relevant specific reference for arbitration institutions and courts;taking the LCIA specific arbitrators’ disclosure and challenge decision as an example,we can discover the characteristics of its flexible application of the IBA Guidelines.In addition,starting from the typical cases Commonwealth and Locabail,it can be analyzed that common law countries rely on case law to directly or indirectly determine the scope of the arbitrator’s disclosure obligations with the help of moral standards of judges;and extraterritorial adopts “reasonable third parties” standards,an objective criteria,in the judgment criteria of "reasonable doubt".The third chapter discusses the possible suggestions for improving the scope of disclosure obligations of arbitrators in China from the institutional and practical aspects.On the one hand,the arbitrators’ disclosure obligation system should be clearly stipulated in the arbitration rules of the arbitration institutions and the Arbitration Law to fully establish the arbitrators’ disclosure obligation system.On the other hand,the scope of the arbitrator’s disclosure obligation must be implemented to all possible arbitration participants,to the arbitrators who need to perform the disclosure obligation and the parties who have a direct interest in the arbitration result in the pre-procedure,and the arbitration institutions play a procedural management role and the courts that have the final power of judgment have each made reference recommendations on the scope of the arbitrator’s disclosure obligations in the later procedure.Arbitrators should actively apply the arbitration rules and relevant provisions of the arbitration institution and the IBA Guidelines to fulfill your disclosure obligations;parties can try to understand the scope of the arbitrator’s disclosure obligations as broadly as possible and file an objection as soon as possible to protect their legitimate rights and interests;the arbitration institution should,as far as possible,clearly specify the arbitrator’s disclosure obligations in the arbitration rules It can follow the LCIA practice to handle arbitrator objections related to arbitrators’ disclosure obligations and arbitrator withdrawal applications;the court,as the ultimate agency for handling disputes over arbitrators’ disclosure obligations,should maintain independent judgment and fully justify in rulings.