From October 19 to 21, 2022, the author had the privilege of participating in the International Commercial Arbitration - PIDA Training Level 1, jointly organized in Shanghai by the ICC International Court of Arbitration (hereinafter referred to as the “ICC International Court of Arbitration”), the ICC Institute of World Business Law, the Chengdu Lawyers Association, and the Shenzhen Lawyers Association. After three days of intensive and efficient immersive learning, I felt greatly benefited. I would like to record and share my observations as follows.

I. The ICC International Court of Arbitration and Its Cultural Ethos

The ICC International Court of Arbitration

Founded in 1923 and affiliated with the International Chamber of Commerce (ICC), its main responsibility is to resolve international commercial disputes through arbitration in accordance with the ICC Arbitration Rules, thereby facilitating the normal conduct of international business activities. The ICC International Court of Arbitration is independent of any country, and the parties and arbitrators in its cases may come from any country. It is a typical international commercial arbitration institution and has developed into one of the most important and renowned international commercial arbitration institutions in the world.

According to statistics, in 2020 and 2021, the ICC International Court of Arbitration registered 929 and 840 new arbitration cases respectively, with the number of Chinese parties ranking 8th overall in both years. To meet the development needs of international commercial arbitration, three revisions were made in 2012, 2017, and 2021 based on the ICC Arbitration Rules that came into effect on January 1, 1998. The currently applicable version is the 2021 ICC Arbitration Rules. The ICC Arbitration Rules play a pivotal leading and exemplary role in the field of international business regulation and trade and investment dispute resolution.

ICC PIDA Training is a meticulously developed training and promotion program by the ICC.

Although this training was at the introductory Level 1, it featured over 30 senior experts and lawyers from Mainland China, Hong Kong, Japan, Singapore, Australia, and other countries and regions as tutors, a true gathering of elites, including many prominent figures in the field of international commercial arbitration. The tutors closely interacted with the participating trainees through lectures, seminars, mock case role-plays, and various other methods.

The most direct impression of the ICC International Court of Arbitration comes from these ICC tutors and staff.

International commercial arbitration, which rose in modern times, is deeply influenced by the business, legal, and social cultures of developed countries such as the UK, the US, and Continental Europe. An elitist cultural tradition is embedded within it, and the ICC International Court of Arbitration, as a renowned institution and leader in the field, is no exception.

Through in-depth contact and communication with the ICC International Court of Arbitration staff and tutors who organized and implemented this training, what left the deepest impression was not only their excellent educational backgrounds both domestically and internationally, their profound and deep professional expertise, and their rigorous and efficient work attitude and style, but also their strong identification with and pride in the institution, and their confidence in their own professional abilities, which were evident in their words and actions.

At the same time, accompanying this tradition of professional elitism is a spirit of dedication and sacrifice.

Many of the tutors for this training participated for the full three days. Including industry luminaries, they served on a pro bono basis without compensation. The combination of this professional ethos, elitist tradition, and spirit of dedication is truly invigorating. International arbitration institutions must consciously shape and maintain their unique cultural heritage and distinctive characteristics to gain a competitive edge in the fierce market competition. This may well be one of the secrets to the enduring success of the ICC International Court of Arbitration.

II. The ICC Arbitration Rules and Their Institutional Features

The training method adopted was to provide trainees with a comprehensive and intuitive impression of the main content of the ICC Arbitration Rules and related systems through thematic lectures and full participation in a mock case under the ICC Arbitration Rules, engaging in various stages including applications, defenses, case management, hearings, award writing, and scrutiny. The training language was primarily English, with a mix of Chinese and English. This ICC Arbitration Rules training showcased some unique systems and arrangements that are less commonly encountered in domestic commercial arbitration practice.

(I) Terms of Reference

Article 23 of the ICC Arbitration Rules, “Terms of Reference,” mainly provides as follows:

1. Upon receipt of the file from the Secretariat, the arbitral tribunal shall, on the basis of the documents or in the presence of the parties and in the light of their most recent submissions, draw up a document defining its Terms of Reference. This document shall include the following particulars: a) the full names, descriptions, addresses, and other contact details of each party and any person(s) representing a party in the arbitration; b) the addresses to which notifications and communications arising in the course of the arbitration may be made; c) a summary of each party’s claims and of the relief sought, together with the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims; d) a list of issues to be determined, unless the arbitral tribunal considers it inappropriate; e) the full names, addresses, and other contact details of each arbitrator; f) the place of the arbitration; and g) particulars of the applicable procedural rules and, if such is the case, reference to the power conferred upon the arbitral tribunal to act as amiable compositeur or to decide ex aequo et bono.
2. The Terms of Reference shall be signed by the parties and the arbitrator(s). The arbitral tribunal shall transmit the signed Terms of Reference to the Court within 30 days of receipt of the file. The Court may extend this time limit pursuant to a reasoned request from the arbitral tribunal or on its own initiative if it decides it is necessary.
3. If any party refuses to take part in the drawing up of the Terms of Reference or to sign the same, they shall be submitted to the Court for approval. Upon signature of the Terms of Reference in accordance with Article 23(2) or approval by the Court, the arbitration shall proceed.
4. After the Terms of Reference have been signed or approved by the Court, no party shall make new claims which fall outside the limits of the Terms of Reference unless it is authorized to do so by the arbitral tribunal, which shall have regard to the nature and timing of such new claims, the stage of the arbitration, and all other relevant circumstances.

(II) Case Management Conference and Procedural Timetable

Article 24 of the ICC Arbitration Rules, “Case Management Conference and Procedural Timetable,” mainly provides as follows:

1. When drawing up the Terms of Reference or as soon as possible thereafter, the arbitral tribunal shall convene a case management conference to consult the parties on procedural measures that may be adopted pursuant to Article 22(2).
2. During or following such conference, the arbitral tribunal shall establish the procedural timetable that it intends to follow for the efficient conduct of the arbitration. The procedural timetable and any modifications thereto shall be communicated to the Court and the parties.
3. To ensure continued effective case management, the arbitral tribunal may, after further consultation with the parties, adopt further procedural measures or modify the procedural timetable.
4. Case management conferences may be conducted in person, by video conference, telephone, or similar means of communication. In the absence of an agreement between the parties, the arbitral tribunal shall determine the means by which the conference will be conducted. The arbitral tribunal may require each party to submit a case management proposal prior to the case management conference and may require each party to attend any case management conference in person or through an internal representative.

(III) Evidentiary Rules

Due to the numerous countries and legal systems involved in international commercial arbitration, it is difficult to form unified evidentiary rules. Most arbitration rules or arbitration laws only stipulate that the arbitral tribunal has discretion in determining facts and evaluating evidence. In this regard, the ICC Arbitration Rules, in Article 25 “Establishing the Facts of the Case,” only provide:

1. The arbitral tribunal shall establish the facts of the case within as short a time as possible using all appropriate means.
2. The arbitral tribunal may decide to hear witnesses, experts appointed by the parties, and any other person, in the presence of the parties, or in their absence provided they have been duly summoned.
3. The arbitral tribunal, after consultation with the parties, may appoint one or more experts, define their terms of reference, and receive their reports. At the request of a party, the parties shall be given the opportunity toquestion the expert at a hearing.
4. At any time during the proceedings, the arbitral tribunal may summon any party to provide additional evidence.
5. The arbitral tribunal may decide the case solely on the documents submitted by the parties unless any of the parties requests a hearing.

At the same time, the ICC Arbitration Rules, in Appendix IV “Case Management Techniques,” provide corresponding guidance:

Case management techniques that may be used by the arbitral tribunal and the parties to control time and cost include, by way of example, the following. Proper control of time and cost is important in all cases. Ensuring that time and cost are proportionate to the issues in dispute is particularly important in cases of lower complexity and value.

… b) identifying issues that can be resolved by agreement between the parties or their experts; c) identifying issues to be decided solely on the basis of documents rather than through oral evidence or legal argument at a hearing; d) production of documentary evidence: (i) requiring the parties to produce documents on which they rely at the time of their submissions; (ii) avoiding requests for document production when appropriate to control time and cost; (iii) in cases where requests for document production are deemed appropriate, limiting such requests to documents that are relevant and material to the outcome of the case; (iv) establishing reasonable time limits for document production; (v) using a document production schedule to assist in resolving issues related to document production; e) limiting the length and scope of written submissions and written and oral witness testimony (both fact witnesses and experts) to avoid repetition and maintain a focus on key issues; f) using telephone or video conferencing for procedural and other hearings where attendance in person is not essential, and using IT to enable online communication among the parties, the arbitral tribunal, and the Secretariat of the Court.

To ensure consistency and efficiency in the application of evidentiary rules, two main sets of evidentiary rules are currently used in the international commercial arbitration field: one is the IBA Rules on the Taking of Evidence in International Arbitration (hereinafter the “IBA Rules”), formulated in 1999 by the International Bar Association (IBA), and the other is the Rules on the Efficient Conduct of Proceedings in International Arbitration (2018) (hereinafter the “Prague Rules”), passed on December 14, 2018, in Prague, Czech Republic, by a working group composed of representatives from over thirty countries.

IBA Rules

Originating from the witness system of common law, the IBA Rules were developed after extensive consultation with professionals from different legal systems and have extensive influence in the international arbitration community. The IBA Rules provide a complete set of mechanisms for obtaining evidence, including document production, fact witnesses, expert witnesses, and inspections. These rules feature adversarial proceedings, emphasizing the initiative of the parties in obtaining and presenting evidence. The arbitral tribunal has some discretion but plays a relatively passive role in the party-driven process.

The Prague Rules, opened for signature in December 2018, adhere to the civil law tradition that no one should be required to produce evidence unfavorable to themselves. They generally require parties to prove their own claims and incorporate more civil law elements, such as explicitly encouraging the arbitral tribunal to take a leading role and strictly limiting document disclosure. It is generally believed that the IBA Rules have an advantage in resolving international arbitration cases involving large amounts in dispute and complex facts. However, for handling numerous smaller commercial arbitration cases, the Prague Rules, being more flexible and encouraging the arbitral tribunal to play a proactive role, are more conducive to improving the efficiency of international arbitration and reducing high legal costs.

However, in the field of international arbitration

, whether in civil law or common law jurisdictions, arbitration proceedings typically develop certain rules or arrangements regarding document disclosure, fact witnesses, and expert witnesses, and generally involve cross-examination of witnesses. However, in domestic commercial arbitration in China, the use of expert witnesses is less common, and the techniques and rules for cross-examination are relatively simple and rudimentary.

III. Conduct of Arbitration by the ICC and Other International Arbitration Institutions

in Mainland China

Currently, the ICC International Court of Arbitration has only established a Case Management Office in the Hong Kong region of China. In the mainland, it established the “ICC Arbitration and ADR, North Asia Office (ICC Shanghai Office)” in Shanghai in 2016, but has not yet set up a Case Management Office. Regarding the conduct of arbitration business in China by international arbitration institutions such as the ICC, China’s legislative and judicial authorities are increasingly demonstrating a policy orientation of encouragement and support. At the same time, international arbitration institutions are actively engaging in positive interaction in this regard. For example, the ICC recommends the following standard arbitration clause: “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules.” However, this recommended clause does not explicitly name the ICC International Court of Arbitration as the arbitral institution. When the 2012 ICC Arbitration Rules were revised, Article 6.2 was added, stating: “By agreeing to arbitration under the Rules, the parties have accepted that the arbitration shall be administered by the Court.” This neatly resolved the interface issue with Article 4 of the “Supreme People’s Court’s Interpretation on Several Issues concerning the Application of the Arbitration Law of the People’s Republic of China,” which provides: “If the arbitration agreement only stipulates the applicable arbitration rules, it shall be deemed that no arbitral institution has been agreed upon, unless the parties reach a supplementary agreement or the arbitral institution can be determined in accordance with the agreed arbitration rules.”

In recent years, the typical or influential cases and judicial practices in relevant fields mainly include:

The 2013 “Longlide Case.”

In 2011, the Hefei Intermediate People’s Court accepted a case filed by Anhui Longlide Packaging Printing Co., Ltd. seeking confirmation of the validity of an arbitration clause with BP Agnati S.R.L. and Jiangsu Sumec International Technology Trading Co., Ltd. The arbitration clause in question read: “Any dispute arising from or in connection with this contract shall be submitted to the ICC International Court of Arbitration for final arbitration in accordance with its Arbitration Rules by one or more arbitrators appointed in accordance with said Rules. The place of jurisdiction shall be Shanghai, China.” In 2013, the Supreme People’s Court issued a reply regarding the “Longlide Case,” confirming the validity of the aforementioned “ICC Shanghai” arbitration clause.

The 2020 “DaeSung v. Praxair Case.”

In 2020, DaeSung Industrial Gas Co., Ltd. and DaeSung (Guangzhou) Gas Co., Ltd. filed a lawsuit with the Shanghai First Intermediate People’s Court against Praxair (China) Investment Co., Ltd. seeking confirmation of the validity of the arbitration agreement. The Shanghai First Intermediate People’s Court confirmed the validity of the arbitration clause: “This Agreement shall be governed by the laws of the People’s Republic of China; any dispute arising from or in connection with this Agreement shall first be attempted to be resolved through friendly negotiation. If negotiation fails, both parties agree to finally submit such dispute to the Singapore International Arbitration Centre for arbitration in Shanghai in accordance with its arbitration rules.” The court held that arbitration in China by a foreign arbitral institution primarily refers to the situation where a foreign arbitration institution applies its own arbitration rules to conduct arbitration with the place of arbitration located in China. Such arbitration is institutional arbitration, not ad hoc arbitration, which China has reserved against under the New York Convention. The view that foreign arbitral institutions cannot administer arbitrations with the place of arbitration in China lacks explicit prohibitive legal provisions and is contrary to the development trend of international commercial arbitration. Arbitration is one of the means for parties to voluntarily resolve disputes. In essence, it concerns the voluntary resolution of disputes by the parties and does not involve the issue of whether China’s arbitration market is open.

The 2020 “Brantwood Case.”

In 2015, the Guangzhou Intermediate People’s Court accepted an application by Brantwood Industries Co., Ltd. for recognition and enforcement of an arbitral award made by the ICC International Court of Arbitration on March 17, 2014, in Guangzhou, China, regarding a dispute between the applicant Brantwood Company and the respondents Guangdong Valve Anlong Machinery Complete Equipment Engineering Co., Ltd., Guangzhou Zhengqi Trading Co., Ltd., and Guangdong Environmental Engineering Equipment General Company. The court ruled in 2020. Regarding the arbitration clause: “Any dispute arising from or in connection with this contract shall be settled through friendly negotiation. If negotiation fails, the dispute shall be submitted to the ICC Arbitration Commission for arbitration in the project location in accordance with international practice,” the Guangzhou Intermediate People’s Court had previously confirmed the validity of this arbitration clause. The Guangzhou Intermediate People’s Court held that the arbitral award in question, made in Guangzhou (the project location) by the arbitral tribunal composed of sole arbitrator Ms. Jane Willems following the ICC International Court of Arbitration upon Brantwood Company’s application, is an arbitral award made in China by a foreign arbitral institution. It can be regarded as a Chinese foreign-related arbitral award, and the parties were encouraged to separately file an enforcement application in accordance with China’s Civil Procedure Law.

In 2021, the “Summary of the National Conference on the Work of Foreign-Related Maritime and Commercial Trials of Courts” issued by the Supreme People’s Court, based on summarizing judicial practice experience, provided in Article 93: “According to Article 3 of the Judicial Interpretation on the Arbitration Law, when a people’s court reviews whether an arbitration agreement has agreed on a clear arbitral institution, it shall determine the validity of the arbitration agreement in favor of the principle of giving effect to the arbitration agreement.” Article 95 provides: “If the parties have not agreed on a clear arbitral institution in the arbitration agreement, but have agreed to apply the arbitration rules of a certain arbitral institution, it shall be deemed that the parties have agreed to arbitration by that arbitral institution, unless the arbitration rules provide otherwise.”

With the Ministry of Justice’s 2022 call for “coordinating the pilot work of building an international commercial arbitration center as a strategic task for vigorously strengthening foreign-related legal services in the new era,” and the clarion call of policies such as “striving to build China into a new destination for international arbitration,” along with the imminent revision of the Arbitration Law of the People’s Republic of China, relevant international commercial arbitration in Mainland China will face an even more favorable policy environment, and vigorous development can be expected in the future.

IV. On the Demeanor of the Trainees

The participants in this training were mainly practicing lawyers from Chengdu and Shenzhen, along with lawyers from Shanghai, Jiangsu, and Zhejiang, and professionals from other occupations. Many also serve as arbitrators in domestic arbitration institutions. The participants were generally in their 30s and 40s, and the languages they commanded included English, as well as Japanese, Portuguese, etc. Even the older participants could communicate proficiently in English.

The training was enriching and intense. Even the 45-minute lunch break each day was filled with lunch talks or keynote speeches. Nevertheless, the participants maintained a high level of enthusiasm for learning, demonstrating good foreign language skills and solid legal expertise in class discussions, mock trials, and interactive exchanges. A training session held in the gap between COVID-19 outbreaks allowed participants to broaden their professional horizons, gain knowledge, and get to know each other.

“Gathered, we are a flame; scattered, we are stars.” I sincerely hope that through this training and future cooperation, the organizers and participants can sow the seeds of hope in the field of international commercial arbitration and write a brilliant chapter for the future!

This article was first published in the 7th issue of “International Legal Observation,” and is reprinted with the author’s consent.