贸仲香港仲裁实务专题日活动在北京成功举办/CIETAC Hong Kong’s Day of Arbitration Field Practice successfully held in Beiji

2018年9月16日，中国经济贸易仲裁委员会香港仲裁中心（贸仲香港）在北京饭店成功举办贸仲香港仲裁实务专题日活动。超过130名来自世界各地的仲裁业人事参会。活动内容涵盖国际仲裁实践中的热点问题，既有焦点问题的解析，又有实务操作的演示，受到参会者高度评价。

On 16 September 2018, CIETAC Hong Kong Arbitration Center (“CIETAC Hong Kong”) successfully organized its Day of Arbitration Field Practice at Beijing Hotel, Beijing. The event was attended by more than 130 attendees and received positive feedback. The event was appreciated for effectively covering a diverse set of important topics relating to the contemporary international arbitration practice.

贸仲委副主任兼秘书长王承杰先生为此次活动致开幕欢迎辞。王承杰秘书长在致辞中指出，贸仲香港在促进贸仲仲裁业务国际化方面发挥着关键作用。贸仲委近年来采取了一系列举措进一步加快了国际化进程。例如在设立香港中心后，于温哥华开设北美仲裁中心以及筹备于维也纳开设欧洲仲裁中心；继贸仲发布《投资仲裁规则》后，发布了《国际投资争端仲裁员名册》，名册由来自35个不同司法管辖区的79名仲裁员组成，都是受广泛认可的国际投资争端解决领域的专家学者。王承杰秘书长还称赞贸仲香港成功举办各种以实践为导向的活动，并对本次活动所涉及的主题表示赞赏。

The event commenced with Mr. Chengjie Wang, the Vice Chairman of CIETAC, delivering the welcome remark. During the welcome remark, Mr. Wang acknowledged the pivotal role played by CIETAC Hong Kong in contributing towards the internationalization of CIETAC’s arbitration practice. He then went on to mention the initiatives taken by CIETAC towards being globally recognized, such as the inclusion of arbitrators coming from different nations into CIETAC’s Panel of Arbitrators, the opening of the North America Arbitration Center and European Arbitration Center in Vancouver and Vienna respectively and through various collaborations with international organizations. Furthermore, he mentioned about the recognition and enforcement of 58 CIETAC awards in United States of America. This basically shows the global recognition that CIETAC has been acquiring in the recent years. Mr. Wang also announced the release of CIETAC’s Panel of Arbitrators for Investment Arbitration. The Panel consists of 79 arbitrators from 35 different jurisdictions and are recognized by the international community of investment disputes resolution. In addition to providing statistics, Mr. Wang praised CIETAC Hong Kong’s approach in successfully organizing various events that are practice-oriented and expressed his admiration and keenness in the topics that were covered in the current event. Finally, he introduced the various events that were to follow in the coming few days of the China Arbitration Week and encouraged the audience to attend the same. 

 随后，最高人民法院民四庭宋建立法官发表主题演讲。宋法官在主题演讲中谈到外国仲裁裁决在中国内地承认和执行的情况。在演讲中，宋法官强调了中国司法机构所秉持的支持仲裁的态度。他介绍了去年五月开始实施的仲裁司法审查案件归口办理制度，即各级法院审理涉外商事案件的审判庭作为专门业务庭负责办理仲裁司法审查案件。此外，宋法官还指出，中国法院一直慎用公共政策，以公共政策为由拒绝执行外国仲裁裁决的情况是极为罕见的。

The welcome remark by Mr. Wang was followed by the keynote speech by Judge Jianli Song, Judge at the 4th Civil Division of the Supreme People’s Court of PRC (SPC). In the keynote speech, Judge Song spoke on the developments on recognition and enforcement of foreign arbitral awards in Chinese mainland. In his speech, he highlighted the pro-arbitration approach that has been clearly adopted by the judiciary in Chinese mainland. He mentioned how the current centralized framework of handling judicial review of arbitral awards introduced in May last year has ensured the consistency of judicial review of arbitral awards and enhanced the competence of the courts in relation to this matter. The current framework provides that the lower courts handling foreign-related commercial litigation shall be the earmarked court responsible for undertaking he judicial review of arbitral awards. Judge Song also mentioned about how the Supreme People’s Court is planning to introduce a framework to further support ad-hoc arbitrations that can be conducted in designated Free Trade Zones situated in Chinese mainland. Furthermore, he spoke about how public policy has been given a very narrow definition by the courts in Chinese mainland and that it is extremely rare for foreign arbitral awards to be refused enforcement based on the ground of public policy in China. 

 主题演讲之后是五节精彩的专题活动。第一节涉及与国际仲裁有关的热点问题，由三位在业界被高度认可的专家发表专题演讲。第一位发言人是俄罗斯仲裁协会秘书长Roman Zykov先生。他研究了过去十年俄罗斯执行外国仲裁裁决的情况，提供了俄罗斯法院承认和执行外国仲裁裁决的统计数据，从申请人的国籍、仲裁地、仲裁规则、争议事项、所涉及的赔偿金额、所依据的“纽约公约”第五条的理由等，全面展示了俄罗斯法院对执行国际仲裁的立场和态度。

After the keynote speech, the event featured five very interesting sessions. Session One dealt with practical issues related to international arbitration. The Session was participated by three highly recognized practitioners. The first speaker of the Session, Mr. Roman Zykov, Secretary General of Russian Arbitration Association, provided a study on the enforcement of foreign arbitral awards in Russia in the past 10 years. In his presentation, Mr. Zykov provided statistics based on year-by-year numbers of foreign arbitral awards recognized and enforced by the Russian courts. The study was done based on data relating to the nationality of Claimants seeking enforcement in Russia, the seat of arbitration from where the arbitral awards were rendered, the arbitration rules adopted in the arbitral awards, the number of  foreign awards granted and rejected enforcement, the subject matter of the disputes, the awarded amounts involved, the grounds  of defense used under Article V of the New York Convention, the time taken to enforce the arbitral awards and the number of enforcement cases dealt by Court of First instance, the Appellate Court and the Supreme Court respectively. The comprehensive presentation provided a basic understanding of the current position and attitude of Russian courts towards international arbitration.

 第二位发言人是香港律师会前任主席苏绍聪先生。他的发言主题是“Dispute over Unpaid Debt – Who is to decide? Arbitrator’s or Companies Court?” 通过香港法院最近处理的两例涉及公司破产清算案件分析了特定情形下相关争议应交由香港法院处理还是仲裁协议项下仲裁庭裁定。

The second speaker of Session One, Mr. Thomas So, the Immediate Past President of the Law Society of Hong Kong, dealt with the topic – ‘Dispute over Unpaid Debt – Who is to decide? Arbitrator’s or Companies Court?’.  In order to provide a better understanding of the topic, Mr. So first dealt with the general principle adopted under Article 8 of the UNCITRAL Model Law to interpret the term ‘dispute’ and then clarified the traditional approach adopted by the Hong Kong courts in order to determine the jurisdiction of the Courts in a winding up petition. He then compared two very recent cases dealt by the Hong Kong Court of First Instance, namely Lasmos Ltd. v Southwest Pacific Bauxite (HK) Ltd. [2018] HKCFI 426 and LeTV Sports Culture Develop (Hong Kong) Co., Limited [2018] HKCFI 1309 to point out that the inconsistent approach adopted by the Hong Kong courts on this matter. 

 第一环节的最后一位发言人是香港大律师公会前任主席谭允芝大律师。谭大律师从大律师的角度就国际仲裁中仲裁员的利益冲突问题进行解析。通过分析IBA利益冲突指引以及涉及利益冲突的现实案例，介绍了构成利益冲突的因素，以及大律师公会在处理利益冲突问题时所采取的态度和举措。她强调，必须采取客观标准以确定仲裁员的独立性，并考虑仲裁员与律师之间关系的紧密程度。

The last speaker of Session 1, Ms. Winnie Tam SC, Chairman, Standing Committee on China Practice Development and Past Chairman of the Hong Kong Bar Association, and Barrister at Des Voeux Chambers, spoke on the topic of Conflict of Interest in International Arbitration from a Bar’s perspective. Ms. Tam mentioned as to what constitutes as conflict of interest by referring to the IBA Guidelines on Conflict of Interest and by also providing real-life instances which involves the issue of conflict of interest between arbitrators and counsels. She later spoke about the role and initiatives taken by Barristers’ Chambers while dealing with the issue of conflict of interest, especially when Barristers are involved in arbitrations which are presided by arbitrators who are familiar. She emphasized that an objective test has to be applied to determine the independence of an arbitrator and that the degree of closeness of the relationship between the arbitrator and the counsel is to be given consideration. 

 第二环节就布拉格规则和IBA关于取证的规则进行了精彩的辩论。辩论由Tower Chambers的大律师 毛茅女士主持，辩论人是BCH的合伙人Duarte Henriques先生，Prol and Associates的Fransisico Prol先生，方达律师事务所的香港合伙人Damien McDonald先生和Fountain Court Chambers London 的大律师Alexander Milner先生。布拉格规则的支持者是Henriques先生和Prol先生，IBA规则的支持者是McDonald先生和Milner先生。辩论双方从程序效率、灵活性以及不同法系的实践做法等方面就两部规则的特点进行了辩论。

Session Two of the event featured a highly intriguing and interactive debate on the Prague Rules and IBA Rules on taking of evidence. The debate was moderated by Ms. Adela Mao, Barrister at Tower Chambers and the debaters were Mr. Duarte Henriques, Partner at BCH, Mr. Fransisico Prol from Prol and Associates, Mr. Damien McDonald, Partner at Fangda Partners Hong Kong and Mr. Alexander Milner, Barrister at Fountain Court Chambers London. The proponents of the Prague Rules were Mr. Henriques and Mr. Prol and the proponents for IBA Rules were Mr. McDonald and Mr. Milner. The debate started with Mr. Henriques advocating the pro-active role of the tribunal enshrined in the Prague Rules. He mentioned that there could be a possible increase in efficiency in international arbitration practice with the tribunal given a more enhanced role while dealing with the taking of evidence. He also mentioned that the Prague Rules does not intend to compete with the IBA Rules but only seeks to be an alternate set of rules for parties and tribunal. At the opposite end, Mr. McDonald made clear of his reservations against having a separate procedure tailor made for civil law practitioners. He mentioned that having to separate sets of rules on taking of evidence would divide civil practitioners and common law practitioners in a system which is seen to be more international. He was of the view that the IBA Rules on taking of evidence provides enough flexibility to accommodate both practices civil law practice and the common law practice. He further mentioned that the common law practice of discovery should not be generalized and considered to be similar to the American practice of discovery. He was of the view that the practice of discovery differs from jurisdiction to jurisdiction. 

 会议第三环节模拟展示了寻求资助的仲裁申请人在律师的协助下与第三方资助者谈判的情景。来自IMF-Bentham的邝静仪女士扮演的寻求资金的一方，Herbert Smith Freehills的费佳女士扮演其律师，来自IMF-Bentham的Tom Glasgow先生扮演第三方资助者。 角色扮演以对话为基础，涵盖了寻求资助方在与第三方资助者谈判时通常会处理的问题和关注点。

Mr. Prol’s views were invited next and he was of the view that there could be a time in the future when the two sets of Rules could merge and provide a standard of practice which is acceptable by both, the civil law practitioners and the common law practitioners. However, he was of the view that the IBA Rules currently only favours the common law background practitioners and like Mr. Henriques, he too advocated the pro-active role of the tribunal while dealing with taking of evidence. The discussion then moved on to Mr. Milner who felt that there is a lot of uncertainty that is current draft of the Prague Rules and started listing out the provisions from the Prague Rules which he considered may not be practically workable. 

 会议第三环节模拟展示了寻求资助的仲裁申请人在律师的协助下与第三方资助者谈判的情景。来自IMF-Bentham的邝静仪女士扮演的寻求资金的一方，Herbert Smith Freehills的费佳女士扮演其律师，来自IMF-Bentham的Tom Glasgow先生扮演第三方资助者。 角色扮演以对话为基础，涵盖了寻求资助方在与第三方资助者谈判时通常会处理的问题和关注点。

The event the transcended to Session Three which featured an interactive, informative and interesting role-play that demonstrated a scenario where a party seeking funding to pursue its claim in arbitration negotiates with a third-party funder with the assistance of a legal representative. The role-players were Ms. Cheng-Yee Khong from IMF-Bentham playing the role of the party seeking funds, Ms. Jessica Fei (Partner at Herbert Smith Freehills Beijing Office) playing the role of the legal representative and Mr. Tom Glasgow from IMF- Bentham who playing the role of the third-party funder. The role-play, in a dialogue-based manner, effectively covered very relevant issues and concerns that parties seeking funds generally deal with while negotiating with a third-party funder. The roles of the legal representative and the third-party funder in such a negotiation were distinctly showcased in the role-play and the audience got a good understanding of the practice. 

 会议第四节为模拟香港法庭庭审。该模拟庭审涉及在中国江苏正在进行的贸仲仲裁案件寻求香港法庭临时措施（禁令）的程序。模拟庭审由独立仲裁员Peter Thorp先生担任庭审法官，Herbert Smith Freehills的Stella Hu女士扮演根据香港仲裁条例第45条寻求法院临时救济的原告律师，King & Wood Mallesons的James McKenzie先生扮演被告辩护人。模拟法庭程序的情景设定源于香港高等法院原讼法庭处理的贸仲案件。模拟法庭程序有效地展示了香港法院在处理临时措施申请时所考虑的相关问题，例如管辖权问题、申请的合理性和案件的紧迫性。

The penultimate session of the event, Session Four, featured a mock Hong Kong court proceeding which dealt with the seeking of interim measures in aid if an ongoing CIETAC arbitration seated in mainland China. The mock proceeding had Mr. Peter Thorp (Independent Arbitrator) as the presiding Judge, Ms. Stella Hu (Senior Associate at Herbert Smith Freehills Hong Kong office) as the Plaintiff who is seeking interim relief from the court under Section 45 of the Hong Kong Arbitration Ordinance (Cap 609) and Mr. James McKenzie (Senior Associate at King and Wood Mallesons Hong Kong office) as the Defendant defending the application of the Plaintiff. The scenario set for the mock court proceeding was inspired by real life cases that dealt with a similar matter at the Hong Kong court of First Instance. The mock court proceeding effectively exhibited the general practice adopted by the Hong Kong courts while dealing with an application for interim measures in aid of an ongoing arbitration in mainland China. The audience which mainly comprised of practitioners found this session very informative. 

 会议最后一节，Dechert合伙人陶景洲先生与参会者进行了简短的互动，并对前几节会议进行了总结，强调了每个环节讨论的问题在国际仲裁实践中的重要性。本次活动以贸仲香港中心秘书长王文英博士的闭幕词结束。王博士对发言人、参与者、贸仲香港团队、支持方香港律师会和香港大律师公会的贡献和支持表示由衷的感谢，并祝贺此次活动取得圆满成功。她表示，贸仲香港将坚持并将不断努力，继续组织以实践为导向的各类活动，以促进以经济高效的方式解决争议。

In the last session of the event, that is Session Five, Mr. Jingzhou Tao (Partner at Dechert) briefly interacted with the audience and summarized the earlier sessions of the event and highlighted the importance each session held in the general practice of international arbitration. The event concluded with the Closing Remarks by Dr. Wenying Wang, Secretary General of CIETAC Hong Kong. Dr. Wang expressed her sincere thanks and gratitude to the speakers, participants, the CIETAC Hong Kong team and the Hong Kong Law Society and the Hong Kong Barr Association for their contribution and support which ensured the success of the event. She emphasized on the constant efforts taken by CIETAC Hong Kong to organize practice-oriented events which over the years have received positive feedbacks. She highlighted how it is the common goal of every stakeholder of alternative dispute resolution practice to work towards cost-effective and efficient resolution of disputes and encouraged that all of us should work together towards achieving that goal. 

 此次活动涉及国际仲裁实践领域的各种重要议题，实务性强，关注业界热点，把脉国际仲裁的最新发展动向，取得了圆满成功。

Overall, the event was a massive success and it is a proud moment for CIETAC Hong Kong to have held an event which extensively dealt with diverse and highly important topics in the area of international arbitration practice.