On July 30, 2021, the Ministry of Justice officially opened the curtain on the comprehensive revision of the Arbitration Law by issuing a notice for public consultation on the "Arbitration Law of the People's Republic of China (Revised) (Draft for Comments)". The current arbitration law amended individual provisions in 2009 and 2017, respectively. During the long 26 years of implementation, more than 270 arbitration institutions have been established in accordance with the law throughout the country (which is conducive to local parties participating in arbitration nearby), handling more than 4 million arbitration cases, involving more than 50000 yuan in the subject matter. The disputes resolved cover many economic and social fields, involving more than 100 countries and regions around the world. As a unique dispute resolution mechanism, arbitration has played a positive and important role in promoting reform and opening up, economic development, and maintaining social stability. With the evolution of social economy and legal environment, arbitration law also needs to be updated and developed accordingly. Specifically, this draft for comment adds 19 articles compared to the current arbitration law, directly reflecting the proposed revisions that facilitate the parties (and their agents) to regulate their participation in the field of commercial arbitration practice, such as:

1、 Broaden the scope of arbitration provided by law, and include new types of disputes that accompany the emergence of new economic and business forms, as well as disputes in the internationally mature fields of international investment and sports, into the scope of arbitration; The restrictive expression of "equal subject" in the arbitration application scope has been deleted to provide a basis and space for the application of arbitration in China to investment arbitration, sports arbitration, and the commercial part of PPP projects that have emerged in practice.

2、 Respect the parties' right to choose arbitrators, and clarify that the roster of arbitrators is the "recommended" roster; "The parties may choose arbitrators outside the roster, and the arbitrators selected by the parties outside the roster shall meet the conditions specified in this Law.". If the parties have agreed on the conditions for arbitrators, their agreement shall prevail; "Except where the agreement between the parties cannot be fulfilled or there are circumstances under which the parties may not act as arbitrators as provided for in this Law.". The addition of arbitrators shall be subject to the provisions that a declaration guaranteeing independent and impartial arbitration shall be signed and served on the parties.

3、 Improve the provisions of the arbitration agreement around the expression of the parties' will:

（1） Establishing an arbitration agreement effectiveness system with the expression of arbitration intent as the core, referring to international practices, and deleting arbitration clauses require clear and mandatory requirements for arbitration institutions. Absorb judicial interpretation and practical experience to provide guidance for situations where the arbitration institution has not agreed or the agreement is unclear in the arbitration agreement, so as to ensure the smooth progress of arbitration. An arbitration agreement includes an arbitration clause entered into in a contract and an agreement reached in other written forms before or after the dispute has occurred that has the intention to request arbitration. "If the arbitration agreement does not clearly stipulate the arbitration institution, but the arbitration rules applicable to the agreement can determine the arbitration institution, the arbitration institution shall accept it;"; "If there is no agreement on the arbitration rules, the parties may supplement the agreement;"; If a supplementary agreement cannot be reached, the case shall be accepted by the arbitration institution that first filed the case. "If the arbitration agreement does not stipulate an arbitration institution, and the parties fail to reach a supplementary agreement, they may institute arbitration with the arbitration institution in the joint domicile of the parties."; "If the parties do not have a common domicile, the arbitration institution of a third place other than the party's domicile that first filed the case shall accept the case.". "If one party claims to have an arbitration agreement during arbitration, and the other parties do not deny it, it shall be deemed that there is an arbitration agreement between the parties.".

（2） Based on the goal of facilitating dispute resolution, the determination of the effectiveness of arbitration agreements in special situations such as master-slave contract disputes, corporate representative litigation, etc. should be clearly stipulated; If the dispute involves a master-slave contract and the arbitration agreement between the master contract and the slave contract is inconsistent, the agreement in the master contract shall prevail; "If there is no arbitration agreement in the subordinate contract, the arbitration agreement in the main contract shall be effective for the parties to the subordinate contract.". "If a shareholder of a company or a limited partner of a partnership claims rights against the other party in their own name on behalf of the company or partnership in accordance with legal provisions, the arbitration agreement signed between the company or partnership and the other party shall be effective for them.".

（3） To resolve the issue of the relationship between arbitrability and litigation under other laws, it is clear that as long as there are no prohibitive provisions for arbitration under other laws, arbitration agreements concluded by the parties that comply with the provisions of this Law are valid. "If the law stipulates that a party may bring a civil lawsuit to a people's court, but it is not clear that arbitration cannot be conducted, the arbitration agreement concluded by the parties in accordance with the provisions of this Law shall be valid.".

（4） The standard of "place of arbitration" has been stipulated, which is in line with international arbitration practices and increases the friendliness and attractiveness of arbitration in China. The parties may agree on the place of arbitration in the arbitration agreement. "If the parties have not agreed or have not clearly agreed on the place of arbitration, the place of arbitration shall be the place where the arbitration institution administering the case is located.". The arbitration award shall be deemed to have been made at the place of arbitration. The determination of the place of arbitration shall not affect the parties or the arbitration tribunal's agreement or choice to conduct arbitration activities such as collegial hearings or hearings at a suitable location different from the place of arbitration, based on the circumstances of the case.

4、 Improve arbitration procedures that facilitate the participation of parties:

（1） Add five general provisions: "Due Process", "Procedural Autonomy", "Combination of Arbitration and Mediation", "Waiver of Objection", and "Service". At the same time, upgrade the arbitration confidentiality principle in the current law to a general provision for arbitration procedures. For example, arbitration proceedings should avoid unnecessary delays and expenses; The parties may agree on the method of cross-examination, or conduct cross-examination in such manner as the arbitration tribunal deems appropriate; The arbitration documents shall be served on the parties in a reasonable and bona fide manner. （2） Add the section "Interim measures". In order to quickly promote arbitration procedures, improve the efficiency of dispute resolution, reflect the judicial support attitude towards arbitration, and enhance China's competitiveness as an arbitration venue, the original arbitration preservation content will be centrally integrated with other interim measures, and the system of behavior preservation and emergency arbitrators will be added. It is clear that the arbitration tribunal has the power to decide on interim measures, and the exercise of interim measures will be uniformly standardized. Interim measures include property preservation, evidence preservation, conduct preservation, and other short-term measures deemed necessary by the arbitral tribunal. "If a decision on temporary measures requires assistance from a people's court, the parties may apply to the people's court for assistance in its implementation.". "If a temporary measure needs to be enforced outside the territory of the People's Republic of China, the parties may directly apply for enforcement to a foreign court with jurisdiction.". "Before the formation of the arbitration tribunal, if the parties need to appoint emergency arbitrators to take interim measures, they may apply to the arbitration institution for the appointment of emergency arbitrators in accordance with the arbitration rules.". （3） Adding that arbitration can be conducted through the network, allowing for written hearings, flexible decisions on the method of cross examination, and adding provisions on the delivery of online information, providing a legal basis for Internet arbitration, supporting and standardizing the development of Internet arbitration. （4） Innovate and develop a system with Chinese characteristics that combines arbitration and mediation, summarize the mediation mechanism known as "Eastern Experience" in practice, add a "arbitration confirmation" clause, allow parties to choose mediators outside the arbitration tribunal to conduct separate mediation, and provide for the connection with the original arbitration procedures. （5） Add provisions on intermediate awards and combine them with partial awards to facilitate the development of arbitration features and promote the rapid resolution of disputes.

5、 Improving the system of canceling an award and re arbitration: (1) Drawing on judicial interpretations and practical experience, it is clear that if the respondent has not been notified of the appointment of an arbitrator or the conduct of arbitration proceedings, or fails to state opinions for other reasons that are not the responsibility of the respondent, it may apply for canceling the award. （2） Improve the re arbitration system in cancellation, respect the parties' willingness to choose arbitration as much as possible, and establish the principle of non cancellation of issues that can be remedied through re arbitration. （3） In order to improve the transparency of arbitration judicial supervision and the participation of the parties, referring to the practice of "reporting for approval" by lower courts to higher courts in judicial practice, the parties can apply to the higher court for reconsideration of the revocation of the award.

6、 The "interim arbitration" system has been added to the field of foreign commercial dispute resolution. Considering that "interim arbitration" has been convenient for the parties to participate since ancient times, and that China has also acceded to the New York Convention, foreign interim arbitral awards can be applied for recognition and enforcement in China, and domestic and foreign arbitration should be treated equally. This draft for comment adds provisions on the "interim arbitration" system, but considering China's national conditions, Limiting the scope of application of interim arbitration to "foreign related commercial disputes"; Necessary norms have been established for the core procedures of interim arbitration such as court formation and withdrawal; In order to strengthen the supervision of interim arbitration, it is stipulated that if the arbitrator does not sign the award due to different opinions on the award, he/she must provide a written opinion to the parties.

It can be seen from the above that this systematic revision of the Arbitration Law is conducive to the timely summary and promotion of a large number of arbitration practical experiences at home and abroad and mature and feasible judicial interpretation norms in China since the implementation of the Arbitration Law into legal norms with an open and developmental perspective. In addition, based on personal learning and practical experience in commercial arbitration, it seems that there are still some issues in this draft that need to be further clarified and clarified in the judicial interpretation of the new arbitration law or the new arbitration law, such as the inconsistency in the arbitration agreement agreed upon in the master-slave contract, the determination of the arbitration venue in the Internet era, and whether the current arbitrator can mediate as a mediator during the trial stage. For example, Article 24 of the draft for comment: Disputes involving master-slave contracts, If there is a discrepancy between the arbitration agreement between the master contract and the slave contract, the agreement in the master contract shall prevail. "If there is no arbitration agreement in the subordinate contract, the arbitration agreement in the main contract shall be effective for the parties to the subordinate contract.". In the case of a situation where the main contract does not stipulate a dispute resolution method, but an arbitration agreement is agreed upon in the subordinate contract, it seems that the issue of whether the arbitration agreement in the subordinate contract is effective for the parties to the main contract should be further elaborated.

In general, this amendment has expanded the jurisdiction of the Arbitration Law, facilitated the parties in a wide range of countries and regions, including the "the Belt and Road", to participate in arbitration activities, and is also conducive to international integration. Careful study of the draft for consultation on the Arbitration Law and timely tracking of the revision of the Law will help commercial entities better utilize arbitration as a tool for dispute resolution. Regarding the impact of relevant amendments on arbitration cases, please also contact the author and lawyer Gao Peng for further explanation.

(This article is translated by software translator for reference only.)