Arbitration in China: A Legal and Cultural Analysis(China and International Economic Law Series)

In the context of harmonisation of arbitration law and practice worldwide, to what extent do local legal traditions still influence local arbitration practices, especially at a time when non-Western countries are playing an increasingly important role in international commercial and financial markets? How are the new economic powers reacting to the trend towards harmonisation? China provides a good case study, with its historic tradition of non-confrontational means of dispute resolution now confronting current trends in transnational arbitration. Is China showing signs of adapting to the current trend of transnational arbitration? On the other hand, will Chinese legal culture influence the practice of arbitration in the rest of the world? To address these challenging questions it is necessary to examine the development of arbitration in the context of China's changing cultural and legal structures. Written for international business people, lawyers, academics and students, this book gives the reader a unique insight into arbitration practice in China, based on a combination of theoretical analysis and practical insights. It explains contemporary arbitration in China from an interdisciplinary perspective and with a comparative approach, setting Chinese arbitration in its wider social context to aid understanding of its history, contemporary practice, the legal obstacles to modern arbitration and possible future trends. In 2011 the thesis on which this book was based was named 'Best Thesis in International Studies' by the Swiss Network for International Studies. “What distinguishes this work from other books on international arbitration is its interdisciplinary perspective and comparative approach...this book makes a remarkable contribution to the understanding of arbitration in China and transnational arbitration in general. Academics, scholars and students of international arbitration, comparative studies and globalisation may all find this book stimulating. It also provides useful guidance for practitioners involved or interested in arbitration in China.” From the Foreword by Gabrielle Kaufmann-Kohler This title is included in Bloomsbury Professional's International Arbitration online service.

Table of Contents:
Introduction 1 Overview of the Chinese Legal Framework and Arbitration System 2 Arbitration Agreement 3 Arbitral Tribunal 4 Recognition and Enforcement of Arbitral Awards 5 The Practice of Arbitration Institutions 6 The Combination of Mediation with Arbitration 7 Chinese Characteristics in Arbitration Law and Practice 8 Traditional Legal Culture and its Influence on Contemporary Arbitration Practice 9 The Modernisation of Law and Cultural Influences on the Arbitration Practice 10 Conclusion Bibliography Appendix 1: Arbitration Law of the People's Republic of China (1995) Appendix 2: Interpretation of the SPC on Certain Issues Relating to Application of the Arbitration Law of the People's Republic of China (2006) Appendix 3: Relevant Provisions of the Civil Procedure Law (2012 Amendment)

About the Author :
Kun Fan is Assistant Professor at the Faculty of Law, Chinese University of Hong Kong and Visiting Scholar at the Harvard Yenching Institute, Harvard University. She received her PhD (summa cum laude) from Geneva University. She is a former Deputy Counsel of the ICC International Court of Arbitration and now practises as a Senior Consultant for Arbitration Asia. She is called to the New York Bar, is a Member of the Chartered Institute of Arbitrators and is an Accredited Mediator and Domain Names Panelist of the Hong Kong International Arbitration Center.

Review :
Dr. Fan's book will interest practitioners in arbitration, international commercial and comparative law, specialists in dispute resolution, and students in arbitration and mediation courses. Specialists and non-specialists alike will learn about how aspects of China's legal culture have shaped the development of contemporary China's legal framework and its arbitration/mediation practices. The book is of great value for academics, scholars and students of international arbitration and comparative studies. It may also be very useful for practitioners of arbitration in China. In our legal life, we rarely read a book that really impresses. In the case of Kun Fan’s book, I did. Her book is an eye opener for everyone who engages in trade, legal negotiations or arbitration with a Chinese party…Fan’s book is well-timed as both trade and ensuing disputes between Chinese and non-Chinese parties are developing rapidly. For the drafting of arbitral awards, the book is also a helpful research tool (I am aware of at least one CIETAC award where it has been cited). In her forward, Gabrielle Kaufmann-Kohler has characterised the book correctly as “a remarkable contribution to the understanding of arbitration in China …”, to which I would merely add, “and to negotiation, contract management and arbitration with Chinese parties in general.” This book is an important contribution to the understanding of dispute resolution in the People's Republic of China, and international arbitration in particular... Anyone who is interested in contemporary China, the globalisation of law, or developments in dispute resolution will find this book valuable. What makes the book particularly interesting, and distinguishes it from other books and articles on arbitration in China, is its interdisciplinary analysis which examines legal and arbitration developments within the context of China's history, society and culture, and the comparisons it makes between Chinese practices and many generally accepted legal norms and practices. A second unique feature of the work is the use of original empirical research... This book is a unique and fascinating account of the law and practice of international arbitration in one of the world's most important and dynamic economies. Placing Chinese arbitration laws and practices within their historical, social and cultural contexts makes the work relevant to a broad readership of practitioners and scholars; the book has a place in the library of the practitioner and in the academy. The analysis provided by Kun Fan offers a rich landscape against which international arbitration can be re-assessed in the light of Chinese practice…The volume…is an excellent work of scholarship. It is very well written, and I have no doubt that the book will be regarded as an indispensable resource for future research in many disciplines interested in China’s arbitration experience. Kun Fan’s book is an invaluable guide for understanding the development of the law and practice of arbitration in countries whose legal history, culture and traditions diverge from those in Western world. Arbitration in China: A Legal and Cultural Analysis by Dr Fan Kun provides an excellent study of the subsequent reforms to arbitration in the People’s Republic of China… [it] is a wonderful contribution to the literature on the subject of Chinese arbitration law. While the road to arbitration reform in the PRC still has a long way to go, Arbitration in China: A Legal and Cultural Analysis will undoubtedly make that road smoother and more traversable On the whole, Kun Fan's Arbitration in China is an enriching book on the arbitration practices in China. The book promises a clear, concise yet detailed depiction of the Chinese arbitration system measured up to international arbitration standards. Kun Fan makes a concerted effort to provide the reader with a practical and balanced insight of Arbitration Law. Using data and statistics, she makes compelling arguments that showcase the reality of arbitration in China as opposed to what may be reflected in the legislation and rules of the arbitral tribunals. Kun Fan's Arbitration in China is an excellent addition to the bookshelf of academics, students and arbitration practitioners seeking to understand the arbitration system in China. The book as a whole provides many insights into the law and culture of arbitration in China. What is particularly impressive is the detailed knowledge the author has not only of the law in China but also of the practices of arbitral tribunals, arbitral institutions and the courts. It is not always easy to document court decisions as well as the practices of arbitral institutions, and it can be particularly difficult in a developing country where such information is sometimes not easily accessible. To have done such a good job in such a large country with so many different arbitral institutions and courts is extremely impressive. Anyone interested in arbitration in China will have to read this book. The reviewed book will be useful for arbitrators, practitioners in arbitration and international commercial arbitration; scholars specialized in comparative law, alternative dispute resolution. Anyone who is interested in contemporary China, the globalization of law, or developments in dispute resolution will find this book valuable. Beginning with an overview of the Chinese legal framework and arbitration system, Professor Fan starts her investigations by examining the conclusion of arbitration agreements, the functioning of arbitral tribunals, and the recognition and enforcement of arbitral awards. After demonstrating the Chinese characteristics in arbitration and possible cultural influences, Fan also proposes the possibility of modernizing arbitration practice.