e-Court Costs Intro

The essence of e-Court lies in the fact you will not be confronted with any surprises. Hence we will give you all relevant information upfront.

In contrast to the relative low total e-Court costs, expenditures resulting from litigation in a traditional court can reach exorbitant high levels and may leave the plaintiff still out of pocket even though the case is decided in the plaintiff's favour. It is a tough business and financial decision committing to litigation in traditional courts, even when based on legal advice from several experienced professionals. Their advice may not always be consistent and will rarely allow a sober reality check as to the potential range of costs, and risks. To illustrate the potentially high litigation costs in a traditional court view LEGAL FEES, EXPENSES, etc

Domestic arbitration and international or foreign-related arbitration are subject to different regimes. Venues for CIETAC arbitration are not confined to China and CIETAC arbitrators may be selected by parties outside the CIETAC panel (although their selection must be confirmed by the chairman of CIETAC).

The parties may agree to use rules other than those of CIETAC (for example, UNCITRAL rules). In most cases, hearings are staged once, and are of short duration. There is no standard procedural style: the parties may agree to follow the trial approach; or the tribunal may adopt an inquisitorial or adversarial approach. Under CIETAC rules, the tribunal may be expected to arrive at its conclusion by reference not only to the law governing the dispute but also to international practice and concepts of fairness and reasonableness. There is no requirement to retain Chinese lawyers in CIETAC arbitrations. Security for costs is not available.

There is no right of appeal against a refusal to enforce an award. There is an internal court system for reviewing decisions relating to the enforcement of foreign awards (at least those published in institutional arbitration).

China is a party to the New York Convention and has similar enforcement arrangements with Hong Kong and Macau, but local protectionism and other factors may hinder or prevent enforcement of awards. Draft rules for arbitration reform are under consideration

Confidentiality
Under the Arbitration Law arbitration is a private proceeding unless otherwise agreed. CIETAC, CMAC and BAC rules all require proceedings to be private unless the parties desire otherwise and the tribunal agrees. In cases to be heard in private, the rules enjoin parties, witnesses, expert witnesses and the commission’s staff to keep the proceedings confidential. The duty to observe confidentiality is reinforced by the Ethical Rules for Arbitrators. This duty extends not only to information, documents, submissions and awards, but also the views of individual arbitrators. Generally, however, there is no requirement of confidentiality outside hearings and it is advisable to agree a confidentiality provision. For a model confidentiality clause, see the Arbitration section on drafting arbitration clauses.

Model arbitration clauses
Any dispute arising from or in connection with this Contract shall be submitted to China International Economic and Trade Arbitration Commission for arbitration which shall be conducted in accordance with the Commission’s arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties. China International Economic and Trade Arbitration Commission (CIETAC)

Any dispute arising out of or in connection with this contract shall be submitted to China Maritime Arbitration Commission for arbitration in accordance with the existing rules of the Commission. The arbitration award shall be final and binding upon the parties. China Maritime Arbitration Commission (CMAC) All disputes arising from or in connection with this contract shall be submitted to Beijing Arbitration Commission for arbitration in accordance with its rules of arbitration in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties. Beijing Arbitration Commission (BAC)

An arbitration agreement must be in writing. Unless otherwise specified, the language will be Chinese; the tribunal will consist of three arbitrators. The parties may stipulate that the third arbitrator should be of a different nationality from either party to avoid the perception of national bias. Care should be taken to use the Commission’s correct title. The model clauses listed above are commonly used, usually with modifications to reflect the desired place and language of arbitration, the composition of the tribunal and the nationality of the third or presiding arbitrator, and responsibility for providing English translations of any Chinese language documents relied upon. See the Arbitration section for best practice in drafting arbitration clauses.

Read more »