Are We Paper Tigers - The Limited Procedural Power of Arbitrators under Chinese Law

Citation data:

Vol: 2011, Issue: 2

Publication Year:
2011
Usage 444
Downloads 417
Abstract Views 27
Repository URL:
https://scholarship.law.missouri.edu/jdr/vol2011/iss2/2
Author(s):
Manjiao, Chi
Tags:
arbitration; arbitrators; chinese; international; Dispute Resolution and Arbitration; Law
article description
This article explores the extent arbitrators exercise procedural power under Chinese law in six parts. Part II briefly provides background information for the legal framework of Chinese arbitration law and the "dual-track system" in the Chinese arbitration regime. The ensuing parts deal with the three major aspects of arbitrators' procedural power respectively: Part III discusses the power of making jurisdictional decisions, Part IV analyzes the power of making applicable law decisions, and Part V explores the power of issuing interim measures. Part VI concludes that in all three aspects, the procedural power of arbitrators under Chinese law is heavily restricted or denied when compared to their international counterparts. Chinese law is restrictive because arbitrators' procedural power is allocated to the state, represented mainly by courts. Even though the centralization of procedural power is expected in China, restricting or denying arbitratos' procedural power under Chinese law is harmful to Chinese arbitration and turning them into "paper tigers." Moreover, the centralization of procedural power could potentially harm China's long-term goal of becoming an international trade and investment destination. China can remedy its harm to Chinese arbitration, however, through a full-range judicial reform.