01 Can international arbitration institutions be chosen at will?

Can.

This question usually arises among friends who have a legal background. Because the competent court needs to choose a court that has actual connection with the dispute, such as the defendant’s domicile, the plaintiff’s domicile, the place where the contract is performed, the place where the contract is signed, or the location of the subject matter, etc. Therefore, there will also be preconceived misunderstandings about the choice of arbitration institutions. However, the arbitration rules of major arbitration institutions do not place any restrictions on the parties’ choice of arbitration institutions. In short, for example, if two Chinese people signed a virtual currency entrusted financial management contract in Singapore and agreed that the Hong Kong International Arbitration Center would be the jurisdiction, there would be no problem at all.

02 Can the arbitration rules and arbitration place be chosen at will?

Generally speaking, yes, it depends on the international commercial arbitration institutions own regulations. However, although the application of the arbitration rules of arbitration institution B in arbitration institution A is not prohibited, such a hybrid arbitration agreement may cause the arbitration rules to be incompatible with the arbitration institution itself; it may create instability in the institutions flexible application of the rules. nature; resulting in possible multiple jurisdictions and increased litigation burden for parties. In addition, the revocation of an arbitral award may be subject to the jurisdiction of the court at the place of arbitration when selecting an arbitration place other than the seat of the arbitration institution. During the enforcement stage, whether such arbitral award is a foreign arbitral award that needs to be recognized and enforced in accordance with the New York Convention. And other issues. Therefore, attorney Mankiwkin suggests that the parties should try their best to keep the arbitration institution, arbitration rules, arbitration place and other elements consistent, so as to best guarantee the stability of the arbitration process and the execution of the award.

03 Can I hire a Chinese lawyer to represent me in international arbitration?

Can.

Any person authorized by the parties may become an arbitration agent. Whether it is Article 22 of the China International Economic and Trade Arbitration Commission Arbitration Rules (2015 Edition) Parties may authorize Chinese and/or foreign arbitration agents to handle relevant arbitration matters, or the Sixth Edition of the Singapore International Arbitration Center Arbitration Rules ( August 1, 2016) Article 23.1 A practicing lawyer or any other authorized person may participate in arbitration on behalf of the parties, or Article 13.6 of the HKIAC Institutional Arbitration Rules (2018) The parties are free to choose Agent” and even the ICC Arbitration Rules 2021 do not set any restrictions on the qualifications of an agent. Therefore, when selecting a lawyer for international arbitration, there is no need to be restricted by the lawyer’s nationality or area of ​​practice, but only his experience and ability in international arbitration need to be examined. However, Mankiw’s friends may have further questions. If it is agreed that foreign laws will apply, can we also hire Chinese lawyers? Chinese lawyers also need to learn foreign laws. Isn’t this troublesome and laborious? its not true.

The reasons are as follows:

(1) Except that the applicable law is foreign law, other case elements do not have much foreign involvement. In many cases, although the parties have chosen to apply foreign laws, both parties are Chinese companies and the business itself is communicated in China. In this case, if you hire a Chinese lawyer, you will be able to communicate efficiently, effectively collect and organize evidence, restore the facts of the case, and formulate an overall case strategy based on the companys demands. Lawyer Mankiw Jin has also heard a lot of feedback that the experience of Chinese companies cooperating with foreign lawyers is not as good as the experience of cooperating with Chinese lawyers.

(2) In international arbitration cases, the proportion of workload related to applicable law is not large. Work related to case facts, including reviewing documents and communication records, interviewing witnesses, comprehensively sorting out case facts, evidence materials, and preparing factual witness testimony, etc., may account for at least 50% of the workload of arbitration lawyers; for work related to arbitration procedures, Including procedural meetings, applying for interim measures and court preparations, etc., they will also occupy at least 20% to 30% of the lawyers workload. In other words, 70% to 80% of the work of arbitration lawyers is not linked to the governing law of the contract involved in the case. There are many ways to solve the work related to the applicable law, including having the countrys lawyers issue legal opinions on specific foreign legal issues, hiring legal experts to issue expert reports, etc.

Author: Attorney Jin Jianzhi (Senior Lawyer at Shanghai Mankiw Law Firm)

Reference link: https://www.lexology.com/library/detail.aspx?g=c36708eb-d332-4bdc-9fdd-05ba176f32b e https://www.lexology.com/library/detail.aspx?g=32a518a4 -d2b e-4926-9 d 82-a 5298939685 a