Is CIETAC Leading Arbitration in Asia into a New Era of Transparency?

Asia is seen by many as one of the fastest growing and important regions for international arbitration. This is reflected in recent initiatives by Europe-based world arbitral institutions: in November 2008, the ICC will open its first administrative office outside Paris in Hong Kong (complete with a secretariat counsel team). It is also planning to open a small marketing office in Singapore. The Permanent Court of Arbitration has also concluded host country agreements with Singapore and more recently with India,1 to facilitate the administration of PCA arbitrations in Singapore and India. Parties from the region are also increasingly turning to local seats of arbitration, instead of the traditional choices of Paris and London.2 Hong Kong has long been regarded as the premier arbitral seat in the region, having been one of the first jurisdictions to take full advantage of the benefits of adopting the UNCITRAL Model Law and the Hong Kong International Arbitration Centre (HKIAC) has a well-deserved reputation for excellence. China's vast economy, however, renders the CIETAC (China International Economic and Trade Arbitration Commission) potentially the most significant of the region's arbitral institutions. In 2007 alone, the CIETAC received 1,118 new arbitration references, almost twice as many as the ICC in Paris.3

The CIETAC's rules and practices have been subjected to close and critical international scrutiny, with some CIETAC awards being refused enforcement, even in Hong Kong,4 having fallen short of New York Convention standards. The CIETAC's processes were seen as closed and lacking in transparency. This article focuses upon recent initiatives by the CIETAC to address criticisms of its international rules and practices, with particular reference to recent moves to improve its transparency by publishing its international arbitration awards. This article considers the possible impact of these initiatives upon arbitration in the region.

An obvious way for an arbitral institution to persuade a sceptical business community that its arbitrations are neutral and fair is to publish awards rendered under its auspices. Publication of awards, however, seems to undermine one of the perceived advantages of arbitration, namely the confidentiality afforded both to the proceedings and the award. This protection is not complete and is subject to exceptions,5 (indeed, some seats of arbitration do not seem to recognise a general right to confidentiality in arbitration)6 but confidentiality is nonetheless regarded by many as a fundamental feature of the arbitral process.7

There is another competing and conflicting principle, however, namely the need for consistency in similar cases. This principle favours greater transparency in order to build confidence in the dispute resolution process. Public court proceedings and the publication of national court decisions have traditionally been viewed as necessary to ensure procedural fairness within a court system, consistent with the maxim expounded by Lord Hewart that:

it is not merely of some importance, but of fundamental importance, that justice should both be done and be manifestly seen to be done.8

With openness, however, comes publicity, and litigants who prefer to avoid 'airing their dirty linen in public' often turn to arbitration in order to resolve their disputes in private. The desire for confidentiality is one of the key reasons why arbitral awards are not generally published. While the publication and transparency of their rules of procedure have played a key role in the development of recognised institutions such as the ICC, LCIA and AAA, the publication of the arbitral decisions arising from the application of those rules has not traditionally been perceived as necessary to promote confidence and trust in the decision-making process.

Increasingly, however, as more and more international disputes are resolved by arbitration, there is pressure upon institutions and parties to open the arbitral process to further public scrutiny, while still preserving confidentiality, so far as possible, by redacting the names and any identifying features of the parties. Arbitrators, parties and their counsel are also looking to awards and decisions in other proceedings for guidance on how to approach similar problems and issues, even if such awards are not strictly of precedential value. This is particularly so in connection with decisions rendered by tribunals in the international investment treaty field, where publication of awards by the International Centre for the Settlement of Investment Disputes (ICSID) is now the norm rather than the exception. Increased publication of arbitral decisions has received widespread acceptance among the international arbitration community.9

Transparency is seen as desirable, particularly for those arbitrations involving large government projects which can have significant public ramifications.

The trend to publish is not simply the result of a wish to improve confidence and trust in the process; there are other market forces at play, triggered by the increasing volume of arbitrations worldwide (particularly in Asia)10 and the increase in competition among arbitration and arbitral institutions around the world, which require the means to promote their services and improve their visibility.11

The ICSID Rules of Procedure for Arbitration Proceedings (Rule 48.4) and the ICSID Arbitration Additional Facility Rules (Article 53) allow ICSID to publish awards rendered by arbitral tribunals in ICSID proceedings, but only with the consent of the parties. The rules further provide that, absent such consent, excerpts of the legal reasoning of the tribunal shall be published by ICSID. ICSID publishes awards on its website ( and the availability of the awards (often within hours of the decisions being rendered) has done much to raise awareness of ICSID jurisprudence.

None of the commercial arbitral institutions presently offers the same transparency of arbitral decision making, although some address the possibility of publication in their rules. Article 30.3 of the LCIA Rules, for example, provides that the LCIA Court does not publish any award or any part of an award without the prior written consent of all parties and the arbitral tribunal.12 In practice, however, the LCIA does not publish any awards made under its rules, although it has taken steps to improve its transparency in other ways, in particular, by deciding to publish decisions of the LCIA Court on challenges to arbitrators appointed by the LCIA. A report published last year, which analysed all decisions made by the LCIA Court on challenges to arbitrators since 1995, observed that publication in an appropriate form of the growing wealth of LCIA13 learning and guidance on independence and impartiality will not only answer the call for greater transparency, but is also likely to make a unique contribution by providing guidance to the users of the arbitral process in deciding whether to nominate or challenge arbitrators.14

Also noteworthy are the recent International Arbitration Rules of the American Arbitration Association's International Centre for Dispute Resolution (ICDR), which came into effect on 1 May 2008. Article 27.8 provides that, unless otherwise agreed by the parties, the administrator may publish or otherwise make publicly available selected awards, decisions and rulings that have been edited to conceal the names of the parties and other identifying details or that have been made publicly available in the course of enforcement or otherwise. In practice, however, few awards are published. Some ICDR awards are available online on sites such as

The ICC rules of arbitration do not contain an express provision on the publication of awards, and confidentiality is strictly maintained by the secretariat and the court. Article 28(2) prohibits the delivery by the secretariat of copies of the award to anyone other than the parties, consistent with the provisions in the court's Internal Rules (Appendix II to the Rules, article 1) on the confidentiality of the court's work. However, neither Article 28(2) nor the Internal Rules have been construed as preventing the publication by the court of sanitised extracts of awards or their publication by others with the court's permission.15 Such extracts are published in the Court's Bulletin, each year in the last issue of Clunet since 1974 and in the ICCA Yearbook.16 Although the court does not normally solicit the parties' permission before publishing such extracts, it has for many years refrained from any such publication if it is instructed by either of the parties not to do so.17

For many years, decisions made by Chinese arbitrators under the CIETAC Rules were shrouded in mystery, only coming to light when attempts were made to enforce the awards outside China. Most notably in the field of the CISG (the United Nations Convention on Contracts for International Sale of Goods), however, CIETAC arbitral awards are increasingly published, in redacted form, in both Chinese and English translations. Traders, practitioners and scholars are now able to gain, for the first time, a real sense of how tribunals in China are approaching the construction and application of CISG principles.18

Unlike the rules of other major arbitral institutions, the CIETAC Arbitration Rules do not contain any express provision on publication of awards.19 The CIETAC's practice is now to provide redacted and edited reports on arbitral proceedings selected by the Cases Edition Committee within CIETAC. These awards are published online at, principally in Chinese and also in English. In keeping with the principle of confidentiality, all of the awards that CIETAC has published have been redacted to avoid identification of parties. Also, as a general rule, CIETAC does not report arbitral awards until they are three years old.

In addition, in a separate initiative over the years, the Pace CISG Database20 has identified and shared with the world trade community some 2,000 court and arbitral decisions on the CISG from around the world, published and accessible for free online.21 The database currently reports 340 CISG cases from the People's Republic of China,22 of which 289 are arbitration awards from CIETAC.23

China's contribution to the Pace database is particularly striking when compared with other arbitration jurisdictions and institutions. The Pace database currently does not report any arbitral awards on CISG proceedings from the AAA, although the AAA has handled a number of them. Likewise, the Pace database reports only three arbitral awards from the Stockholm Chamber of Commerce (SCC), although it is believed that there must have been many more CISG proceedings conducted under its auspices. Also, the number of awards reported on the Pace database from the ICC is only a fraction of the CISG cases handled by ICC arbitral tribunals.

In this regard, CIETAC has become a surprising world leader in transparency, in the sense that CIETAC has shared with the world trade community the full texts of more uniform international sales awards than any other arbitral institution.24

CIETAC's recent efforts in publishing and translating its arbitral awards would appear to be part of a wider campaign to demonstrate that the international community has nothing to fear from the legal reasoning or processes applied by CIETAC tribunals.25 Having a large number of published awards available provides participants in the process with a useful guide for consistency and predictability in CIETAC arbitrations.26 Whether CIETAC tribunals have shown a bias towards local Chinese parties or the 'hometown justice' can then be ascertained, at least from those published and translated awards, on a case-by-case basis.

The published awards do not necessarily provide a full picture, however, and CIETAC is still some way from being regarded as a transparent institution. It is not presently clear how the awards are selected for publication. The Cases Edition Committee is not a formal entity known to the public. Suspicions and speculation on the quality of the many unpublished awards cannot be eliminated. Concerns also remain about other aspects of CIETAC.27 Nonetheless, CIETAC does appear to be leading the way in the Asian market as other arbitral institutions in the region also take steps to facilitate the publication of awards.

For example, on 1 September 2008, the Hong Kong International Arbitration Centre Administered Arbitration Rules came into effect, which contain an explicit provision on publication of awards. Under Article 39.3, publication of awards is allowed on the fulfilment of the following conditions:

- a request for publication is addressed to the HKIAC secretariat;
- all references to the parties' names are deleted; and
- no party objects to such publication within the time limit fixed for that purpose by the HKIAC secretariat — in case of an objection, the award shall not be published.

Also noteworthy are the rules of the Indian Council of Arbitration, which accord high importance to the publication of awards. Rule 68(d) provides that:

the Council may print, publish or otherwise circulate any award made under its rules or under its auspices, in any arbitration journal, magazine, report, etc. for the purpose of creating arbitration jurisprudence or precedents for the benefit and guidance of future arbitrations. No party to the arbitration shall have any objection to the publication of awards as above provided that the names and addresses of any Party to the dispute will be omitted from such publication and its identity duly concerned if so desired by such party.

In other words, unlike the approach taken in Hong Kong, which only allows publication of awards if not objected to by the parties, the Indian rules preclude the parties from objecting to the publication of awards as long as their names and addresses have been omitted.

Transparency in arbitral proceedings is of course not restricted to the publication and translation of awards. Of fundamental importance is the transparency of the process for appointing arbitrators. In this regard as well, CIETAC has also changed its previous practice. In the past, CIETAC was criticised for having in place a restrictive panel system for the appointment of arbitrators. Under this system, the parties had to appoint an arbitrator from the names listed on the panel of arbitrators maintained by CIETAC and lacked the freedom to appoint an appropriate arbitrator outside the panel. However, in 2005, the CIETAC Rules28 were updated to bring the CIETAC appointment procedure in line with other major arbitral institutions29, which largely allow parties the freedom to choose any person as an arbitrator subject to limited considerations.

Under the 2005 CIETAC Rules, parties are allowed to appoint arbitrators from outside the CIETAC panel of arbitrators and can also submit a list of up to three candidates for choosing the presiding arbitrator. In addition, the arbitrator appointed from outside the panel can be the presiding or sole arbitrator, subject to the appointment being confirmed by the chairman of CIETAC.30 CIETAC's confirmation is largely a matter of formality. In practice, it would be unusual for the chairman of CIETAC to withhold the confirmation of such an appointment contrary to the parties' wishes.

Article 22 of the CIETAC Rules clearly intends to respect parties' freedom of selection of arbitrators, subject only to article 4(2), which provides that 'the parties' agreement shall prevail except where such agreement is inoperative or in conflict with a mandatory provision of the law of the place of arbitration'. Despite the unambiguous stipulations in these rules, however, there is still anecdotal speculation that CIETAC appoints members of an informal and unpublicised CIETAC 'clique' as arbitrators.31

CIETAC has endeavoured, nevertheless, to increase the number of arbitrators on its panels of arbitrators to allow parties a wider choice of candidate from which to select their arbitrators. CIETAC maintains a domestic panel including only Chinese arbitrators and an international panel including both Chinese and foreign nationals. Over the years, the number of arbitrators on the international list has increased to more than 980.32

CIETAC has also engaged in other efforts to internationalise its procedure and services, and disseminate knowledge about CIETAC arbitration in non-English speaking countries and regions.33 For example, CIETAC has recently published the French, Korean, Spanish and Japanese versions of its current rules.

It is in the area of publication of arbitral awards, however, where CIETAC has taken the clear initiative. By making CIETAC awards available to the world's arbitration and trade community, and by sharing and exchanging ideas, approaches and interpretation methodologies of an international uniform law instrument such as the CISG, CIETAC is now allowing the quality of CIETAC arbitration to be judged openly by the international arbitration community.

So far, the development of international arbitration and alternative dispute resolution in China and South East Asia in 2008 remains a mixed picture. On one hand, the international community continues to regard some jurisdictions as 'unfriendly'.34 Others, such as Singapore and Hong Kong, are continuing to raise new initiatives. Also noteworthy is the setting up of the Asia Pacific Regional Arbitration Group, a collective of arbitration institutions, which aims to improve the standards and knowledge of international arbitration in the region.35

It remains to be seen how these latest initiatives by CIETAC will affect its standing within the Asian arbitration community and elsewhere. Although there remains a strong regional preference for Hong Kong as a seat of arbitration and Singapore is also a popular choice,36 the sheer volume of cases expected to be handled by CIETAC over the next few years compared to other institutions means that it is likely to become the market leader in Asia if it is able to reassure the international business community that its processes and decisions are fair and of a high quality.37

The importance of Asia in the medium and long term as an economic region is clear. The need for region-based, high-quality dispute resolution processes is therefore fundamental. The recent efforts by CIETAC to publish awards and improve its transparency are therefore encouraging and represent moves in the right direction.

The author acknowledges the valuable assistance of Melis Acuner, Fan Yang and Anurag Goel in the preparation of this article.

1. On 19 September 2008, the Permanent Court of Arbitration and India concluded an agreement that established a legal framework under which future PCA-administered proceedings can take place in India on an ad hoc basis.
2. By contrast to this trend, in order to provide an alternative to arbitration in China to Chinese parties while taking into account Chinese sensitivities, the Chinese European Legal Association launched on 18 September 2008 the Chinese European Arbitration Centre, which will be based in Hamburg and will focus on Chinese disputes (see Global Arbitration Review, news dated 1 October 2008).
3. See for a comparison of the statistics of the leading institutions. The CIETAC number includes both domestic and international disputes.
4. See Paklito Investment Ltd v Klockner East Asia Ltd [1993] 2 HKLR 39, where the Hong Kong High Court set aside a CIETAC arbitral award on the ground that the defendant was denied a fair and equal opportunity of being heard because he had not been allowed to cross-examine experts appointed by the arbitral tribunal. However, the Paklito case appears to be an exception, given that the Hong Kong High Court has enforced between 1990 and 1992 approximately 40 CIETAC awards. The then Judge Kaplan commented that this was a creditable record and that he would not like it thought that problems such as those which occurred in the Paklito case are commonplace in CIETAC arbitrations. He added that, in all other CIETAC cases which he has considered, the due process requirements have been fairly met. It is also noteworthy that CIETAC subsequently amended its rules to meet the criticism. In the current 2005 CIETAC Rules, Section 3 (Articles 29-41) provides detailed rules on the hearing and examination of evidence.
5. The parties' agreement may not provide for confidentiality; confidentiality protections in arbitration rules and laws differ, and may be subject to overriding public policy or other exceptions.
6. See Bulgarian Foreign Trade Bank Ltd v AI Trade Finance Inc, Swedish Supreme Court, 27 October 2000, Case No. T 1881-99; Esso Australia Resources Ltd v Plowman, High Court of Australia, 7 April 1995, Case No. 95/014.
7. Hans Bagner, 'Confidentiality: A Fundamental Principle in International Arbitration?' 18 J Int'l Arb No. 2 243 (2001); Patrick Neil KC, 'Confidentiality in Arbitration' 12 Arb Int'l No. 3 287 (1996); Jan Paulsson & Nigel Rawding, 'The Trouble with Confidentiality' 11 Arb Int'l No. 3 303 (1995).
8. See Rex v Sussex Justices, Ex parte McCarthy [1924] 1 KB 258. Referred to by: Cooper v Wilson [1937] 2 All ER 726; R v Salford Assessment Committee [1937] 2 All ER 98; R v Architects' Registration Tribunal, Ex parte Jaggar [1945] 2 All ER 131; Franklin v Minister of Town and Country Planning [1947] 2 All ER 289; R v Caernarvon Licensing Justices, Ex parte Benson (1948) 113 JP 23.
9. For recent writings discussing publication of awards, see Richard Garnett and Keith Steele, 'In Search of an Appropriate Standard for Reasons in Arbitral Awards' 10 Int Arb L Rev No. 4 111 (2007); Karen Halverson Cross, 'Arbitration as a Means of Resolving Sovereign Debt Disputes' 17 Am Rev Int'l Arb 335 (2006); Loukas A Mistelis, 'Confidentiality and Third Party Participation' 21 Arb Int'l No. 2 211 (2005); Anjanette H Raymond, 'Confidentiality in a Forum on Last Resort: Is the Use of Confidential Arbitration a Good Idea for Business and Society?' 16 Am Rev Int'l Arb 479 (2005); Cindy G Buys, 'The Tension Between Confidentiality and Transparency in International Arbitration' 14 Am Rev Int'l Arb 121 (2003).
10. In 2007, Asia was the seat of 70 per cent of global reported cases, out of which 61 per cent were administered by CIETAC. Of the total recorded (2,567 cases), 1,759 had an Asian seat. Out of these 1,759 cases, 1,118 were administered by CIETAC. In terms of international caseload, CIETAC is among the top four international arbitration centres worldwide (see 'CIETAC and its Work — An Interview with Vice Chairman Yu Jianlong', Journal of International Arbitration, 24 — No. 6 (2007), p555-564).
11. One cannot underestimate the wish of arbitrators and practitioners to publicise their cases. Global Arbitration Review, for example, regularly reports on cases which would previously have been known only to a small number of people. See
12. Article 46 of the Arbitration Rules of the Stockholm Chamber of Commerce (SCC) provides that, unless otherwise agreed by the parties, the SCC Institute and the tribunal shall maintain the confidentiality of the arbitration and the award. Under the Singapore International Arbitration Centre Rules of Arbitration, Article 34, which deals with the obligation of confidentiality, contains provisions on publication of awards, and provides that the parties and the tribunal are required at all times to treat all matters relating to the proceedings and the award as confidential.
13. LCIA is the only major international arbitration institution that communicates reasoned decisions to the parties on a challenge application. The decisions describe the circumstances and grounds of the challenge and set out the reasons why the court has decided to accept or reject the challenge. See Geoff Nicholas and Constantine Partasides, 'LCIA Court Decisions on Challenges to Arbitrators: A Proposal to Publish' 23 Arb Int'l No. 1 1,5 (2007).
14. Ibid, at p9. See also Leon Trakman, 'The Impartiality and Independence of Arbitrators Reconsidered' 10 Int Arb L Rev No. 4 124 (2007);
15. Derains and Schwartz, A Guide to the ICC Rules of Arbitration 2nd edition (2005) at p316.
16. Extracts of some ICC awards are published on and on
17. Derains and Schwartz, A Guide to the ICC Rules of Arbitration 2nd edition (2005) at p. 317.
18. See Professor Albert H Kritzer, 'Application and Interpretation of the CISG in the PR of China — Progress in the Rule of Law in China', a presentation in Wuhan Conference on 'The Application and Interpretation of the CISG in Member States With Emphasis on Litigation and Arbitration in the PR China', 13-14 October in Wuhan, China, published in 40 Uniform Commercial Code Law Journal (2007/2) 261-268; see also 'Creating The Framework For Trading Relationships With China', IACCM August 2007 Newsletter, available at: See also Fan Yang, The Application of the CISG in the Current PRC Law and CIETAC Arbitration Practice (December 2006) 26p, available at:; see also Fan Yang, 'CISG in China and Beyond' 40 UCC Law Journal (Winter 2008) 373-389; Fan Yang, 'CISG, CIETAC Arbitration and the Rule of Law in the PR of China: A Global Jurisconsultorium Perspective' in: Camilla B Andersen / Ulrich G Schroeter eds, Sharing International Commercial Law across National Boundaries: Festschrift for Albert H Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill Publishing (March 2008) 600-626.
19. In particular, Article 33 of the CIETAC Rules on confidentiality does not address the question of publication.
20. See
21. Ibid.
22. See (viewed 2 September 2008).
23. See (viewed 2 September 2008).
24. Professor Albert H Kritzer, 'Application and Interpretation of the CISG in the PR of China — Progress in the Rule of Law in China', a presentation at Wuhan Conference on 'The Application and Interpretation of the CISG in Member States With Emphasis on Litigation and Arbitration in the PR China' 13-14 October 2007 in Wuhan, China, published in 40 Uniform Commercial Code Law Journal (2007/2) 261-268.
25. Ibid.
26. Ibid. See also D'Souza, 'The Recognition and Enforcement of Commercial Arbitration Awards in the People's Republic of China' 30 Fordham Int'l LJ 1318, 1350-51 (2007).
27. The international arbitration community is still concerned about the recent imprisonment of one of CIETAC's former officers. See, for example, Wu Ming, 'The Strange Case of Wang Shengchang' 24 J Int'l Arb No. 1 63 (2007); Meg Utterback, 'Arbitration in India and China — Concerns and Options for International Businesses' 18 September 18 2006, available at:
28. Effective as from 1 May 2005.
29. ICC Rules of Arbitration, Articles 8 & 9; LCIA Rules of Arbitration, articles 5 & 6; SCC Rules of Arbitration, Article 13.
30. CIETAC Arbitration Rules, Article 21(2).
31. See, eg, Graeme Johnston, 'Bridging the Gap Between Western and Chinese Arbitration Systems — A Practical Introduction for Businesses' 24 J Int'l Arb No. 6 565, 570 (2007), in which it has been pointed out that there is no supervisory body within CIETAC to oversee the appointment process, which has led to the appointment of Commission staffers, and other individuals closely associated with the Commission, as presiding arbitrator.
32. Updated panel of arbitrators of CIETAC, effective as from 1 May 2008, available at
33. See
34. In a recent arbitration meeting, eminent practitioners expressed concern that jurisdictions like Indonesia and China are not yet fully supportive of international arbitration. See:
35. Since its inception in 2004, membership of the Asia Pacific Regional Arbitration group has grown to 30 members. See
36. A recent decision of the Singapore High Court sheds some light on the Singapore International Arbitration Centre (SIAC)'s practice regarding acceptance of jurisdiction. In Insigma Technology Co Ltd v Alstom Technology Ltd [2008] SGHC 134, the parties concluded an arbitration clause that provided for arbitration before the SIAC in accordance with the Rules of Arbitration of the International Chamber of Commerce. Upon a request from one of the parties, SIAC confirmed that it had prima facie jurisdiction to accept the request for arbitration, even though the clause provided for ICC Rules which have certain unique features such as the terms of reference procedure and scrutiny of awards. This was made possible by SIAC's willingness to follow the ICC Rules, with the SIAC Secretariat undertaking the role of the ICC Secretariat, the SIAC Registrar the role of the ICC secretary general and the SIAC board of directors the role of the ICC Court. The Singapore High Court upheld this arrangement on the basis that the arbitration clause provided for an ad hoc arbitration and that SIAC's willingness to designate suitable actors to perform the functions envisaged under ICC Rules did not create any inconsistency between the two sets of rules.
37. In 2007, CIETAC administered 61 per cent of the global reported cases with an Asian seat. Out of 1,759 cases in all, 1,118 were administered by CIETAC. See

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