#Law Popularization Action #Study Notes no. 17 of the "Kunming Arbitration Commission Arbitration Rules"
Arbitration Avoidance
Arbitration challenge is a legal system in which members of an arbitral tribunal who have an interest or other relationship with the case accepted by the arbitral institution shall not participate in the arbitration activities in this case. It mainly refers to the recusal of arbitrators, but is not limited to the recusal of arbitrators, and usually includes: the recusal of case-handling secretaries, translators, appraisers, inquests, etc.
1. Reason for avoidance
The reason for recusal is the reason and conditions for recusal. According to the current law, the reasons and conditions for the recusal of an arbitral member are constituted in any of the following circumstances: (1) it is a close relative of the parties or parties or agents in the case; (the so-called close relatives include: spouses, parents, children, brothers and sisters, grandparents, maternal grandparents, grandchildren, and grandchildren) (2) they have an interest in the case; (3) they have other relationships with the parties or agents in the case that may affect fair arbitration; (4) they meet with the parties, agents, or accepting parties privately. The agent's invitation to give gifts. The foregoing "other relationships" refers to: those who have provided prior consultation on the case undertaken; those who are currently the legal counsel or representative of the parties, or who have served as the legal counsel of the parties and have been away for less than two years; those who have recommended or introduced agents for the parties to the case; those who have served as witnesses, evaluators, inquests, defenders, or agents ad litem in the case or related to the case; and other matters that may affect fair arbitration.
2. Recusal Procedures
(1) Application for recusal
Parties who submit an arbitration challenge shall apply in writing and submit it before the first hearing (if the grounds of recusal are known after the first hearing, they may be raised before the end of the last hearing; in cases where the recourse is not heard or heard in writing, the parties shall submit them within 10 days after learning of the grounds for recusal). When a party submits an application for recusal, it shall explain the reasons for the recusal and attach corresponding evidence.
(2) Handling of applications for recusal
If a party applies for the challenge of an arbitrator and the other parties agree, or the arbitrator who has applied for recusal voluntarily withdraws after being informed, the arbitrator shall no longer participate in the hearing of the case. However, the circumstances aforesaid in this paragraph do not mean that the parties' grounds for recusal are established. In addition, whether the arbitral members recuse themselves is decided by the chairman, the chairman of the arbitration commission is recused, and the "z" arbitration rules "do not stipulate, and the arbitration commission collectively decides according to the Arbitration Law"
(3) Procedures after the establishment of the recusal cause
In the event of the challenge of an arbitrator, the arbitrator shall be re-selected (appointed) in accordance with the procedures provided for in the Arbitration Rules, and after the re-selection or appointment of the arbitrator, whether the arbitral proceedings that have been conducted shall be re-conducted and the scope of the re-conduct, and the parties have not reached an agreement, the newly constituted arbitral tribunal shall decide, and the time limits for each procedure provided for in the Arbitration Rules shall be recalculated accordingly.
Comrades arbitrators should pay attention to the fact that arbitrators have "met with parties or agents privately, or accepted invitations and gifts from parties and agents." In the case of the situation, it is not only the issue of being recused, but also the risk of being removed from the arbitration commission.
Article 12 of the Arbitration Law of the People's Republic of China stipulates: "The arbitration commission shall be composed of one chairman, two to four vice chairmen and seven to eleven members. The chairman, vice-chairman and members of the Arbitration Commission shall be legal, economic and trade experts and persons with practical work experience. Among the members of the arbitration commission, there shall be no less than two-thirds of the legal, economic and trade experts. "In practice, the proportion of arbitrators and lawyers in many arbitration commissions is more than one-third, and some are even stronger than two-thirds, and lawyers providing agency services is the main business. This raises special questions as to whether a lawyer, as an arbitrator of the BaC, can represent the BAC in a case. At present, laws and regulations do not clearly stipulate this issue. Before the relevant laws and regulations were clarified, our advice was that as a lawyer of an arbitrator, try not to represent the case handled by the arbitration commission where you are located. At the same time, it is hoped that this issue will be clarified when the Arbitration Law is revised. (Zhang Jianbi, Yunnan Zhang Jianbi Law Firm)
Attached: Legal basis
1. Relevant provisions of the Arbitration Law of the People's Republic of China
Article 34 An arbitrator who has any of the following circumstances must recuse himself, and the parties also have the right to submit an application for recusal:
(1) Is a party to the case or a close relative of a party or agent;
(2) Have an interest in the case;
(3) Having other relationships with the parties or agents in the case, which might affect fair arbitration;
(4) Meeting with parties or agents privately, or accepting invitations and gifts from parties or agents.
Article 35: Parties submitting an application for recusal shall explain the reasons and submit it before the first hearing. If the cause of the recusal is known after the first hearing, it may be raised before the end of the last hearing.
Article 36 The chairman of CIETAC shall decide whether or not to challenge an arbitrator; When the Chairman of CIETAC serves as an arbitrator, circumvention shall be decided collectively by CIETAC.
Article 37 Where an arbitrator is unable to perform his duties due to his or her recusal or other reasons, he shall re-select or appoint an arbitrator in accordance with the provisions of this Law.
After the arbitrator has been re-selected or appointed by way of recusal, the parties may request that the arbitral proceedings already under way be re-conducted, and the arbitral tribunal shall decide whether to grant it; The arbitral tribunal may also decide, on its own, whether to reopen the arbitral proceedings that have already been conducted.
Article 38 Where an arbitrator has the circumstances provided for in Item 4 of Article 34 of this Law, and the circumstances are serious, or if he has the circumstances provided for in Item 6 of Article 58 of this Law, he shall bear legal responsibility in accordance with law, and CIETAC shall remove him or her from his or her name.
2. Relevant provisions of the Arbitration Rules of Kunming Arbitration Commission
Article 28 provides that "the arbitrator recuses himself
(1) When a party has reasonable doubts about the independence and impartiality of the arbitrator, it has the right to submit an application for recusal.
(2) The parties shall submit an application for recusal in writing, explain the reasons, and provide corresponding evidence.
(3) An application for recusal of an arbitrator shall be made before the first hearing. Where the grounds for recusal are known after the first hearing, they may be raised before the end of the last hearing; in cases where the recourse is not held or heard in writing, the parties shall raise them within 10 days of learning of the grounds for recusal.
(4) The case secretary shall promptly notify the other parties and all members of the arbitral tribunal of the application for recusal.
(5) If a party applies for the challenge of an arbitrator and the other parties agree, or the arbitrator who has applied for recusal voluntarily withdraws after being informed, the arbitrator shall no longer participate in the hearing of the case. However, the circumstances aforesaid in this paragraph do not mean that the parties' grounds for recusal are established.
6. Except in the circumstances provided for in paragraph (5) above, the arbitrator shall decide whether or not to challenge himself.
(7) The provisions of this article apply to the recusal of case-handling secretaries, translators, evaluators, inquests, and so forth. ”
Article 29 Replacement of Arbitrators
1. In any of the following circumstances, the arbitrator shall be replaced:
1. The arbitrator dies or is unable to engage in arbitration work due to health reasons;
2. The arbitrator travels on a business trip, goes abroad, or so on, which seriously affects the trial period of the case;
3. The arbitrator voluntarily withdraws from the trial of the case, or the parties unanimously request him to withdraw from the trial of the case;
4. the arbitrator's recusal;
5. The Council considers that the arbitrator is legally or in fact unable to perform his or her duties or fails to perform in accordance with the requirements of these Rules.
(2) The replacement of arbitrators shall be decided by the Director-General. The Director's decision is final and has the power to decide, on a case-by-case basis, whether or not to justify it.
(3) Where the arbitrator to be replaced is selected by the parties, the parties shall re-select them within five days from the date of receipt of the notice; Within five days of the re-election or appointment of arbitrators, the Notice of the Reconstitution of the Arbitral Tribunal will be sent to the parties.
4. After the re-selection or appointment of arbitrators, if the parties have not reached an agreement on whether or not to re-conduct the arbitral proceedings that have already been conducted and the scope of the re-conduct, the newly constituted arbitral tribunal shall decide and the time limits for each procedure provided for in these Rules shall be recalculated accordingly.