The Beijing Arbitration Commission/Beijing International Arbitration Center (BAC) released the Beijing Arbitration Commission/Beijing International Arbitration Center International Investment Arbitration Rules (the Rules) for public comment on February 12, 2019. The BAC drafted the rules to accommodate the growing industry of Chinese and foreign investment arbitrations while simultaneously attempting to solve many of the reported issues plaguing current investment arbitration systems. In response to industry concerns, the Rules propose the following innovative elements, among other creative provisions:
- Unity. The Rules aim to facilitate both ad hoc and institutional arbitrations by incorporating both institutional arbitration rules and ad hoc procedural guidelines from the UNCITRAL Arbitration Rules.
- Appellate Review. The Rules incorporate a specialized procedure, seen in Article 51 and Appendix E, for appealing arbitral awards when certain requirements are satisfied. For example, a party may appeal an award for the following reasons: (a) the tribunal or BAC lacked jurisdiction or exceeded jurisdiction; (b) the award contains an error in the interpretation or application of the law; or (c) the award contains a manifest or material error in the appreciation of the facts. An award may only be appealed when parties consent, and the parties shall bear the costs of the appeal.
- Efficiency. The Rules encourage arbitral efficiency and a cost-effective arbitration system by incorporating stricter timelines overall and time limits on each major stage of an arbitration. The Rules attempt to maintain elements of flexibility as well however, therefore the timelines generally must be enforced at the request of a party, rather than automatically by the tribunal or BAC. Additionally, the Rules default to electronic document delivery and include provisions concerning expedited procedures when necessary.
- Transparency. The Rules reflect the evolving trend toward increased transparency by including provisions about (a) the openings of hearings in Article 24, (b) third party publication in Article 36, (c) compulsory publication of specified arbitration documents—such as the award, jurisdictional decisions, and notice of arbitration—in Article 50. The Rules also allow Parties, through mutual agreement, to decide whether the UNCITRAL Transparency Rules apply to the arbitration and if so, to what extent.
- Ethics. The Rules require arbitrators to be sufficiently available to handle an arbitration according to the increasingly efficient timelines and to be knowledgeable about public international law. With these requirements, the BAC intends to cultivate a highly qualified and ethical pool of potential arbitrators.
The BAC is accepting substantive suggestions, or any other comments related to the Rules. Comments must be submitted by email to email@example.com before March 20, 2019.