{"id":38853,"date":"2025-10-30T13:22:12","date_gmt":"2025-10-30T13:22:12","guid":{"rendered":"https:\/\/www.cdr-news.com\/?post_type=product&p=38853"},"modified":"2025-10-30T14:40:54","modified_gmt":"2025-10-30T14:40:54","slug":"drafting-effective-arbitration-clauses-for-the-belt-and-road-initiative","status":"publish","type":"product","link":"https:\/\/www.cdr-news.com\/cdr-essential-intelligence\/belt-and-road-initiative\/drafting-effective-arbitration-clauses-for-the-belt-and-road-initiative\/","title":{"rendered":"Drafting effective arbitration clauses for the Belt and Road Initiative"},"content":{"rendered":"

Belt and Road Initiative (BRI<\/strong>) projects bind together Chinese investors (often as project financers) and public and private entities of host States or other third-country participants including multinational corporations.\u00a0 Many projects are complex, high-value, long-term, capital intensive, multi-party, multi-contract, cross-border transactions, often involving at least one Chinese party (M Gearing and J Liu, \u2018The Contributions of the Hong Kong International Arbitration Centre to Effective International Dispute Resolution\u2019 in P Quayle and X Gao, International Organizations and the Promotion of Effective Dispute Resolution: AIIB Yearbook of International Law 2019 <\/em>(Vol 2, Brill 2019) 41, at 53).\u00a0 They will involve entities from countries at different stages of development and with widely variant legal, political and economic systems \u2013 some highly sophisticated and some largely undeveloped.\u00a0 The BRI involves countries making up 65% of the world\u2019s population and more than 65 countries.\u00a0 Many of the host States rank high for operational risk and credit risk.\u00a0 Indeed, several countries along the BRI are developing countries in Asia, Africa and Latin America experiencing an economic transition or regime change (Jian Huang, \u201cChina and One Belt and One Road Countries Project Docking Risk and Response Strategy\u201d (2017) 6 Journal of Beijing Technology and Business University (Social Sciences)).<\/p>\n

It follows that BRI projects are exposed to a large spectrum of risks during their project life-cycle (as to the risks relating to BRI projects, see generally Permanent Forum of China Construction Law, The Belt and Road Initiative: Legal Risks and Opportunities Facing Chinese Engineering Contractors Operating Overseas <\/em>(Kluwer Law International 2019)).\u00a0 The disruption caused by the COVID-19 pandemic may also serve to exacerbate the risks.\u00a0 The players involved will have to enter into a mosaic of contracts to allocate such risks, which may include separate contracts with the financiers, designers, suppliers, insurance providers, contractors and operators.<\/p>\n

The potential for disputes relating to these projects is significant.\u00a0 With this in mind, it is important that parties to BRI projects consider how they might wish any potential disputes be resolved and ensure that they are negotiating their agreements with counterparties on an informed basis.<\/p>\n

Dispute resolution mechanisms<\/strong><\/h1>\n

Within the realm of BRI disputes, three forms of disputes will typically arise: (i) State-State disputes; (ii) investor-State disputes; and (iii) investor-investor\/commercial disputes.\u00a0 This chapter will focus primarily on the latter category and, in particular, international commercial arbitration disputes.<\/p>\n

Historically, Chinese parties have expressed a reluctance to be involved in formal dispute resolution proceedings as they were unaccustomed to the idea of Western-style litigation or arbitration (https:\/\/www.kwm.com\/en\/knowledge\/insights\/rise-of-chinese-investors-as-claimants-likely-impacts-on-international-arbitration-20180412<\/a>).\u00a0 The People\u2019s Republic of China\u2019s (PRC<\/strong> or China<\/strong>) preferred method of friendly consultation, deeply rooted in both its culture and international legal instruments, may remain a barrier for non-Chinese counterparts to bring Chinese parties before an arbitral tribunal.\u00a0 However, with the increase in China\u2019s foreign investment, Chinese claimants are now far more familiar with such dispute resolution mechanisms (https:\/\/www.financierworldwide.com\/arbitration-processes-in-asia#.YRWqoehKjD4<\/a>).\u00a0 Accordingly, Chinese parties are more open to using international dispute resolution procedures to their advantage and have adopted a more liberal attitude towards international arbitration.\u00a0 As a result, it is becoming common for cross-border agreements with Chinese parties to provide for disputes to be referred to arbitration, especially in relation to the construction, infrastructure and maritime sectors.\u00a0 These sectors are the principal focus of the BRI.<\/p>\n

Arbitration will play a central role in the resolution of BRI disputes due to its ability to offer parties a neutral venue to accommodate cultural differences, control over the procedure (including the selection of decision makers) and (depending on the choice of laws) confidentiality.\u00a0 It is also favoured for its ability to give rise to final and enforceable awards (explored further below).<\/p>\n

Court litigation in national courts is often more formal, perceived to be a less neutral forum in cross-border disputes and much less confidential.\u00a0 In the context of the BRI, it may take some time for investors to build confidence in the domestic legal systems of States along the BRI routes.\u00a0 The BRI also creates significant risks for investors because many projects are negotiated and executed separately on a country-by-country basis, meaning that investors may have to fight in different fora with different States simultaneously.<\/p>\n

While arbitration is expected to be the default mechanism for such cross-border BRI disputes, other mechanisms are also gaining traction.\u00a0 For example, specialised international commercial courts have risen in prominence in recent years.<\/p>\n

Chinese International Commercial Court (CICC)<\/strong><\/h2>\n

On 23 January 2018, a joint committee of the Chinese Communist Party and the State Council issued an Opinion Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and Institutions which led to the establishment of the CICC.\u00a0 The two existing CICC courts serve as permanent bodies within China\u2019s Supreme People\u2019s Court (SPC<\/strong>).<\/p>\n

The CICC is likely to be the most commonly used by Chinese parties to BRI contracts.\u00a0 The CICC aims to protect the legitimate rights and interests of Chinese and foreign parties equally (CICC Procedure Rules, Article 3).\u00a0 Judges are selected from senior judges familiar with international laws and norms and proficient in both English and Chinese.<\/p>\n

Reflecting its aim of \u201cinternationalisation\u201d, the CICC has established an international commercial expert committee composed of legal experts from all over the world who specialise in international law and their own domestic laws.<\/p>\n

In terms of jurisdiction, the CICC is essentially limited to parties having a substantial connection to China, which is not the case with the other international commercial courts.<\/p>\n

Reflecting the Chinese experience, the CICC embodies a hybrid mechanism where mediation and arbitration are interwoven into the dispute resolution process.\u00a0 Under this process, parties may refer their dispute to Chinese arbitration institutions.\u00a0 The CICC is authorised to assist these arbitration institutions by issuing judicial orders for the preservation of property, evidence or conduct before or after an arbitration proceeding.<\/p>\n

If a Chinese party insists on the jurisdiction of the Chinese courts, the CICC provides a compromise position for international parties, given its use of technology and rules on evidence.\u00a0 One benefit of the CICC is that it provides parties with convenience and multiple choices which lower costs, and provides a direct route to the SPC, bypassing traditional territorial and court-level jurisdictional limits, avoiding potential local protectionism issues.\u00a0 In turn, this maintains the quality and consistency of international commercial dispute resolution.<\/p>\n

Another benefit is that certain procedural requirements for foreign-related disputes under Chinese civil procedure rules have been relaxed for CICC proceedings.\u00a0 Accordingly, evidence created outside the PRC may be admissible for examination, even if it is not notarised or certified according to legalisation procedures.\u00a0 A document in English without a certified Chinese translation copy can also be directly submitted to the CICC if the other party so agrees.<\/p>\n

However, two important limitations that are likely to impact its use are that the CICC does not admit foreign counsel to appear or hear cases in English.<\/p>\n

Singapore International Commercial Court (SICC)<\/strong><\/h2>\n

An alternative is the SICC, which continues to grow in popularity and is perceived to be an increasingly important alternative to ICC arbitration in Singapore.\u00a0 In particular, it is a good option for parties that want to preserve the ability to appeal.\u00a0 The SICC also eases foreign attorney\u2019s registration requirements and affords them greater authority to appear and plead in any relevant proceedings once registered.<\/p>\n

Disputes in the SICC are adjudicated by a panel of experienced judges comprising specialist commercial judges from Singapore together with international judges.<\/p>\n

The SICC has jurisdiction over an international commercial claim so long as the parties have submitted to the SICC\u2019s jurisdiction under a written jurisdiction agreement (much like arbitration agreements).<\/p>\n

Other specialist courts<\/strong><\/h2>\n

The Astana International Financial Centre Court, led by the Rt. Hon. Lord Mance, offers a common law system within the Central Asian region.\u00a0 It has exclusive jurisdiction over disputes arising out of the Astana International Financial Centre and where parties have agreed to give it jurisdiction, with the aim of fostering growth opportunities from the Eurasian Economic Union, Central Eurasia and the BRI.<\/p>\n

Summary<\/strong><\/h2>\n

It remains to be seen whether major players would choose these institutions over more established arbitration Seats.\u00a0 This may depend on whether end-users will have confidence in the trust, transparency or judicial experience of these new institutions.\u00a0 They may also perceive that there are potential difficulties for parties seeking to enforce their judgments\/awards, when compared to arbitral awards that may be enforced through the popular New York Convention mechanism (discussed further below<\/em>).<\/p>\n

Further, a valid choice of court agreement is the prerequisite for the chosen court to exercise jurisdiction, and it is also an important factor for the judgment to be recognised and enforced elsewhere.\u00a0 The question becomes which law will be applied to determine the validity of the agreement.\u00a0 According to China\u2019s current judicial practice, the Chinese courts will consider the choice of court agreement as a procedural matter that should be governed by the lex fori <\/em>(i.e. Chinese law) to determine its validity.<\/p>\n

However, on 12 September 2017, China signed the Hague Convention on Choice of Court Agreements, which seeks to provide certainty in cross-border litigation by allowing parties to choose the exclusive court in which any disputes arising under a commercial agreement will be resolved.\u00a0 Courts of member States must accordingly respect exclusive jurisdiction clauses in such agreements by staying proceedings in favour of the courts of other member States.\u00a0 They must also recognise and enforce judgments of the courts of other member States, subject to certain limited exceptions.\u00a0 Under Articles 5(1), 6(a) and 9(a) of the Hague Convention on the Choice of Court Agreements, the Chinese courts would be bound to apply the law of the State of the chosen court when considering the choice of court agreement.\u00a0 However, China is yet to formally ratify the Convention (a precondition to it becoming a member State bound by the terms of the Convention) (see http:\/\/arbitrationblog.kluwerarbitration.com\/2021\/06\/17\/why-states-should-not-ratify-and-should-instead-denounce-the-hague-choice-of-court-agreements-convention-part-ii<\/a>).<\/p>\n

Investor-State dispute settlement<\/strong><\/h1>\n

Investment treaties often contain dispute resolution clauses referring investor-State disputes to arbitration.\u00a0 Although it is beyond the scope of the present chapter, the Chinese bilateral investment treaties (BITs<\/strong>) may also provide an avenue for investor-State dispute settlement under the BRI framework.\u00a0 Chinese investors may increasingly choose to take advantage of protection measures under these treaties for their outbound investments.\u00a0 Many of these BITs have unique \u201cChinese characteristics<\/em>\u201d, including the emphasis on consultation and mediation, as well as carve-outs for investment protections.\u00a0 Within the Central Asian region, China has BITs with Kazakhstan, Uzbekistan, Kyrgystan, Turkmenistan, Tajikistan, but not Afghanistan.\u00a0 China also has BITs with the following Caspian region countries: Russia; Turkey; Iran; Azerbaijan; Armenia; Georgia; and Mongolia.<\/p>\n

Existing forums, such as ICSID, should be considered, since some of the main BRI participants, such as Kazakhstan, China, Pakistan and Netherlands, are signatories to the ICSID Convention.\u00a0 However, the Chinese Government has made the reservation that it would only submit disputes over compensation resulting from expropriation and nationalisation to ICSID (http:\/\/arbitrationblog.kluwerarbitration.com\/2019\/07\/05\/isds-as-a-means-of-addressing-challenges-for-the-bri-in-central-asia<\/a>).<\/p>\n

Recognising the potential for BRI disputes between investors and States (including claims under BITs), some institutions have worked on their investment arbitration credentials.<\/p>\n

On 1 October 2017, the new International Investment Arbitration Rules of the China International Economic and Trade Arbitration Commission (CIETAC<\/strong>) came into force.\u00a0 These rules are designed to regulate both investment treaty arbitrations and investor-State arbitrations as the contractually agreed dispute resolution mechanism.\u00a0 While it is unclear whether States will re-negotiate their BITs with China to include CIETAC investment arbitration as their dispute resolution mechanism, there is potential for parties to select CIETAC investment arbitration in contracts between investors and foreign States, governmental organisations or entities whose conduct is attributable to a State.\u00a0 Depending on the wording of each individual BIT, there is also scope for the parties to agree to submit their investment disputes to CIETAC if the BIT enables the parties to do so.\u00a0 For example, the China-Uzbekistan BIT 2011 permits claims to be commenced in a competent domestic court, or to be submitted to ICSID arbitration, ad hoc<\/em> arbitration under the UNCITRAL Rules or to \u201cany other arbitration institutions or ad hoc arbitral tribunals agreed by the disputing parties<\/em>\u201d.\u00a0 CIETAC has more recently released its Panel of International Investment Arbitrators in September 2018, with a total of 79 arbitrators.\u00a0 Among them, 15 arbitrators are from 12 major countries along the Belt and Road.<\/p>\n

The Singapore International Arbitration Centre (SIAC<\/strong>) also released its own investment arbitration rules on 1 January 2017, the Investment Arbitration Rules of the Singapore International Arbitration Centre.\u00a0 These rules can be applied by agreement in disputes involving a State, State-controlled entity or intergovernmental organisation, whether arising out of a contract, treaty, statute or other instrument.\u00a0 SIAC has also administered investment disputes under the SIAC Rules and served as the appointing authority in investment disputes under the UNCITRAL Arbitration Rules.<\/p>\n

Selection of laws in international commercial arbitration<\/strong><\/h2>\n

Party autonomy is a key feature of arbitration.\u00a0 An arbitral tribunal must conduct the arbitration in accordance with the procedure agreed by the parties.\u00a0 If it does not do so, the resulting award may be subsequently set aside.\u00a0 A failure by the tribunal to comply with the procedure agreed by the parties may provide a ground to refuse recognition and enforcement of the award under Article V(1)(d) of the New York Convention.<\/p>\n

Those familiar with arbitration understand the significance of the agreement to arbitrate and there is already plenty of guidance available to assist parties and their lawyers to draft effective arbitration clauses generally.<\/p>\n

This chapter considers issues relating to the selection of laws in arbitration agreements in the context of BRI projects.\u00a0 Businesses and States alike will be looking for effective dispute resolution clauses that will enable their disputes to be resolved fairly, efficiently and effectively.<\/p>\n

An arbitration clause need not be complex in order to be effective, but it is prudent to think strategically about the parties\u2019 likely posture in any dispute and how that should be translated into an arbitration clause that will maximise the prospect of a successful and effective resolution.<\/p>\n

There is no single arbitration clause that would suit in every case.\u00a0 Drafting an effective clause requires consideration of the nature of the contract, the parties, the type of disputes that might be expected to arise and the jurisdictions likely to be involved when it comes to enforcement.\u00a0 Drafting an appropriate clause also requires an understanding of any circumstances that may call for special provisions relating to interim relief, confidentiality, joinder or consolidation.<\/p>\n

Procedural framework<\/strong><\/h2>\n

The procedural rules applying to any arbitration will often be taken from a number of sources.\u00a0 The starting point is to have regard to the parties\u2019 agreement (including any specific points of agreement on the procedure).\u00a0 The parties often express their agreement on the procedural rules in the arbitration agreement, though they can agree on the procedure at any time.<\/p>\n

The parties\u2019 agreement on procedural matters takes primacy over any other rule of the agreed institutional rules or the laws of the Seat (see further below) except any mandatory rules which may not be derogated from (Blackaby N and others, Redfern and Hunter on International Arbitration<\/em> (6th<\/sup> ed, OUP 2015) at [3.63]-[3.64]).<\/p>\n

Mandatory rules typically comprise minimum procedural safeguards.\u00a0 Although their content depends on the law of the legal place and any selected institutional rules, some basic safeguards are common to many national laws and institutional rules and may arguably represent the consensus of the international community (Lew JDM and others, Comparative International Commercial Arbitration <\/em>(Kluwer Law International 2003) at [5.68]-[5.69]), even if expressed in different ways.\u00a0 These typically include rules such as the opportunity to put a party\u2019s case (see, for example: ICC Rules, Article 22(4); HKIAC Rules, Article 13.1; or UNCITRAL Arbitration Rules, Article 17.1); or equal treatment of the parties (see, for example, HKIAC Rules 2018, Article 13.1; or UNCITRAL Arbitration Rules, Article 17.1).\u00a0 The English Arbitration Act 1996 (UK) helpfully sets out exhaustively in Schedule 1 a list of mandatory rules.\u00a0 The division between mandatory and non-mandatory provisions is expressed less clearly in other instruments.<\/p>\n

If the procedure to be followed is not capable of determination by reference to the parties\u2019 specific points of agreement on the procedural rules and any mandatory rules, the tribunal will supplement it with the non-mandatory institutional rules agreed by the parties.\u00a0 In the unlikely event that these rules do not fill in the remaining gaps, the tribunal will typically apply the laws of the Seat.<\/p>\n

The Seat of the arbitration<\/strong><\/h2>\n

One of the primary laws governing the arbitral procedure is the law of the legal place of the arbitration \u2013 the \u201clex arbitri<\/em>\u201d (the Seat<\/strong>).\u00a0 The Seat is a legal construct representing the juridical place of the arbitration and serves as the territorial link between the arbitration and the location in which the arbitration is legally seated (G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 1537; Blackaby N and others, Redfern and Hunter on International Arbitration<\/em> (6th<\/sup> ed, OUP 2015) at [3.56]).\u00a0 The Seat is distinguishable from the location or venue of the actual arbitral hearings, which may be different for reasons of convenience of the tribunal, parties or witnesses.\u00a0 In international arbitration, the law of the Seat will often also differ from the proper law governing the substantive dispute, as parties typically select the Seat for reasons such as convenience or neutrality, even though that place may have little or even no connection to either party or their contract.<\/p>\n

The Seat can be of critical importance to an international arbitration in many respects.\u00a0 It sets the framework for the law governing the arbitration procedure (providing the default rules in the absence of the parties\u2019 agreement on rules to govern a particular procedural matter) and more importantly, the process and rights relating to the enforcement of the arbitral award (G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2207-2208).\u00a0 The Seat of the arbitration provides the link between the arbitration and a judicial forum, and it is the law of the Seat that gives legal effect to the powers conferred by the parties on the tribunal under their arbitration agreement.\u00a0 Some Seats have local requirements which if not respected may jeopardise the integrity and enforceability of the award.\u00a0 These mandatory procedural rules cannot be overcome by agreement of the parties or by rulings of the arbitrators (see G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2326-2334).<\/p>\n

While the law of the Seat has an important role, other laws governing procedural matters will also be relevant.\u00a0 For example, the parties may select to apply certain institutional rules or ad hoc<\/em> rules (explored further below).\u00a0 In addition, any hearing taking place in a venue outside of the Seat will be subject to any applicable mandatory laws in the relevant jurisdiction.\u00a0 Further, a national court outside of the Seat of the arbitration may be asked to order the taking of measures to make the tribunal\u2019s work more effective.\u00a0 The matter would be before the court because the court would have, under its own procedural rules, the power to assert a personal jurisdiction over the parties and to order measures against them, even without any other connection to the arbitral agreement and process.\u00a0 If enforcement of an award is sought in a jurisdiction that is different from the place of arbitration, then the enforcement jurisdiction\u2019s laws will apply to determine the enforceability of the award in that jurisdiction.<\/p>\n

Selection of a Seat<\/em><\/strong><\/h3>\n

The wise selection of the Seat is essential in order for an international arbitration to proceed efficiently, effectively and in accordance with the parties\u2019 objectives (G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2208).\u00a0 It is therefore highly advisable for arbitration agreements to designate the Seat.<\/p>\n

Factors to consider in agreeing a Seat<\/strong><\/p>\n

In 2015, the Chartered Institute of Arbitrators published the \u201cCIArb London Centenary Principles<\/em>\u201d, which aim to help parties to identify \u201can effective, efficient and \u2018safe\u2019 Seat for the conduct of International Arbitration<\/em>\u201d.\u00a0 The principles comprise 10 elements:<\/p>\n

    \n
  1. an arbitration law providing a good framework for the process, limiting court intervention, and striking the right balance between confidentiality and transparency;<\/li>\n
  2. an independent, competent and efficient judiciary;<\/li>\n
  3. an independent, competent legal profession with expertise in international arbitration;<\/li>\n
  4. a sound legal education system; the right to choose one\u2019s legal representative, local or foreign;<\/li>\n
  5. ready access to the country for witnesses and counsel and a safe environment for participants and their documents;<\/li>\n
  6. good logistical support, including transcription, hearing rooms, document handling, and translation;<\/li>\n
  7. professional norms embracing a diversity of legal and cultural traditions, and ethical principles governing arbitrators and counsel;<\/li>\n
  8. well-functioning venues for hearings and other meetings;<\/li>\n
  9. adherence to treaties for the recognition and enforcement of foreign awards and arbitration agreements; and<\/li>\n
  10. immunity for arbitrators from civil liability for anything done or omitted to be done in good faith as an arbitrator.<\/li>\n<\/ol>\n

    One of the most important considerations is that the Seat should have both national arbitration legislation and courts that are supportive of international arbitration (G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2211).\u00a0 Choosing a Seat where the national legislation supports and facilitates the arbitral process, rather than obstructing or invalidating it, is essential.\u00a0 Many modern national arbitration laws are based on the United Nations Commission on International Trade Law (UNCITRAL<\/strong>) Model Law on International Commercial Arbitration 1985 (the Model Law<\/strong>), which ensures some degree of uniformity.\u00a0 The Model Law addresses at a relatively high level the minimum procedural requirements and the relationship between arbitrating parties and the courts.\u00a0 This includes issues such as the rules on tribunal and court-ordered interim measures, minimum requirements for the appointment of tribunal members, the making of the award, and the courts\u2019 powers to assist and supervise an arbitration, both during and after proceedings.\u00a0 However, it is important to distinguish between the formal legislation applicable in a particular jurisdiction and the actual practice by national courts and other competent authorities within the jurisdiction (G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2212).<\/p>\n

    National courts in the Seat have the possibility of significantly affecting the arbitral proceedings when they are commenced or as they proceed (G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2212).\u00a0 When selecting a Seat, parties should consider identifying a Seat that limits the opportunity for unnecessary or disruptive judicial intervention in arbitration proceedings.\u00a0 Judicial involvement can affect selection of the tribunal members, interlocutory judicial decisions regarding jurisdictional disputes or judicial prescription or supervision of the procedural rules for the arbitration.\u00a0 Local courts must also be experienced in complex commercial matters, particularly relating to arbitration, and must be independent and objective.\u00a0 These qualities can be difficult to find in many jurisdictions.<\/p>\n

    Another central consideration is the enforceability of the award.\u00a0 The Seat chosen should be within a State party to the New York Convention on the Recognition and Enforcement of Arbitral Awards 1958 (New York Convention<\/strong>) in order to ensure enforceability in other States that are parties to the Convention (G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2210-2211).\u00a0 If you obtain an award from an arbitration tribunal seated in a New York Convention contracting State which you intend to enforce in another New York Convention State, it will significantly minimise the risks relating to enforcement, and will assist in avoiding local law issues relevant to enforcement.\u00a0 In this regard, 92% of BRI jurisdictions have ratified the New York Convention, making arbitration the most viable dispute resolution tool for cross border transactions under the BRI.\u00a0 The only countries that have not ratified the New York Convention are Iraq, Maldives, Timor-Leste, Turkmenistan and Yemen.\u00a0 Enforcing arbitration awards in these jurisdictions will depend on local laws and court procedures, and may be less straightforward.\u00a0 Parties to transactions involving any non-New York Convention territory should take specialist advice to ensure their dispute resolution provisions are suitable.\u00a0 Parties should think twice about selecting these jurisdictions as their Seat if they wish to enforce their awards in jurisdictions in which the New York Convention applies.\u00a0 If parties intend to enforce an award against a counterparty in any of these non-New York Convention jurisdictions, the fact that the chosen Seat is a party to the New York Convention will become much less relevant.<\/p>\n

    The New York Convention also has relevance before the enforcement stage, as it contains provisions requiring the courts of contracting States to refer matters to arbitration where they are the subject of a valid arbitration agreement.<\/p>\n

    The law of the Seat should permit maximum party autonomy in determining the procedure.\u00a0 To this end, parties may wish to choose a Seat that imposes less mandatory procedure rules on arbitrations located in the Seat.\u00a0 This will enable the parties to have the maximum flexibility to design a suitable procedure.<\/p>\n

    Confidentiality in arbitration is often seen as a key reason why parties choose it over other mechanisms to resolve disputes (IM Smeureanu, Confidentiality in International Commercial Arbitration<\/em> (Kluwer Law International 2011) at xv and xvi).\u00a0 However, it is important for parties to bear in mind that there remains no consensus internationally on confidentiality and the Model Law is silent on the issue.\u00a0 Courts in some jurisdictions have accepted that the duty of confidentiality applies in arbitration, such as Singapore (see Myanma Yaung Chi Oo Co v Win Win Nu <\/em>[2003] SLR 547 (HC Singapore)), but others have chosen not to recognise such an implied obligation of confidentiality (e.g. United States and Sweden).\u00a0 Some jurisdictions have enacted statutory rules to provide for a rule of arbitral confidentiality, such as Hong Kong (see s 18 of the Hong Kong Arbitration Ordinance (Cap 609)).<\/p>\n

    A further consideration is whether the Seat imposes any restrictions on the parties\u2019 freedom to choose counsel or arbitrators.\u00a0 The influence of the Seat can be either direct (through statutory requirements) or indirect (resulting from practical considerations).\u00a0 For example, some jurisdictions may impose restrictions such as nationality requirements.\u00a0 The immigration regime and professional regulations for the country could also raise barriers to entry or participation by foreigners as counsel, arbitrators, party representatives or witnesses.\u00a0 Other logistical considerations should be geographical convenience and whether the Seat would have available an adequate pool of local practitioners who can support possible ancillary litigation.\u00a0 As a practical matter, in choosing a sole or presiding arbitrator, many appointing authorities will be inclined to select an individual qualified to practise law in the Seat and resident in the Seat (G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2213).<\/p>\n

    Many BRI projects are predominantly built by Chinese investors and backed by Chinese State financiers such as the China Development Bank, the Silk Road Fund and the China EXIM Bank.\u00a0 On the other side, many projects are directly backed or guaranteed by the BRI-targeted countries (and, in particular, Central Asian States).\u00a0 As Chinese parties are likely to have greater leverage in BRI negotiations, it is expected that this may lead to more Chinese-centric or, at the very least, Asia-centric choices of the arbitration institution and Seat in BRI disputes.\u00a0 Parties should therefore anticipate that their counterpart may well propose that the Seat of the arbitration be located in China.\u00a0 Indeed, one issue for parties in China-related disputes is whether they are able to choose their Seat freely at all.\u00a0 Broadly speaking, Chinese law only permits foreign-seated arbitration in respect of contracts that are \u201cforeign-related\u201d.\u00a0 A contract is foreign related if: (i) it involves a party that is either foreign or has its habitual residence outside the territory of Mainland China; (ii) the subject matter of the dispute is outside the territory of Mainland China; (iii) the facts that lead to the establishment, alteration or termination of the civil relationship occurred outside the territory of the Mainland; or (iv) there exists circumstances that may be deemed foreign-related.\u00a0 Foreign ownership of a Chinese entity may not be sufficient to qualify as \u201cforeign-related\u201d, but Chinese courts have shown a greater willingness to recognise that the involvement of a party that is a wholly foreign-owned enterprise registered in one of the designated free trade zones creates a foreign element in the dispute.<\/p>\n

    Outside of China, Hong Kong and Singapore are the most likely options for BRI-related disputes, given their well-established pro-arbitration legal regimes, excellent logistical facilities and Chinese-language capacity.\u00a0 These potential Seats can be compared with some of the Central Asian options, which tend to feature an inexperienced judiciary, international doubts with regard to the integrity of the local judicial system and unfamiliarity on the part of foreign investors with the material law of the jurisdiction (WE Butler, \u2018International Commercial Arbitration in Central Asia\u2019 (2014) 6 Y.B. Arb. & Mediation 255 at 268).\u00a0 These factors will discourage foreign investors from selecting these options as the Seat.<\/p>\n

    Hong Kong<\/strong><\/p>\n

    Hong Kong is in a unique position in the BRI being a part of China under the \u201cone country two systems<\/em>\u201d arrangement, while simultaneously maintaining separate and independent legal system based on common law.<\/p>\n

    As the Secretary General at the Hong Kong International Arbitration Centre (HKIAC<\/strong>) noted (see https:\/\/www.kwm.com\/en\/knowledge\/insights\/belt-and-road-conversation-cietac-hkiac-20170522<\/a>):<\/p>\n

    Hong Kong\u2019s independent legal system and judiciary, extensive network of professional services in finance, accounting, construction and law, bilingualism, and geographical proximity to China are particularly important.\u00a0 A large proportion of the initiative\u2019s investment will be channelled through Hong Kong, particularly through Hong Kong incorporated vehicles.\u00a0 As a result, Hong Kong is a critical centre for Belt and Road projects.<\/p><\/blockquote>\n

    Hong Kong upholds the rule of law, which is overseen by an independent judiciary (ranked first in Asia for judicial independence by the World Economic Forum\u2019s Global Competitiveness Report for the past 24 years), with a proven pro-arbitration stance.\u00a0 The Hong Kong courts take a \u201chands-off\u201d approach to arbitration and the arbitration-related cases are heard at first instance by specialist judges.<\/p>\n

    According to the 2021 Queen Mary University of London and White & Case International Arbitration Survey, Hong Kong is the third most preferred Seat in the world (Queen Mary University of London and White & Case, \u20182021 International Arbitration Survey: Adapting arbitration to a changing world\u2019 (2021) <http:\/\/www.arbitration.qmul.ac.uk\/media\/arbitration\/docs\/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf<\/a>> accessed 7 August 2021).<\/p>\n

    If parties select Hong Kong as the Seat, they are free to choose lawyers and arbitrators from anywhere in the world without restriction.\u00a0 Hong Kong has expressly provided in its Arbitration Ordinance that restrictions on who can serve as counsel in court proceedings do not also apply to arbitration.<\/p>\n

    As the first Asian arbitration statute to be based on the 2006 UNCITRAL Model Law, the Arbitration Ordinance (introduced on 1 June 2011) cements Hong Kong\u2019s status as a user-friendly Model Law jurisdiction.\u00a0 Among other things, key features include the express provisions permitting courts to enforce urgent relief ordered by emergency arbitrators in or outside Hong Kong together with the explicit assurance of confidentiality of arbitral proceedings, awards, related court proceedings and judgments.<\/p>\n

    Hong Kong is an attractive option for Chinese parties who seek geographical proximity and cultural familiarity, and for non-Chinese parties who seek independence, neutrality and international best practice.\u00a0 Hong Kong\u2019s role as a centre for international dispute resolution for the BRI has also been recognised and endorsed by the PRC government.<\/p>\n

    Chinese parties to BRI contracts are likely to feel more comfortable with institutions that are familiar with Chinese business practices and are accustomed to conducting proceedings in the Chinese language.\u00a0 Hong Kong may be the go-to jurisdiction for parties looking to meet their Chinese counterparties half-way.<\/p>\n

    In June 2017, Hong Kong amended its Arbitration Ordinance to allow third-party funding for international arbitration and related court proceedings.<\/p>\n

    Hong Kong is a party to the New York Convention (by virtue of ratification by the PRC), meaning that awards made in Hong Kong are enforceable in more than 168 jurisdictions.<\/p>\n

    Hong Kong is also advantageous for parties intending to enforce arbitral awards against assets, or requiring evidence, located in Mainland China.\u00a0 Hong Kong has its advantages due to the reciprocal arrangements with China for enforcement of arbitration awards and interim measures (Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong SAR).\u00a0 Further, on 30 December 2009, the SPC issued a notice confirming that both ad hoc<\/em> and institutional arbitration awards made in Hong Kong are enforceable in Mainland China.\u00a0 Since the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong SAR came into force in October 2019, applicants have obtained orders from Mainland Chinese courts preserving assets amounting to more than US$1.3 billion.\u00a0 The arrangements extend to arbitrations seated in Hong Kong before six arbitral institutions (including HKIAC, CIETAC and ICC).<\/p>\n

    Singapore<\/strong><\/p>\n

    In the latest 2021 Queen Mary University of London and White & Case International Arbitration Survey, Singapore was ranked jointly with London as the most popular Seat in the world, and the most preferred Seat in the Asia-Pacific region (Queen Mary University of London and White & Case, \u20182021 International Arbitration Survey: Adapting arbitration to a changing world\u2019 (2021) <http:\/\/www.arbitration.qmul.ac.uk\/media\/arbitration\/docs\/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf<\/a>> accessed 7 August 2021).<\/p>\n

    Singapore is perceived as a neutral and independent third-country venue and is ranked as the top Asian country in the 2020 Rule of Law Index and 2020 Corruption Perceptions Index.<\/p>\n

    The Model Law is the cornerstone of Singapore\u2019s legislation on international commercial arbitration, which is regularly updated to incorporate accepted codes and rules of arbitration.\u00a0 The early adoption of the Model Law allowed Singapore to advance itself rapidly by promoting its role as an important centre for international legal services and arbitrations.<\/p>\n

    Just like Hong Kong, Singapore is a party to the New York Convention, meaning that its arbitration awards are enforceable in over 160 countries worldwide.<\/p>\n

    Its courts offer maximum judicial support and minimum judicial intervention in international arbitration proceedings, having developed an \u201cunequivocal judicial policy of facilitating and promoting arbitration<\/em>\u201d (see Tjong Very Sumito v Antig Investments Pte Ltd <\/em>[2009] 4 SLR(R) 732 at [28]).\u00a0 The Singapore courts are even empowered to make interim orders in aid of arbitration seated outside of Singapore.<\/p>\n

    Parties also have complete freedom to choose counsel in arbitration proceedings with no restrictions on foreign law firms doing arbitration work in Singapore.\u00a0 Non-resident lawyers and arbitrators do not require work permits to carry out arbitration services in Singapore.\u00a0 Foreign counsel may even conduct arbitrations where the substantive governing law is Singapore law (see the Singapore Legal Profession Act).<\/p>\n

    It also has lower costs than almost any other major centre of arbitration.\u00a0 It also permits the use of third-party funding for international arbitration and related litigation (see the Civil Law (Amendment) Act 2017).<\/p>\n

    The SICC (described further above) is empowered to hear proceedings under the Singapore International Arbitration Act, including applications to set aside awards, jurisdictional challenges and enforcement applications.<\/p>\n

    China<\/strong><\/p>\n

    On the advantages of China as a Seat, see generally Fei Ning and others, \u2018Annual Review on Commercial Arbitration in China\u2019, in Commercial Dispute Resolution in China: An Annual Review and Preview (2020)<\/em> (Kluwer Law International 2020).<\/p>\n

    It is important to note that the PRC Arbitration Law diverges from the Model Law in several respects (see L Song, \u2018National Report for China (2020 through 2021)\u2019 in L Boseman (ed), ICCA International Handbook on Commercial Arbitration <\/em>(Kluwer Law International 2020)).\u00a0 For example, an arbitration agreement featuring China as the Seat must designate an arbitration commission (i.e. administering institution), meaning that there is no room for ad hoc <\/em>arbitration (except for arbitrations seated in free trade zones).\u00a0 In other words, arbitration agreements for ad hoc<\/em> arbitration seated in Mainland China are generally unenforceable.<\/p>\n

    Mainland China also does not fully recognise the principle that arbitral tribunals may decide on their own jurisdiction (i.e. the \u201cKompetenz-Kompetenz<\/em>\u201d principle).\u00a0 Instead, arbitration commissions are generally empowered to make a ruling on the issue.<\/p>\n

    One further consideration is that discovery (i.e. document disclosure) is likely to be limited in arbitrations seated in Mainland China.<\/p>\n

    However, on 30 July 2021, the Ministry of Justice of the PRC published a consultation draft of revisions to the current PRC Arbitration Law.\u00a0 If implemented, these would considerably liberalise China\u2019s legislative arbitration infrastructure.\u00a0 For example, the proposed revisions may open the door to foreign arbitration institutions accepting and administering China-seated cases and would expressly permit ad hoc <\/em>arbitration in certain instances.\u00a0 The revisions would also involve instating the principle of Kompetenz-Kompetenz<\/em>.<\/p>\n

    Under the current Chinese legal framework, courts in Mainland China have the exclusive power to grant interim relief for arbitration both before and during arbitral proceedings.\u00a0 In other words, interim relief in support of arbitration in Mainland China is not available from the arbitral tribunal.\u00a0 Such restrictions will also be lifted if the revisions to the PRC Arbitration Law are implemented.<\/p>\n

    Selection of an institution and\/or its rules<\/strong><\/h2>\n

    Another key decision to make when drafting an arbitration agreement is whether to opt for institutional or ad hoc<\/em> arbitration.<\/p>\n

    Institutional arbitrations are administered and overseen by an arbitration institution\/commission in accordance with its own arbitration rules which govern many procedural aspects.\u00a0 The institution provides administrative assistance with running the arbitration in exchange for a fee.<\/p>\n

    Institutions offer the procedural \u201csafety net<\/em>\u201d of tried-and-tested rules, periodically refined over many years (Gerbay R, The Functions of Arbitral Institutions<\/em> (Kluwer Law International 2016) at 36\u201337; Blackaby N and others, Redfern and Hunter on International Arbitration<\/em> (6th<\/sup> ed, OUP 2015) at 45).\u00a0 While adopting such rules may be said to limit flexibility, it can save time, costs and the potential dissatisfaction of a situation in which parties\u2019 disagreement over the arbitral procedure (or any material ambiguity or inconsistency in their personalised arbitration agreement concerning the same) requires such matters to be left to the determination of\u00a0 the arbitral tribunal (if constituted) or domestic courts (Gerbay R, The Functions of Arbitral Institutions<\/em> (Kluwer Law International 2016) at 36\u201337).\u00a0 It can also be more cost effective than negotiating a detailed ad hoc<\/em> arbitration clause which is capable of providing as much detail as the comprehensive rules offered by institutions (Gerbay R, The Functions of Arbitral Institutions<\/em> (Kluwer Law International 2016) at 37).\u00a0 The efficiency of such an approach relies on the cooperation of the parties and the complexity of the disputes.\u00a0 For completeness, while parties may adapt institutional rules for use in an ad hoc <\/em>arbitration, these rules typically weave-in references to institutions that may be unlikely to work effectively without their support (Blackaby N and others, Redfern and Hunter on International Arbitration<\/em> (6th<\/sup> ed, OUP 2015) at 43).\u00a0 However, parties may elect to conduct an ad hoc<\/em> arbitration according to established rules such as the UNCITRAL Arbitration Rules (Blackaby N and others, Redfern and Hunter on International Arbitration<\/em> (6th<\/sup> ed, OUP 2015) at 42).<\/p>\n

    Most arbitral institutions rules typically make provision for (see G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2366):<\/p>\n

      \n
    1. filing and service of the request for arbitration;<\/li>\n
    2. filing and service of the answer and counterclaim(s);<\/li>\n
    3. the appointment of arbitrators, challenges and other matters concerning the constitution of the arbitral tribunal;<\/li>\n
    4. selection of the arbitral seat and language of the arbitration;<\/li>\n
    5. disposition of jurisdictional challenges, including the arbitrators\u2019 competence-competence and the separability of the arbitration agreement;<\/li>\n
    6. written submissions;<\/li>\n
    7. taking of evidence and holding of hearings;<\/li>\n
    8. provisional measures;<\/li>\n
    9. choice of substantive law;<\/li>\n
    10. timetable for an award;<\/li>\n
    11. formalities of and procedures for making awards; and<\/li>\n
    12. allocation and quantum of costs.<\/li>\n<\/ol>\n

      In more recent years, some institutional rules have also added provisions for, among other things: emergency arbitral relief before the arbitral tribunal has been constituted; powers for the tribunal to summarily dispose of issues or claims; and expedited or fast-track arbitral procedures.<\/p>\n

      Ad hoc<\/em> arbitrations are arranged solely between the arbitrators and the parties themselves.\u00a0 Reflecting a more bespoke approach, the parties must envisage and advance the arbitration procedure themselves under the supervision of the tribunal.\u00a0 Parties often choose to adopt a ready-made set of arbitration rules (such as the UNCITRAL Rules of Arbitration) or, alternatively, draw up a bespoke set of procedural rules for the particular case.\u00a0 Parties tend to opt for ad hoc<\/em> arbitration where they are more experienced in international arbitration.\u00a0 The disadvantage of ad hoc <\/em>arbitrations is that you would not have an administrative authority to assist with issues such as the appointment or challenge of arbitrators.\u00a0 If parties opt for ad hoc <\/em>arbitration, the 2010 UNCITRAL Rules provide a set of rules that include procedures for the replacement of an arbitrator, the requirement for reasonableness of costs and a review mechanism for arbitration costs, as well as additional provisions dealing with multi-party arbitration, joinder, and interim measures.<\/p>\n

      One consideration to factor into the decision as to whether to opt for institutional arbitration is whether the user is likely to be the claimant or the respondent in any arbitration.\u00a0 This may be relevant given that certain rules provide for fee arrangements that require the claimant to bear more of the up-front costs.\u00a0 There is also the possibility that the respondent may refuse to participate in the arbitration.\u00a0 Certain institutional or ad hoc<\/em> rules address this situation and enable the arbitration to proceed in the absence of a party (e.g. the ICC Rules, SIAC Rules, HKIAC Rules and UNCITRAL Rules).\u00a0 If the arbitration clause or rules do not allow the arbitration to proceed in the absence of a party, it may require lengthy and costly court proceedings to compel arbitration.<\/p>\n

      Another consideration is whether there are any jurisdiction-specific constraints.\u00a0 For example, China\u2019s arbitration law may not recognise ad hoc<\/em> arbitrations seated in Mainland China generally, unless the parties in dispute are both registered in free trade zones and certain other conditions are satisfied.<\/p>\n

      It is noted that, if the parties adopt institutional or ad hoc<\/em> arbitration rules, they must abide by any mandatory rules of those institutions.<\/p>\n

      Selecting an institution<\/em><\/strong><\/h3>\n

      An institution\u2019s approach to confidentiality illustrates the differences that arise.\u00a0 For example, the ICC Rules do not contain any express confidentiality provisions, but the tribunal may make orders concerning the confidentiality of proceedings.\u00a0 By contrast, HKIAC and SIAC both provide for confidentiality as the default rule, subject to certain exceptions.<\/p>\n

      Similarly, the institution\u2019s approach to the publication of awards (in a redacted form) may be an important consideration.\u00a0 In this regard, HKIAC provides that publication of redacted awards is permitted unless a party specifically objects.\u00a0 By contrast, the SIAC Rules provide that publication requires the prior written consent of all parties and the tribunal.\u00a0 The ICC Rules are silent on the issue, but the ICC routinely publishes redacted awards\/decisions.<\/p>\n

      An institution\u2019s approach to the time limit for issuing a final award may also be a relevant factor.\u00a0 The ICC Rules provide that the final award should be issued within six months of the date of the terms of reference (unless extended by the ICC).\u00a0 The SIAC Rules provide that an award shall be issued within 45 days of the date of closure of the proceedings.\u00a0 The ICC Rules remain silent on the time limit.<\/p>\n

      The extent to which awards are scrutinised also varies significantly.\u00a0 Awards made by ICC arbitrators are scrutinised and approved by the ICC court to maintain consistency and a high standard of award-writing.\u00a0 Certain other institutions, e.g. CIETAC, also scrutinise awards.\u00a0 By contrast, HKIAC and the SIAC do not scrutinise awards.<\/p>\n

      The disputes that emanate from the BRI projects will often involve multiple contracts as well as multiple parties both from within and without the BRI jurisdictions.\u00a0 With this in mind, parties should be minded to consider institutional rules that are designed to deal with multi-party and multi-contract scenarios and have favourable rules for consolidation, joinder or commencement of a single arbitration under multiple contracts.<\/p>\n

      The HKIAC and SIAC Rules are also the most expansive when it comes to joinder of third parties.\u00a0 In any case, if parties wish to provide for joinder in circumstances other than those allowed by their selected rules (if any), they should include in their arbitration agreement wording that expressly provides for it.<\/p>\n

      Many of the leading institutional rules provide a framework for consolidation.\u00a0 The ICC, SIAC and HKIAC Rules all permit consolidation at the request of any party to any dispute, even in the absence of consent from all other parties, with some distinctions.\u00a0 For example, under the ICC Rules, consolidation is allowed where: the claims arise under the same agreement; or the arbitrations are between the same parties, they relate to claims that arise in connection with the same legal relationship and the arbitration agreements are compatible.\u00a0 The SIAC Rules are similar expect that they need not be between the same parties.\u00a0 The HKIAC Rules are also similar except that claims made under different arbitration agreements must have a common question of law or fact and the rights to relief claimed must be in respect of, or arise out of, the same transaction or series of transactions.<\/p>\n

      Many institutional rules grant tribunals the authority to prescribe the procedure for obtaining and submitting evidence.\u00a0 Exercising this power, tribunals often have regard to the IBA Rules on the Taking of Evidence in International Arbitration 2010, which are designed to fill the void left in the Model Law between the submission of initial pleadings and the issuance of an award (see WW Park, \u201cArbitration in Autumn\u201d (2011) 2 JIDS 287 at 290).\u00a0 The rules present a method for conducting an arbitration, which blends common law and civil law procedures, balancing fairness and efficiency in order to render efficient and economical the taking of evidence in international arbitrations.\u00a0 They present internationally recognised standards, which most parties should find acceptable.\u00a0 For these reasons, parties may wish to spell out expressly in their arbitration agreement that they would like to apply the rules (or include certain provisions of the rules and not others).<\/p>\n

      Popular institutions for BRI disputes<\/em><\/strong><\/h3>\n

      Although the advantages of a number of arbitration institutions are dealt with elsewhere in this publication, the section that follows provides an introduction to some of the key points relating to the most popular institutions to be used for BRI disputes.<\/p>\n

      Preferred venues would likely continue to be HKIAC and SIAC, where BRI-oriented programmes and rules are well established.\u00a0 These institutions are world class and are well placed to resolve such disputes.<\/p>\n

      Other regional institutions, including Malaysia\u2019s KLRCA and Seoul\u2019s KCAB, are also positioning themselves to attract BRI disputes.<\/p>\n

      HKIAC<\/strong><\/p>\n

      HKIAC is generally considered to be the leading international arbitration centre in the Asia-Pacific region in terms of attracting end-users from the Asia-Pacific.\u00a0 It is perceived to be the most neutral arbitration institution for parties coming from both civil and common law jurisdictions.<\/p>\n

      HKIAC even has specific BRI-related arbitration clauses and administered arbitration rules to deal with BRI disputes.\u00a0 HKIAC also has extensive experience administering arbitrations involving parties from jurisdictions along the BRI.\u00a0 Since the introduction of its 2013 Administered Arbitration Rules, it has handled 362 cases involving a party from a BRI jurisdiction, and one-third of the cases it handled in 2017 involved a Mainland Chinese party and a party from a BRI jurisdiction.\u00a0 Indeed, HKIAC has administered more disputes involving Chinese parties than any other non-Mainland arbitral institution (M Gearing and J Liu, \u2018The Contributions of the Hong Kong International Arbitration Centre to Effective International Dispute Resolution\u2019 in P Quayle and X Gao, International Organizations and the Promotion of Effective Dispute Resolution: AIIB Yearbook of International Law 2019 <\/em>(Vol 2, Brill 2019) 41, at 53).<\/p>\n

      HKIAC awards have a strong track record of enforcement in BRI countries and, according to HKIAC, an \u201cunrivalled record\u201d of enforcement in Mainland China (https:\/\/www.hkiac.org\/arbitration\/why-choose-hkiac<\/a>).<\/p>\n

      HKIAC Rules allow multiple arbitrations to be consolidated, additional parties to be joined to arbitrations, and single arbitrations to be commenced under multiple contracts.<\/p>\n

      HKIAC Rules can be strategically used to control costs and increase efficiency in multi-party multi-
      \ncontract disputes, of the kind that typically arise in construction, joint venture and finance disputes.<\/p>\n

      Unlike the other leading institutional rules, a selection of the HKIAC Rules will result in Hong Kong being the default Seat of the arbitration unless the parties have selected a Seat or the tribunal determines that another place is more appropriate.<\/p>\n

      HKIAC has formed an industry-focused BRI Advisory Committee to support parties embarking on BRI projects.\u00a0 The committee comprises independent experts from the finance, infrastructure, insurance, construction and maritime sectors.<\/p>\n

      SIAC<\/strong><\/p>\n

      SIAC is a popular, experienced regional arbitral institution.\u00a0 Experienced parties and lawyers from common law countries such as Australia, India and the United States tend to favour SIAC, which is known to favour appointing arbitrators from a common law background, particularly from England, the United States and Australia.\u00a0 In contrast to HKIAC, which is very much Asia-centric, SIAC targets end-users and arbitrators from outside Asia including the United Kingdom and the United States.<\/p>\n

      It is not necessary for the parties to have any connection with Singapore in order to refer a case to SIAC for administration.\u00a0 Indeed, approximately half of the cases filed with SIAC have no connection with Singapore.\u00a0 For completeness, SIAC is able to administer arbitrations even where the Seat of arbitration is not Singapore.<\/p>\n

      Under the SIAC Rules, parties may agree on a Seat of arbitration (see above<\/em>) and failing such agreement, the tribunal shall determine the Seat.\u00a0 However, Singapore will serve as the default Seat for emergency arbitration proceedings unless the parties have agreed otherwise.<\/p>\n

      SIAC has fluency in English as well as Bahasa Indonesia, Chinese, French, Hindi, Korean, Lithuanian, Malay, Russian and Tagalog.\u00a0 If the arbitration agreement so requires (i.e. if the parties agree), SIAC is generally able to administer the case in languages other than English.<\/p>\n

      Subject to the parties agreement to the contrary or other circumstances, hearings do not need to be held in Singapore.\u00a0 It is also possible for parties to agree on a documents-only arbitration.<\/p>\n

      SIAC maintains a panel of arbitrators composed of experienced, qualified and well-known arbitrators from over 40 jurisdictions.\u00a0 However, parties to an arbitration are free to nominate arbitrators of their choice (even if they are not on the SIAC Panel of Arbitrators).<\/p>\n

      There are no restrictions on foreign law firms or foreign counsel acting in arbitrations in Singapore.\u00a0 However, if the dispute involves issues of Singapore law, parties may wish to engage Singapore counsel to advise on such issues.<\/p>\n

      SIAC also offers an expedited \u201cfast-track\u201d procedure available to parties on application to SIAC.\u00a0 The final award will be typically issued within six months of the constitution of the tribunal.\u00a0 To qualify for the expedited procedure, the amount in dispute should not exceed SGD 6 million.\u00a0 Alternatively, the case must be one of exceptional urgency or the parties must agree on the expedited procedure.<\/p>\n

      The Emergency Arbitrator procedure is a special procedure whereby an Emergency Arbitrator is appointed to hear applications for urgent interim relief prior to the constitution of the tribunal.\u00a0 SIAC was the first Asian arbitration institution to offer this procedure and has received more than 50 applications for the appointment of an Emergency Arbitrator since 1 July 2010.<\/p>\n

      In addition to the Expedited Procedure, the SIAC Rules 2016 were the first to offer a procedure for the early dismissal of claims and defences.\u00a0 A party may make an application to the tribunal for the early dismissal of a claim or defence on the basis that:<\/p>\n

        \n
      1. a claim or defence is manifestly without legal merit; or<\/li>\n
      2. a claim or defence is manifestly outside the jurisdiction of the tribunal.<\/li>\n<\/ol>\n

        ICC<\/strong><\/p>\n

        The ICC Rules are familiar to many parties worldwide.\u00a0 In comparison to other commonly used rules, the ICC Rules provide for substantially more administrative involvement at various stages of the proceeding, including scrutiny of draft awards.\u00a0 The ICC Rules continue to be revised and updated as part of the ICC efforts to improve efficiency and transparency.<\/p>\n

        As the world\u2019s leading arbitral institution, the ICC is adept at handling complex cases, including high-value, multi-party and multi-contract disputes.\u00a0 Approximately half of all cases filed with the ICC involve three or more parties.<\/p>\n

        ICC arbitration is a neutral and globally trusted way to effectively resolve disputes and deliver enforceable awards in virtually all Belt and Road countries, including China.\u00a0 Parties to ICC arbitration seated in Hong Kong can also seek interim relief from the Chinese courts, under the aforementioned arrangement between Mainland China and Hong Kong.\u00a0 This is a significant advantage in Belt and Road deals.<\/p>\n

        As opposed to other institutions that have a propensity to appoint arbitrators from outside the Asia-Pacific region, the ICC is generally known for its diversity-conscious position and tends to appoint arbitrators from within the region and to allocate appropriate civil or common law arbitrators.<\/p>\n

        In March 2018, the ICC announced that it had established a commission to review dispute resolution in relation to the BRI (https:\/\/iccwbo.org\/dispute-resolution-services\/belt-road-dispute-resolution\/belt-and-road-commission<\/a>).\u00a0 The commission shall help the ICC to develop its existing dispute resolution procedures and infrastructure to support BRI disputes.\u00a0 Through its BRI Commission, the ICC could also see an increased caseload based on disputes coming out of the Central Asian region.<\/p>\n

        CIETAC<\/strong><\/p>\n

        CIETAC is the most representative international arbitration institution in China with the longest history.<\/p>\n

        It is often selected by non-PRC parties as the arbitration institution for arbitrations in Mainland China.\u00a0 Other Chinese institutions such as the Beijing Arbitration Commission\/International Arbitration Center (BAC<\/strong>) have also been steadily increasing their reputation for professionalism and internationalisation in recent years.\u00a0 In 2013, CIETAC\u2019s sub-commissions in Shanghai and Shenzhen declared their independence from CIETAC.<\/p>\n

        All three maintain practices consistent with international standards of neutrality and have allowed for the inclusion of foreign arbitration specialists as well as leading foreign arbitration specialists in China on their respective panels of arbitrators.\u00a0 They also allow for foreign lawyers to participate in hearing processes and for foreign and international law to be pleaded as the governing law.<\/p>\n

        To date, CIETAC has already handled many BRI-related cases and adopted measures to play an active role in furthering the initiative.\u00a0 From January 2013 to June 2019, CIETAC has accepted 557 Belt and Road-related cases, involving a total dispute amount of RMB 24.357 billion and involving 43 Belt and Road countries.<\/p>\n

        It has also stepped up its efforts to enhance the quality of its arbitration services.\u00a0 CIETAC has selected and engaged arbitrators in consideration of the advantages of BRI countries.\u00a0 Having accomplished the renewal of its arbitrators in 2017, CIETAC has now engaged more arbitrators form the BRI countries, with the number of arbitrators increased from 51 to 78, and the nationalities from 17 to 32, further enhancing the perceived credibility and influence of CEITAC\u2019s arbitral awards.<\/p>\n

        Since the implementation of the BRI, CIETAC has organised and carried out a number of research projects on the international arbitration systems of the Belt and Road countries and has \ufb01nished research on the commercial arbitration systems in 25 countries such as India, Indonesia, Vietnam, Turkey and Pakistan.\u00a0 Based on this research, CIETAC has provided enterprises with speci\ufb01c information concerning the arbitration systems and institutions of the relevant countries, to help them avoid legal risks and conduct comprehensive assessments of their economic and trade activities in the Belt and Road countries.<\/p>\n

        Law governing the substance of the dispute<\/strong><\/h2>\n

        Most national, transnational and international legal systems afford parties to an arbitration agreement considerable autonomy in selecting the substantive rules of law applicable to their disputes, leaving it to the arbitral tribunal to determine the proper law in the absence of a party choice (G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2877-2880).<\/p>\n

        Arbitrators identify the applicable substantive law by relying on the will of the parties, as expressed in their arbitration agreement.\u00a0 Indeed, the great majority of national and international choice of law rules privilege party autonomy, so that if parties have expressly or implicitly selected the substantive law(s) to apply to their dispute, that choice will be respected.\u00a0 Notably, Article 28(1) of the Model Law treats the parties\u2019 designation of the law of a State as a choice to adopt the substantive law of the State rather than just its law of conflict of laws.<\/p>\n

        In making a choice as to the substantive law(s) to apply, parties should bear in mind that, even where they have chosen a proper law of the contract, it does not automatically follow that all aspects of their dispute will be governed by that chosen law.\u00a0 Where, for example, the parties have chosen a foreign law to govern the contract, matters such as liability in tort, the quantification of damages and limitation may still be governed by the law of the Seat.\u00a0 Ultimately, the arbitral tribunal will have to ask itself both what is the proper law of the contract and what is the proper law of the non-contractual dimension of the dispute.<\/p>\n

        Although foreign laws such as English law are often used as the applicable law for international engineering contracts, the host country\u2019s laws may still provide for the mandatory application of the host country\u2019s laws in certain areas for reasons such as protection of public interest (The Belt and Road Initiative: Legal Risks and Opportunities Facing Chinese Engineering Contractors Operating Overseas <\/em>(Permanent Forum of China Construction Law 2019) at 58).\u00a0 For example, some host countries make mandatory provisions that the project agreement for some of the country\u2019s infrastructure projects must apply the local laws of the host country, or at least require that the guarantee document that provides the guarantee with the assets of the host country apply the local law of the host country.\u00a0 For example, in Russia, if the construction project involves a \u201cforeign element\u201d, foreign law can be chosen as the applicable law, but even so, in certain circumstances, according to the \u201csuper mandatory clause\u201d in Russian law, the selected applicable law will also be excluded in favour of Russian law.<\/p>\n

        Where the agreement is silent on the substantive law(s) that should apply, the Model Law provides that the arbitral tribunal should apply the law determined by the conflict of laws rules which it considers applicable (see ILA \u201cInternational Commercial Arbitration Committee\u2019s 2010 Report and Recommendations on Ascertaining the Contents of the Applicable Law in International Commercial Arbitration\u201d (2010) 26 Arb Int\u2019l 193 at 195).\u00a0 In determining which conflict laws to apply, the parties\u2019 choice of a Seat will not necessarily indicate a choice to submit to the conflicts rules of the Seat.\u00a0 Different approaches are taken.\u00a0 Those approaches are beyond the scope of the present chapter.<\/p>\n

        Which law to select?<\/em><\/strong><\/h3>\n

        Parties are afforded great flexibility in selecting the substantive law to govern their dispute.\u00a0 Indeed, they need not be limited to selecting a single national law to govern.\u00a0 For example, they could choose a set of specific rules crafted for purpose, transnational rules such as lex mercatoria<\/em> (i.e. the autonomous set of rules developed from the practice of merchants and from international codifications which can be applied directly by arbitrators) or even the 1994 UNIDROIT Principles of International Commercial Contracts.\u00a0 A wide array of non-national alternatives are encountered.<\/p>\n

        The simplest, safest and most common choice-of-law agreement specifies the law of a single State.\u00a0 However, it may even be suitable in some circumstances for the parties to select a set of combined laws to apply in respect of their particular contractual context, and may even help to resolve a deadlock during negotiations over the choice of law.\u00a0 However, parties should exercise some caution in selecting a combination of laws, as this may give rise to complex issues where there are inconsistencies between the selected laws that are difficult to resolve (and may prolong the resolution of disputes) (see G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2961-2966).<\/p>\n

        Note that, where parties agree that \u201ctrade usages\u201d are to be taken into account in deciding the dispute, this is likely to be understood as providing for the consideration by the tribunal of the practices, expectations and economic context of particular types of business transactions which will inform how the applicable substantive rules should be applied to a particular dispute, as opposed to a selection of a non-national legal system (see G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 2666\u20132667 and 2983\u20132987).<\/p>\n

        A variety of considerations affect the choice of the substantive law governing the parties\u2019 contract.\u00a0 These considerations typically guide commercial parties in similar directions towards a mutually acceptable, neutral and objective legal system.<\/p>\n

        Law governing the arbitration agreement<\/strong><\/h2>\n

        The law of the arbitration clause potentially governs matters including the formation, existence, scope, validity, legality, interpretation, termination, effects and enforceability of the arbitration clause and the identities of the parties to the arbitration clause.<\/p>\n

        Although the parties\u2019 consent is essential for an agreement to arbitrate, the ultimate efficacy of an agreement depends in large part upon its validity and enforceability in national courts (G Born, International Commercial Arbitration <\/em>(2nd<\/sup> ed, Kluwer Law International 2014) at 256).\u00a0 Only if national courts are prepared to recognise and enforce an agreement to arbitrate can the parties\u2019 will be effective.<\/p>\n

        Issues involving questions of contractual formation, validity, scope and interpretation are determined by the law governing the arbitration agreement.\u00a0 These issues are important because, in order for an arbitral tribunal to have jurisdiction to decide a dispute, the dispute must fall within the scope of a valid arbitration agreement and be capable of being determined by arbitration.\u00a0 If the resulting award deals with matters outside of the scope of the arbitration agreement, the award may be set aside or refused recognition and enforcement.<\/p>\n

        The law governing a contract may not necessarily also be the law governing the arbitration agreement itself (see, generally, Lew JDM and others, Comparative International Commercial Arbitration <\/em>(Kluwer Law International 2003) at [6-1]\u2013[6-69]).\u00a0 Most national and international laws of arbitration treat the arbitration agreement as a distinct agreement from the rest of the contract, which may be subject to its own governing law (a principle known as the \u201cseparability of the arbitration agreement\u201d) (Lew JDM and others, Comparative International Commercial Arbitration <\/em>(Kluwer Law International 2003) at [6-9]).\u00a0 This enables parties to select a different or neutral law to govern their arbitration agreement, if they so choose.<\/p>\n

        In the absence of an express choice, the main alternatives for a default or implied choice are the law of the Seat or the proper law of the principal contract.\u00a0 There is a lack of uniformity between jurisdictions as to which of them is the preferred option (for the latest position in the United Kingdom, see Enka v Chubb <\/em>[2020] UKSC 38).<\/p>\n

        Conclusion<\/strong><\/h1>\n

        In conclusion, recognising the significant potential for disputes in relation to BRI projects, parties should approach the drafting of their arbitration agreements with counterparties in a careful and considered way to ensure that their disputes can be resolved fairly, efficiently and effectively.\u00a0 Among other things, parties should factor into their thinking the nature of the contract, the parties, the type of disputes that might be expected to arise and the jurisdictions likely to be involved when it comes to enforcement.\u00a0 Drafting an appropriate clause also requires an understanding of any circumstances that may call for special provisions relating to interim relief, confidentiality, joinder or consolidation.<\/p>\n

        As already mentioned, an arbitration clause need not be complex in order to be effective, but it is prudent to think strategically about the parties\u2019 likely posture in any dispute and how that should be translated into an arbitration clause that will maximise the prospect of a successful and effective resolution.<\/p>\n","protected":false},"excerpt":{"rendered":"

        Belt and Road Initiative (BRI) projects bind together Chinese investors (often as project financers) and public and private entities of host States or other third-country participants including multinational corporations.\u00a0 Many projects are complex, high-value, long-term, capital intensive, multi-party, multi-contract, cross-border transactions, often involving at least one Chinese party (M Gearing and J Liu, \u2018The Contributions […]<\/p>\n","protected":false},"featured_media":0,"parent":38827,"template":"","meta":{"inline_featured_image":false},"product_brand":[],"product_cat":[3224],"product_tag":[],"class_list":{"0":"post-38853","1":"product","2":"type-product","3":"status-publish","5":"product_cat-belt-and-road-initiative","7":"first","8":"instock","9":"downloadable","10":"virtual","11":"taxable","12":"purchasable","13":"product-type-simple"},"yoast_head":"\nDrafting effective arbitration clauses for the BRI<\/title>\n<meta name=\"description\" content=\"This 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