Promoting Impartiality of International Commercial Arbitrators Through Chinese Criminal Law: Arbitration by 'Perversion of Law'

Abstract

This essay is prompted by a recent Chinese criminal provision governing the impartiality of arbitration. The goal of the essay is to critically examine the new crime and put forward some proposals for reform, which could be employed to resolve the tension that exists between arbitrator impartiality and deference to arbitration. Although the new provision appears to be a rule to eliminate the abuse of arbitral power, it may raise more questions than it resolves. This essay explores the problems and undertakes a comparative analysis of the U.S provision as well as an analysis of some cultural and traditional elements influencing the new crime in China. From the author’s point of view, the concerns could be better met by fine-tuning the rule rather than abandoning it in order to keep a balance between the previous two conflicting values. A mechanism of Judicial Interpretation is proposed borrowing some U.S. experience. It could well suit China’s needs because the benefits of arbitration can be retained without sacrificing the impartiality of arbitration.

Keywords: arbitration, criminal law, international commerce arbitration, Chinese legal system