中欧仲裁合作新桥梁
—— 中欧争议解决研讨会实录
发布时间：2016年7月1日 作者：华南国际经济贸易仲裁委员会 责任编辑：陈嘉敏
2016年6月18日，由深圳国际仲裁院（又名“华南国际经济贸易仲裁委员会”，英文简称“SCIA”）和瑞士仲裁协会（英文简称“ASA”）共同主办的“中欧争议解决研讨会暨中欧国际仲裁合作签约仪式”在深圳前海举行。SCIA与ASA等机构签署了合作协议，将加强多元化争议解决机制的创新和交流。活动还得到深圳市律协、瑞士驻广州总领事馆、中国欧盟商会、瑞士商会仲裁院（英文简称“SCAI”）等机构的大力支持。来自瑞士、法国、德国、英国、加拿大、美国、香港和中国内地的境内外专家和专业人士共200余人参加了本次活动并对中欧国际仲裁相关问题进行了深入探讨。
A NEW BRIDGE FOR SINO-EUROPEAN ARBITRATION COOPERATION:
THE TRANSCRIPTIONS OF SINO-EUROPEAN DISPUTE RESOLUTION SEMINAR
中欧仲裁合作新桥梁
—— 中欧争议解决研讨会实录
1. Welcome Remarks by Dr. LIU Xiaochun, the President of SCIA
Good morning, honorable Swiss Deputy General Consul Schmid, honorable President Geisinger, honorable President Habegger, distinguished guests, ladies and gentlemen. On behalf of the council of Shenzhen Court of International Arbitration (hereinafter referred as “SCIA”), I have the great pleasure and privilege to welcome you all to participate in today's seminar, co-hosted by SCIA and ASA (the abbreviation of the Swiss Arbitration Association).
Today's seminar will focus on dispute resolution involving Chinese and European parties from the perspective of legal professionals and entrepreneurs. The speakers will discuss several important issues, including location.
Talking about the location, we know Switzerland is an arbitration hub at the heart of Europe, and Shenzhen is an arbitration hub at the heart of Asia-Pacific. As we can see from the map, Shenzhen is a gateway city to China. It is the nearest seaport for Europe, Middle East, Africa, Southeast Asia and the Oceania, to mainland China. Meanwhile, almost half of the global population can fly to Shenzhen or its neighbor, Hong Kong, within five hours.
Because of the location advantage, Shenzhen became the first window of China’s market and the first Chinese Special Economic Zone in 1980. The Economists regarded Shenzhen as the most successful Special Economic Zone in the world, among 4,300 Special Economic Zones globally. Because of its location, Shenzhen has become the biggest city in mainland China in terms of export volume since 1993, and it is one of the hubs of mainland China for international investment inbound to China or outbound from China. It is also well known that Shenzhen is the most important hi-tech industrial city in mainland China, with many famous world-class companies such as Huawei, ZTE, and DJI, etc. Also because of the location and the fast-growing economy, Shenzhen is a hub for international arbitration and China's pioneer for international arbitration since the establishment of SCIA in 1983 at Shenzhen.
SCIA is the first arbitration institution in mainland China to include foreign professionals on its panel of arbitrators since 1984, and it is also the first one in mainland China whose arbitral award was enforced outside the mainland China jurisdictions in 1989, according to the New York Convention.
SCIA became the first one in mainland China, in 2012, to establish a council-based corporate governance structure. According to a unique statutory body legislation, the Regulations on SCIA, at least one-third of the council members and at least one-third of the panel of arbitrators of SCIA must come from outside jurisdictions. It makes SCIA not only the most independent arbitration institution in mainland China in terms of governance structure, but also the most cosmopolitan arbitration institution in mainland China in terms of the panel of arbitrator origination.
Now we, SCIA, have 870 panel arbitrators, covering 50 countries, and 353 from outside jurisdictions, accounting for 40.6% of the total, including 103 from 19 European countries, and five from Switzerland. Since the establishment of SCIA in 1983, our arbitration parties originated from more than 60 countries, and our mediation parties originated from 111 countries. Just last year, an international dispute came to SCIA and was settled by the means of Med-Arb within 13 days, only 13 days, with a disputing amount of RMB 13.4 billion, which set a new record in China's arbitration history.
Today in the seminar, we are pleased to see many in-house counsels and representatives from many Chinese companies, and also many from European companies. To satisfy the demand of the dispute resolution involving China parties and European parties, today, SCIA and ASA will sign a cooperation agreement, and SCIA and the SCAI will sign a memorandum of understanding for cooperation. I believe that the mutual cooperation between our two countries represents a new bridge and a natural step in enhancing both locations as the hubs of international arbitration involving parties from China, Switzerland, Europe and Asia.
Finally, I have to thank you all for coming. I have to thank the sponsors and supporters. I hope you enjoy today's event. Thank you.
1、深圳国际仲裁院刘晓春院长的欢迎致辞
尊敬的瑞士驻广州总领事馆副总领事Schmid先生，瑞士仲裁协会主席Geisinger先生，瑞士商会仲裁院院长Habegger先生，女士们，先生们：
早上好！
请允许我代表深圳国际仲裁院（下称“SCIA”）以及深圳国际仲裁院理事会，向各位参加由SCIA与ASA联合主办的中欧争议解决研讨会的来宾，表示热诚的欢迎！
今天研讨会的主题是从法律人士与企业人士的角度观察中欧争议解决。演讲嘉宾将着重讨论包括地理区位议题在内的几个重要议题。
众所周知，瑞士不仅坐落在欧洲的地理中心，而且同时也是欧洲的仲裁中心。借此我想向各位介绍，深圳同样是坐落在亚太的地理中心且同样是亚太的仲裁中心。从地图上看，深圳是中国的南大门。深圳不仅坐拥中国大陆通往欧洲、中东、非洲、东南亚和大洋洲的距离最近的海港，而且深圳，以及它的邻居香港，还是全球一半以上人口在五小时之内可以飞抵的中心。
占据地利先机，始建于1980的深圳经济特区成为外界了解中国市场的第一个窗口，并且通过三十余年的奋斗，深圳被英国《经济学人》杂志评选为全球4,300个经济特区当中最成功者。地利先机使深圳自1993年起便成为中国国际贸易出口额最大的城市，以及中国吸引外资和对外投资的最主要城市之一。不仅如此，深圳的高科技产业在国内外亦举足轻重，孵育了如华为、中兴、大疆等世界知名企业。地利先机与迅速增长的经济，也使深圳从 1983年SCIA的创建开始，就成为中国仲裁的一个先锋城市和中心城市。
SCIA于1984即建立国际仲裁员名册，在中国开创了聘请境外仲裁员的先河；1989年，SCIA开创了中国内地裁决根据《纽约公约》获得境外法院承认和执行的先例。
2012年，SCIA又引领中国仲裁机构改革之风，率先建立以理事会为核心的法人治理结构。根据中国仲裁机构中目前独一无二的法定机构立法，即《深圳国际仲裁院管理规定（试行）》，至少三分之一的理事以及至少三分之一的仲裁员必须来自境外。这种立法规定，不仅使SCIA在治理结构上成为中国内地最独立的仲裁机构，也在仲裁员来源结构上成为中国国际化的仲裁机构。如今，SCIA的870名仲裁员来自50个国家和地区。其中，353名仲裁员来自境外，境外仲裁员比例占40.6%；103名欧洲仲裁员来自19个国家和地区，其中瑞士籍仲裁员有5名。
自1983年成立以来，SCIA仲裁案件当事人来源国超过60个，调解案件当事人来源自111个国家。去年，一起争议金额为134亿元人民币的国际纠纷的当事人，在纠纷发生后，将案件交由SCIA处理，刷新了中国仲裁史的记录。仅仅在13天的时间里，SCIA以“调解+仲裁”的方式，高效解决了纠纷。
在今天的研讨会上，我们很高兴看见很多来自中国企业、欧洲企业的代表。为了满足中欧日益增长的争议解决需求，SCIA和ASA，SCIA和SCAI将共同签署仲裁合作协议。我相信，我们中瑞双方的合作，作为中欧仲裁合作的新桥梁，将进一步强化两者作为欧洲和亚太仲裁中心的地位，促进中国和瑞士之间、欧洲和亚太地区之间的争议解决。
最后，再次欢迎各位的到来，也感谢这次活动的赞助方和支持方。希望在座各位共同参与、尽情分享今天的研讨会。谢谢！
2. Welcome Remarks by Mr Beat Schmid, the Deputy Consul General at Consulate General of Switzerland in Guangzhou
Dear President Liu Xiaochun, dear President Elliott Geisinger, distinguished guests, ladies and gentlemen:
Good morning!
I'm very pleased to be here today on behalf of the Consul General of Switzerland, and I would like to first of all thank the Swiss Arbitration Association and the South China International Economic and Trade Arbitration Commission for organizing the Sino-European Dispute Resolution Seminar today here in Shenzhen, the first of its kind in South China. Just a few words of introduction to start.
Switzerland was one of the first countries to recognize the People's Republic of China in January 1950, and since then the Sino-Swiss relations have been very good. This has greatly facilitated the political, economic and cultural contacts between the two countries. In fact, the Swiss company Schindler set up the first Sino-foreign joint venture in 1980. Over the last few years, the economic and trade relations between China and Switzerland has been developing at an extraordinarily fast pace and in a very positive way.
In 2007, Switzerland recognized China as a market economy and, as the first G20 country, signed a free trade agreement with China in 2013. This agreement entered into force on 1 July 2014. This further enhanced bilateral trade, which amounted to about US$20 billion last year.
China is now the largest trade partner for Switzerland in Asia, and the third worldwide after the European Union and the United States of America. Today, there are around 600 Swiss companies with about 1,000 branches operating in China, with an investment of approximately US$ 17 billion in 2013.Switzerland joined the Asian Infrastructure Investment Bank as one of the first countries in 2015.Both countries have now become important partners for each other, with multilevel cooperation in various fields.
Furthermore, the Chinese and Swiss economies are complementary in many ways and we can learn from each other, like organizing this seminar now, almost two years after the enforcement of the free trade agreement between Switzerland and China, and several high-level visits. One was the state visit of the Swiss president this year in April.
It is time to deepen the discussion about all aspects of international cooperation. Arbitration and dispute resolution is key in cross-border trade in business, and therefore signing a Sino-European arbitration cooperation agreement will further enhance the economic relations between China and Europe.
Now, I don't want to let you listen to more of my speech, so during this seminar, I'm sure you will get to know more about the way Switzerland is dealing with disputes and arbitration in an international environment, and I wish all of you good success, lots of discussion, and interesting inputs from all our speakers. Thank you very much.
2. 瑞士驻广州总领事馆副总领事Beat Schmid先生的欢迎致辞
尊敬的刘晓春院长，尊敬的Geisinger主席，尊敬的各位来宾，女士们，先生们：
早上好！
首先，非常感谢瑞士仲裁协会和深圳国际仲裁院（华南国际经济贸易仲裁委员会）的邀请，让我有机会代表瑞士驻广州总领事馆出席本次华南地区首次举办的中欧争议解决研讨会。众所周知，瑞士是最早承认新中国独立的欧洲国家之一。自1950年1月建交起，中瑞友谊一直健康发展，并极大促进了两国政治、经济和文化方面的交流。实际上，早在1980年，瑞士的迅达集团便首先成立了中外合资企业。最近几年，中瑞经济贸易关系一直以非常快速的步伐向着非常积极的方向发展。2007年，瑞士便承认中国的市场经济地位，并且在2013年，瑞士便成为20国集团中首先与中国签署自由贸易协定的国家。2014年7月1日实施的该自由贸易协定继续推动双边贸易向前发展。去年为止，两国贸易总额已达到200亿美元（US$20billion）。
如今，中国已是瑞士在亚洲的最大贸易伙伴，是瑞士继欧盟、美国之后世界范围内第三大贸易伙伴。时至今日，600余家瑞士企业在华共有1,000家余家分支机构；截止2013年，投资总额大约有170亿美元。2015年，瑞士成为早期加入亚洲基础建设投资银行的国家之一。中瑞两国已经逐渐成为彼此在多领域都有多层次合作的重要合作伙伴。
不仅如此，中瑞经济在许多层次上形成了相互补充、相互学习的关系。今天研讨会的举办也得益于中瑞自由贸易协议签订后、高层互访的结果，其中以瑞士联邦主席今年四月访华为代表。
如今，是时候深化中瑞两国各方面的国际合作了。仲裁与争议解决是解决跨境争端的钥匙，因此，签署中欧仲裁合作协议将深化中国和欧洲的经济合作。现在，我想把更多的时间留给参与研讨会的专家学者；我敢肯定，所有来宾将获得更多瑞士在国际仲裁方面的资讯。最后，我真诚地祝贺研讨会圆满成功，所有来宾都获益匪浅。
谢谢！
3. Welcome Remarks by Mr Elliott Geisinger, the President of ASA
Good morning!
On behalf of the Swiss Arbitration Association or ASA, I would like to extend a very warm welcome to all of you, be you members of the Bar, our colleagues; be you representatives of the industry, of the companies that are engaged in international trade -- you are the ones arbitration is all about; be you also students or representatives of the academic world, because students are the future of the law, the future of arbitration, and the representatives of the academic world. You are the ones who give us light, without which we would be flying blind. Welcome to all of you.
Before I say a few words, I'd like to say some words of thanks. First of all, and obviously, to the Shenzhen Court of International Arbitration, in particular to Dr Liu Xiaochun, the president, who has just spoken. To the council members, including the dean of the law faculty of the Shenzhen University; Prof Peter Malanczuk, who you will also hear today; and Mr Huen, president of the Inter-Pacific Bar Association. You will also hear him.
Of course, we are very grateful for the presence of Mr Beat Schmid, the Deputy Consul General Of Switzerland in Guangzhou.
We also must thank our generous sponsors, and I would like to say a few words of thanks to the Swiss Chambers' Arbitration Institution, who have also given us much support. We have present today Ms Caroline Ming, who is the executive director and general counsel of the Swiss Chambers' Arbitration Institution, or SCAI; and we have Dr Philipp Habegger, who is the president of the court, and we are very honoured by their presence.
Last but not least, I must thank the speakers, without whom you would not be here today.
Perhaps a few words about ASA, the Swiss Arbitration Association. We are a Swiss-based non-profit organization having about 1,100 members. One-third of them are outside of Switzerland. The goal of ASA is to promote arbitration, not just in Switzerland but globally, as an effective means of resolving disputes.
Now, contrary to many misunderstandings, we are not an arbitration institution. We do not have arbitration rules, we do not administer arbitrations. We are sometimes called on to appoint arbitrators or to provide other services in support of arbitration, but what we are is we are a thought centre. We are a leader in finding and exploring ideas and doing research on arbitration globally. We have a board of academics and practitioners and also users of international arbitration to help us further our goals. What we do is to organize conferences or co-organize conferences such as today's. We have publications, the quarterly ASA Bulletin, and the ASA Special Series which are follow-up publications on our major conferences.
We are an NGO at UNCITRAL, where we sit as observers in arbitration-related matters, and we have many arbitration-related projects worldwide.
The Swiss arbitration institution that administers arbitration, the main one, is SCAI. We are best friends, but we are independent. So, that having been said, what brought us here to Shenzhen? The People's Republic of China and Switzerland, as the Deputy Consul General said, have very close, longstanding ties of friendship. We have very close trade ties. That brings me to the next subject, which is arbitration. Now, arbitration, of course, is a natural part of this international trade. It is a very important part of this, because without effective and trustworthy dispute resolution, there is no trust in international trade. And in this respect, the People's Republic of China and Switzerland actually have much more in common than one would think.
First of all, there is a very ancient tradition of arbitration in both countries. There is, of course, a very ancient tradition of dispute resolution otherwise in the courts in China. As far as Switzerland goes, the tradition of arbitration goes back to at least the 13th century, based on existing texts, perhaps older than that. China is the country that has by far, and by very far, the most arbitrations every year.
Switzerland has a population not of 1.2 billion, but 8 million people, a fraction of the population of Shenzhen. Switzerland is a dwarf, perhaps, demographically, but it regularly ranks at the top of ICC in Paris' statistics in terms of selected arbitration seats. It hosts the Court of Arbitration for Sport, which has a practical monopoly on sports arbitration worldwide. It also boasts organizations such as the World Intellectual Property Organization, which is linked to the United Nations and that has a centre in Geneva. More generally, Swiss neutrality has made Switzerland a choice venue for the resolution of disputes between states, and this has extended into private disputes as well. It would be of interest for those of you who are not aware, Switzerland is not a member of the European Union, nor is it a member of NATO.
There are also cultural similarities between Switzerland and China, and this might come as a surprise, but they are in existence. In a country, as I said, of 8 million inhabitants, you have four official languages. That's quite a lot. In China, of course, you have many more than that. But, still, you have four official languages in Switzerland -- German, French, Italian, and Romansh which is spoken in some of the alpine valleys. But it's not just that. The language of business in Switzerland is increasingly English. English is used in arbitration in Switzerland very, very often, more than very often, I should say. About 90% of arbitrations in Switzerland are conducted in English and any language can be chosen for any arbitration. If you want to have an arbitration conducted in Mandarin or in Cantonese in Switzerland, you can.
So what is the message we try to bring today? The message is not, "Take your arbitrations and bring them all to Switzerland." That would not be a realistic or friendly message. No. What our message is that we realize that a Chinese party will want to have its dispute resolution clauses providing for dispute resolution in China. That is normal. That is perfectly normal, that is healthy, and that is something that Western companies will have to get used to. So part of our mission today is to learn from you in order to inform the Western countries when we go back to Europe about what arbitration in China is about. And the other thing that we can do is that you also realize that Chinese companies can also negotiate, in the negotiations, a dispute resolution clause with dispute resolution in China. In that case, Switzerland is a very natural choice for you, and Shenzhen being the pioneer of this both economically and in terms of arbitration, this is the perfect venue to have what we hope to be a very fruitful exchange of ideas. I'm very impatient for this exchange of ideas to begin, so I will not take any more of your time. Thank you very much.
3. 瑞士仲裁协会主席Elliott Geisinger先生的欢迎致辞
早上好！
我代表瑞士仲裁协会（ASA）热烈欢迎各位来宾。在座的来宾，你们可能是律师、是仲裁界的同行，也可能是行业代表或是有国际贸易业务的公司代表……不论你们是何种身份，今天，你们都是仲裁界的同仁。如果你们恰好是学生或是学术界代表，那么你们就是仲裁的未来，若没有你们的指引，我们将迷失方向。欢迎你们！
在演讲前，我想先感谢深圳国际仲裁院特别是刚发言的刘晓春院长，感谢深圳国际仲裁院的理事会成员——深圳大学法院黄亚英院长、Peter Malanczuk 教授和环太平洋律师协会会长王桂壎先生。Peter Malanczuk 教授和王桂壎先生都是今天的发言嘉宾。
同时，我们也非常感谢瑞士驻广州总领事馆副总领事Beat Schmid先生出席本次研讨会。
感谢各赞助方以及瑞士商会仲裁机构（SCAI）给本次研讨会的大力支持。非常荣幸，SCAI执行主任和总顾问Caroline Ming女士、SCAI主席Philipp Habegger博士今日都莅临了现场。
还有很重要的一点感谢，就是感谢今天所有的发言嘉宾。
请允许我借着这个机会向大家介绍瑞士仲裁协会（ASA）。我们是瑞士的非营利性组织，拥有1100名成员，其中三分之一的成员不在瑞士。ASA的目标是在瑞士乃至世界范围内推广仲裁，作为快速有效的争议解决方式。
需要澄清的是，我们并非一个仲裁机构，我们没有仲裁规则，不能进行仲裁程序管理。有时我们会（根据当事人请求）指定仲裁员，或者提供其他支持仲裁的服务。我们更像是一个智库，在全球范围内探索、研究与仲裁相关的内容。我们有学术委员会，执行人员和国际仲裁的参与人员，他们能帮助我们进一步实现我们的目标。我们的工作是组织或者与其他机构联合组织研讨会，比如像今天的会议。我们有出版物，比如ASA季度公报、ASA根据大型研讨会议整理的后续系列特别报道等。
作为一个非政府组织，我们在联合国国际贸易法委员会的身份是仲裁相关事务的观察者。我们在全球有许多仲裁相关的项目。
在瑞士，对仲裁案件进行程序管理的是瑞士的仲裁机构。其中，SCAI就是非常重要的一家。我们之间的联系非常紧密，然而我们又互相独立。那么今天是什么让我们相聚在深圳？中国与瑞士，正如副总领事所言，关系非常紧密，两国友谊源远流长，且有紧密的贸易往来。在这个背景下，加强两国仲裁行业的合作就是我们的下一个目标。我们都认为，仲裁是国际贸易往来中的重要组成部分。如果没有快速、可信赖的争议解决方式，国际贸易中就没有信任。基于此，中国与瑞士的共同点比人们想象中的更多。
第一，仲裁在两个国家都具有悠久的历史。在中国，另一个传统的争议解决方式当然是诉讼。在瑞士，根据现存的文字记载，以仲裁作为争议解决方式最早能追溯到13世纪，或许比这个要更早。目前，中国是每年仲裁案件数量最多的国家。
瑞士拥有800万人口，只是深圳的一小部分。在人口数量上看瑞士或许是一个侏儒（比中国少很多），但从ICC巴黎的数据统计看，选择瑞士作为仲裁地的数量是最多的。瑞士不仅有实际垄断全球体育仲裁的体育仲裁院，还有具有引以为豪的国际组织，例如与联合国相关、中心设在日内瓦的世界知识产权组织。更广义上来说，瑞士的中立特性也使得瑞士成为解决国家间争议以及个人间争议的受欢迎地点。你们可能会觉得很奇怪，瑞士不仅不是欧盟成员国，也不是北大西洋成员国，却能得到全世界人民的青睐。
瑞士和中国之间也有文化的相似性，这可能会令人惊讶，但它是真实存在的。在瑞士，正如我所说的，800万的居民，有4种官方语言，分别是德语、法语、意大利语以及少数在阿尔卑斯山脉说的罗曼什语。不仅如此，瑞士的商务语言逐渐成为英语。英语在瑞士仲裁中使用较为平常，大约90%在瑞士的仲裁使用英语。当然，你也可以选择其他语言，比如普通话、粤语作为仲裁语言。
今天我们想要传达的并不是要求大家将所有的仲裁都选择在瑞士进行。那将是不实际甚至是不友好的信息。我们想要表达的是，我们认识到中国当事人大都希望将他们的争议在中国解决，这是非常正常的。许多西方的公司也应当接受和适应中国当事人的这一选择。我们今天来到这里，更想做的是向你们学习，这样当我们回到欧洲时可以向西方国家介绍中国仲裁的概况。我们认识到的另一点是，许多中国企业在谈判中都将中国的仲裁作为解决争议的方式。其实，对于中国企业之间的争议来说，到瑞士仲裁也是一个非常中立的选择。深圳是一个在经济和仲裁水平上都占领先地位的城市，我们也希望可以在这里多多交换意见、互相学习。我迫不及待想要听到在座各位嘉宾的演讲，因此我不再占用更多的时间，感谢大家！
4. Welcome Remarks by Mr. Vivian Desmonts, SCIA Arbitrator, Partner at DS Avocats
Good morning, distinguished guests, ladies and gentlemen.
My name is Vivian Desmonts. I am a French lawyer. I've been a practicing commercial lawyer in China for over 15 years, including 10 years here in Guangdong province, and I have the honor to be an arbitrator and to sit as a co-arbitrator at SCIA.
But today I'm here as a board member of the European Chamber of Commerce in China. The European Chamber of Commerce in China is an association with over 1,800 companies in China with European investments, including international groups. The European chamber in China is quite well known, especially for its publications, including the position papers and the business confidence survey reports. Those reports every year draw quite some attention in the press and the business community here in China and also in Europe, of course. Basically the position paper and the business confidence survey reports share the concerns of foreign investment partners here in China on their business challenges, legal challenges, and hot topics.
Regarding the arbitration topic, the European Chamber of Commerce here in South China strongly supports the SCIA because President Liu and the rest of the team are very efficient and friendly, but especially for comparative advantages from a legal point of view. First, as you may know, we've got commercial disputes, and as mentioned earlier, there's a tradition in China to usually avoid the People's Court and it's still true nowadays, and to prefer alternative dispute resolution methods. In China, in the mainland, there is no ad hoc arbitration; just institutional arbitration is allowed. And here in South China, the SCIA, which used to be called CIETAC for 30 years, is the largest arbitration institution here in South China and possibly in the whole region of Asia-Pacific in terms of number of cases which are heard. SCIA is independent and impartial. This is really a key point. The second comparative advantage I find is that the SCIA, the arbitration commission, is established here in mainland China. And as it is established here, its arbitral awards are directly enforceable in mainland China. This is not the case for foreign or even Hong Kong arbitral awards, which, as you know, must be recognized here by People's Court here in China before enforcement. The third comparative advantage, which is actually linked to the second one, is that of course the SCIA and its arbitral tribunal can adopt interim measures during the arbitral proceedings, and this will also be dealt with and discussed later on during the day.
So in my opinion, these are really clear advantages of the SCIA, and I'm really looking forward to hearing the speakers this morning sharing their opinions and experience. Thank you very much.
4. 深圳国际仲裁院仲裁员、中国欧盟商会华南分会副主席Vivian Desmonts先生的欢迎致辞
尊敬的各位来宾，女士们，先生们，
早上好!
我是Vivian Desmonts，是一名法国律师。我在中国从事商事法律业务已超过15年，其中在广东执业10年。同时，我也有幸能成为SCIA的仲裁员。
今天，我是以中国欧盟商会理事会成员的身份受邀出席这次中欧研讨会。中国欧盟商会拥有1800家中国投资欧洲的会员公司和国际团体。中国欧盟商会在中国的知名度比较高，其出版物包括意见书、企业信用调查报告等都很受欢迎。这些报告每年都能吸引中国以及欧洲媒体界、工商界的关注。意见书以及企业信用调查报告中会涵括外国投资者在中国所面临的商业、法律的挑战及其他热点话题。
中国欧盟商会华南分会非常支持深圳国际仲裁院的工作。刘晓春院长和仲裁院的同事们都非常友好，在工作中也表现得十分高效。从法律专业的观点来看，深圳国际仲裁院有其独有的相对优势：第一，如上所说，可能大家也知道，在处理商事争议时，我们尽量避免选择法院解决争议而选择其他争议解决的方式。中国大陆没有临时仲裁，而只允许进行机构仲裁。在华南地区，深圳国际仲裁院（又名“华南国际经济贸易仲裁委员会”，曾名“中国国际经济贸易仲裁委员会华南分会”、“中国国际经济贸易仲裁委员会深圳分会”）是华南地区最大的仲裁机构，也可能是亚太地区处理仲裁案件数量最多的机构。深圳国际仲裁院是一个独立，公正的机构，这是它最大的优势。第二个相对优势为，深圳国际仲裁院在中国大陆地区成立，它的仲裁裁决可以在中国大陆直接得到执行。这与外国甚至是香港地区的仲裁裁决不同：境外裁决必须先得到中国法院的承认，然后才能在中国执行。第三个相对优势与第二个优势联系较大，就是深圳国际仲裁院以及它的仲裁庭可以在仲裁程序中采取临时措施。有关临时措施的内容在稍后会有演讲嘉宾进行深入探讨。
我认为，以上均是深圳国际仲裁院比较明显的优势。我非常期待在今天的研讨会上听到各位演讲嘉宾分享的观点与经验。
谢谢大家！
5. Welcome Remarks by Mr. William Wong, S.C., SCIA Arbitrator, Executive member of Hong Kong Bar Association
Good morning, distinguished guests and ladies and gentlemen.
First of all, on behalf of the Hong Kong Bar Association, may I extend our most warm congratulations to the successful holding of this first ever Sino-European Dispute Resolution Seminar. As a member of the Hong Kong Bar, a friend to the SCIA, I am always positively amazed about the innovation of SCIA.
Now, the organization of this first Sino-European seminar is the first of its kind, I am told, in China. Now, this is due to the great work of members of SCIA, including our President, Dr Liu Xiaochun. I have a brief discussion with some of our panel members from our friendly country, Switzerland, and I'm told that many of the panel members, it's the first time for them to come to Shenzhen. And certainly I would hope they will come to Shenzhen more often. In the past 20 or 30 years, Shenzhen may not be a familiar name in the European culture, but hopefully with the work this morning, you will come to this part of the world more frequently. So the first point is, I extend my sincere congratulations and hope that this event will be most successful.
If I may say so, any institution or any organization can be successful, booming and thriving, based on two factors. One is whether there is a body of professionals, high-quality professionals, high-quality individuals, to administer the organization. Now, I'm doing a bit of an advertisement for SCIA. SCIA has the highest calibre and collection of professionals, not only from Mainland China but across the world. I notice that from the President's speech, he said that there are five Swiss lawyers being appointed as panel members of arbitration of the SCIA. In my personal view, five is too small a number. Certainly it can be increased with more cooperation, and therefore it brings me to the second point of any successful arbitration institution. It's that you have to earn the credibility of counterparties. If you want a business to come to Shenzhen or any institution to do arbitration, you have to make sure that the parties are confident that they are going to get a fair, impartial and efficient result. And therefore it goes with the mission of the SCIA that independence and integrity, impartiality, are the core values of the organization. Now, it's not just about saying "independence" and "impartiality". It's actually walking the walk about independence and impartiality. You can see, particularly with the leadership of Dr Liu, SCIA has made massive progress under the core values to make the organization credible as far as overseas counterparties are concerned. I hope this is the first step. This seminar is not the end point; it's only the first step for the two countries and two organizations to cooperate.
From the program today, there are two topics which I find particularly interesting. First, it talks about cultural differences. There are certainly a certain degree of cultural differences. Understanding is important for building credibility. So to have a discussion about the cultural differences between the two arbitration institutions or two countries is very, very valuable. And I also notice there is a topic on the style, the Swiss style of arbitration. This is also very important because not only is business coming to China, in fact, China businesses are going out of China to invest in European countries. And therefore to understand your counterparties' style, culture, and the ability to do arbitration in Switzerland, what are the issues you will be faced with and what are the solutions that you can get. I hope the participants in this organization, in this seminar, will be fruitfully rewarded by coming to this seminar.
The Hong Kong Bar Association now has 1,300 independent barristers. We are not employed; we are self-employed. We're independent. We have high integrity. So we think with two of the core values, throughout the years we have very good cooperation with SCIA. Many of our members are panel members, arbitrators, of SCIA. We have a very good cooperation, and we look forward to the continuance of such cooperation. Last but not least, I sincerely hope that this seminar will have a great success.
Thank you very much.
5. 深圳国际仲裁院仲裁员、香港大律师公会执行委员王鸣峰资深大律师的欢迎致辞
尊敬的各位来宾，女士们，先生们:
早上好!
首先，请允许我代表香港大律师公会祝贺今天成功举办中欧仲裁争议解决研讨会。作为香港大律师公会成员和深圳国际仲裁院的仲裁员，我经常被深圳国际仲裁院的各类创新所吸引。
据我所知，本次中欧争议解决研讨会是首次在中国举办，这归功于由深圳国际仲裁院刘晓春院长和仲裁院团队作出的努力。我曾与瑞士的仲裁员进行过简短交流，他们多数是第一次来到深圳。我希望以后他们可以多来深圳。在过去的20或30年间，大多数欧洲人不熟悉深圳这个城市，但希望在参加今天这个研讨会之后，你们可以常来深圳。首先，我想要对这次大会的成功举办表示真挚的祝贺。
任何一个组织或机构的发展繁荣基于两个因素。第一，是否由一批高素质的专家和员工组成。深圳国际仲裁院拥有一批高水平的专家，他们不仅仅来自中国大陆，也来自全球。从院长的发言中，我们知道深圳国际仲裁院仲裁员目前有5名来自瑞士的仲裁员。从我个人而言，5是一个小数，它代表着中瑞之间有很大的仲裁合作和交流空间。这也是一个成功的仲裁机构所需具备的因素。第二个重要因素则是公信力。你需要取得对方当事人的信任，如果当事人希望在深圳或者其他地方进行仲裁，你应确保当事人可以得到一个公正、独立、高效率的结果。深圳国际仲裁院的三大核心使命就是独立、公正、创新。如今“独立、公正”不再仅仅停留在文本上，而更应身体力行。在深圳国际仲裁院院长刘晓春博士的带领下，SCIA通过坚守这三大核心理念取得了巨大的成效，赢得了海内外当事人的信任。我希望这次研讨会的举办是两国和两个机构迈向合作的第一步，将来还会有更多的合作可能。
我对今天研讨会其中的两个发言很感兴趣。一个是中欧仲裁机构“文化的差异”。文化的差异可以分为不同的层次，互相理解对于建立信任至关重要，所以讨论两个仲裁机构之间的文化差异或者两个国家的文化差异之价值非常大。另一个有趣的话题是“瑞士仲裁模式”。现在，外国（商人）来中国进行贸易往来，中国（商人）也走出了国门到欧洲进行投资，彼此增进对于对方处事模式、文化、仲裁的了解以及学习面对问题的解决方式就显得尤为重要。我希望参与这次研讨会的各位来宾能有较大收获。
香港大律师公会拥有1300名出庭律师，我们不受雇于他人，我们是独立且正直的。多年来，我们一直秉承这两项核心价值与深圳国际仲裁院合作。我们的许多成员是深圳国际仲裁院的理事或仲裁员。我们与深圳国际仲裁院的合作非常愉快，并期待长久保持这种合作关系。最后，我祝愿这次研讨会圆满成功！
谢谢大家。
6. The Speech by Prof Peter Malanczuk, SCIA Council Member
Ladies and gentlemen, I will say a few words about the historical background of the Shenzhen Court of International Arbitration (hereinafter the "SCIA") first, and then proceed to the legal framework, and then concentrate basically on the case statistics, because time is limited.
The idea to set up the arbitration center in Shenzhen is connected with the establishment in 1980 of the Shenzhen Special Economic Zone, and it was the Guangdong-Hong Kong cooperation, legal cooperation, that led to the establishment of the arbitration body. This occurred two years before the Hong Kong International Arbitration Center was established in 1985. President Liu has already mentioned that the SCIA, as it was later called, was the first arbitration institution in Mainland China to include foreign professionals on its panel of arbitrators and also the first institution of which an award was enforced under the New York Convention. That occurred in Hong Kong, actually.
The institution called itself CIETAC South China or CIETAC Shenzhen, originally, because the idea was to make use of and promote the brand name of CIETAC. But the issue was disputed whether CIETAC South China or CIETAC Shenzhen was really established as an independent arbitration commission or whether it was established as a dependent commission under the umbrella and direction of CIETAC Beijing, where the headquarters of CIETAC are located.
In 2012, CIETAC Beijing adopted new arbitration rules which led to an internal dispute within CIETAC, because CIETAC Shenzhen and CIETAC Shanghai thought that the purpose of these rules were to draw arbitration business away from Shanghai and from Shenzhen and to centralize it in Beijing, disregarding the party autonomy. Therefore, the cooperation among CIETAC Shanghai, CIETAC Shenzhen and CIETAC Beijing was terminated, which was one of the reasons for the renaming of CIETAC South China to Shenzhen Court of International Arbitration in October 2012.
This is a formula which emphasizes the continuity between the former CIETAC Shenzhen and CIETAC South China and the new Shenzhen Court of International Arbitration, which was at the same time called the South China International Economic and Trade Arbitration Commission. So we have a “double name”, and the intent to draw business under the older clauses to the new Shenzhen Court of International Arbitration as well.
In Shanghai, we have a similar development which led to the Shanghai International Arbitration Center and the Special Free Trade Zone Court later in October 2013.
Obviously, this led to conflicting local court decisions in different parts of China and it caused legal uncertainty because it was not clear where jurisdiction would lie, and it was also problematic for the enforcement of awards, because they would be challenged, of course, by the party which was not happy with the result.
Now, the Supreme Court stated in September 2013 by adopting the special reporting mechanism requiring local courts, if they have a problem, to report to the Supreme Court about the situation, but the legal situation was not clarified until July of 2015, where the position adopted by the Supreme People's Court on the jurisdiction issues were now more or less settled. In between, the Court confirmed the legality and independence of the Shenzhen Court of International Arbitration, so that was not a problem anymore from that perspective either.
Shenzhen Court of International Arbitration is governed by the general legal framework for arbitration in China. You are, of course, I'm sure, familiar with the PRC Arbitration Law, and the Civil Procedure Law which was reformed substantially in 2012. And then we have the Supreme People's Court Judicial Interpretations, which are very important in practice, and of course we have international treaties, including those treaties which provide for investor-state dispute resolution, like the bilateral investment treaties which China has concluded with many countries.
The important aspect for understanding SCIA is that it rests upon special legislation for Shenzhen, and that is related to the Qianhai Project. We are in Qianhai, as you are aware. And the purpose is to engage Hong Kong, Shenzhen and Guangdong within the broader framework of the Pearl River Delta area into close cooperation to develop a very much service-orientated economy for the Asia-Pacific and beyond. So this is a very important aspect, looking at the cooperation possibilities between Hong Kong, Shenzhen and Guangdong province in general, but also looking at specific and close cooperation in the field of international arbitration and in the field of legal cooperation in general.
We have more than 91,000 enterprises registered here already, of which 3,100 are Hong Kong enterprises, which provide about one-third of the tax revenue of the special zone. So one can see that there's considerable investment from Hong Kong, which has been very active generally in Guangdong in the past two or three decades, but also quite active now with respect to Qianhai.
I will just move directly to the special legislation. The State Council approved the general plan of the Qianhai Project in 2010, and then we have regulations adopted in 2012 which specifically provided for the need of establishing an international arbitration center with an independent governance structure. The jurisdiction of the Shenzhen Court of International Arbitration is based upon these regulations, so this is a quite unique feature in Chinese law. But also beyond China, it is, I think, difficult to find an example where specific legislation has established an arbitration commission in that sense. But be that as it may, the jurisdiction of the SCIA is broad: foreign-related countries and Hong Kong, Macau, Taiwan-related cases are covered, as well as domestic cases.
You will be aware that domestic cases in China, Chinese law, include cases where a party or both parties may be wholly owned foreign investment enterprises, because under Chinese Company Law, they have to acquire Chinese nationality as a company and therefore they are not considered to be foreign-related cases; they are considered to be domestic cases. So many domestic cases may have, in fact, foreign-related elements.
Now, there are a number of innovative features of SCIA. I think the most important one is the independent and internationalized governance structure, which is laid down in the regulations I have already mentioned. So we have a statutory body which operates as an independent public institution, independent from the Shenzhen Municipal Government. That means the government does not have a say in the SCIA. This is governed by the main decision-making body, which is the council, and it itself operates through the three special committees.
Among the council members, at least one-third, by law, must be from jurisdictions outside Mainland China. That means they can come from Hong Kong also. That is considered to be an outside jurisdiction for those purposes, of course. And we have distinguished members, such as Elsie Leung, the former Secretary for Justice of Hong Kong; Anthony Neoh, senior counsel in Hong Kong and former chairman of the Hong Kong Securities and Futures Commission; and Huen Wong, who will be addressing us later, who is a former president of the Law Society of Hong Kong and a former chairman of the Hong Kong International Arbitration Center. So they are quite distinguished members trying to fulfill the legal requirements of having not less than one-third coming from outside jurisdictions.
The panel of arbitrators is also important as to the composition. We have a general panel and these three industry-specific panels of arbitrators in the fields of technology and intellectual property, maritime and logistics and financial arbitration. And this slide shows that more than 40% of the arbitrators come from outside jurisdictions, from jurisdictions outside of Mainland China. If you compare that with CIETAC, the general panel of CIETAC, you will see that CIETAC is less internationalized. It reaches only 27.5% of the arbitrators being from other jurisdictions.
Also, the international degree is higher in the specific panels, 45% and 55%. The financial arbitration panel, it's not very relevant, because the arbitrations are mostly domestic and therefore the arbitrators are mostly domestic as well.
Party autonomy is another important feature under the arbitration rules of the South China International Economic and Trade Arbitration Commission. They give a very broad scope of discretion to the parties concerning the choice of the rules. They can also choose UNCITRAL Rules if they don't like the SCIA Rules. They can agree on the rules of evidence, on the language of arbitration, so there's not a preference necessarily for Chinese. And there is also less interference possible from the administrative part of the SCIA in the operations of the arbitral tribunal, and I think that's also an important aspect which one has to take into due consideration.
I'm not going into the arbitration rules or the procedures, the summary procedures and other aspects of conciliation and so forth which characterize modern arbitration rules. I will just say the rules adopted in 2012 are very much up to international standards, but they require, of course, review. Council is currently occupied with reviewing a draft for a new set of arbitration rules and will have to take into account modernizations which have happened in the past years in other institutions.
Also in the future, which I cannot address here, is the important role of mediation and mediation-arbitration in the practice of the Shenzhen Court of International Arbitration. This is, of course, a strong Chinese tradition in general, but the practice has been very successful in combining mediation and arbitration in innovative ways and for the settlement of disputes, leading also to titles which can be enforced under the New York Convention in the form of award on agreed terms, or consent awards, as they are called in Hong Kong.
Now, statistics, finally. You can see that over the years, if one distinguishes between arbitration and mediation on this slide, that the cases have gone up to 838. That figure is a little bit inflated, I would say, because it comprises also 477 cases concerning Hong Kong parties with claims arising from real estate investment in mainland China, so that is not necessarily a typical situation, in 2014. And we see in 2015, that went down to 582 cases. But this is still more than Hong Kong International Arbitration Center, for example, had. Hong Kong International Arbitration Center in 2014 had, I think, about 252 arbitration cases, not counting the domain-name disputes and not counting other disputes which are not really arbitration disputes but mediation disputes. So that is a significant successful development, and you can see that most of the cases are foreign-related, but as I have said, domestic cases can also have foreign-related elements. So the label is not necessarily conclusive.
You can see the categories. Most are financial disputes, 27.7%, and there is a sort of interest in developing the expertise of that area even further. And then the other types are sale of goods disputes, real estate and corporate and others.
Now, if one looks at the total number of cases in Mainland China, then the figure is very high and the percentage is low, but most of these are domestic cases. The total PRC cases is a large number, but many of the those would not be relevant for international trade and international business.
Here, I have finally put a slide together which looks at the breakdown of CIETAC. CIETAC now does not include the former CIETAC Shanghai Commission and CIETAC South China Commission anymore, but CIETAC itself has set up new secretariats under its own control in both Shanghai and Shenzhen. They are listed here as CIETAC South China Secretariat and Shanghai, and Beijing is of course the headquarters. 
That brings me to the end. We don't need this slide anymore. That's just about the general international institutions. I would like to thank you for your interest and your patience.
7. The Speech by Ms. Mariana Zhong, Senior Associate at Dechert LLP, Beijing
Good morning, ladies and gentlemen. I'm very honored to be here today. I would like to thank SCIA and ASA for giving me this great opportunity to speak on the new developments of arbitration from a China perspective.
Today, I will first briefly comment on the general trends and development. I will then come to talk about specific issues relating to the new rep offices in China which everyone is talking about. I will also talk about a new development relating to arbitrating Chinese disputes abroad, and enforcement of foreign arbitral awards in China.
First of all, about the general trends of development, Arbitration in China in recent years has shown at least two general trends. First is a trend of internationalization, which is a process comprised of localization of international practice, as well as the involvement of Chinese practice towards international standards and norms. This process itself can be evidenced by, for instance, the establishment of the new rep offices in Shanghai, and more Chinese parties willing to submit arbitration to foreign arbitration institutions, and as Dr. Liu mentioned, more foreign parties willing to arbitrate in China.
The second trend is a progressing improvement of judicial support, of judicial attitude towards international arbitration. This is a progressive improvement generally from judicial intervention to judicial support, from anti-arbitration to pro-arbitration, and there are policy reasons behind this change, because China wants to develop itself into a regional and international arbitration center. So it's quite necessary to contemplate a friendly arbitration environment
This slide shows that in recent years, there are more and more cases involving Chinese parties submitting to ICC. There is a steady growth.
About the new rep offices in China, everyone knows in the past year there are three foreign arbitration institutions establishing new offices in Shanghai, and for now, due to the limitation, they cannot directly accept or administer cases in China, and their roles are basically limited to communication, facilitation and promotion of international arbitration practices.
However, many are quite optimistic about the prospects, because this is the first step of exploring Chinese markets. So we are wondering whether there will be more foreign arbitration institutions in China in the near future.
About arbitrating Chinese disputes abroad. As we know, under Chinese law, parties to a foreign-related contract could submit a dispute it a foreign arbitration institution. What about parties to a domestic contract?
The law is silent. Obviously the court dealing with the case of Chao Lai Xin Sheng v. Suo Wang Zhi Xin believes that they cannot. The answer is no. And this is still adhered to by most judiciaries these days. In this case, the parties are Chinese-registered. The respondent is wholly owned by a Korean citizen. And the clause provides for arbitration by the Korean Arbitration Board, and the court enforcing the award held that this arbitration clause is invalid, because there's no foreign element, and the parties cannot submit to the Korean Arbitration Board.
Of course, this court decision has been criticized for not respecting party autonomy, but what I want to discuss here today is how to find foreign elements in a specific case. There are several rules and guidelines involved, and for time's sake, I will not expand. But there have been several new progresses in a recent two cases where the Chinese courts have adopted a more expansive approach in finding foreign elements.
The first case is Ninbo Xinhui. Again, Chinese parties, sales of goods contract. Place of delivery is in Shanghai Free Trade Zone. They obtained a foreign award as to foreign-related proceedings. The respondent challenged this proceeding, because there is no foreign element. And the Beijing court found that there is indeed foreign element, because the goods were actually delivered in the Free Trade Zone, and before clearing customs, the goods were located outside China.
Another case which is even more progressive is Golden Landmark v Siemens International. These two parties are registered in China. You can see that they're owned by foreign investors. They obtained an award from the Singapore International Arbitration Center, and the claimant argued at the arbitration clause is invalid because there is no foreign element. And Siemens argued that there is indeed foreign element, because Siemens itself is a foreign invested entity, and the goods were located outside China before it came into China. And alternatively, Siemens argued that even if there is no foreign element, it does not say that Chinese parties cannot submit their dispute to a foreign arbitration institution. The court held that again, Chinese parties cannot submit their pure domestic case to a foreign arbitration institution. However, the court continued to say that there is indeed argument. The court reasons that, first, the parties involved foreign elements, judging from the source of the capital, the process of their operation, decision-making, the benefiting parties, and the place of registration, because Siemens is registered in Shanghai Free Trade Zone. And also, judging from the circulation of the goods, the goods are imported into China. Therefore, based on those two factors, the court found that there is a foreign element and the arbitration clause is valid, the award should be fully enforced.
What is the take-away from these two cases? It's that now the Chinese courts are taking a more expansive and liberal approach in finding foreign elements, and it is likely to find a foreign element in the Chinese subsidiary of a foreign investor.
About enforcements of foreign arbitral awards in China, there has been some progress. Recently in a case, the Supreme People's Court clearly distinguished article 5.1 and article 5.2 of the New York Convention, and the Supreme People's Court reasoned that only for public policy ground under article 5.2 could the Chinese court apply ex officio, and for all the other grounds under article 5.1, they have to be applied per parties' application.
The Supreme People's Court also held the view that the court will not enforce a foreign award if the award has been annulled, its seat, and the Chinese court shall have the discretion to suspend the enforcing proceedings if there is an ongoing set-aside proceedings.
This slide shows the recent events going on. It is not exhaustive, but it includes, for instance, the establishment of the arbitration center across the Straits and the promulgation of its arbitration rules. This is just for your reference. I will not expand.
These are ongoing discussions, interesting topics considered by the SPC and also topics discussed among arbitration practitioners which we can discuss after the conference. Thank you very much.
8. The Speech by Mr. Urs Zenhäusern, Partner at Baker & McKenzie, Zurich
Good morning, ladies and gentlemen. Please have a look at this mountain. It is probably the most beautiful mountain in the world. It's a mountain in Switzerland, and I'm proud to say that it is located in an area of Switzerland where I come from. But Switzerland has more to offer than just mountains. Switzerland is also a very important hub for international arbitration, and that will be the topic of the presentation given by Prof. Felix Dasser and by me. I will cover the juristic part of the presentation, and Prof. Dasser will then move on to the facts and figures.
Switzerland is in the heart of Europe, but it is, as you have heard from the president of ASA, not a member of the European Union. We do have strong ties to the EU, but we are not part of it, and that may be of interest for Chinese companies doing business in Switzerland.
If you look at the map, it appears that Switzerland is far away from China. Yes, indeed, you have to fly for some 10-12 hours, but this is just 3.5 to 5 hours more than if you were to go to Singapore. Mr. Schmid has already spoken on the long historical, social and economic relationship between our two countries. I will not go into that again, but just one word, maybe to Schindler, the first company that entered into a joint venture, a Chinese state enterprise in 1980. The manager in charge later became Switzerland's ambassador to China, residing in Beijing. He had started to collect Chinese art back in the 1970s, and he has today the largest collection of Chinese contemporary art outside of Switzerland. He recently decided to donate his entire collection to a museum in Hong Kong that will open its doors in 2017. By then, Chinese art will come back to China.
The fact that our countries have more in common than many may think is evidenced by the similarity of the civil laws. Chinese civil law and Swiss civil law have much in common. If you'd like to look into the Swiss Civil Code, you would come across many provisions that will look familiar to you. Swiss law is easy, accessible. Many of the important codes and statutes have been translated into English. Many court decisions are available, and arbitration awards, as you have heard from the president of ASA, from 90% of international arbitrations conducted in Switzerland are in English and the awards are obviously also rendered in English.
One additional word, maybe, as to arbitrations in Switzerland, choosing Switzerland as the place of arbitration does not mean that hearings be must be held in Switzerland. You can have hearings anywhere. You can have them in Shenzhen, Beijing, Shanghai, Singapore, Hong Kong, or on the moon. It doesn't matter. As long as you have chosen Switzerland as the legal seat of the arbitration, it will remain a Swiss arbitration, and you will benefit from the advantages of Swiss arbitration, even if the parties then meet elsewhere. You will hear more on that from Prof. Dasser in a minute.
Switzerland is also home to many international organizations. You all know that the United Nations have their headquarters in Geneva, same with the WTO, the WIPO and others. Switzerland is also home to many international sports organizations and federations such as the Olympic Committee and other sports bodies such as FIFA and UEFA.
The arbitration tradition in Switzerland is long. It's been mentioned. It goes back to the 13th century with the early arbitrations established in the major cities. In 1872, the first modern arbitration was being held in Geneva. It involved a dispute between Great Britain and the United States of America, and an arbitral tribunal consisting of five arbitrators coming from five different jurisdictions decided in favor of the United States. Britain was ordered to paya huge compensation to the United States for having failed to comply with its duty of neutrality during the American Civil War.
Today, Switzerland is host to a number of international arbitration institutions. The Court of Arbitration for Sport has been mentioned, also the Arbitration Centre for WIPO, the United Nations Claims Compensation Committee working out of Switzerland, and others. Last but not least, Switzerland also has a long tradition with the chambers of commerce. The Geneva Chamber of Commerce was established more than 150 years ago, the Zurich Chamber following later.
9. The Speech by Mr Felix Dasser, Partner at Homburger, Zurich
Thank you. Good morning, everybody.
I will show you the hard factors after the soft factors that you have heard before. I will show you a couple of statistics, first a few from the International Chamber of Commerce in Paris, and then a few from my own research that I did on Swiss court cases.
Now, what you see here is the top 10 venues in ICC arbitration. You see that Paris comes out top, which is not such a wonder, because Paris is the seat of the ICC.
Next come the twin arbitration cities of Zurich and Geneva, in a kind of head-to-head race with London. Singapore is lagging behind, but also catching up, so there will be more. You don't find Chinese venues yet. With the ICC coming to Shanghai, or having come to Shanghai just recently, eventually you will also find Chinese cities here. I hope so, and I'm quite sure. But right now you see Geneva/Zurich or Switzerland is a top venue.
When you look at where the arbitrators come from, the picture is somewhat different. These are the five top nationalities or places of residence.
Interestingly, the number 1 spot is being fought about between Swiss and UK arbitrators, the UK now having a slight advantage. The French are lagging behind. So, I mean, that also shows that venue does not necessarily determine the nationality of the arbitrators. In other words, when you have a Switzerland arbitration venue, it doesn't mean that you need Swiss arbitrators. You can have any arbitrator you want -- Chinese arbitrators, UK, US, South American. It's really up to the parties. But on the other hand, it shows us Swiss arbitrators are recognized within the ICC community as being reliable arbitrators.
Another issue is -- let's leave arbitration for half a minute and look at the substantive law. We have heard before Swiss law is similar to a certain extent to Chinese law. We are both similar countries. Chinese law is quite similar to German law, especially concerning contract law. Swiss law is very similar, again, especially in contract law but also other areas of the law. So what we will be familiar with is, you know, this and the pink one over there, maybe a little bit the French, and then take these three together, they have a slight advantage on this chart over the common law jurisdictions. And again, you see it's not just the Swiss venue, Swiss arbitrators who are recognized. Despite the various countries, it's also Swiss law that is recognized as being apparently a possible choice for international contracts, even if none of the parties is Swiss. And it may also be the case if none of the parties is actually Swiss.
Just a word about the Swiss International Arbitration Law. You will hear more of that later. It is an arbitration act but not an independent act. This is actually chapter 12 of the International Law Act, but it's basically a standalone chapter, and it's by now more than 25 years old. You think, well, that's pretty old, isn't it? But when you look at it, it's still very modern. And actually we are, with the government, looking at the law as it is and seeing whether it need some refreshing and I'm actually part of an expert commission looking into that. And we don't really find fault with the chapter as it is today. There might be some small refreshments that we might wish to add, but there's nothing that we really have to change. It's still, in my view, the most modern or one of the most modern arbitration laws in the world.
It is not based on UNCITRAL Model Law. We developed this chapter independently, but at the same time, independently because we have that long tradition of arbitration, so we thought that we don't need as many provisions as you would find in the UNCITRAL Model Law, because we already know how it works in our country. The arbitration community knows how to go about arbitration, the courts know about arbitration, how to deal with arbitration, so they don't need to have guidance for that.
In essence, it's basically the parties can frame their proceedings basically as they wish. But that's a framework. It's not total liberty, by any means. There's a framework, mandatory rules that safeguard that the proceedings are fair, that there's due process, that the parties do have the right to be heard. That's mandatory. But how that happens, how that comes about, that's really pretty much up to the parties.
I already mentioned this chapter is really very short. It has 19 articles. When you leave aside the 19th article, which is on enforcement, you have 18 articles dealing with arbitration in Switzerland, international arbitration in Switzerland. When you compare that to all the other main arbitration acts, you will find it's quite different. I mean, it's up to you to decide whether that's good or bad, whether you want to have more rules or less. I think it's good to have a very small act, short act with a few basic rules that leave the parties to fill the gaps as they see fit.
Now, this is crucial for the choices of venue. We have heard before, you can choose a venue whenever it is on this world, and have hearings somewhere else. We have heard even on the moon. Well, that's a little bit expensive, but you can do it. So you can have arbitration in Switzerland as a venue, and have the hearings wherever you want, and counsel from all over the world, not Swiss counsel if you don't wish. But what you end up with in any case is with the courts, when you're on the challenge, the award, or when the other party challenges the award, that really counts. So what you want to have is an arbitration venue where the challenge proceedings are organized and legislated in a way that you think is okay.
In Switzerland, what you have is just one level of challenge. You go directly to the Federal Supreme Court; that's the highest court in the country. They deal with that. That deal with that very efficiently. They take about half a year, I think, more or less, and that's the time limit. So you only have 30 days to challenge the award. That means that once you have received an award, it only takes maybe about half a year or so long and then it's finally out. Now, look where else in the world you have that kind of speedy resolution.
It's not just the fact they are quick. They also try to uphold the award wherever possible. You see here only about 10% of all challenges are successful. So don't try to do a challenge because you don't like the award. It doesn't work that way. So only if something is really, really wrong with the award, then it will be set aside. Otherwise, it won't.
What are the grounds for challenge? You see you have constitution, jurisdiction. Here you have the highest chance of success, one out of 10. Going beyond the prayers for relief or not deciding all of the prayers for relief there. Very often there's a challenge based on that, but it's not very successful, normally. And that's the only way how we can challenge an award on the merits. It's the main way. When you see the success rate, it's symbolic. Two cases out of 180, I think. That's the public policy ground. That's very, very narrow. Public policy in Switzerland means only violations of fundamental principles that are valid universally. It's not just Swiss principles, but it is universal principles that are violated. Only on that case is a challenge on the merits successful. So on that, it's also very efficient.
As I said, you only have 30 days. That's very short. However, if you need more than 30 days to find out what is wrong with an award and can explain that in a short submission, then there's probably nothing wrong with the award that requires setting aside. There's no hearing. You don't need QCs arguing in front of the supreme judges for two days. No such thing. It's anonymous. So your award will not get published as a matter of public record, as in some jurisdictions like many common law jurisdictions where you have everything on the internet. The award is anonymous, so your client will not be covered for years at the law schools in case X v Y. It's really anonymous. So that's very often helpful for parties.
That's it. Thank you
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