Criminal Responsibility for Arbitrators in Chinese Law: Perversion of Law in Commercial Arbitration

Abstract

This article is prompted by a recent Chinese criminal provision governing the impartiality of arbitration. The goals of the article fare to critically examine the new criminal statute created by the provision and to 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 eliminate the abuse of arbitral power, it may raise more questions than it resolves. This article explores the problems and undertakes a comparative analysis of the corresponding U.S. provision, as well as an analysis of some cultural and traditional elements influencing the new criminal statute in China. Ultimately it will be argued that the concerns can be addressed by finetuning the rule in order to keep a balance between the previous two conflicting values. Borrowing from U.S. experience, a mechanism of judicial interpretation is proposed that could well suit China’s needs because the benefits of arbitration can be retained without sacrificing the impartiality of arbitration.