Arthur Dong and Darren Mayberry

Eventually, civic life requires everyone to produce documents for inspection and approval. As individuals, we need to submit documents in connection with a new bank account, health insurance, job applications, enrollment into an institution of higher learning, occupational licensing, and evaluation for loans. Companies and organizations may have even more occasions and demands placed on them to produce documents. Even so, parties often resist the production of documents while in the throes of a commercial dispute. Perhaps this happens because the opposing party routinely makes the request, and not a neutral third-party. China’s institutional rules for arbitration, however, are silent as to whether the parties may request documents, and under what circumstances the parties may do so.

Arbitration in China seems to reflect an overall disposition of reluctance towards the document production process. Leading institutional rules in China offer wide latitude, but little guidance, as to document production procedure. As a practical matter, a China-based Tribunal is likely to order document production only within a narrow and proscribed range. Participants in China-based arbitration may consider whether to forgo the document production phase altogether. After all, the process can incur considerable time and expense. However, such a departure from international norms would also carry risk. If parties decide to exercise document production, it would seem wisest to adopt the CIETAC Guidelines on Evidence, and do so prior to any dispute.

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Authored by Arthur Dong <dongxiao@anjielaw.com>, Darren Mayberry <darren.mayberry@anjielaw.com> at AnJie Law Firm

Arthur Dong and Darren Mayberry

Machiavelli infamously instructs his Prince that “one ought to be both feared and loved, but as it is difficult for the two to go together, it is much safer to be feared than loved.”[1] Machiavelli ultimately wanted several disputes resolved, and Renaissance Italy thereby united. The Prague Rules pertain to a modern form of dispute resolution directed at far more tractable commercial disputes. It offers methods to run an arbitration on the cheap, a priority when the quantum in dispute remains low. The Prague Rules would blame Anglo-American, or common law, traditions for the prevalent costliness and delay of present-day commercial arbitration. The Prague Rules downplay their straightforward budget utility for modest-dollar disputes. The Prague Rules calculatingly courts controversy because proponents understand all too well that its cost-cutting devices will meet an unpopular and unloving reception.

This post introduces the Prague Rules and summarizes the highlights of its provocative Preamble. It looks at the origin of the Rules. This post then visits criticism of the Prague Rules. It then places the Prague Rules in their proper context. The Rules are compared alongside institutional efforts at efficiency. This post concludes with two observations. Established arbitration procedure need not fear the Prague Rules. The IBA Rules shall remain beloved.

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Authored by Arthur Dong <dongxiao@anjielaw.com>, Darren Mayberry <darren.mayberry@anjielaw.com> at AnJie Law Firm