Lawyer or arbitrator: a problem in China — should the restriction be revoked?

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People’s Republic of China (PRC) law sets forth specific requirements for individuals who serve as arbitrators in China. Article 13 of the PRC Arbitration Law requires arbitrators to be ‘fair and honest’. Arbitrators must also meet at least one of the following qualifications: (1) have a minimum eight years’ work experience in arbitration; (2) have a minimum eight years’ experience as a lawyer or as a judge; (3) be engaged in legal research and teaching with a senior academic title; or (4) be engaged as a professional focused on economic and trade matters with a senior academic title or equivalent professional title also having legal knowledge.

Despite these specific criteria, PRC law did not initially place restrictions on lawyers who also act as arbitrators. The PRC Lawyers Law, first promulgated in 1996, did not impose such restrictions nor did its 2002, 2007 and 2012 amendments. In 2010, however, the Ministry of Justice issued the Measures for Penalties of Lawyers and Law Firms for Illegal Acts (‘Punitive Measures’), which expressly prohibit lawyers who act or have acted as arbitrators from representing clients in disputes before the same institution where he or she is listed on the panel of arbitrators. Under Article 7.5 of the Punitive Measures, a lawyer who also acts as arbitrator before the same institution is considered a conflict of interest under Article 47.3 of the Lawyers Law, which prohibits lawyers from ‘representing both parties in a same case or representing a client in a legal affair that has conflict of interest with himself or his close relative’…

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