Washington International Law Journal


Duan Xiaosong


This article is prompted by a Chinese criminal provision governing the impartiality of arbitration. The goals of the article are to critically examine the criminal statute created by the provision and to put forward some proposals for reform, which can be employed to resolve the tension that exists between arbitrator impartiality and deference to arbitration. Although the 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 United States provision as well as an analysis of some cultural and traditional elements influencing the criminal statute in China. Ultimately, this article argues that the concerns can be addressed by fine-tuning the rule in order to keep a balance between the previous two conflicting values. Borrowing from U.S. experience, this article proposes a mechanism of judicial interpretation. When contemplating the judicial interpretation, four aspects need to be taken into consideration: private prosecution, criminal liability for the neutral arbitrator, civil liability, and a detailed definition of the criminal provision. Considering these aspects of judicial interpretation will ensure that China can retain the benefits of arbitration without sacrificing impartiality.

First Page