Is there natural justice in China, and is the concept the same as in Australia? The answer depends on how we frame the question. If the question is whether there is a legal principle of natural justice adopted in statutes, the answer is no. If it is about a generalized concept, the answer is yes.
Different concepts of natural justice may be found under different social norms. Even in the same society, the perception of natural justice varies according to the circumstances. For example, a Chinese may cheer for the detain of a high rank officer being charged with corruption without any paper work or court procedure, but strongly object to the detain of an innocent young man charged with murder.
The situation is different in international commercial arbitration. Due to the contractual nature of arbitration, it is basically up to the parties whether the doctrine of natural justice should be followed and how strictly it is followed. However, it is quite a pity that the parties are either unaware of their strong power in the procedural design or incapable of making a good design. For its own benefit, an arbitration institution may adopt the natural justice doctrine in its rules or code of ethics to win trust from the parties and take a better position in the competitive market. There are over 250 arbitration institutions in China. International arbitration institutions such as ICC, SIAC and HKIAC have set up their offices in China recently. It is for sure that those with a good fame of having natural justice in case hearing will stand out in the crowd.
The P.R.C. Arbitration Law only depicts a skeleton procedural request over the proper conduct of arbitrators. The gap between the skeleton request and the practical demand is filled up by the Supreme People’s Court. The Chinese court system adopts a ‘reporting system’ for the recognition and enforcement of foreign-related arbitral awards. The Supreme People’s Court, with its final saying, issues notices and replies regarding specific situations. The lower level courts will follow these notices and replies when similar situations occur. Though the wording of ‘natural justice’ never appear in these notices and replies, certain procedural standards for the impartiality of arbitrators and the procedural rights of parties have been confirmed and maintained.
An appropriate balance is essential for the good functioning of natural justice. Not too much, not too little. Too much will make the flexible arbitration process rigid and lifeless. Too little will result in confusion and anger among arbitration practitioners and clients. We also need to keep a good balance between the national and international level. No country is left outside the globalization, including the globalization of legal principles.
Huaning Gu is a SJD candidate at La Trobe Law School. Her research focusses on arb-med in China and how Chinese arb-mediators gain their authority and settle disputes. Before moving to Australia, Huaning worked for the China International Economic and Trade Arbitration Commission (CIETAC) for ten years. She is now a CIETAC arbitrator.