A critique of the crime of deliberately rendering an arbitral award in violation of law

• Author: SONG Lianbin,YANG Xiaoqiang
• Pages: 718-734

FRONTIERS OF LAW IN CHINA

VOL. 11 DECEMBER 2016 NO. 4

DOI 10.3868/s050-005-016-0041-6

ARTICLE

A CRITIQUE OF THE CRIME OF DELIBERATELY RENDERING AN ARBITRAL

AWARD IN VIOLATION OF LAW

SONG Lianbin*, YANG Xiaoqiang **

Abstract The crime of deliberately rendering an arbitral award in violation of law was

provided at the end of Article 20 of the Amendment VI to the Criminal Law of the

People’s Republic of China. Such a crime is likely to be misunderstood because views

are sharply divided on its implication and scope of application. In addition, pertinent

provisions are not manipulable. The wording of violation of law should not be included

in articles of the law, as legalese. The charge is the product of redundant legislation,

whose provisions are bound to be considered as pieces of blank paper. The creation of

the crime disrespects arbitration, and removes the peculiarities of it. The charge of the

crime undermines the profession of international arbitration. Therefore, the crime should

be repealed. Where cases were arbitrated wrongly, and social harms were caused,

criminal law and other laws would serve as remedies.

Keywords crime of deliberately rendering an arbitral award in violation of law, arbitrators’

liability, arbitration view, criminal law amendment

INTRODUCTION .................................................................................................................... 719

I. A SURVEY OF DRAWVL......................................................................................... 720

II. ISSUES CONCERNING THE APPLICATION OF DRAWVL .......................................... 722

A. Scope of Application of the Crime.................................................................. 723

B. Definition of Contrary to Facts and Law........................................................ 723

* (宋连斌) Ph.D. in international law; Professor & Doctoral Supervisor, School of International Law,

China University of Political Science and Law, Beijing 100088, China. Contact: songlianbin@aliyun.com

** (杨晓强) Ph.D. in international law; Associate Professor, School of Foreign Languages, Wuhan

University, Wuhan 430072, China. Contact: yangxqiang@whu.edu.cn

The present article was finished while Professor SONG Lianbin was visiting Université Paul Cézanne

Aix-Marseille III as a scholar. Thanks should be extended to MENG Guowei, CHEN Jinlin, YANG Juan,

YANG Lin, HE Zhenxin, CUI Xianglong, WANG Baoshi, LIN Yifei, LU Shangqian, CHEN Xijia, LI Xinyu,

etc. for their materials and suggestions. This work was supported by a grant from a major program of

Humanity and Social Science Key Base of the Ministry of Education of China named Research into Legal

Methodology of Civil and Commercial Judgments involving Foreign Elements (Grant No.08JJD820175), as

well as a grant from a major program of the National Social Science Foundation of China named Research

into Puzzles and Paths of the Promotion of the Building of the Pilot Free Trade Zone under the Rule of Law

(Grant No. 14ZDC016).

2016] A CRITIQUE OF THE CRIME OF DRAWVL 719

C. Definition of Violation of Law ........................................................................725

D. Meaning of “Deliberately” ...........................................................................726

E. Meaning of Undertaking Arbitration Duty in Accordance with Law................ 727

F. Meaning of Serious Circumstances................................................................. 728

III. RATIONALITY CRITICISM OF THE CRIME OF DRAWVL........................................ 728

IV. DEMERITS OF THE CRIME OF DRAWVL............................................................... 731

CONCLUSION........................................................................................................................ 734

INTRODUCTION

A new charge of the crime of deliberately rending an arbitral award in violation of law

is likely to be brought against arbitrators. The arbitrators’ liability in criminal law

perplexes arbitration experts, but catches the eye of the public. It is generally thought that

criminal law and arbitration law are two independent areas. But independence does not

necessarily mean total irrelevance. Some cases have gained publicity where arbitrators

were prosecuted for criminal responsibilities.1 On June 29, 2006, Amendment VI to the

Criminal Law of the People’s Republic of China (hereinafter “A6CL”) was passed at the

22nd meeting of the Standing Committee of the 10th National People’s Congress of the

PRC. Article 20 adds an item to the end of Article 399,2 namely that, personnel bearing

arbitral duty according to law, who deliberately render an arbitral award in violation of

law and facts, if the circumstances are serious, shall be sentenced to fixed-term

imprisonment of less than three years; if the circumstances are especially serious, the

offender shall be sentenced to a fixed-termed imprisonment of not less than three years

and not more than seven years. This is the newly stipulated Crime of Deliberately

1 The present article is focused on the crime of deliberately rendering an arbitral award in violation of law

per se, disregarding the relation between arbitration law and criminal law. For other relevant issues one may

refer to Alexis Mourre, Arbitration and Criminal Law: Reflections on the Duties of the Arbitrator, 1

Arbitration International, 95 (2006).

2 Art. 39 of the 1997 Criminal Law of the PRC provides as follows:

Any judicial functionary who bends the law for the benefit of his own or bends the law for the benefit of

his relatives or friends, and subjects to prosecution a person who clearly knows to be innocent and

intentionally protects from prosecution a person he clearly knows to be guilty, or in the course of criminal

trial, intentionally twists the law and makes judgements or orders which are contrary to the fact and law, shall

be sentenced to fixed-term imprisonment of no more than five years or criminal detention. If the

circumstances are serious, the offenders shall be sentenced to fixed-term imprisonment of not less than ten

years.

Whoever, in the course of civil or administrative trial, intentionally twists the law and makes judgements

or orders which are contrary to the fact and law shall, if the circumstances are serious, be sentenced to

fixed-term imprisonment of not more than five years or criminal detention. If the circumstances are especially

serious, the offender shall be sentenced to fixed-term imprisonment of not less than five years and not more

than ten years.

Any judicial functionary who accepts a bribe and twists the law, and commits an act mentioned in the

preceding two paragraphs shall, if his act concurrently constitutes a crime mentioned in Art. 385 of this law,

shall be decided a law and punished according to the provisions with a heavier punishment.