I. Basic Information

Dr. Fu Panfeng was born in Miluo, Hunan Province in 1987. He is currently an assistant research fellowat the Department of Private International Law of the Institute of International Law of Chinese Academy of Social Sciences. He specializes in private international law, arbitration law and comparative law with a particular academic focus on international dispute resolution, international commercial arbitration, investor-state arbitration and international sports arbitration. He is a member of China Society of Private International Law and China Academy of Arbitration Law.

Dr. Fu graduated from the Southwest University of Political Sciences and Law in 2009 with a bachelor’s degree of law. He went to the Law School of Wuhan University to pursue his graduate studies and earned a master’s degree of law in 2011 and a doctor’s degree of law in 2015. Besides, while doing his doctoral research at Wuhan University, he had the opportunity to be funded by China Scholarship Council to study at University of Montreal as a visiting scholar for a year. After graduating from Wuhan University, he joined the Institute of Law of Chinese Academy of Social Sciences as a post-doctoral researcher. He became a full-time researcherat the Institute of International Law of Chinese Academy of Social Sciencesin 2017. He used to be an editor of the Wuhan University International Law Review and the Chinese Yearbook of Private International Law and Comparative Law. He has published over 20 papers in such Chinese law journals as Modern Law Science and Journal of Comparative Law. He has been in charge of two prominent research projects:afirst-class research project funded by China Postdoctoral Science Foundation and a key research project sponsored by Beijing Arbitration Commission.

II. Major Awards

1. The Prize for Excellent Postdoctoral Research Report awardedChinese Academy of Social Sciences;

2. The Second-Prize for Excellent Academic Achievement awarded by China Society of Private International Lawin 2016;

3. The Second-Prize for Excellent Academic Achievement awarded byChina Society of Private International Lawin 2018.

III. Research Projects

1. Afirst-class research project funded by China Postdoctoral Science Foundation;

2. A key research project sponsored by Beijing Arbitration Commission (2016);

3. An ordinary research project sponsored by Beijing Arbitration Commission (2014).

IV. Academic Viewpoints

Most of Dr Fu’s academic contributions are related to international arbitration. Over the past several years, he has conducted in-depth research on such issues as the moral dilemma of the unilateral appointment of arbitrators, the enforcement of annulled arbitral awards and the application of res judicata doctrine in investor-state arbitration. He has also done a comprehensive research on French arbitration law. His main academic viewpoints are summed up as follows.

1. The Solutions to the Moral Dilemma of the Unilateral Appointment of Arbitrators

To address the ethical dilemma facing unilateral appointment of arbitrators, Paulsson proposed to abolish the unilateral appointment and to appoint arbitrators by a neutral institution, which caused drastic reaction from the international arbitration community. On the one hand, unilateral appointment brings parties closer to the arbitral proceedings, thus reinforcing party’s trust in arbitration and its legitimacy as a dispute resolution mechanism outside national court system. On the other hand, unilateral appointment causes serious ethical problems such as arbitrator’s inclination to act as a party’s counsel, which hinders normal delivery of justice and damages arbitration’s positive image. In an erain which arbitration is more and more diversified, any one-size-fits-all solution could backfire. For unilateral appointment to break out the dilemma, commercial and investor-state arbitration should be treated separately. For investor-state arbitration, it is feasible to abolish unilateral appointment, with the problem being how to find a neutral appointing institution. For commercial arbitration, it is not feasible to abolish unilateral appointment, but necessary measures should be taken to avoid or reduce the negative effects caused by unilateral appointment.Meanwhile, the practice of sole arbitrator should be advocated. It also bears noting that special mechanism should be brought in when the gap of the actual status between the two parties is huge, so as to ensure the impartiality of the arbitral tribunal.

2. Res Judicata as Applied in International Investment Arbitration: From a Formalistic Approach to a Substantive Approach

Investor-state arbitration has been suffering from severe criticism for frequent inconsistencies between arbitral awards. The Doctrine of Res Judicata, however, can serve as an effective means to ensure consistency between a former arbitral awardand a latter one under specific circumstances. With respect to its application, the traditional triple identity test is widely recognized by both the common law and the civil law systems. But if arbitral tribunals interpret this test mechanically, the Doctrine of Res Judicata risks never having the chance to be applied, thus is unable to avoid double adjudication on the same issue or claim in closely related arbitrations. Through a substantive analysis of the parties, the cause of action and the claim and through the softening of the requirement for identity of each element, unreasonable inference in the arbitral tribunal’s adjudicating process could be avoided and a balance could be achieved between the consideration for due process and the application of the Doctrine of Res Judicata.

3. Putting the Enforcement of Annulled Arbitral Awards in Perspective

The past 30 years of international commercial arbitration practice has witnessed frequent recognition and enforcement of arbitral awards annulled at the seat of arbitration. The French courts’ approach as seen in the cases of Hilmarton and Putrabali, is most representative. This has continuously caused heated debates in the international arbitration community. The focus of the debates is whether the discretion exists for courts to recognize and enforce arbitral awards annulled at the seat. Opposite conclusions can be drawn depending on how the legislative purpose of the New York Convention is to be interpreted and how the present status and future trend of modern international arbitration is to be identified. It is suggested, however, that a positive realistic approach be taken. That is, the answer is yes, but the discretion should be exercised prudently. Chinese courts have not yet been faced with such cases until now. China has made it clear upon ratifying the New York Convention that Chinese courts shall dismiss the application for recognition and enforcement of an award when the party against whom it is invoked furnishes proof that the award has been set aside at the seat. In the future, it is necessary for China to fine-tune its position to the effect that Chinese courts shall only refuse to recognize and enforce arbitral awards that have been set aside at the seat for the internationally accepted grounds contained in the UNCITRAL Model Law. Otherwise, Chinese courts will reserve the right to utilize such discretion as to recognize and enforce awards annulled at the seat.

4. China is Advised to Learn from France and Establish a Dualistic Legislation Model on Commercial Arbitration When Revising the 1994 Arbitration Law

France is a typical country that takes a dualistic approach to legislation on commercial arbitration. The 2011 French Arbitration Law is divided into two parts: domestic arbitration and international arbitration. The dualistic model stems from the fact that French legislators wanted to provide different legal frameworks for domestic arbitration and international arbitration with regard to suchaspects as the arbitration agreement, the number of arbitrators for an arbitral tribunal, the confidentiality requirement, the arbitral opinions, and the setting aside and the enforcement of arbitral awards. Under this model, the characterization of the “internationality” of arbitration is a very important practical issue. To deal with this issue, France takes an objective test based on economic considerations. This test is rather tolerant in that it confers on courts the discretion to decide, in light of specific circumstances, whether or not a given arbitration is an international arbitration. When China amends its arbitration law in the future, it should learn from France and establish a clearly dualistic legislation model on commercial arbitration. With regard to the characterization of “internationality”, French judicial practice is also of reference value to some extent.

V. Main Publications

1. A Study of the French International Arbitration Legal System, China of Social Sciences Press, 2018;

2. “Ethical Dilemma Facing Unilateral Appointment of Arbitrators and the Way to Break through It- a Discussion Centering around Paulsson’s Proposal”, Contemporary Law Review, 3(2017);

3. “The Unending Debate: Recognition and Enforcement of Annulled International Commercial Arbitral Awards”, Modern Law Review, 1(2017);

4. “The Test for Application of the Doctrine of Res Judicata in Investor-State Arbitration- From a Formalistic Approach to a Substantive Approach”, Journal of Comparative Law, 4(2016);

5. “The Emergency Arbitrator in ICC Arbitration Rules”, Beijing Arbitration Quarterly, 91 (2015);

6. “On Multi-Party Arbitration: Its Institutional Construction and Practical Difficulties”,Beijing Arbitration Quarterly, 87(2014);

7. “Judicial Experience in Handling Res Judicata Issues Arising from International Commercial Arbitration Awards in Common Law Countries: Taking Associated Electric v. European Re as an Example”, Arbitration Study, 20(2012);

8. “The Application Dilemma of the Doctrine of Most Significant Relationship and the Solution: An Examination Based on the Judicial Practice in Foreign-related Civil and Commercial Matters in China”, Chinese Yearbook of Private International Law and Comparative Law, 15 (2012);

9. Annual Review on Commercial Arbitration in China (2016), Wolters Kluwer, 2016, (co-authored with SongLianbin and Helena Chen);

10. “Chinese Courts’Approach to Non-signatory Issues in Arbitration：A Case Study”, Arbitration Study,43 (2017).

Selected Translation Works

1. “Should the Setting Aside of Arbitral Awards Be Abolished”, Beijing Arbitration Quarterly,103 (2018);

2. “Past, Present and Future Perspectives of Arbitration”, Beijing Arbitration Quarterly,96 (2016);

3. “Recognition and Enforcement of Foreign Awards under the New York Convention in Australia and New Zealand”, Commercial Arbitration, 13, (2016);

4. “The Conducting of International Commercial Arbitration Proceedings”, ArbitrationStudy, 38 (2015);

5. “Party Autonomy and Case Management: Experiences and Suggestions of an Arbitrator”,ArbitrationStudy, 36 (2014);

6. “Commercial and Investment Arbitration: How Different Are They Today, ArbitrationStudy, 36 (2014);

7. “Arbitrability, Due Process, and Public Policy under Article V of the New York Convention – Belgian and French Perspectives”,Arbitration Study,35 (2014);

8. “International Arbitration in a Global Economy: The Challenges of the Future”,ArbitrationStudy, 32 (2013);

“The ILA Report on Lis Pendens and Res Judicata in Arbitration”, Beijing Arbitration Quarterly, 76(2011).