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China Annual Report 2019 on Judicial Review of Commercial Arbitration Highlights (2): Laws, Rules and Policies

Fri, 19 Nov 2021
Categories: Insights
Contributors: Meng Yu 余萌

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On 23 Dec. 2020, China’s Supreme People’s Court (SPC) published the  Annual Report on Judicial Review of Commercial Arbitration (2019) (the Report), Part One of which introduces the laws, regulations and policies related to arbitration (the Instruments) in China.

Such instruments represent a comprehensive legal framework of arbitration in China.

China Annual Report 2019 on Judicial Review of Commercial Arbitration Highlights:

    1. Background;
    2. Laws, Rules, and Policies;
    3. Recognition and Enforcement of Foreign Arbitral Awards;
    4. Judicial Review of Foreign-Related Arbitration Agreements.

Based on our understanding, we have reorganized and compiled the Instruments mentioned in the Report, and now provide the following links to the full text of such Instruments.

I.General Legal Provisions

1. Arbitration Law of China (2017) 仲裁法

The Arbitration Law was promulgated in 1994 and amended in 2009 and 2017 respectively. The latest revision entered into force on January 1, 2018.  

2. Civil Procedure Law of China (2017) 民事诉讼法

The Civil Procedure Law of China was promulgated in 1991, and amended in 2007, 2012, and 2017 respectively. The latest revision entered into force on July 1, 2017. This Law is divided into four parts and 28 Chapters, and Chapter XXVI is Arbitration. 

3. Interpretation of the SPC concerning Some Issues on Application of the Arbitration Law of the People's Republic of China (2008)关于适用《中华人民共和国仲裁法》若干问题的解释

This Judicial Interpretation of the Arbitration Law is a milestone marking that China’s arbitration judicial review system has entered a new era after its gradual exploration and improvement after the implementation of the Arbitration Law.  

II. Pro-Arbitration Policies Issued by the Government and the Judiciary 

1. Several Opinions on Establishing a Sound Conflict and Dispute Resolution Mechanism that Connects Litigation and Non-Litigation (2009)关于建立健全诉讼与非诉讼相衔接的矛盾纠纷解决机制的若干意见

The Opinion standardized various mechanisms connecting mediations, arbitrations, and litigations. It also specified that the judiciary should support and promote the diversified dispute resolution mechanism including commercial arbitration.  

2. Opinions of the SPC on Further Deepening the Reform of the Diversified Dispute Resolution Mechanism in the People’s Courts(2016)关于人民法院进一步深化多元化纠纷解决机制改革的意见

This Opinions proposed that the people's courts should strengthen the connection with arbitration institutions.  

3. Several Opinions of the SPC on Providing Judicial Services and Safeguards for the Construction of the Belt and Road Initiative by People’s Courts(2015)关于人民法院为“一带一路” 建设提供司法服务和保障的若干意见

This Opinions proposed that the judicial review of arbitral awards involving parties in countries along the Belt and Road must be strengthened. Possible ways should be explored to improve judicial review procedures, establish uniform judicial review criteria and back up arbitration development in respect of revoking and refusing to enforce arbitral awards with foreign elements. The working mechanism for centralized judicial review of commercial and maritime arbitration cases shall be implemented to ensure the uniform standards for judicial review of commercial and maritime arbitration.  

4. Opinions on Providing Judicial Guarantees for the Construction of Pilot Free Trade Zones(2016)关于为自由贸易试验区建设提供司法保障的意见

Specific measures in support of arbitration can be found in Article 9 of the Opinions on Providing Judicial Guarantees for the Construction of Pilot Free Trade Zones. 

5. Several Opinions on Improving the Arbitration System to Strengthen the Credibility of Arbitration (2018)关于完善仲裁制度提高仲裁公信力的若干意见 

6. Opinions Regarding Further Providing Judicial Services and Guarantees by the People’s Courts for the Belt and Road Initiative(2019)关于人民法院进一步为“一带一路”建设提供司法服务和保障的意见

The arbitration institutions in Mainland China shall be encouraged to establish joint arbitration mechanisms with the arbitration institutions of other countries participating in the Belt & Road Initiative. A model shall be explored to settle the relevant disputes by arbitration of special personnel in special locations in Mainland China according to special arbitration rules agreed upon by enterprises registered in the pilot free trade zones, and foreign arbitration institutions shall be supported in setting up branch offices in China (Shanghai) Pilot Free Trade Zone Lin’gang Special Area to provide arbitration services. 

7. Implementation Plan for Shanghai Courts to Further Promote the Construction of legalized Business Environment (2019)上海法院进一步推进法治化营商环境建设实施方案

The additional efforts shall be spared to expand the breadth and depth of reform measures of the business environment in justice and strive to maintain the global leading status of Shanghai in the field of commercial dispute resolution, making Shanghai one of the world’s cities with the lowest cost, best quality and highest judicial credibility for commercial dispute resolution. 

8. Framework Plan for the Lin’gang Special Area of China (Shanghai) Pilot Free Trade Zone(2019)中国(上海)自由贸易试验区临港新片区总体方案

China allows well-known overseas arbitration and dispute resolution institutions to establish business institutions in the Lin’gang Special Area, as registered at the Shanghai Judicial Bureau and filed with the Ministry of Justice, to provide arbitration services with respect to civil and commercial disputes arising in international commerce, maritime affairs, investment, and other fields.

9. Measures for the Administration of the Lin’gang Special Area of China (Shanghai) Pilot Free Trade Zone (2019)中国(上海)自由贸易试验区临港新片区管理办法

The well-known overseas arbitration and dispute resolution institutions may, after having made registration at the Shanghai Judicial Bureau and filed with the Ministry of Justice, establish branches in the Lin’gang Special Area to conduct arbitration business with respect to civil and commercial disputes arising in international commercial, maritime affairs, investment, and other fields.

10. Administrative Measures for Business Offices Established by Overseas Arbitration Institutions in Lin-Gang Special Area of China (Shanghai) Pilot Free Trade Zone (2019)境外仲裁机构在中国(上海)自由贸易试验区临港新片区设立业务机构管理办法

These Administrative Measures are formulated to regulate the registration of business offices to be established by Overseas Arbitration Institutions in Lin-gang Special Area of China (Shanghai) Pilot Free Trade Zone and the business activities thereof. 

11. Opinions on Provision Regarding the Judicial Services and Guarantees Provided by the People’s Courts for the Construction of China (Shanghai) Pilot Free Trade Zone Lin’gang Special Area (2019)关于人民法院为中国(上海)自由贸易试验区临港新片区建设提供司法服务和保障的意见

China supports Shanghai to turn into an Asia-Pacific arbitration center. The reform and innovation of the arbitration system in Lin’gang Special Area shall be supported and foreign arbitration institutions registered shall be supported in arbitrating civil and commercial disputes in international commercial matters, maritime matters, investment, and other fields in Lin’gang Special Area.

III. Legal Norms on Judicial Review of Arbitration

1. Decision on China's accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards(1986)关于我国加入《承认及执行外国仲裁裁决公约》的决定

2. Notice on the Enforcement of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Acceded to by China(1987)关于执行我国加入的《承认及执行外国仲裁裁决公约》的通知 

3. Notice on the Handling by People’s Courts of Issues Concerning Arbitration with Foreign Elements and Foreign Arbitration Matters (1995)关于人民法院处理与涉外仲裁及外国仲裁事项有关问题的通知

This notice stipulated that in cases involving the validity of arbitration agreements with foreign elements, the enforcement of arbitral awards with foreign elements, and the recognition and enforcement of foreign arbitral awards, an intermediate people's court must report to the higher people’s court in the place where it is located whenever it is about to deny the validity, refuse the recognition, or to refuse the enforcement. If the higher people’s court agrees to such denial of validity, non-recognition and/or non-enforcement decision, it shall report its opinion to the SPC.  

4. Notice on Matters Related to the Setting Aside by a People’s Court of an Arbitral Award Involving Foreign Elements(1998)关于人民法院撤销涉外仲裁裁决有关事项的通知

This notice incorporated the review of setting aside arbitral awards with foreign elements into the “internal report system”.  

5. Notice of the SPC on the Relevant Issues in the Centralized Handling of Cases Regarding Judicial Review of Arbitration(2017)关于仲裁司法审查案件归口办理有关问题的通知

This Notice established the mechanism for centralized handling of cases regarding judicial review of arbitration. Prior to this, the main problem of judicial review of arbitration was that the judicial review of domestic arbitration was decentralized at different levels, in different courts and chambers, which tended to cause disunity of review practices and a waste of judicial resources. 

6. Relevant Provisions of the SPC on Issues Concerning Applications for Verification of Arbitration Cases under Judicial Review (2017)关于仲裁司法审查案件报核问题的有关规定

This Provisions established the system of applications for verification of arbitration cases under judicial review.  

7. Provisions of the SPC on Several Issues Concerning the Trial of Cases of Arbitration-Related Judicial Review (2017)关于审理仲裁司法审查案件若干问题的规定

This Provisions embodied the basic concept of friendly, convenient, and international arbitration-related judicial review, and established China’s international image as a “friendly jurisdiction in international arbitration”.

8. Provisions of the SPC on Several Issues Concerning the Handling of Cases Regarding Enforcement of Arbitral Awards by the People’s Courts(2018)关于人民法院办理仲裁裁决执行案件若干问题的规定

This Provisions specifies enforcement review of arbitral awards from the perspective of legal document enforcement.  

9. Provisions on Several Issues Concerning the Trial of Administrative Agreements Cases (2019) 关于审理行政协议案件若干问题的规定

Article 26 of this Provisions provides: “Where an administrative agreement contains an arbitration clause, the people’s courts shall confirm the nullity of the clause, except as otherwise provided by the laws, administrative regulations, or international treaties concluded and acceded to by China.”  

IV. International Commercial Courts and Arbitration

1. Provisions of the SPC on Several Issues Regarding the Establishment of the International Commercial Courts(2018)关于设立国际商事法庭若干问题的规定

SPC promulgated the “Provisions of the SPC on Several Issues Regarding the Establishment of the International Commercial Courts” (Fa Shi [2018] No. 11), and the China International Commercial Court (hereinafter referred to as “the CICC”) of the SPC was formally established in Shenzhen and Xi’an. 

2. Notice on Determining the First Batch of International Commercial Arbitration and Mediation Institutions Included in the "One-Stop" International Commercial Diversified Resolution Mechanism (2018)关于确定首批纳入“一站式”国际商事多元化解决机制的国际商事仲裁及调解机构的通知

Five arbitration institutions including China International Economic and Trade Arbitration Commission (CIETAC), Shanghai International Arbitration Center (SHIAC), Shenzhen International Arbitration Court (SIAC), Beijing Arbitration Commission (BAC), and China Maritime Arbitration Commission (CMAC), and two mediation institutions including the China Council for the Promotion of International Trade (CCPIT) Mediation Center and the Shanghai Trade Commercial Mediation Center (SCMC) are included in the "one-stop" mechanism.

 

 

Photo by zhang kaiyv on Unsplash

Contributors: Meng Yu 余萌

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