Provisions of the Supreme People's Court on Issues Concerning the Reporting and Approval in the Judicial Review of Arbitration Cases (最高人民法院关于仲裁司法审查案件报核问题的有关规定) (2017)

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Provisions of the Supreme People's Court on Issues Concerning the Reporting and Approval in the Judicial Review of Arbitration Cases

最高人民法院关于仲裁司法审查案件报核问题的有关规定

(Fashi No. 21 [2017], Supreme People's Court)

 

In order to correctly try the judicial review of arbitration cases, unify the adjudication standards, safeguard the lawful rights and interests of the parties according to the law, and guarantee the arbitration developments, these Provisions are formulated in accordance with the CivilProcedure Law of the People's Republic of China, the Arbitration Law of thePeople's Republic of China, and other relevant legal provisions and in light of the judicial practice.

 

Article 1 For the purpose of these Provisions, the judicial review of arbitration cases include the following:

(1) a case of an application for verification of the validity of an arbitration agreement;

(2) a case of an application for setting aside an arbitral award rendered by a Mainland (Mainland China) arbitral institution;

(3) a case of an application for enforcement of an arbitral award rendered by a Mainland arbitral institution;

(4) a case of an application for recognition and enforcement of an arbitral award rendered in the Hong Kong Special Administrative Region, the Macao Special Administrative Region, or Taiwan region;

(5) a case of an application for recognition and enforcement of a foreign arbitral award; and

(6) other arbitration-related judicial review cases.

 

Article 2 In the handling of the judicial review of foreign-related or Hong Kong, Maocao, and Taiwan-related arbitration cases,where, upon review, any intermediate people's court or special people's court is to determine the invalidity of an arbitration agreement, not enforce or set aside an arbitral award rendered by a Mainland arbitral institution, not recognize or enforce an arbitral award rendered in the Hong Kong SpecialAdministrative Region, the Macao Special Administrative Region, or TaiwanRegion, or not recognize or enforce a foreign arbitral award, the intermediate people's court or special people's court shall report and request approval by the high people's court within the jurisdiction; Where, upon review, the high people's court is to approve the request, it shall report and request approval by the Supreme People's Court. Upon review of the Supreme People's Court, the intermediate people's court or special people's court may render a ruling based on the review opinions of the Supreme People's Court.

In the handling of the judicial review of non-foreign-related or non-Hong Kong, Macao, or Taiwan-related arbitration cases, where, upon review, any intermediate people's court or special people's court is to determine the invalidity of an arbitration agreement, or not enforce or set aside an arbitral award rendered by a Mainland arbitral institution, the intermediate people's court or special people's court shall report and request approval by the high people's court within the jurisdiction;Upon review of the high people's court, the intermediate people's court or special people's court may render a ruling based on the review opinions of the high people's court.

 

Article 3 For the judicial review of non-foreign-related or non-Hong Kong, Macao, or Taiwan-related arbitration cases as prescribed in paragraph 2 of Article 2 of these Provisions, where, upon review, the high people's court is to approve the determination of the intermediate people's court or special people's court on the invalidity of an arbitration agreement,non-enforcement or set-aside of an arbitral award rendered by a Mainlandarbitral institution, under any of the following circumstances, the high people's court shall report and request approval by the Supreme People's Court. Upon review of the Supreme People's Court, the intermediate people's court or special people's court may render a ruling based on the review opinions of theSupreme People's Court:

(1) the domiciles of the parties in the judicial review of arbitration case are in different provincial administrative regions; or

(2) the arbitral award rendered by a Mainland arbitral institution is not enforced or is set aside on the ground of violating public interests.

 

Article 4 When reporting and requesting approval by the people's court at the higher level, the people's court at the lower level shall concurrently submit a written report and case files. The written report shall state the review opinions and specific grounds.

 

Article 5 Where, upon receipt of the request for approval by the people's court at the lower level, the people's court at the higher level finds that the relevant case facts are unclear, the people's court at the higher level may inquire the parties or send the request back to the people's court at the lower level for supplementary finding of facts and then the people's court at the lower level may resubmit the request.

 

Article 6 The people's courts at the higher level shall make a reply to the request of the people's court at the lower level in the form of a reply letter.

 

Article 7 In civil proceedings, where the people's court, on grounds involving the validity of an arbitration agreement, renders a ruling of inadmissibility, dismissal of application and jurisdictional challenge, and any party dissatisfied appeals against the ruling, the people's court of second instance is to determine that the arbitration agreement is untenable, invalid or void, or unenforceable due to its unclear content, a request for approval shall be made level by level in accordance with Article 2 of these Provisions. Upon review of the people's court at the higher level, a ruling may be rendered based on the review opinions of the people's court at the higher level.

 

Article 8 These Provisions shall come into force on 1 January 2018, and in case of discrepancy between the judicial interpretations issued previously by the Supreme People's Court and these Provisions, these Provisions shall prevail.