China Justice Observer

中国司法观察

Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Judicial Review of Arbitration Cases (最高人民法院关于审理仲裁司法审查案件若干问题的规定) (2017)

Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Judicial Review of Arbitration Cases

最高人民法院关于审理仲裁司法审查案件若干问题的规定

(Fashi No. 22 [2017], Supreme People's Court)

 

In order to correctly try the judicial review of arbitration cases and safeguard the lawful rights and interests of the parties according to the law, these Provisions are formulated in accordance with the Civil Procedure Law of the People's Republic of China, the Arbitration Law of the People'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 enforcement of an arbitral award rendered by a Mainland (Mainland China) arbitral institution;

(3) a case of an application for setting aside 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 For a case of an application for verification of the validity of an arbitration agreement, the intermediate people's court or the special people's court, in whose jurisdiction the arbitral institution designated in the arbitration agreement locates, or the arbitration agreement is signed, or the applicant or the respondent domiciles, shall be competent to hear such application.

For a case relating to the validity of an arbitration agreement involving maritime disputes, the maritime court in whose jurisdiction the arbitral institution designated in the arbitration agreement locates, or the arbitration agreement is signed, or the applicant or the respondent domiciles, shall be competent to hear such application.

 

Article 3 Where a foreign arbitral award relates to a case pending before a people's court, neither the place of the domicile of the respondent nor the place of the property of the respondent is located in the Mainland, and the applicant applies for recognition of the foreign arbitral award, the people’s court before which the related lawsuit is pending shall be competent to hear the application. Where the people’s court before which the related lawsuit is pending is a primary people's court, the application to recognize foreign arbitral awards shall be heard by the people’s court at the next higher level. Where the people’s court before which the related lawsuit is pending is a high people’s court or the Supreme People's Court, the court may decide to hear the application by itself or to appoint an intermediate people's court for the hearing.

Where a foreign arbitral award relates to a case administered by a Mainland arbitral institution, neither the place of the domicile of the respondent nor the place of the property of the respondent is located in Chinese mainland, and the applicant applies for recognition of the foreign arbitral award, the intermediate people's court in whose jurisdiction the Mainland arbitration institution locates shall be competent to hear the application.

 

Article 4 Where an applicant files its application with two or more competent people's courts, the people's court which dockets the case first shall exercise jurisdiction.

 

Article 5 An applicant shall, when applying to a people's court for verification of the validity of an arbitration agreement, submit an application together with the original of the arbitration agreement or a duly authenticated copy of the same.

An application shall specify the following:

(1) where the applicant or the respondent is a natural person, his/her name, gender, date of birth, nationality and domicile; or if the applicant or the respondent is a legal person or other organization, its name, domicile, and the name and position of the legal representative or representative;

(2) the content of the arbitration agreement; and

(3) the specific requests and grounds. 

Where the application, the arbitration agreement or any other document submitted by a party is in a foreign language, a Chinese translation shall be accompanied.

 

Article 6 An applicant shall, when applying to a people's court for enforcement or setting aside of an arbitral award rendered by a Mainland arbitral institution, or for recognition and enforcement of a foreign arbitral award, submit an application together with the original of the arbitral award or a duly authenticated copy of the same.

An application shall specify the following:

(1) where the applicant or the respondent is a natural person, his/her name, gender, date of birth, nationality and domicile; or if the applicant or the respondent is a legal person or other organization, its name, domicile, and the name and position of the legal representative or representative;

(2) the main content and the effective date of the arbitral award; and

(3) the specific requests and grounds.

Where the application, the arbitral award or any other document submitted by a party is in a foreign language, a Chinese translation shall be accompanied.

 

Article 7 Where a document submitted by an applicant is not in compliance with Articles 5 or Article 6, and after the explanation of the people's court, the documents re-submitted still do not comply with the requirements, the application shall be ruled inadmissible.

Where an applicant files an application with a people's court that does not have jurisdiction in the case, the people's court shall inform the applicant to submit its application to a competent people's court. Where the applicant refuses to modify, the application shall be ruled inadmissible.

The applicant may appeal against the ruling of inadmissibility.

 

Article 8 A people's court shall render a ruling to dismiss an application if, after docketing the case, it finds the application does not meet the requirements of accepting the case.

Where the applicant re-institutes the dismissed case mentioned in the preceding paragraph and the new application meets the requirements, the people’s court shall accept it.

A party may appeal against the ruling of dismissal.

 

Article 9 For an application filed by an applicant, the people's court shall, within seven days, conduct a review and decide whether or not to accept the case.

After accepting a judicial review of arbitration case, the people’s court shall issue within five days a notice to the applicant and the respondent, informing them of the acceptance and their respective rights and obligations.

 

Article 10 After the acceptance by the people’s court of a judicial review of arbitration case, the respondent who disagrees with the court’s jurisdiction shall raise an objection within fifteen days from the date of receipt of the notice of the people’s court. The people’s court shall review and make a ruling on the respondent’s objection. A party may appeal against the ruling.

A respondent without a domicile in the territory of the People's Republic of China, who disagrees with the court’s jurisdiction, shall raise an objection within thirty days from the date of receipt of the notice of the people’s court.

 

Article 11 For the trial of a judicial review of arbitration case, a collegial panel shall be formed and the parties be inquired.

 

Article 12 An arbitration agreement or an arbitral award, which falls under one of the circumstances as mentioned in Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning Application of the Law of the People’s Republic of China on Application of Laws to Foreign-related Civil Relations of the People's Republic of China (I), shall be deemed as a foreign-related arbitration agreement or a foreign-related arbitral award.

 

Article 13 Where the parties intend to choose by agreement the law governing the validity of their foreign-related arbitration agreement, they shall make an explicit expression to that effect. The fact that the applicable law of the contract has been agreed upon is not determinative that the same law governs the validity of the arbitration clause of the contract.

 

Article 14 Where, absent the parties’ choice of the governing law, a people’s court is to ascertain the law governing the validity of a foreign-related arbitration agreement in accordance with Article 18 of the Law of People’s Republic of China on the Application of Laws to Foreign-related Civil Relations, and application of the law of the place of the arbitral institution or the law of the seat of arbitration will bring about different results in respect of the validity of the arbitration agreement, then the people’s court shall apply the law that renders the arbitration agreement valid.

 

Article 15 Where the arbitration agreement does not specify the arbitration institution or the seat of arbitration, but the arbitration institution or the seat of arbitration can be determined pursuant to the arbitration rules agreed upon in the arbitration agreement, then the arbitration institution or the seat of arbitration thus determined shall be deemed as those as provided in Article 18 of the Law of People’s Republic of China on the Application of Laws to Foreign-related Civil Relations.

 

Article 16 When a people's court relies on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards to review a case in which a party applies for the recognition and enforcement of a foreign arbitral award, if the respondent raises a defense that the arbitration agreement is invalid, the people's court shall, according to paragraph 1(a), Article 5 of this Convention, determine the law applicable to the verification of the validity of the arbitration agreement.

Where a people’s court reviews a party’s application to recognize and enforce a foreign arbitral award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and the respondent objects on the ground that the arbitration agreement is null and void, the people’s court shall determine the law governing the validity of the arbitration agreement in accordance with Article V (1) (a) of the Convention.

 

Article 17 For the review of a non-foreign-related arbitral award rendered by a Mainland arbitral institution, the people’s court shall apply Article 237 of the Civil Procedure Law of the People’s Republic of China. 

For the review of a foreign-related arbitral award rendered by a Mainland arbitral institution, the people’s court shall apply Article 274 of the Civil Procedure Law of the People’s Republic of China.

 

Article 18 The act of soliciting or accepting bribes, engaging in malpractices for personal benefits, or perverting the law when rending the award as provided in Article 58 (1) (vi) of the Arbitration Law of the People’s Republic of China and Article 237 (2) (vi) of the Civil Procedure Law of the People’s Republic of China refers to an act determined in a legally effective criminal judgment or a disciplinary punishment decision.

 

Article 19 After the people’s court accepts a judicial review of arbitration case, the withdrawal of an application by the applicant shall be permitted if it is made before any ruling is rendered.

 

Article 20 A ruling made by a people’s court in a judicial review of arbitration case shall take immediate legal effect when served, except for a ruling of inadmissibility, dismissal of application and jurisdictional challenge. A party’s application for reconsideration, appeal and retrial shall not be entertained by the people’s court, unless otherwise provided by the law or any other judicial interpretation.

 

Article 21 In respect of an accepted application to verify the validity of an arbitration agreement which relates to Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan Region, or an accepted application to enforce or set aside an arbitral award rendered by a Mainland arbitral institution, which relates to Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan Region, the people’s court may review the case by reference to the provisions on the judicial review of foreign-related arbitration cases.

 

Article 22 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.