China

In summary

On 30 July 2021, the Ministry of Justice published the long-waited Arbitration Law (Amendment) (Draft for Comments). This chapter covers some of the highlights in the proposed amendments of China’s arbitration law.

Discussion points

• Expansion of the scope of arbitrable matters
• Admission of foreign-related ad hoc arbitration
• Endorsement of the concept of the arbitration seat
• Support for validity of the arbitration agreement
• More powers granted to the arbitral tribunal
• Facilitation of arbitral award enforcement

Referenced in this article

• Arbitration Law (Amendment) (Draft for Comments)
• Arbitration Law 2017
• Civil Procedure Law 2017
• The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958
• UNCITRAL Model Law on International Commercial Arbitration 1985, as amended 2006

China’s Arbitration Law was first promulgated in 1994. It was amended in 2009 and in 2017, but only within a very limited scope. The existing arbitration regime has long been criticised as outdated and falling short of international standards. Discussions about reshaping China’s arbitration system have been ongoing for years.

For the past decade, to accommodate China’s economic transformation and to facilitate the Belt and Road Initiative, the courts and the government have been making great efforts to create a more open and arbitration-friendly environment that aligns with internationally acceptable standards. These include the rules issued by the Supreme People’s Court (SPC) in late 2017 and early 2018 to regulate judicial review of arbitration, which have been largely successful in guarding against excessive court interference and local protectionism in aid of arbitration, as well as the arbitration-related innovations within China’s pilot free trade zones, which aim to pioneer and pave the way for nationwide reform of China’s arbitration system.

To ensure that legislation is up to date, the Ministry of Justice (MOJ) published the Arbitration Law (Amendment) (Draft for Comments) (the Draft Amendment) on 30 July 2021, a piece of draft legislation that has been in the works for years. The Draft Amendment endorses the progressive judicial practice that has been widely accepted and also introduces new rules that were less anticipated. It is fair to say that it is an overhaul of China’s conventional arbitration regime. This chapter reviews some of the landmark changes of the Draft Amendment in comparison with the existing Arbitration Law 2017.

Expansion of the scope of arbitrable matters

Article 2 of the Draft Amendment provides:

Contractual disputes and other disputes over rights and interests in property between natural persons, legal persons and other organizations may be arbitrated.
The following disputes may not be arbitrated: (1) marital, adoption, guardianship, support and succession disputes; (2) administrative disputes which shall be handled by administrative authorities in accordance with the law.
Where there are special provisions in other laws, such provisions shall prevail.

Removal of the term ‘equal subjects’

Under the Arbitration Law 2017, disputes between ‘equal subjects’ are arbitrable. The term ‘equal subjects’ has been removed under article 2 of the Draft Amendment. According to the MOJ, the removal of the term is intended to lift any potential restriction brought by the term on investment arbitration and sports arbitration, and to remove the legal barrier for Chinese arbitration institutions to administer such arbitrations or for such arbitrations to be conducted in China.

Remarkably, the Shenzhen International Court of Arbitration amended its arbitration rules in 2016 and included investment disputes between governments and foreign investors into the scope of its jurisdiction.^[1] Also, with laudable foresight and ambition, the China International Economic and Trade Arbitration Commission (CIETAC) launched its investment arbitration rules in 2017, under which CIETAC exercises jurisdiction over international investment disputes between governments and investors if an arbitration agreement has been reached in a contract, treaty, statute or other instrument.^[2] Subsequently, in 2019, the Beijing Arbitration Commission (also known as the Beijing International Arbitration Centre) adopted its investment arbitration rules.^[3] It remains to be seen whether cases will be initiated under those rules.

Qualification of non-arbitrable administrative disputes

Another change that should be noted is the qualification of non-arbitrable administrative disputes under article 2 of the Draft Amendment. The Arbitration Law 2017 is understood to exclude from arbitrable matters the administrative disputes that shall be handled by administrative authorities in accordance with the law, administrative regulations or other rules. Article 2 of the Draft Amendment confines non-arbitrable administrative disputes to those that shall be handled by administrative authorities in accordance with the law only, and this, theoretically, narrows the scope of non-­arbitrable administrative disputes.

Under article 12 of the Administrative Litigation Law 2014 and article 11 of the Interpretation of the Supreme People’s Court on the Application of the Administrative Litigation Law, administrative disputes include disputes arising out of agreements between private parties and the government pertaining to administrative law rights and obligations (administrative agreements).

Whether a public-private partnership (PPP) agreement between a local government and a private enterprise is an administrative agreement, and whether disputes arising out of PPP agreements are arbitrable, is undecided. Some take the view that disputes arising from PPP agreements are non-arbitrable administrative disputes. In multiple cases, however, the SPC has avoided an across-the-board approach and distinguished between consensual aspects of the agreement, where the private party and the government are on equal footing, and administrative aspects of the agreement, where the government is exercising its public function and authority (disputes in relation to the former being arbitrable).

Now, with article 2 of the Draft Amendment in mind, it might be argued that because the law does not unequivocally provide for disputes arising out of PPP agreements as non-arbitrable administrative disputes, they may be referred to arbitration.

Admission of foreign-related ad hoc arbitration

Traditionally, China does not recognise the validity of ad hoc arbitrations conducted within its territory. Under the Arbitration Law 2017, for the arbitration agreement to be valid, a specific arbitration commission must be included in the arbitration agreement or must otherwise be identified.

In recent years, China has been gradually opening up to ad hoc arbitrations under limited circumstances. For example, at the end of 2016, the SPC issued its Opinions on Providing Judicial Safeguards for the Development of Pilot Free Trade Zones (the Opinions for Pilot Free Trade Zones), which, for the first time, formally recognised the legality of ad hoc arbitration between companies registered within free trade zones.

Article 91 of the Draft Amendment goes further and recognises the legality of a broader range of ad hoc arbitrations. According to article 91 of the Draft Amendment, which provides that ‘the parties to foreign-related commercial disputes may . . . agree on arbitration by an ad hoc arbitral tribunal’, ad hoc arbitrations are allowed nationwide as long as the arbitrated disputes are ‘foreign-related’.

There is no statutory definition of ‘foreign-related commercial disputes’. Chinese courts regard ‘foreign-related’ as involving ‘foreign elements’, and are inclined to adopt a restrictive interpretation of ‘foreign elements’. Notably, foreign-invested entities incorporated in China are considered domestic entities and no foreign element is deemed to exist in disputes involving them.

Although in the Siemens case,^[4] the First Intermediate People’s Court of Shanghai adopted a more liberal approach and seemed to identify foreign elements because the parties were wholly foreign-­owned enterprises in the pilot free trade zone, this broad interpretation of ‘foreign elements’ did not appear to be endorsed by the SPC. Under the Opinions for Pilot Free Trade Zones, in clarifying which disputes are eligible for submission to foreign arbitration (according to the judicial practice of the Chinese courts, only foreign-related commercial disputes may be submitted to foreign arbitration), the SPC sets the rule that disputes between or among wholly foreign-owned enterprises registered within a pilot free trade zone may be submitted to foreign arbitration, regardless of whether a foreign element exists in the case or not. In other words, the SPC sees no ‘foreign element’ in a dispute even if the parties are wholly foreign-owned enterprises in a pilot free trade zone. However, because a special set of rules are applicable to pilot free trade zones that allow foreign-owned enterprises registered in a pilot free trade zone to submit their disputes to foreign arbitration, whether a ‘foreign element’ exists or not is no longer relevant.

It is yet to be seen how the Chinese courts will interpret the concept of ‘foreign-related’ or ‘foreign elements’ under article 91 of the Draft Amendment, and, thus, to what extent disputes can be submitted to ad hoc arbitration, especially outside the pilot free trade zones.

Endorsement of the concept of the arbitration seat

Article 27 of the Draft Amendment provides:

The parties may specify the seat of arbitration in an arbitration agreement. Where the parties have not specified the seat of arbitration or the agreement is not clear, the place where the arbitration institution administering the case is located shall be the seat of arbitration.
An arbitral award shall be deemed to have been made at the seat of arbitration.
The determination of the seat of arbitration shall not affect the parties or the arbitral tribunal to, depending on the circumstances of the case, agree on or choose to conduct arbitration activities such as collegiate discussions and open hearings at a suitable place different from the seat of arbitration.

The seat of arbitration is an important legal concept. It is trite law widely accepted by the international arbitration community that an international arbitration is legally seated in one locale (the arbitration seat) and that locale’s law provides the supporting legal framework for the arbitration. The courts at that locale may be called on to provide assistance during the arbitration and also have exclusive jurisdiction to hear an action to set aside the arbitral award. In identifying and determining the arbitration seat, the ‘territorial’ standard is adopted by most developed jurisdictions and by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention), which applies to the recognition and enforcement of arbitral wards made in the territory of a state other than the state where the recognition and enforcement of such awards are sought.

However, pursuant to a textual and holistic interpretation of article 58 of the Arbitration Law 2017^[5] and articles 237 and 274 of the Civil Procedure Law 2017 (the Civil Procedure Law),^[6] Chinese law is considered to adopt an ‘institution’ standard instead of a territorial standard in deciding the locale and court with regulatory, supervisory and supporting powers and functions over arbitrations. Under the institution standard, Chinese courts will look into whether the arbitration is administered and the arbitral award is rendered by a Chinese or foreign arbitral institution, instead of whether the arbitration is conducted and the arbitral award is made in the territory of China or a foreign state. This standard inevitably leads to problems, especially in relation to the following two types of arbitration and arbitral award.

Arbitration conducted and award made by a Chinese arbitration commission in the territory of a foreign state

Under the institution standard, an arbitration conducted and an award made by a Chinese arbitration commission should be subject to the regulation and supervision of Chinese courts, which in particular will have the power to set aside the award. However, the foreign court at the locale where the arbitration is conducted and the award is made may also claim regulatory and supervisory powers, including the power to set aside the award, on the basis of the territorial standard. Thus, there may be conflict, including a clash of jurisdictions.

For recognition or enforcement of arbitral awards, under the institution standard, the enforcement rules of the Civil Procedure Law should, in theory, apply to awards made by Chinese arbitration commissions, even if they are made in foreign territories. Under the territorial standard, however, the New York Convention applies to any arbitral award made in the territory of a contracting state to the Convention other than China, even if it is made by a Chinese arbitration commission. Whether to apply the Civil Procedure Law or the New York Convention not only calls into question legal technique, but it also has different practical implications over procedures and the length of the enforcement process, and over the substantive grounds on which the court may refuse to enforce an award.

Because treaty obligations prevail over domestic rules, one possible way to get around the problem is to apply the New York Convention to such awards but also allow interested parties to avail themselves of any right under the Civil Procedure Law. This is envisaged by article VII of the New York Convention, under which the provisions of the Convention shall ‘not deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent by the law . . . of the country where such award is relied on’. That being said, there has been no published court case in relation to an award made by a Chinese arbitration commission in the territory of a foreign state, and it is uncertain how Chinese courts will apply the Civil Procedure Law and the New York Convention on such occasions.

Arbitration conducted and award made by a foreign arbitration institution in the territory of China

Under the institution standard, an arbitration conducted and an award made by a foreign arbitration institution is not within the purview of the Arbitration Law 2017 or the Civil Procedure Law, which means Chinese courts are not in a position to exercise their regulatory and supervisory powers and functions, including the power to set aside the arbitral award. On the other hand, because the arbitration is conducted and the award is made in the territory of China, foreign courts will treat China as the arbitration seat under the territorial standard and regard themselves as not having the relevant regulatory and supervisory powers. Thus, the arbitration and the arbitral award will be left in a legal vacuum under no state’s jurisdiction.

As regards recognition and enforcement of arbitral awards, under the institution standard, some Chinese courts, for example the Intermediate People’s Court of Ningbo (the Ningbo Court), regard arbitral awards made by foreign arbitration institutions in the territory of China as non-domestic arbitral awards within the meaning of the New York Convention, and apply the New York Convention to their recognition and enforcement.^[7]

The concept of ‘arbitral awards not considered domestic awards’ or otherwise known as non-domestic awards under article I of the New York Convention is one of the most complicated issues posed by the New York Convention. The Convention adopts the territorial criterion as a general criterion to decide the scope of application of the Convention. It also recognises that contracting states may want to consider factors other than the seat of arbitration when determining whether an award falls within its scope, and thus includes the ‘non-domestic’ criterion as well. Because the New York Convention does not offer a definition of non-domestic awards, it could be argued that contracting states have the discretionary power to decide what they consider to be non-domestic awards. However, it has been suggested that non-domestic awards only refer to awards made in the state where recognition and enforcement is sought under the procedural law of another state because this criterion finds support in the travaux préparatoires of the New York Convention.^[8] Therefore, whether the Ningbo Court’s interpretation of non-domestic awards accords with the New York Convention is subject to conjecture.

In addition, it has been argued that China’s reservation in accordance with article I(3) of the New York Convention that ‘it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State’ excludes application of the New York Convention to non-­domestic awards as interpreted by Chinese courts,^[9] and thus even if an award is categorised by a Chinese court as non-domestic, the New York Convention is still not applicable.

The institution standard established by the legislation, in conjunction with China’s reservation under the New York Convention, has resulted in a seemingly irreconcilable dilemma and the lack of a legal mechanism to recognise and enforce awards made in China by foreign arbitration institutions.

Possibly driven by the desire to resolve the problems caused by the institution standard, in 2020, the Intermediate People’s Court of Guangzhou (the Guangzhou Court) delivered its ruling on the recognition and enforcement of an arbitral award made by the International Chamber of Commerce’s (ICC) International Court of Arbitration. The Guangzhou Court held that an arbitral award made by a foreign arbitration institution in the territory of China was a domestic arbitral award subject to the enforcement rules of the Civil Procedure Law.^[10] This was the first time a Chinese court recognised the territorial standard in determining the arbitration seat and the applicable law concerning recognition and enforcement of an international arbitration award.

Reinforcing the Guangzhou Court’s milestone achievement, article 27 of the Draft Amendment abandons the institution standard and explicitly endorses the concept of the arbitration seat, the determination of which is, in turn, dependent on the territorial standard. In line with article 27 of the Draft Amendment, it is also made clear that the court at the arbitration seat has the power to rule on the arbitration jurisdiction (article 28), order interim measures in aid of arbitration (article 46), set aside the arbitral award (article 77) and assist in establishing the arbitral tribunal (article 92). By embracing the concept of the arbitration seat and the territorial standard, the Draft Amendment bridges the gap between judicial practice and legislation, and takes a significant step in making China’s arbitration law international.

Support for validity of the arbitration agreement

Article 21 of the Draft Amendment provides:

An arbitration agreement may take form of an arbitration clause stipulated in a contract or agreement in other written forms reached before or after disputes arise which expresses the intent to apply for arbitration.
Where one party claims that there exists an arbitration agreement during an arbitration and the other party does not deny that, the arbitration agreement shall be deemed to exist between the parties.

Article 35 of the Draft Amendment provides:

A party’s application for arbitration shall meet the following requirements: (1) there is an arbitration agreement; (2) there are specific arbitration claims, and statement of facts and reasons; and (3) the matter is arbitrable in accordance with this Law.
The parties shall apply for arbitration to the arbitration institution stipulated in the arbitration agreement.
Where an arbitration agreement does not designate a clear and specific arbitration institution, but an arbitration institution can be determined by the agreed arbitration rules, the arbitration institution so determined shall accept and hear the case; where there is no agreement on arbitration rules, the parties may reach a supplementary agreement; where there is no supplementary agreement, the arbitration institution which first registers the application filling shall accept and hear the case.
Where the arbitration agreement does not agree on any arbitration institution and the parties cannot reach a supplementary agreement, the disputes may be submitted for arbitration to the arbitration institution at the common domicile of the parties; where the parties do not have a common domicile, the disputes shall be accepted and heard by the arbitration institution which is at a third place other than the domicile of the parties and which first registers the application filing.
The arbitration proceedings shall commence on the date on which the arbitration application is submitted to the arbitration institution.

According to articles 16 and 17 of the Arbitration Law 2017, a valid arbitration agreement must select an arbitration commission – a requirement peculiar to Chinese law – and although Chinese courts might try to save the arbitration agreement if a specific arbitration commission can be inferred from it or otherwise determined, there are still cases where the arbitration agreement is invalidated for not designating a commission. Articles 21 and 35 of the Draft Amendment discard the selection of an arbitration commission from the mandatory requirements that have to be satisfied for an arbitration agreement to be valid and focuses on parties’ intention to submit disputes to arbitration. Where no arbitration commission is selected in the arbitration agreement, a party may still bring an arbitration to the arbitration commission determined in accordance with statutory rules. This amendment in support of arbitration agreement validity is a welcome change geared to international standards.

In addition to relinquishing the mandatory requirement for the selection of an arbitration commission in arbitration agreements, the Draft Amendment also substitutes ‘arbitration commission’ with ‘arbitration institution’, a term that covers both Chinese arbitration commissions and foreign arbitration institutions. This might help to reduce the bureaucratic tendencies of China’s arbitration organisations and lend support to the validity of international arbitration agreements.

For a long time, the controversy and lack of an unequivocal approach by the Chinese courts in interpreting ‘arbitration commission’ and the rules relating to establishment and regulation of ‘arbitration commission’ under the Arbitration Law 2017 invoked great concerns for the legality of foreign arbitration institutions administering arbitrations in China. It was also feared that an arbitration agreement providing for a foreign arbitration institution to administer arbitration in China did not satisfy the mandatory requirement under articles 16 and 18 of the Arbitration Law 2017 that an arbitration agreement must designate an arbitration commission and could therefore be subject to invalidation.

In the Longlide case,^[11] the SPC recognised for the first time the validity of an arbitration clause providing for an arbitration seated in China to be submitted to a foreign arbitration institution. The arbitration clause at issue stated: ‘Any dispute shall be referred to the ICC International Court of Arbitration . . . jurisdiction [place of arbitration] shall be Shanghai, China.’ In applying Chinese law as the lex arbitri, the SPC was of the view that because the parties had expressly opted for the ICC International Court of Arbitration, the requirement of a designated arbitration institution was satisfied, and, hence, the arbitration clause was valid in accordance with article 16 of the Arbitration Law 2017. Although the SPC avoided clarifying whether a foreign arbitration institution qualifies as an arbitration commission under the Arbitration Law, and focused its reasoning on the parties’ express designation of an arbitration institution, the shadow over the legality of foreign arbitration institutions administering arbitrations in China and the validity of arbitration agreements providing for such arbitrations were mostly dissipated.

By substituting ‘arbitration commission’ with ‘arbitration institution’, and by allowing foreign arbitration institutions to establish a business presence and operational office in China (article 12), the Draft Amendment roots out the problem concerning China-seated arbitrations administered by foreign arbitration institutions. The amendment actually opens China’s arbitration market to foreign arbitration institutions and is likely to boost the activity of foreign arbitration institutions in China.

More powers granted to the arbitral tribunal

Enhanced kompetenz-kompetenz of arbitral tribunal

The Arbitration Law 2017 and its related rules recognise the doctrine of kompetenz-kompetenz in a limited way. If one party intends to challenge the validity of an arbitration agreement and the arbitral tribunal’s jurisdiction, according to article 20 of the Arbitration Law 2017 it can request a ruling from the arbitration commission or the arbitral tribunal, or apply to the competent court for the same, subject to, among other things, the following conditions and limits.

• If one party requests the ruling to be made by the arbitration commission or the arbitral tribunal while the other party requests the ruling from the court, the court shall have the power to decide unless the arbitration commission or the arbitral tribunal has already delivered its decision or ruling. Usually, the arbitration commission or the arbitral tribunal will stay the proceeding and defer to the decision of the court.
• Some courts view a party’s right to request the arbitration commission to rule on the issue of jurisdiction and the right to request the competent court to make the ruling to be mutually exclusive – once a party requests the arbitration commission or the arbitral tribunal to rule on the arbitral jurisdiction, the same party is not entitled to make the same request to the competent court, and vice versa.^[12]

Under article 28 of the Draft Amendment, the competent court’s power to decide on the arbitration jurisdiction no longer prevails over that of the arbitral tribunal. A party may resort to the court only after the arbitral tribunal has examined and ruled on its own jurisdiction, and before the court makes its ruling, arbitration proceedings may continue and shall not be affected. This amendment greatly enhances the kompetenz-kompetenz of the arbitral tribunal in alignment with the jurisprudential doctrine and the judicial practice that are universally recognised in developed national legal systems.

Arbitral tribunal’s power to grant interim measures

Unlike most common law jurisdictions, only China’s national courts have the power to order interim measures. When a party applies for interim measures before or during arbitration, it shall submit the application to the arbitration commission, which will then forward the application to the competent court for review (articles 28, 46 and 68 of the Arbitration Law 2017). Interim measures ordered by arbitral tribunals cannot be enforced in China.

It is groundbreaking that articles 43 to 49 of the Draft Amendment grant arbitral tribunals the power to order interim measures during the arbitration proceedings. This includes the power to order preservation of evidence and property, specific performance and injunctions, and any other short-term measures deemed necessary by the arbitral tribunal. The tribunal may also seek assistance from the court to enforce the interim measures it has ordered. As only courts are empowered to take coercive enforcement measures, the extent to which an arbitral tribunal may avail itself of this new power and how effective interim measures ordered by an arbitral tribunal will be are yet to be examined.

Facilitation of arbitral award enforcement

Under the Arbitration Law 2017, a party shall apply to set aside the arbitral award within six months of the date of receipt of the award. Article 78 of the Draft Amendment shortens the limitation period to only three months. This substantial reduction of limitation period accords with the UNCITRAL Model Law on International Commercial Arbitration 1985, as amended 2006 (the UNCITRAL Model Law) and significantly restricts a party’s right to set aside the arbitral award.

Additionally, article 82 of the Draft Amendment provides:

The parties shall comply with the arbitral award. If a party fails to comply with the arbitral award, the other party may apply to an intermediate people’s court which has jurisdiction over the case for enforcement.
Where, after examination, the people’s court holds that the enforcement of the award does not violate the social and public interest, it shall make a ruling to confirm the enforcement. Otherwise, the people’s court shall make a ruling not to confirm the enforcement.
The written ruling shall be served to the parties and the arbitral institution.
Where the people’s court rules not to confirm the enforcement of an arbitration award, the parties may apply for arbitration in accordance with the new arbitration agreement reached between the parties, and may also institute an action to a people’s court.

Under the Arbitration Law 2017 and the Civil Procedure Law, domestic arbitral awards may be set aside or refused enforcement on limited grounds, including the following.

• There is no valid arbitration agreement between the parties.
• The composition of the arbitral tribunal or the arbitration procedure was not in accordance with the agreement of the parties, or violates the requirements of the applicable law.
• The disputed matter is not contemplated by the terms of the arbitration agreement or is not arbitrable.
• The arbitral award is in conflict with public policy.
• The evidence on which the arbitral award is based is fabricated.
• The other party has concealed evidence that is sufficient to affect the fair decision of the arbitral tribunal.

Article 82 of the Draft Amendment removes all the grounds for refusing enforcement of an arbitral award except for that of social and public interest or public policy, which must be examined by the court ex officio but not on a party’s application. According to the MOJ, parties can only apply to set aside the arbitral award on the above-listed grounds and will no longer be entitled to apply for non-enforcement of the award. This is to improve efficiency of arbitral award enforcement and also to reconcile and prevent conflicting rulings in setting-aside and enforcement procedures.

There is some criticism that a shortened limitation period of three months to apply for setting aside the arbitral award, compounded by the removal of a party’s right to apply for non-enforcement of the award, may result in unfairness and injustice if the party is unable to initiate the setting-aside procedures for justifiable reasons. But extreme circumstances are rare and the amendments are modelled on the UNCITRAL Model Law, which has been adopted by many developed national legal systems. It would be difficult, therefore, to argue that a balance of different interests is against the amendments.

The Draft Amendment is contributing to the internationalisation of China’s arbitration regime, and it has assimilated a significant part of the UNCITRAL Model Law. Although it is still open for comments and may be revised before being passed by the legislature, it has fully embodied the legislative intent of supporting arbitration and has enhanced the flexibility and efficiency of arbitration in line with international practice. This will undoubtedly inspire further development of the arbitration industry and with the arbitration reform in progress,China’s business environment for international players is also being optimised. The future looks promising.

Notes

^[1] Shenzhen Court of International Arbitration Rules, effective as of 1 December 2016.

^[2] China International Economic and Trade Arbitration Commission International Investment Arbitration Rules (For Trial Implementation), adopted by the China Council for the Promotion of International Trade (China Chamber of International Commerce) on
12 September 2017, and effective as from 1 October 2017.

^[3] Rules for International Investment Arbitration, adopted at the Fourth Meeting of the Seventh Session of the Beijing Arbitration Commission on 4 July 2019, and effective as of 1 October 2019.

^[4] Siemens International Trade (Shanghai) Co, Ltd v Shanghai Golden Landmark Co, Ltd, the First Intermediate People’s Court of Shanghai, 27 November 2015 (2013) Hu Yi Zhong Min Ren (Wai Zhong) No. 2.

^[5] According to article 58 of the Arbitration Law 2017, parties may apply to the intermediate people’s court at the place where the arbitration commission is located to set aside the arbitral award made by the arbitration commission.

^[6] According to articles 237 and 274 of the Civil Procedure Law, the enforcement rules thereunder apply to arbitral awards made by Chinese arbitration commissions.

^[7] DUFERCOS.A. v Ningbo Arts and Crafts Int’l Trade Co, Ltd, the Intermediate People’s Court of Ningbo, 22 April 2009 [2008] Yong Zhong Jian Zi No. 4.

^[8] Albert Jan van den Berg, When Is an Arbitral Award Nondomestic Under the New York Convention of 1958?, 6 Pace L Rev 25 (1985).

^[9] Zhang Yibing, A Study of China’s Reciprocal Reservation to the 1958 New York Convention, Master Dissertation of China University of Political Science and Law (2008), pp. 17–18.

^[10] Recognition and Enforcement of Court Judgment and Arbitral Award between Brentwood Industries and Guangdong Fanlong Mechanical Equipment Engineering Co, Ltd et al, the Intermediate People’s Court of Guangdong, 6 August 2020 (2015) Shui Zhong Fa Min Chu Zi No. 62.

^[11] Reply of the Supreme People’s Court on issues concerning Anhui Longlide Packaging Co Ltd v BP Agnati SRL for Confirmation of Validity of an Arbitration Clause, Min Si Ta Zi [2013] 13, 25 March 2013.

^[12] Da Tang International (Hong Kong) Limited v Sinosteel Group Shanxi Co Ltd, the Fourth Intermediate People’s Court of Beijing,
24 October 2017, (2017) Jing 04 Min Te No. 21.