Arbitration in China

Name: Arbitration in China | A Practitioner's Guide
Brand: Kluwer Law International
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A Practitioner's Guide

Sun Wei Melanie Willems(Author)

Kluwer Law International (Publisher)

Published on 24. September 2015

506 pages

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Arbitration in China has been aligned with international norms since the enactment of the Arbitration Law in 1994. The purpose of this book is to assist practitioners by describing the law governing arbitration in China as it is currently applied to practice, both domestically and internationally, taking into account the regime's numerous features. Among the details affecting arbitration practice and procedure in China covered are the following:

- arbitration agreement as a precondition for any arbitration proceedings;

- finality of arbitral awards without any right of appeal;

- procedure governing arbitral proceedings;

- the extent of permissible judicial review;

- arbitrations with a connection to Hong Kong, Macau, or Taiwan;

- persistent involvement of local governments in arbitration acceptance and proceedings;

- rules on the handling of cases with foreign elements;

- guidelines provided in the Supreme People's Court's judicial interpretations;

- fees;

- grounds for objecting to jurisdiction;

- mechanisms for multi-party arbitration;

- interim injunctions;

- formation of arbitral tribunals;

- use of expert witnesses;

- enforcement of arbitral awards; and

- use of mediation.

Although focusing predominantly on the practical effects of Arbitration Law provisions, the authors stress practice involving China's two commissions specifically addressing international matters, the China International Economic and Trade Arbitration Commission (CIETAC) and the Beijing Arbitration Commission (BAC). Among the numerous local commissions functioning under the Arbitration Law, special attention is paid to those in Beijing, Shanghai, and Guangzhou, which (along with CIETAC) accept the greatest number of cases with a foreign element. The book will be invaluable to corporate counsel and other practitioners dealing with Chinese companies. Scholars of comparative arbitration law will also find much here to interest them.

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Content

Intro
Halftitle Page
Title Page
Copyright Page
Copyright Notice: Institutional Rules of Arbitration and UK Legislation
Table of Contents
Foreword
Preface
Bilingual Table of Chinese Legislation and Precedents Cited
CHAPTER 1 Introduction
1.1 A Brief History of Arbitration in China
1.1.1 Arbitration Prior to the Enactment of the Arbitration Law
1.1.2 The Advent of the Arbitration Law
1.1.3 The Journey Ahead: In Search of Greater Independence
1.2 Institutional and Ad Hoc Arbitration
1.2.1 Overview
1.2.2 No Ad Hoc Arbitration in Mainland China
1.2.3 Ad Hoc Arbitration Abroad May Be Allowed in Agreements with a Foreign Element
1.2.4 Ad Hoc Arbitration Award Made in Hong Kong, Macau or Taiwan
1.2.5 Ad Hoc Arbitral Awards Made in Contracting States of the New York Convention
1.2.6 Ad Hoc Arbitral Awards Made in Other Jurisdictions
CHAPTER 2 The Arbitration Law, Relevant Judicial Interpretations and International Treaties
2.1 The Arbitration Law and Amendments
2.1.1 Arbitration Laws in the Broad and Narrow Sense
2.1.2 The Scope of the Arbitration Law
2.1.2.1 The Parties
2.1.2.2 The Subject Matter of the Dispute
2.1.2.3 The Effective Date
2.1.2.4 Territorial Scope
2.1.3 The Fundamental Principles of the Arbitration Law
2.1.3.1 Free Will (Party Autonomy)
2.1.3.2 Reliance on Facts
2.1.3.3 Arbitral Independence
2.1.4 Basic Mechanisms of the Arbitration Law
2.1.4.1 The Exclusive Nature of Arbitration
2.1.4.2 Private Oral Hearings
2.1.4.3 Withdrawal of Arbitrators
2.1.4.4 Finality of Arbitral Awards
2.1.5 Amendments to the Arbitration Law
2.1.5.1 The Nature of Arbitration Commissions
2.1.5.2 Institutional versus Ad Hoc Arbitration
2.1.5.3 Requirements for an Arbitration Agreement to Be Valid
2.1.5.4 A Two-Track Regime for Judicial Review of Arbitration Proceedings
2.2 The New York Convention
2.2.1 Objectives
2.2.2 The Main Provisions of the New York Convention
2.2.3 The New York Convention in China
2.3 The Arrangement concerning the Mutual Enforcement of Arbitral Awards between Mainland China and Hong Kong
CHAPTER 3 Arbitration Agreements
3.1 The Requirement for Arbitration Agreements to Be in Writing
3.1.1 Valid Arbitration Agreements Need to Be in Writing
3.1.2 What Does 'In Writing' Mean in China?
3.1.3 The 'In Writing' Requirement in Other Jurisdictions
3.2 Separability of the Arbitration Agreement
3.2.1 Arbitration Agreement Exists Independently of the Contract
3.2.2 Separability in Other Jurisdictions
3.3 The Validity of the Arbitration Agreement
3.3.1 The Three Essential Elements of a Valid Arbitration Agreement
3.3.2 Validity of Arbitration Agreements Providing for Arbitration to Be Conducted in China by a Foreign Arbitral Institution
3.3.2.1 Arguments for the Validity of Arbitration Agreements Providing for Arbitration in China by a Foreign Arbitral Institution
3.3.2.2 Arguments against the Validity of Arbitration Agreements Providing for Arbitration in China by a Foreign Arbitral Institution
3.3.2.3 Züblin
3.3.2.4 Duferco
3.3.2.5 Longlide
3.3.2.6 Questions to Be Answered
3.3.3 Case Studies on Inaccurate Names of Arbitration Institutions
3.3.4 The Effectiveness of the Arbitration Clause when Two Arbitration Institutions Have Been Selected
3.3.5 The Presumption of Designating an Arbitration Commission by Agreeing Arbitration Rules
3.4 Application of Arbitration Clauses to Disputes Involving Concurrent Liability in Contract and Tort
3.5 The Effectiveness and Limitations of the Arbitration Agreement
3.6 Binding Effect of the Arbitration Clause on a New Party to the Contract
CHAPTER 4 Foreign Arbitration, Arbitration with a Foreign Element and Domestic Arbitration
4.1 Categorisation of Arbitrations
4.2 Domestic Arbitration
4.3 Foreign Arbitration
4.3.1 Traditional Definition in Chinese Law
4.3.2 Definition in the New York Convention
4.3.3 Developments Subsequent to the Tianli Case
4.4 Arbitrations with a Foreign Element
4.4.1 Outdated Provisions in the Civil Procedure Law and Arbitration Law
4.4.2 Guidelines Provided in the Supreme People's Court's Judicial Interpretations
4.4.3 Cases Involving Arbitrations with a Foreign Element
4.5 Arbitrations Relating to Hong Kong, Macau and Taiwan
4.6 Hong Kong, Macau and Taiwanese Arbitration
4.6.1 Hong Kong Arbitration
4.6.2 Macau Arbitration
4.6.3 Taiwan Arbitration
4.7 Arbitrations concerning Taiwanese Investments in Mainland China
CHAPTER 5 The Applicable Law
5.1 Severability of the Arbitration Agreement under the Applicable Law
5.2 The Law Governing the Arbitral Procedure
5.3 The Law Applicable to the Substance of the Dispute
5.3.1 Overview of the Chinese Approach
5.3.2 The Western and Chinese Approaches Contrasted
5.3.3 'Relationship Involving Foreign Elements' Defined
5.3.4 The Law Applicable to Domestic Civil and Commercial Relationships
5.3.5 Scheme for Determining the Law Applicable to Civil and Commercial Relationships with a Foreign Element
5.3.5.1 The Law Chosen by the Parties
5.3.5.2 The Law of the Country to Which the Contract Is Most Closely Connected
5.3.5.3 Mandatory Application of Chinese Law
5.3.6 The Law Applicable to the Parties' Capacity
CHAPTER 6 Limitation Periods in Arbitration
6.1 Limitation: A Substantive Matter
6.2 Classification
6.3 Suspension, Discontinuance and Extension of Time Limits
6.3.1 Suspension
6.3.2 Discontinuance
6.3.3 Extension
CHAPTER 7 Requests for Arbitration, Acceptance of Proceedings and the Defence
7.1 Pre-arbitration Procedures Agreed by the Parties
7.2 Requests for Arbitration
7.2.1 Documents to Be Submitted
7.2.2 CIETAC and Its Sub-commissions or Centres
7.3 Payment of the Costs of the Arbitration
7.3.1 Payment in Advance
7.3.2 The Composition of Arbitration Fees
7.3.3 The Amount in Dispute and Arbitration Fees
7.4 Acceptance of the Request for Arbitration and Service of the Notice of Arbitration
7.5 Defence
CHAPTER 8 Objections to Jurisdiction
8.1 Raising a Jurisdictional Objection with the Arbitration Commission
8.1.1 Grounds for Objecting to Jurisdiction
8.1.2 Time Limits for Raising Jurisdictional Objections
8.1.3 Objections in Writing
8.1.4 Power to Decide on Jurisdictional Issues
8.2 Raising an Objection with the Arbitral Tribunal
8.2.1 Grounds for Objection
8.2.2 Time Limits
8.3 Raising a Jurisdictional Objection with the Court or Commencing Declaratory Proceedings
8.3.1 Objections Based on the Existence of a Valid Arbitration Agreement
8.3.2 The Court Has Priority to Decide the Validity of Arbitration Agreements
8.3.3 Commencing Court Proceedings to Determine the Validity of the Arbitration Agreement
8.3.4 The Competent Court and the Decision at Final Instance
CHAPTER 9 Counterclaim
9.1 Definition
9.1.1 Four Characteristics of a Counterclaim
9.1.2 Defence and Counterclaim
9.2 Submission, Acceptance and Defence
CHAPTER 10 Mechanisms for Multi-party Arbitration
10.1 Overview
10.2 Joinder of Additional Parties
10.3 Consolidation of Arbitrations
10.3.1 Circumstances Where Consolidation of Arbitrations Is Appropriate
10.3.1.1 Where the Disputes Are of the Same or a Similar Nature
10.3.1.2 Where the Disputes Arise Out of Related Legal Relationships
10.3.2 The Limits of Consolidating Arbitrations
10.3.3 CIETAC's Approach Prior to 2015
10.3.4 CIETAC and the BAC's New Approach
10.3.5 Laws and Arbitration Rules of Other Jurisdictions
10.3.5.1 Court-Ordered Consolidation
10.3.5.2 ICC Rules
10.4 Consolidation of Hearings
CHAPTER 11 Preservation of Property
11.1 Introduction
11.1.1 Preservation of Property Is Not Available in Cases Arbitrated under the Auspices of Foreign Arbitral Institutions in China
11.1.2 Preservation of Property before Arbitral Proceedings
11.1.3 Preservation of Property during Arbitration Proceedings
11.1.4 Burden of Proof regarding Impossibility or Difficulty of Enforcement
11.2 Applications for the Preservation of Property
11.2.1 Where to Apply
11.2.2 Documents Required
11.2.3 Contents of the Application
11.3 Acceptance, Measures and Time Limits
11.3.1 Jurisdiction
11.3.2 Security
11.3.3 Burden of Proof regarding the Respondent's Property
11.3.4 Ruling
11.3.5 Specific Measures
11.3.6 Compensation for Wrongful Applications
11.3.7 Time Limits regarding the Preservation of Property Prior to Arbitration Proceedings
CHAPTER 12 Preservation of Evidence
12.1 Introduction
12.1.1 It Does Not Apply to Cases Arbitrated by Foreign Arbitral Institutions in China
12.1.2 Preservation of Evidence before or during Arbitration
12.1.3 Who May Apply for the Preservation of Evidence
12.1.4 Specific Grounds for the Preservation of Evidence Are Required
12.1.5 Only the Court Is Entitled to Rule on Issues Relating to the Preservation of Evidence
12.2 Application for the Preservation of Evidence
12.2.1 Where to Apply
12.2.2 Documents Required
12.2.3 The Substance of the Application
12.3 Jurisdiction, Appropriate Measures and Time Limits
12.3.1 Jurisdiction
12.3.2 Deciding the Application
12.3.3 Specific Measures
12.3.4 Time Limits regarding Preservation of Evidence Pre-arbitration
CHAPTER 13 Interim Injunctions in Arbitration
13.1 Introduction
13.1.1 Any Application Should Be Made before Arbitration Proceedings Are Commenced
13.1.2 Differences between Interlocutory Injunctions and Property Preservation
13.1.3 Interlocutory Injunctions in Specific Cases
13.2 Application for Discharging an Interlocutory Injunction
13.2.1 Where to Apply
13.2.2 Documents Required
13.2.3 Discharge of Pre-arbitration Interlocutory Injunctions
13.2.4 Effect of Pre-arbitration Injunctions after the Commencement of Arbitration
13.3 Security and Compensation for Wrongful Applications
13.3.1 Compensation for Wrongful Applications
CHAPTER 14 Representation
14.1 Representation during Arbitration Proceedings
14.1.1 Statutory and Authorised Representation
14.1.2 BAC's Restrictions on Arbitrators
14.1.3 Restrictions in the Measures for Penalizing Unlawful Acts of Lawyers and Law Firms
14.2 Foreign Attorneys
14.3 Powers of Attorney
CHAPTER 15 Arbitral Tribunal
15.1 Nomination or Appointment of Arbitrators
15.1.1 The Appointing Authority
15.1.2 Relevant Procedures of Chinese Arbitral Institution
15.1.2.1 Number of Arbitrators
15.1.2.2 Nomination or Appointment of a Sole Arbitrator
15.1.2.3 Nomination or Appointment of a Tribunal of Three Arbitrators
15.1.2.4 Tribunals in Multi-Party Arbitration Proceedings
15.1.2.5 Nomination of the Presiding Arbitrator from a List of Candidates
15.1.3 A Comparison of Methods for Selecting the Presiding Arbitrator
15.2 Challenges to Arbitrators
15.2.1 Interpretations of Article 34 of the Arbitration Law
15.2.2 Flaws in Article 34
15.2.3 Proposals for Modification of Article 34
15.2.4 Relevant Provisions in Arbitration Rules
15.2.4.1 The Arbitrator's Disclosure Obligation
15.2.4.2 General Principles and Requirements for Challenging Arbitrators
15.2.5 Deciding Challenges to Arbitrators
15.3 Formation of Arbitral Tribunals
15.4 Replacement of Arbitrators
15.4.1 Substitute Arbitrator
15.4.2 Effect of Replacement
15.5 Absence of an Arbitrator and the Effect on the Award
CHAPTER 16 Evidence
16.1 The Categories of Evidence
16.1.1 Statements by the Parties
16.1.2 Documentary Evidence
16.1.3 Physical Evidence
16.1.4 Electronic Data
16.1.5 Audio-Visual Evidence
16.1.6 Witness Testimony
16.1.7 Reports by an Appraiser
16.1.7.1 Registration Requirements for Appraisal Institutions
16.1.7.2 Issues Arising Out of Appraisal Reports
16.1.8 Records of Inspections
16.2 Attendance of Witnesses
16.3 Expert Witnesses
16.4 Investigations Undertaken by the Arbitral Tribunal
16.4.1 Practical Difficulties
16.4.2 Suggestions
16.5 Specific Disclosure of Documents
CHAPTER 17 The Hearing
17.1 Timing and Place for Hearing
17.2 Procedural Meeting
17.3 Conduct of the Hearing
17.3.1 Opening Session
17.3.2 Submissions by the Parties
17.3.3 Presentation of the Evidence and Cross-Examination
17.3.4 Submissions and Argument
17.4 Documents-Only Proceedings
CHAPTER 18 Arbitral Award
18.1 Time Limit for the Issuing Arbitral Award
18.2 The Making of Arbitral Awards
18.3 Service of Arbitral Award
18.4 Allocating Responsibility for the Costs of the Arbitration
18.4.1 The 'English' Approach
18.4.2 The 'American' Approach
18.4.3 The Chinese Rules Governing Allocation of the Costs of the Arbitration
18.4.3.1 The Arbitral Tribunal Determines the Allocation of Costs
18.4.3.2 'Loser Pays'
18.4.3.3 Allocating Costs According to the Merits of the Parties' Respective Positions
18.4.3.4 Costs Penalties for Delaying the Proceedings
18.4.4 Prepayment of Arbitration Fees by the Claimant
18.5 Interpretation of the Arbitral Award by the Arbitral Tribunal
18.6 Omissions and Manifest Errors in Arbitral Awards
CHAPTER 19 Enforcement of Arbitral Awards
19.1 Enforcement of Domestic Awards and Awards with Foreign Elements
19.1.1 The Competent Court
19.1.2 Documents to Be Submitted in Enforcement Applications
19.1.3 Time Limits for Enforcement Applications
19.2 Enforcement of Arbitral Awards Made in Hong Kong, Macau or Taiwan
19.2.1 The Competent Court for Enforcement of an Award Made in Hong Kong
19.2.2 Documents Required for an Application to Enforce a Hong Kong Award
19.2.3 The Time Limit for Applications to Enforce an Award Made in Hong Kong
19.2.4 Shortcomings of the Hong Kong Arrangement
19.2.4.1 Uncertainty as to the Need for Recognition Proceedings
19.2.4.2 Prohibition against Simultaneous Enforcement Proceedings in Multiple Jurisdictions
19.2.5 The Competent Court for the Recognition and Enforcement of an Award Made in Macau
19.2.6 Documents Required in Applications for Recognition and Enforcement of an Award Made in Macau
19.2.7 The Time Limit for Applications to Enforce an Award Made in Macau
19.2.8 The Legal Basis for Applications for Recognition and Enforcement of Awards Made in Taiwan
19.2.9 The Grounds for Refusing to Recognise and Enforce an Award Made in Taiwan
19.2.10 Procedures and Documents Required for Applications for Recognition and Enforcement of Arbitral Awards Made in Taiwan
19.3 Applications for Recognition and Enforcement of Foreign Arbitral Awards Subject to the New York Convention
19.3.1 China's Reciprocity and Commercial Reservations
19.3.2 The Competent Court for Recognition and Enforcement of Foreign Arbitral Awards Subject to the New York Convention
19.3.3 An Arbitrator Cannot Recover Fees through Recognition and Enforcement Proceedings
19.3.4 Documents to Be Submitted
19.3.5 The Relevant Time Limits
19.4 Recognition and Enforcement of Non-commercial Awards or Awards Made in Non-contracting States
19.4.1 The Basis for Recognition and Enforcement
19.4.2 The Competent Court
19.4.3 Documents to Be Submitted and Time Limit
19.5 Enforcement Measures and Duration of Enforcement Proceedings
19.5.1 Enforcement Measures
19.5.2 Duration of Enforcement Proceedings
19.6 Enforcement Proceedings and Third Parties
19.6.1 Introduction
19.6.2 Objections to Enforcement
19.6.2.1 Who May Raise an Objection?
19.6.2.2 On What Grounds Can an Objection Be Made?
19.6.2.3 What Form Should the Objection Take?
19.6.2.4 When Should the Objection Be Raised?
19.6.3 Legal Proceedings by Third Parties Objecting to Enforcement
19.6.3.1 Parties to the Objection Proceedings
19.6.3.2 The Aims of the Objection Proceedings
19.6.3.3 Time for Commencing Objection Proceedings
19.6.3.4 The Court Deciding the Objection Proceedings
19.6.3.5 Circumventing the Objection Procedure
CHAPTER 20 Judicial Review over Arbitration
20.1 Statutory Standards for Judicial Review
20.2 Legal Grounds for Judicial Review of Arbitral Awards
20.2.1 Domestic Arbitrations
20.2.2 Arbitrations with a Foreign Element
20.2.3 International Arbitration
20.2.4 Hong Kong Arbitrations
20.3 The Law Governing a Judicial Review of the Validity of Arbitration Clauses with a Foreign Element
20.4 The Reporting Mechanism for Judicial Review of International Arbitrations and Arbitrations with a Foreign Element
20.4.1 The Origin of the Reporting Mechanism
20.4.2 How the Reporting Mechanism Operates
20.4.3 Time Limits for Reporting
20.5 Judicial Review of the Existence of Arbitration Agreements
20.6 The Invalidity of Arbitration Agreements
20.7 Where the Person against Whom Enforcement Is Sought Does Not Exist
20.8 Effect of the Parties' Capacity to Contract on the Validity of the Arbitration Agreement
20.9 Failure to Comply with the Applicable Arbitration Rules
20.10 Tribunals Exceeding Their Jurisdiction
20.11 Arbitrability
20.12 Public Policy
20.13 Treaties on Inter-jurisdictional Collaboration
20.14 The Competent Courts for Judicial Review
20.14.1 The Competent Court for Determining the Validity of Arbitration Agreement
20.14.2 The Competent Court for Setting Aside an Arbitral Award
20.14.3 The Competent Court for Refusing to Enforce or Recognise an Arbitral Award
20.15 Consequences of Judicial Review over Arbitration
20.15.1 Setting Aside and Partial Setting Aside of Arbitral Awards
20.15.2 Court-Notified Re-arbitration of Domestic Cases
20.15.3 Court-Notified Re-arbitration of Cases with a Foreign Element
20.15.4 Procedural Matters of Court-Notified Re-arbitration
20.15.5 Non-enforcement and Partial Non-enforcement of Arbitral Awards
20.15.6 Non-recognition and Non-enforcement of International Arbitral Awards
20.15.7 The Finality of Judicial Review over Arbitration
CHAPTER 21 Med-Arb
21.1 Introduction
21.2 Basic Principles
21.2.1 Party Autonomy
21.2.2 Respecting the Parties' Jus Disponendi
21.2.3 Efficiency
21.3 Initiation of Mediation during Arbitration Proceedings
21.4 Methods of Mediation
21.5 Impartiality of Arbitrators
21.6 Conciliation Statement or Arbitral Award
21.7 Issues concerning the Validity of Conciliation Statement and Arbitral Awards Based on Med-Arb
21.7.1 Exceeding the Matters That Were Referred to Arbitration
21.7.2 Disposal of Rights of Third Parties
21.7.3 Whether a Conciliation Statement Can Be Set Aside
CHAPTER 22 Interim Measures Ordered by Emergency Arbitrator or Arbitral Tribunal
22.1 Introduction
22.2 Emergency Arbitrator Procedures
22.2.1 CIETAC Rules
22.2.1.1 The Purpose of Detailed Provisions for Emergency Arbitrator Procedures
22.2.1.2 The Emergency Arbitrator Procedures' Scope of Application
22.2.1.3 Procedures
22.2.1.3.1 The Application
22.2.1.3.2 Acceptance and Appointment of the Emergency Arbitrator
22.2.1.3.3 Proceedings before an Emergency Arbitrator
22.2.1.3.4 Decision of the Emergency Arbitrator
22.2.2 BAC Rules
22.3 Interim Measures
Index
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Arbitration in China

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