This country-specific Q&A provides an overview of the legal framework and key issues surrounding arbitration law in China.
This Q&A is part of the global guide to Arbitration.
For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/arbitration/
What legislation applies to arbitration in your country? Are there any mandatory laws?
Major applicable laws for arbitration proceedings in China are the Arbitration Law of the People’s Republic of China (“the Arbitration Law”) and Chapter 28 of the Civil Procedure Law of the People’s Republic of China (“the Civil Procedure Law”), both of which are mandatory laws.
Reference should also be made to interpretations and statements of the Supreme People’s Court of China regarding specific issues in arbitration which provide important clarifications and guidance in many aspects of arbitration law and practice, such as Interpretation of the Supreme People’s Court concerning Some Issues on Application of the Arbitration Law of the People’s Republic of China.
Is your country a signatory to the New York Convention? Are there any reservations to the general obligations of the Convention?
Yes, China acceded to the New York Convention in 1987 with reciprocity reservation and commercial reservation.
What other arbitration-related treaties and conventions is your country a party to?
China has concluded BITs with 104 countries so far , many of which allow for submitting investment disputes between investors and the host state to arbitration (although under most of the older BITs, the disputes that are arbitrable are limited to those concerning the amount of compensation for an expropriated investment). Mainland China has further entered into special bilateral arbitration arrangements with Taiwan, Hong Kong and Macau.
In addition, China became a party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the Washington Convention) in 1990. China is also an observer of, although not a signatory to, the Energy Charter Treaty.
Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?
The Arbitration Law was not based on the UNCITRAL Model Law. There are a number of major differences between them, for examples:
a. Form of arbitration: the Arbitration Law only permits institutional arbitration (Article 16). Although the Supreme People’s Court released the Opinions of the Supreme People’s Court on Providing Judicial Guarantee for the Building of Pilot Free Trade Zone in 2016 which allows ad hoc arbitration for disputes arising out of enterprises registered in the Free Trade Zone, ad hoc arbitration is in principle prohibited in China.
b. Principle of Competence-competence: the UNCITRAL Model Law permits the arbitral tribunal to rule on its own jurisdiction, including any objection with respect to the existence or validity of the arbitration agreement (Article 16). Under the Arbitration Law, both the Court and the arbitration commission have the power to decide on the validity of the arbitration agreement. But if one of the parties requests for a decision from the arbitration commission, but the other party applies to a people's court for a ruling, the people's court shall give the ruling. (Article 20).
c. Interim measures: the UNCITRAL Model Law permits parties to apply directly to the Court for interim measures (Article 9). Under the Arbitration Law, a claimant should apply to the arbitration commission for interim measure instead of applying directly to the Court. The arbitration commission will then transfer such application to the Court (Articles 28, 46 and 68).
Are there any impending plans to reform the arbitration laws in your country?
The Arbitration Law currently in force in China was inessentially revised in 2017 and took effect on 1 January 2018.
Revising the Arbitration Law is listed as a Project in Category II of the Legislation Plan of the Standing Committee of the Thirteenth National People's Congress. Projects in this Category need to be prepared without delay and are to be submitted for deliberation when conditions are ripe.
What arbitral institutions (if any) exist in your country? Have there been any amendments to their rules or are there any being considered?
There are more than 260 arbitration institutions in China. The major ones include China International Economic and Trade Arbitration Commission (CIETAC), Beijing Arbitration Commission/Beijing International Arbitration Center (BAC/BIAC), Shenzhen Court of International Arbitration/ Shenzhen Arbitration Commission (SCIA), and Shanghai International Economic and Trade Arbitration Commission/Shanghai International Arbitration Center(SHIAC). The arbitration rules of CIETAC, BAC and SHIAC was newly amended in 2015, the arbitration rules of SCIA was amended in 2016.
What are the validity requirements for an arbitration agreement under the laws of your country?
The requirements for a valid arbitration agreement are set out in Article 16 of the Arbitration Law, which stipulates that it must be in writing and include an expression of intent to apply for arbitration, the matters to be arbitrated, and a designated arbitration institution.
Besides, if an arbitration agreement requires disputes to be submitted to an arbitration institution outside mainland China, while the underlying transaction between the parties does not involve any foreign-related factor, then the arbitration agreement would be rendered invalid.
Are arbitration clauses considered separable from the main contract?
Yes. The principle of independence and separability is embodied in Article 19 of the Arbitration Law, under which an arbitration clause or agreement is independent from the underlying contract, and thus are not affected by the amendment, rescission, termination or invalidity of the underlying contract.
Is there anything particular to note in your jurisdiction with regard to multi-party or multi-contract arbitration?
The Arbitration Law is silent on multi-party and multi-contract arbitration. However, some of China’s prominent arbitral institutions have provided rules on this subject. For example, Article 16 of the SCIA Arbitration Rules provide: Claims arising from more than one contract, a principal contract and its subordinate contract(s), or a contract and its related contract(s) between the same parties may be jointly made in a single arbitration, if it is agreed under all arbitration agreements of the multiple contracts to refer the disputes to arbitration by the SCIA and the relevant disputes arise from the same transaction or a series of transactions. Where an objection is raised by the Respondent, the decision shall be made by the SCIA or the arbitral tribunal authorized by the SCIA.
According to Article 29 of the CIETAC Rules, where there are multiple claimants and/or multiple respondents in any proceeding, the Claimant side and/or the Respondent side, following discussion, shall each jointly nominate or jointly entrust the Chairman of CIETAC to appoint one arbitrator, failure to do so would result in CIETAC appointing all three members of the tribunal and designating one of them as the presiding arbitrator. Article 22 of the Arbitration Rules of Shanghai Arbitration Commission provides that after the constitution of the arbitral tribunal, any request to join other parties to the arbitration will not be granted unless unanimously agreed by the parties and the party to be joined.
How is the law applicable to the substance determined? Is there a specific set of choice of law rules in your country?
The application of law in foreign-related civil relations shall be determined in accordance with the Law of the People’s Republic of China on the Application of Laws to Foreign-Related Civil Relations. If no provision with respect to the application of law is provided in this Law or other laws of PRC, the law most closely associated with the foreign-related civil relation shall apply.
Are any types of dispute considered non-arbitrable? Has there been any evolution in this regard in recent years?
The general principle regarding arbitrability in China is stipulated in Article 2 the Arbitration Law, namely, only contractual disputes and other disputes arising from property rights and interests between citizens, legal persons and other organizations of equal status in law can be arbitrated.
According to article 3 of the Arbitration Law, the following disputes shall not be submitted for arbitration: (1) disputes concerning marriage, adoption, guardianship, child maintenance and inheritance; and (2) administrative disputes falling within the jurisdiction of the relevant administrative organs according to law.
Arbitration practice has also made it clear that matters related to insolvency liquidation and intellectual property dispute with an administrative nature cannot be arbitrated.
In recent years, a debated issue with regard to arbitrability in China is the arbitrability of the Partner-Private Partnership (PPP) contract. It has been argued that because PPP contracts fall into the category of administrative contracts, disputes arising from PPP contracts are non-arbitrable. However, in 2014 the Supreme People’s Court opined through a second instance case that because the subject matter of the dispute was independent from administrative acts during the performance of the contract, the dispute is of a civil nature.
In your country, are there any restrictions in the appointment of arbitrators?
According to Article 30 of the Arbitration Law, the parties can agree to have a tribunal comprised of either one or three arbitrators.
Article 13 of the Arbitration Law sets out the criteria required of persons whom a Chinese arbitration institution can appoint as an arbitrator. These largely focus on the kind of experience required before someone can be appointed as an arbitrator. Also, the Arbitration Law requires arbitrators to be impartial and not related to the dispute or the parties to such dispute (Article 3).
Are there any default requirements as to the selection of a tribunal?
Under Article 32 of the Arbitration Law, if the parties fail, within the time limit prescribed by the Arbitration Rules, to agree on the method of constitution of the arbitral tribunal or appointment of arbitrators, the arbitrators shall be appointed by the chairman of the arbitration commission.
As to the default number of arbitrators forming a tribunal, the Arbitration Law has no express provision on this matter. However, it has been touched upon by institutional rules. For example, the CIETAC Rules provide that in the absence of agreement between the parties, the default number is three.
Can the local courts intervene in the selection of arbitrators? If so, how?
No, the Chinese courts play no role in this regard. According to article 32 of the Arbitration Law, if the parties fail, within the time limit prescribed by the relevant arbitration rules, to select the form of the arbitration tribunal or fail to select arbitrators, the arbitrators shall be appointed by the chairman of the arbitration commission.
Can the appointment of an arbitrator be challenged? What are the grounds for such challenge? What is the procedure for such challenge? Has there been an increase in number of challenges in your jurisdiction?
Yes. According to Article 34 of the Arbitration Law, a party may challenge an arbitrator if he or she: (1) is a party or a close relative of a party or of a party’s representative; (2) has personal interest in the case; (3) has some other relationship with a party to the case or with a party’s representative which may affect the impartiality of the arbitration; or (4) meets a party or its representative in private, accepts an invitation for dinner by a party or its representative or accepts gifts presented by any of them.
Under Article 35 of the Arbitration Law, a party challenging the appointment of an arbitrator shall state his reasons and submit the application prior to the first hearing, or before the conclusion of the last hearing if reasons for the withdrawal only became known after the commencement of the first hearing. Article 36 further provides that the challenge shall be determined by the chairman of the arbitration commission, and if the chairman is serving as an arbitrator, the withdrawal shall be determined collectively by the arbitration commission.
It is worth noting that the rules of arbitration institutions in China generally contain provisions on the challenge of arbitrators.
Although the topic of challenging arbitrators has invoked a considerable amount of discussion in the last two years, so far there has been no known data released by Chinese arbitration commissions or courts regarding the number of challenges they have heard.
What happens in the case of a truncated tribunal? Is the tribunal able to continue with the proceedings?
Article 37 of the Arbitration Law of China provides that if an arbitrator is unable to perform his duties due to withdrawal or any other reason, another arbitrator shall be selected or appointed in accordance with the provisions of this Law. After the selection or appointment of a new arbitrator due to the withdrawal of an arbitrator, the parties may apply for the resumption of the arbitration procedure. The arbitral tribunal shall determine whether the resumption of the procedure may be allowed.
Are arbitrators immune from liability?
No. According to Article 38 of the Arbitration Law, an arbitrator shall assume legal liability and be removed from the penal of arbitrators by the arbitration commission if he or she engages in activities prescribed in Article 34 of the Arbitration Law (see Question 15).
In addition, Article 399 of the Criminal Law of People’s Republic of China provides that where an arbitrator intentionally goes against the facts or laws and makes any wrongful ruling in the process of arbitration, he or she shall be sentenced to no more than three years of imprisonment or detention. If the circumstances are extremely serious, he or she shall be sentenced to imprisonment of no less than three years but no more than seven years.
Is the principle of competence-competence recognised in your country?
No. Pursuant to Article 20 of the Arbitration Law, the tribunal’s jurisdiction will be determined by the arbitration institution or the court. The decision rendered by the court shall prevail if one party resorts to the arbitration institution while the other to the court.
What is the approach of local courts towards a party commencing litigation in apparent breach of an arbitration agreement?
If a party initiates a litigation against the other party in breach of the arbitration clause or agreement between them, the other party may challenge the court’s jurisdiction based on the existence of a valid arbitration agreement. If the court determines that the arbitration agreement is valid, it shall reject its jurisdiction to the dispute.
How are arbitral proceedings commenced in your country? Are there any key provisions under the arbitration laws relating to limitation periods or time bars of which the parties should be aware?
Under Article 22 of the Arbitration Law, the Claimant shall submit an request for arbitration and the underlying contract which contains the arbitration clause or an arbitration agreement to the arbitration commission. Afterwards, the Claimant shall deposit an advance on the arbitration fees in accordance with the fee schedule of the arbitration institution.
Per Article 188 of the General Rules of the Civil Law of the People’s Republic of China, the statute limitation to commence an arbitration proceeding for domestic disputes is generally three years with certain exceptions provided in specific laws. For example, Article 129 of the Contract Law of the People’s Republic of China (“the Contract Law”) stipulates that the limitation period for disputes of international sales and technology imports and exports is four years, commencing from the date on which the party discovered or should have discovered the harm. However, the four-year limitation period does not apply to disputes arising from joint venture agreements.
What happens when a respondent fails to participate in the arbitration? Can the local courts compel parties to arbitrate?
Under Article 42 of the Arbitration Law, if the respondent is served with a notice in writing but does not appear before the tribunal without reasonable reasons or leaves the tribunal room during a hearing without the permission of the arbitral tribunal, an award by default may be given.
There is no legislation in China that empowers the court to compel parties to arbitrate.
In what circumstances is it possible for a state or state entity to invoke state immunity in connection with the commencement of arbitration proceedings?
Although China has not adopted any legislation with respect to state or sovereign immunity, its adherence to absolute immunity can be inferred from Chinese government’s statement to courts of other countries or notice to courts of HK SAR.
As for China’s position towards immunity of state entity, China has emphasized both in foreign courts and in its own laws and regulations that the legal status and responsibility of the government and SOEs should be distinguished. Recently in a 2017 case, TNB Fuel Services v. China National Coal Group Corporation, ruled by Hong Kong Court of First Instance, in its letter to the court Chinese government rejected China National Coal Group’s assertion of state immunity on the basis that its activities were of mere commercial nature. However, the letter also indicates that the activities of SOEs may fall into the scope of state immunity if the SOE is authorized by the government to act on its behalf, albeit not making it clear the corresponding standard.
In what instances can third parties or non-signatories be bound by an arbitration agreement or award? Can local courts order third parties to participate in arbitration proceedings in your country?
A third party cannot be bound by an arbitration agreement or award without its consent, and may not be joined to arbitration proceedings without the consent of the parties to the proceedings. However, Article 8 of the Interpretation of the Supreme People’s Court Concerning Some Issues on Application of the Arbitration Law of People’ Republic of China allows for exceptions in the following circumstances: (1) a party to the arbitration is merged or divided after the arbitration agreement has been concluded, in which case the arbitration agreement will bind the successor which assumes the original party’s rights and obligations; or (2) a party to the arbitration dies following the conclusion of an arbitration agreement, in which case the arbitration agreement will bind the successor who assumes the original party’s rights and obligations in the matter.
What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?
The Arbitration Law prescribes two types of interim measures: (1) Article 28 allows the parties concerned to apply for property preservation such as freezing assets, withholding the revenue and sealing up properties; and (2) Article 46 allows the preservation of evidence where the evidence may be destroyed or lost or difficult to obtain at a later time.
Apart from that, Article 101 of the Civil Procedure Law allows a party to apply for behavior preservation injunction.
Under Article 81 and Article 101 of the Civil Procedure Law, in case of emergency and irreparable harm a party may apply for preservation measures before instituting a lawsuit or applying for arbitration.
Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence?
According to Article 43 of the Arbitration Law, a party bears the burden to produce evidence to support its claims or defenses or both. The tribunal may also request or collect evidence itself if it considers it necessary. Article 45 further provides that the parties shall produce all the evidence at the hearing in order to allow them to examine each other’s evidence. The Arbitration Law does not expressly provide if a party may request documents from the other party.
Article 7 of the CIETAC Guidelines on Evidence allows a party to request the tribunal to require the other party to disclose specific documents or documents within a specific scope, provided that the request is specific and clear and that the evidence to be disclosed is relevant and important. This is similar with the relevant disclosure rule in the IBA Rules on Taking Evidence. In addition, according to Article 11 of the CIETAC Guidelines on Evidence, a tribunal may request a party to disclose any necessary evidence or collect evidence itself.
There is no provision in the PRC Arbitration Law or any other legislation allowing the Court to intervene in the obtaining of evidence. However, as mentioned above, the Court can adopt measures to preserve evidence.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your country?
The Law on Lawyers is the main source of ethical standards for lawyers in China.
Both the Arbitration Law and arbitration institutions have codes of ethics for arbitrators. Specifically, Article 34 of the Arbitration Law provides the circumstances under which an arbitrator must withdraw from adjudicating an arbitration. The Code of Ethics of CIETAC requires that arbitrators conduct proceedings with impartiality, independence and fairness, as well as circumstances where arbitrators should refuse an appointment, make disclosure, or apply for withdrawal.
In addition, the parties may agree to apply the IBA Guidelines on Conflicts of Interest in International Arbitration.
How are the costs of arbitration proceedings estimated and allocated?
Arbitration fees are generally calculated based on the amount in dispute and the applicant shall prepay the arbitration fee when filing the case. According to Article 54 of the Arbitration Law, the tribunal shall specify the allocation of the costs in its award. Generally the losing party should undertake the arbitration fees as well as other costs reasonably incurred by the winning party (such as the attorney’s fee).
Can pre- and post-award interest be included on the principal claim and costs incurred?
Yes. In practice the parties would usually claim interest based on the principle from the date of breach of the contract or default to the date of actual payment. If the parties do not specify the interest rate applicable to their agreement, reference may be made by the arbitral tribunal to the same period interest rate of People’s Bank of China.
Under Article 253 of the Civil Procedure Law, If a person fails to perform his obligations to pay within the time limit specified in a judgment, ruling or other legal document, he shall pay twice the amount of interest on the debt for the period during which the performance is deferred.
What legal requirements are there in your country for the recognition of an award?
There is no provisions on recognition of domestic awards in Chinese legislations. Parties could directly apply for enforcement of arbitral awards. Under Arbitration Law (Article 62) and the Civil Procedure Law (Article 239) of the People’s Republic of China, an application for recognition and enforcement of a non-domestic award must be filed within two years of issuance of the award.
Article 283 of the Civil Procedure Law provides that the party concerned shall directly apply to the intermediate people’s court of the place where the party subject to execution is domiciled or where his property is located for the recognition and enforcement of an award made by a foreign arbitration institution.
According to Article 6 of Provisions of the Supreme People’s Court on Several Issues concerning the Hearing of Cases Involving the Judicial Review of Arbitration, for recognition and enforcement of a foreign arbitral award, the applicant shall submit the written application and the original arbitral award or a copy thereof confirmed to have no errors, and the written application shall specify the following particulars:
a. It shall specify the name, gender, date of birth, nationality and domicile, if the applicant or the respondent is a natural person, but the name, domicile, and the name and post of the legal representative or the representative, if the applicant or the respondent is a legal person or an organization of another kind;
b. Major contents in the arbitral award and the effective date; and
c. Details about the application and the reasons.
Moreover, the written application, the arbitral award and other documents submitted by the party concerned, if prepared in a foreign language, shall be affixed with their Chinese translations.
As for reasons for refusing recognition, as China is a party to the New York Convention, the court shall recognize or refuse to recognize an arbitration award pursuant to the New York Convention.
What is the estimated timeframe for the recognition and enforcement of an award? May a party bring a motion for the recognition and enforcement of an award on an ex parte basis?
According to the Notice of the Supreme People’s Court on Implementing the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Acceded to by China and Article 239 of the Civil Procedure Law, the statute of limitation for application for recognition and enforcement of an award is two years. Also, pursuant to Article 4 of the Provisions of the Supreme People’s Court on Issues Concerning Fees Collection and Review Period for Recognition and Enforcement of Foreign Arbitration Awards and the Relevant Provisions of the Supreme People’s Court on Issues concerning Applications for Verification of Arbitration Cases under Judicial Review, where a party concerned applies for recognition and enforcement of a foreign arbitration award in accordance with Article 4 of the New York Convention, the intermediate people’s court that accepts the application shall render a decision within two months of accepting the application. Where no special circumstances occur, the enforcement shall be accomplished within six months of the decision being rendered. However, in practice, the two-month period for recognition and six-month for enforcement are not enough and usually need extension.
Chinese courts will not recognize or enforce an award on an ex parte basis. The procedure for recognition entails hearings to be held. Similarly, in enforcement proceedings, usually the party whom enforcement is sought against would receive notice from the court.
Does the arbitration law of your country provide a different standard of review for recognition and enforcement of a foreign award compared with a domestic award?
Yes. For an application to enforce a foreign award, China adheres to Article V of the New York Convention in conducting the review. And for the enforcement of domestic award, China’s standard of review further distinguishes between the awards with a foreign character and those without it. Article 522 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law has provided a definition for foreign-related contract, which is also applicable to defining foreign-related award.
The grounds for refusing enforcement of a domestic award without foreign character is stipulated in Article 237 of the Civil Procedure Law. As to a foreign-related award, a court shall issue a ruling not to enforce the award pursuant to Article 274 of the Civil Procedure Law. It is generally understood that the standard of review for a domestic award without foreign factor is more strict than that of foreign-related award. For example, while enforcement of a domestic award without any foreign-related factor may be refused on grounds of forgery of evidence, this is not a ground for refusing enforcement of a foreign-related award.
Does the law impose limits on the available remedies? Are some remedies not enforceable by the local courts?
The Arbitration Law and the Interpretation of the Supreme People’s Court Concerning Some Issues on Application of the Arbitration Law of China do not specify the types of remedies (including damages) that are available in arbitration (e.g. punitive damages). Under Chinese law, compensation for actual loss is the statutory principle governing contractual obligations for remedies (including damages). Punitive damages are not normally supported, unless product liability or consumer protection is involved.
Besides, the Contract Law imposes limits on the application of specific performance, in accordance with which specific performance cannot be granted if it is impossible in law or in fact, the subject matter of the obligation is unfit for specific performance or the cost of performance is unreasonably high, or the creditor fails to demand performance within a reasonable time limit.
Can arbitration proceedings and awards be appealed or challenged in local courts? What are the grounds and procedure?
Under Article 57 of the Arbitration Law, an arbitral award is legally effective from the date on which it is issued and is not subject to appeal.
However, parties may apply to the intermediate people’s court at the place where the arbitration institution resides to set aside an award. Under the Arbitration Law and Civil Procedure Law, the grounds for setting aside an arbitral award and refusing to enforce an award are identical. Please refer to Question 31 above for grounds for setting aside a domestic and foreign-related award respectively.
According to Article 59 of the Arbitration Law, a party that wishes to apply for setting aside the arbitration award shall submit such application within six months from the date of receipt of the award.
Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitration clause)?
No. Pursuant to article 52(5) of the Contract Law, any agreement inconsistent with the mandatory laws of China shall be null and void. The rules on the right to apply for setting aside an award are mandatory rules in Chinese law.
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
Please refer to Question 22 above.
To what extent might a third party challenge the recognition of an award?
Under Article 58 of the Arbitration Law, only parties to arbitration can apply for setting aside of the arbitral award. As for enforcement, Article 9 of Provisions of the Supreme People’s Court on Several Issues Concerning the Handling of Cases by People’s Courts to Enforce Arbitration Awards provide that a third party may apply for non-enforcement of an award, if the following conditions are met: (1) there is evidence proving that the party concerned in the arbitration case applies for arbitration for malicious or false purposes to impair its lawful rights and interests; (2) the enforcement of the object involved in the lawful rights and interests claimed by the outsider has not been concluded; and (3) the application is filed within 30 days of the date on which the outsider knows or should know the people's court has taken measures to enforce the object.
Have there been any significant developments with regard to third party funding in your jurisdiction recently?
The international investment arbitration trial rules of CIETAC (“Rules”) taking effect in 1 October 2017 was the first set of arbitration rules in China to touch upon the subject of third-party funding. The Rules expressly recognizes “third-party funding” and requires that any third-party funding as well as the identity of the funder to be disclosed without delay to the other party, the tribunal and CIETAC (or its Hong Kong Arbitration Center). The tribunal is also empowered to order disclosure of information related to third-party financing. Moreover, when deciding on arbitration fees and other costs, the arbitral tribunal may consider whether the arbitration is funded by a third party.
Is emergency arbitrator relief available in your country? Is this frequently used?
Although arbitration rules of prominent arbitration commissions in China including CIETAC and BAC have provided for emergency arbitration proceedings, emergency arbitrator relief is not available (cannot be enforced) in mainland China so far.
Emergency arbitrator is rarely used in mainland China. Mr. Wei Sun acted as the emergency arbitrator in a case administered by BAC in 2017. The decision Mr. Wei Sun rendered was finally enforced by Hong Kong court pursuant to Hong Kong Arbitration Ordinance. That was the first arbitration case involving emergency arbitrator in mainland China.
Are there arbitral laws or arbitration institutional rules in your country providing for simplified or expedited procedures for claims under a certain value? Are they often used?
Major arbitration rules of institutions in China have provided for simplified procedure. For example, Article 53(1) of BAC Rules stipulate that when the amount in dispute not more than 1 million RMB, simplified procedure shall apply unless the Parties have agreed otherwise.
Have there been any mass (arbitration) claims in your jurisdiction?
No. So far there have been no mass claims in Mainland China.
Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?
Although currently there is no specific measures regarding promoting transparency in arbitration, several arbitration institutions have launched online arbitration systems. CIETAC released its online arbitration system in 2009. Shenzhen Arbitration Commission unveiled its “Cloud Arbitration” system in 2017. These systems are specially designed for efficient resolution of E-commerce disputes.
CIETAC have been publishing its annual reports since 2000, and it has also published case analyses on anonymized cases of a broad spectrum of dispute types. Moreover, CIETAC’s newly published investment arbitration rules also emphasizes on transparency.
As for BAC, it was the first arbitration institution in China to require that arbitrators who do not agree or refuse to sign the arbitral award must submit their dissenting opinions to both parties along with the arbitral award. In 2014, BAC has added into its Rules of Arbitration a table of arbitration fees. Lastly, the 2015 Arbitration Rules provide that upon a joint request by both parties, or a request by one party that has been approved by the BAC, the BAC may appoint one or more stenographers to record the hearing.
Is diversity in the choice of arbitrators and counsel (e.g. gender, age, origin) actively promoted in your country? If so, how?
Diversity of arbitrators is not actively promoted in Mainland China now but the panel of arbitrators of the arbitration institutions generally compose of experts from various industries and nationalities.
Have there been any developments regarding mediation in your jurisdiction?
So far China does not have a legislation on commercial mediation. China Council for the Promotion of International Trade and BAC respectively established the mediation centers in 2011 and 2012. In 2018, CIETAC established its Mediation Center to provide an alternative for dispute resolution.
In 2016, the Supreme People’s Court issued its Opinions on Further Deepening Reform of Diversified Dispute Resolution of People’s Courts, which stressed the role of mediation.
China also participated in the drafting of the United Nations Convention on International Settlement Agreements Resulting from Mediation which may have influence on the development of mediation in China.
Have there been any recent court decisions in your country considering the setting aside of an award that has been enforced in another jurisdiction or vice versa?
There has been no decision made by Chinese courts considering the enforcement of an award that has been set aside in the country where the award was rendered. Conversely, there was a case ruled by the High Court of Berlin in 2006 where the court enforced an award that has been set aside by Wuhan Intermediate People’s Court.
Is corruption an issue that is regularly raised in your jurisdiction? What standard do local courts apply for proving of corruption?
No. Corruption is not an issue that is regularly raised in China.