![Foreign arbitration institution to
administer arbitration cases in PRC?
• In a case with foreign elements, can parties agree to an
foreign arbitration institution and the place of arbitration
in PRC?
– Longlide case
– “Any dispute arising from or in connection with this
contract shall be submitted to arbitration by the
International Chamber of Commerce (‘ICC’) Court of
Arbitration [sic] according to its arbitration rules, by
one or more arbitrators. The place of jurisdiction shall
be Shanghai, China. The arbitration shall be
conducted in English.”](https://image.slidesharecdn.com/helenaarbitrationinchinarecentmentdevelopments-151130013052-lva1-app6891/85/Arbitration-in-China-A-Brief-Report-on-Recent-Developments-13-320.jpg)
Arbitration in China– A Brief Report on Recent Developments
- 1. Helena H.C. Chen Partner Pinsent Masons LLP Nov. 23, 2015 Arbitration in China– A Brief Report on Recent Developments
- 2. Helena H.C. Chen helena.chen@pinsentmasons.com • Qualified in Taiwan, mainland China and New York State • Ph.D., Peking University (China) ; Ph.D., National Taiwan University • FCIArb; Listed on the panels of arbitrators of CIETAC, SIAC, KLRCA, KCAB, ACICA, SHIAC, SCIA, BAC, CAA, LCIA- MIAC Arbitration Centre etc • Member of the SIAC Users Council • listed on the panel of mediators of CCPIT/CCOIC Mediation Center; Associate Mediator of SMC • Vice-chair of the Dispute Mediation Center of CAA • Recommended Experts of the Construction Dispute Board (DB) of Beijing Arbitration Commission • named to the International Who’s Who of Construction Lawyers for four consecutive years from 2011
- 3. Overview PRC Arbitration Law (effective from 1995) Arbitration Commissions: 235 National Caseload (1995-2014): 919,814 Disputed Amount (1995-2014): 1,408.9 billion RMB
- 4. Brief Introduction to Arbitration in China 0 10000 20000 30000 40000 50000 60000 70000 80000 90000 100000 110000 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 37,304 48,339 60,84461,47565,377 74,811 78,923 88,473 96,378 104,257 113,660 Annual Caseload of Arbitration Commissions in Mainland China 4
- 5. Brief Introduction to Arbitration in China 0 50 100 150 200 250 300 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 51.5 65.4 72.5 75.3 95.7 96.1 93.2 113.3 135.1 164.6 265.5 Total Amount in Dispute Handled by Arbitration Commissions in Mainland China (in billions of RMB, by year) 61 % 5
- 6. Brief Introduction to Arbitration in China 0 200 400 600 800 1000 1200 1400 1600 1800 2009 2010 2011 2012 2013 2014 1567 1219 1413 1521 1596 1785 Annual Caseload of Foreign-Related Arbitration in Mainland China 6
- 7. CIETAC- number of cases
- 9. Foreign-related v Domestic (Dual Track System) Foreign awards • Foreign-related arbitration: an arbitration involves “foreign elements”: One of the parties is foreign the subject matter of the dispute is located outside of China or the facts establishing, amending, or terminating the parties relationship occur outside of the PRC • Domestic arbitration (ie no foreign elements)
- 10. Foreign-related v Domestic • If no other foreign elements: domestic arbitration • If no other foreign elements: foreign- related arbitration PRC Foreign Parent Co. Subsidiary/WFOE PRC Foreign Headquarter Branch office
- 11. Foreign-related vs Domestic Foreign-related arbitration Domestic arbitration • Foreign arbitration institutions V X • Rules of foreign arbitration institutions or UNCITRAL Arbitration Rules V X • Foreign Seat of arbitration V X • Reporting System V X
- 12. Foreign-related vs Domestic Foreign-related arbitration Domestic arbitration • Foreign law as the governing law for matters concerning the validity of an arbitration agreement V X • Foreign law as the governing law of the substantive contract V (unless otherwise required by law) X • Grounds for annulment or non-enforcement of awards Fake evidence; concealed evidence that may affect the impartiality of an award
- 13. Foreign arbitration institution to administer arbitration cases in PRC? • In a case with foreign elements, can parties agree to an foreign arbitration institution and the place of arbitration in PRC? – Longlide case – “Any dispute arising from or in connection with this contract shall be submitted to arbitration by the International Chamber of Commerce (‘ICC’) Court of Arbitration [sic] according to its arbitration rules, by one or more arbitrators. The place of jurisdiction shall be Shanghai, China. The arbitration shall be conducted in English.”
- 14. Longlide case • Longlide case (2013/3/25) – SPC: The clause is valid: it contained all of the elements required by Article 16 of PRC Arbitration Law for a valid arbitration clause, namely: • (i) an express intention to arbitrate, • (ii) the matters to be submitted to arbitration and • (iii) a designated arbitration institution/commission (仲裁委员会). • Do it signal a possible opening-up of the mainland Chinese arbitration market to foreign institutions?
- 15. Longlide case • Remaining issues: – How to enforce the award? • Domestic award? • Foreign award? Non-domestic award? – Interim measures • Would a PRC court accept an application forwarded by a foreign arbitration institution? – Does a PRC court have jurisdiction to vacate the arbitral award? • “the court located at the place of the arbitration commission” • Foreign-related arbitral award?
- 17. 2015/11/19 HKIAC Shanghai Rep Office
- 18. Recent Developments • New Rules – CMAC Arbitration Rules (2015/1/1) – CIETAC Arbitration Rules (2015/1/1) – SHIAC Arbitration Rules (2015/1/1) – BAC Arbitration Rules (2015/4/1) • Arbitration Rules 2015: Aligning BAC with International Best Practices, China Law, Vol. 112
- 19. CIETAC Split- 2012 CIETAC-Shanghai SHIAC/上海国际仲 裁中心 CIETAC-South China SCIA/深圳国际仲裁院
- 20. SPC’s Reply Letter, 2015/7/17
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