Foreign Related Arbitration In China

A prosperous economy goes hand in hand with a competent, impartial, and efficient legal system. International investment is only possible when the business parties are confident that adequate dispute resolution possibilities exist. A conference on "Arbitration in China" was held by the Association for International Arbitration (AIA) in March 2009. This book - a product of the conference - highlights the newest opportunities and updates - for lawyers, arbitrators, mediators, and investors - about arbitration and mediation in the event a dispute were to arise with Chinese partners. The book includes the conference's opening remarks, presented by the president of the AIA, Johan Billiet, who highlights the differences between Chinese and 'Western' arbitration. Other contributions include: the issue of mediation and arbitration in China * International Chamber of Commerce arbitration in China * arbitration differences between China International Economic and Trade Arbitration Commission and other Asian institutions, such as Hong Kong International Arbitration Center, Singapore International Arbitration Center, Korean Commercial Arbitration Board, and Japan Commercial Arbitration Association * recent developments in Chinese arbitration * the issue of recognition and enforcement of arbitral awards in China.

The new rules of the China International Economic and Trade Arbitration Commission (CIETAC) that came into effect on 1 May 2012 are widely recognized as the full commitment of the Chinese government to the international arbitration system. Clarifications of the scope of the Arbitration Law to include contractual disputes, disputes over rights and interests in property, and disputes between legal persons and other organizations, as well as the firm establishment of the arbitration agreement as the sole and exclusive basis for founding the jurisdiction of an arbitral tribunal, greatly allay any residual apprehension on the part of foreign investors. This third edition of a book that has been widely relied upon since 2003 by business people and their counsel with interests in China is the first publication to offer comprehensive and authoritative coverage of the CIETAC Rules 2012. In addition to the matchless features for which earlier editions are so greatly valued – such as in-depth coverage of enforcement of foreign judgements in China and of Chinese judgements elsewhere, measures to overcome local protectionism, effects of China’s most important bilateral investment treaties (BITs), and arbitration-related interpretations of the Supreme People’s Court – the new edition highlights such aspects of the CIETAC Rules 2012 as the following: the new mechanism of consolidation of arbitrations; power to grant interim measures via the forms of procedural orders or interim awards; procedure of suspension of arbitration; conservator measures; interlocutory award and partial award; combining conciliation with arbitration; and expedited process under a new summary procedure. With first-hand expert guidance on the actual handling of arbitration cases, recommended arbitration agreement clauses for numerous contingencies, case studies and comparative cases to elucidate the handling of specific issues, abundant legal instruments for quick, direct reference to the relevant law, and an annex with English texts of the most important laws and regulations, this book offers all the details and insights a practitioner needs. While Arbitration Law and Practice in China is primarily a detailed, practical examination of Chinese arbitration practice and related laws, the Third Edition’s special significance lies in its thorough and timely coverage of the CIETAC Rules 2012. For this reason especially it will be of great practical value to business people everywhere operating or seeking opportunities to partner with Chinese enterprises. It will also be useful to corporate counsel, arbitration institutions, and students of dispute resolution.

International commercial arbitration relies on the possibility of enforcing arbitral decisions against recalcitrant parties. In China, a crucial world market, where the annual arbitration caseload has reached 200,000 and where arbitration is evolving, authorities attach great importance to judicial review of arbitration. This is the first book to address issues concerning the recognition and enforcement of arbitral awards under applicable law in “Greater China”—the People’s Republic (PRC), Taiwan, Hong Kong and Macao—describing and analyzing the effect of judicial review on a wealth of recent issues and cases. After providing an overview of the legal framework for Chinese arbitration and judicial review of arbitration, the book introduces and discusses the law governing the arbitration agreement, due process, the arbitrator’s power, arbitrability, formation of arbitral tribunal, mediation and public policy. In its focus on the various challenges and defenses arising at all stages of the enforcement application process, such issues and topics as the following are covered in detail: • significant judicial interpretations of the Supreme People’s Court as recent as 2018; • examination of the validity of arbitration agreements; • setting aside and enforcement of arbitral awards by PRC arbitration institutions; • role of the New York Convention and other treaties; • succession of contract; • examination of evidence; and • role of competition law and intellectual property law. In the discussion of each case and each type of issue, the book shows clearly what kind of arbitral awards can be recognized and enforced in China and what kind cannot. Comparative studies of foreign laws and practices are included where relevant, and an abundance of primary source material is provided in appendices. Practitioners, global law firms, companies doing transnational business, jurists and academics from all countries concerned with matters regarding international and foreign-related arbitration in China will welcome this invaluable source of detailed information.

This overview and analysis of current arbitration law and practice in mainland China offers critical analysis of significant Chinese arbitration law materials and key cases decided by the Supreme People's Court of the People's Republic of China (PRC). It also provides the full texts of around two hundred decisions of the Supreme People's Court of the PRC dating from 1990 to 2013, with enclosures of lower People's Courts' decisions presented in a systematic fashion. The analysis not only highlights the importance of the materials, judicial interpretations and key cases, but also enables readers to read mainland Chinese statutes, judiciary interpretations and cases independently and confidently.

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.

In the context of harmonisation of arbitration law and practice worldwide, to what extent do local legal traditions still influence local arbitration practices, especially at a time when non-Western countries are playing an increasingly important role in international commercial and financial markets? How are the new economic powers reacting to the trend towards harmonisation? China provides a good case study, with its historic tradition of non-confrontational means of dispute resolution now confronting current trends in transnational arbitration. Is China showing signs of adapting to the current trend of transnational arbitration? On the other hand, will Chinese legal culture influence the practice of arbitration in the rest of the world? To address these challenging questions it is necessary to examine the development of arbitration in the context of China's changing cultural and legal structures. Written for international business people, lawyers, academics and students, this book gives the reader a unique insight into arbitration practice in China, based on a combination of theoretical analysis and practical insights. It explains contemporary arbitration in China from an interdisciplinary perspective and with a comparative approach, setting Chinese arbitration in its wider social context to aid understanding of its history, contemporary practice, the legal obstacles to modern arbitration and possible future trends. In 2011 the thesis on which this book was based was named 'Best Thesis in International Studies' by the Swiss Network for International Studies. “What distinguishes this work from other books on international arbitration is its interdisciplinary perspective and comparative approach...this book makes a remarkable contribution to the understanding of arbitration in China and transnational arbitration in general. Academics, scholars and students of international arbitration, comparative studies and globalisation may all find this book stimulating. It also provides useful guidance for practitioners involved or interested in arbitration in China.” From the Foreword by Gabrielle Kaufmann-Kohler