People's Republic of China - Part D - Arbitration in Asia - 2nd Edition

Author(s):

Gu Weixia

Page Count:

52 pages

Media Description:

PDF from "Arbitration in Asia - 2nd Edition"

Published:

September, 2008

Jurisdictions:

China

Practice Areas:

Arbitrators and Arbitral Tribunals,

Arbitral Awards,

Arbitral Process,

Agreement to Arbitrate,

Judicial Assistance in Procedural Matters,

Judicial Confirmation of Award,

Enforcement of Arbitral Awards,

Enforceability,

National Legislation

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$40.00

Description:

Originally from Arbitration in Asia - 2nd Edition

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[1] INTRODUCTION

Disputes are an inevitable concomitant of international trade and

cross-border investment. As the world becomes more complex, countries

are judged by the mechanisms they put in place to resolve such disputes.

Litigating cross-border business disputes in national courts poses various

problems and gives rise to uncertainties given the potential involvement

of several different legal systems. Arbitration is today regarded as an

indispensable tool designed to afford parties engaged in international trade

and investment the requisite degree of certainty and confidence they

rightly demand for dispute resolution in international transactions.2 The

development of international arbitration norms continues to be largely

fueled by the expectations of the global business community, and has been

heavily influenced by the waves of modernization and harmonization set

into motion by the New York Convention,3 the UNCITRAL Model Law

on International Commercial Arbitration (the “ML”),4 and the International

Chamber of Commerce Court of Arbitration Rules (the “ICC Rules”).5

Since 1978, with China entering the era of “reform and opening up,”

the drive towards economic modernization via the policy of attracting

foreign investment has been strong. Over the past three decades, in

tandem with increased trade and investment opportunities, China has

witnessed a corresponding rise in the number of commercial disputes, in

particular Sino-foreign business disputes. Foreign investors who require

reasonable assurance that their commercial interests will be adequately

protected vis-à-vis their Chinese partners, have called for the

establishment of an efficient, effective, and fair mechanism of dispute

resolution. Although China has promulgated an impressive body of laws

and regulations concerning foreign trade and investment, their

enforcement has been less than satisfactory. It has been argued that a

judicial system rooted in an administratively governed society, and one

undergoing economic and political transformation such as China,

continues to be hampered by many pervasive shortcomings.6 There are

further wider concerns about Chinese courts such as their slow pace in

processing cases, the lack of professional judges, the varying quality of

law enforcement across the nation, the influence of local politics and

social pressures over judicial decisions, despite China’s continuing

efforts to improve the quality of its judiciary.7 These difficulties are also

compounded by the fact that the judiciary hasn’t been reformed in a

manner and at a pace sufficient to satisfy the requirements of foreign

investors. Traditionally, Chinese enterprises have preferred to settle

disputes through the Chinese judicial process. However, among foreign

investors there is also the general belief that the domestic judicial process

is underdeveloped. Arbitration is then considered an alternative toward

solving these problems at the stage of negotiations.8 Chinese entities

have thus come to rely heavily on the arbitral process to provide foreign

cooperative partners with the confidence and reassurance required to

encourage trade and investment.

Table of Contents:

[1] INTRODUCTION

[2] LEGISLATION
[2.1] Arbitration law
[2.2] Application
[2.3] Arbitrability
[2.4] Arbitration organisations
[2.5] Requirements for arbitration commissions
[2.6] Foreign-related arbitration commissions
[2.6.1] CIETAC
[2.6.2] CMAC
[2.6.3] Others

[3] ARBITRATION AGREEMENTS
[3.1] Requirements
[3.2] Types of arbitration agreements
[3.2.1] Contract clause
[3.2.2] Submission agreement
[3.2.3] Incorporation by reference
[3.2.4] Parties to the arbitration agreement
[3.2.5] Defective arbitration agreements
[3.2.5.1] Arbitration agreement is incomplete or unclear
[3.2.5.2] The arbitration agreement simultaneously designates two arbitration bodies
[3.2.5.3] The arbitration agreement lacks finality
[3.2.5.4] The arbitration agreement designates a non-existent arbitration body
[3.2.5.5] The agreement designates arbitration and litigation at the same time
[3.2.5.6] Typewriting errors in an arbitration agreement
[3.2.5.7] Unequal treatment accorded to one party to the arbitration agreement
[3.2.6] Separability/autonomy of the arbitration agreement
[3.2.7] Applicable law for determining the validity of the arbitration agreement
[3.2.8] Effect of arbitration agreement

[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Selection
[4.3] Number of arbitrators
[4.4] Challenging an arbitrator
[4.5] Replacement of arbitrators

[5] ARBITRATION PROCEDURE
[5.1] Preliminary meetings
[5.2] Interim relief
[5.3] Fact-finding
[5.3.1] Written submissions
[5.3.2] Site visits and experts
[5.4] The hearing
[5.4.1] Necessity of a hearing
[5.4.2] Hearing date
[5.4.3] Location of the hearing
[5.4.4] Records of the hearing
[5.4.5] Fast track
[5.4.6] Concluding the arbitration process

[6] AWARDS
[6.1] Settlement agreements
[6.2] Types of awards
[6.2.1] Consent awards
[6.2.2] Interim or interlocutory awards
[6.2.3] Partial awards
[6.2.4] Final awards
[6.3] Form of the award
[6.3.1] Content of the award
[6.4] Issuance and revision of awards
[6.4.1] Scrutiny of awards
[6.4.2] Correction of awards
[6.4.3] Additional awards
[6.5] Setting aside of awards
[6.5.1] Domestic awards
[6.5.2] Foreign-related awards
[6.5.3] Time limits
[6.5.4] Effect of setting aside
[6.5.5] Re-arbitration

[7] JUDICIAL ASSISTANCE AND INTERVENTION

[8] RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS
[8.1] Enforcement pursuant to domestic law
[8.2] Enforcement pursuant to international agreements
[8.3] Enforcement of CIETAC and CMAC awards abroad

[9] PRACTICAL INFORMATION
[9.1] Publications
[9.2] Contact details
[9.2.1] CIETAC
[9.2.2] CMAC
[9.3] Visa requirements
[9.4] Tax
[9.5] Foreign counsel

[10] APPENDICES (on CD)
[10.1] Arbitration Law of the People’s Republic of China
[10.2] China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules
[10.3] China Maritime Arbitration Commission Arbitration Rules