Several Issues concerning Deciding Arbitration-Related Judicial Review Cases

 2018-05-16  39


Provisions of the Supreme People's Court on Several Issues concerning Deciding Arbitration-Related Judicial Review Cases


· Document Number:No. 22 [2017] of the Supreme People's Court

· Area of Law: Mediation & Arbitration

· Level of Authority: Judicial Interpretation

· Date issued:12-26-2017

· Effective Date:01-01-2018

· Status: Effective

· Issuing Authority: Supreme People's Court

 

Announcement of the Supreme People's Court
The Provisions of the Supreme People's Court on Several Issues concerning Deciding Arbitration-Related Judicial Review Cases, as adopted at the 1,728th meeting of the Judicial Committee of the Supreme People's Court on December 4, 2017, are hereby issued and shall come into force on January 1, 2018.
Supreme People's Court
December 26, 2017
Provisions of the Supreme People's Court on Several Issues concerning Deciding Cases of Arbitration-Related Judicial Review
(No. 22 [2017] of the Supreme People's Court)
For the purposes of correctly deciding arbitration-related judicial review cases and protecting the lawful rights and interests of all parties according to the law, these Provisions are developed under the Civil Procedure Law of the People's Republic of China, the Arbitration Law of the People's Republic of China, and other laws, based on adjudicative practice.
Article 1 For the purpose of these Provisions, "arbitration-related judicial review case" means any of the following cases:
(1) A case of an application for recognition of the effect of an arbitration agreement.
(2) A case of an application for enforcement of an arbitral award made by a Chinese mainland-based arbitral institution.
(3) A case of an application for revocation of an arbitral award made by a Chinese mainland-based arbitral institution.
(4) A case of an application for recognition and enforcement of an arbitral award made in the Hong Kong Special Administrative Region, the Macao Special Administrative Region, or Taiwan region.
(5) A case of an application for recognition and enforcement of a foreign arbitral award.
(6) Other arbitration-related judicial review cases.
Article 2 For a case for an application for recognition of the effect of an arbitration agreement, an intermediate people's court, or a special people's court, in the place where the arbitral institution as stipulated in the arbitration agreement is located, or where the arbitration agreement is entered into, or in the place of domicile of the applicant or the respondent, shall have jurisdiction.
For a case relating to the effect of a maritime dispute arbitration agreement, a maritime court in the place where the arbitral institution as stipulated in the arbitration agreement is located, or where the arbitration agreement is entered into, or in the place of domicile of the applicant or the respondent, shall have jurisdiction; or in the absence of a maritime court in the aforesaid place, a nearest maritime court shall have jurisdiction.
Article 3 Where a foreign arbitral award is related to a case decided by a people's court, neither the place of the domicile of the respondent nor the place of the property of the respondent is located in Chinese mainland, and the applicant applies for recognition of the foreign arbitral award, the people's court accepting the related case shall have jurisdiction. If the people's court accepting the related case is a basic-level people's court, the people's court at the next higher level of the basic-level people's court shall have jurisdiction in the case of the application for recognition of the foreign arbitral award. If the people's court accepting the related case is a higher people's court or the Supreme People's Court, the court shall decide whether to conduct the review itself or appoint a higher people's court for the review.
Where a foreign arbitral award is related to a case decided by a Chinese mainland-based arbitral institution, neither the place of the domicile of the respondent nor the place of the property of the respondent is located in Chinese mainland, and the applicant applies for recognition of the foreign arbitral award, the intermediate people's court in the place where the arbitral institution accepting the related case is located shall have jurisdiction.
Article 4 Where an applicant applies to two or more people's courts of competent jurisdiction, the people's court which dockets the case first shall have jurisdiction.
Article 5 An applicant shall, when applying to a people's court for recognition of the effect of an arbitration agreement, submit an application and an original or authenticated copy of the arbitration agreement.
An application shall specify the following items:
(1) If the applicant or the respondent is a natural person, his/her name, sex, birth date, nationality and domicile; or if the applicant or the respondent is a legal person or any other organization, its name, domicile, and the name and title of the legal representative or representative.
(2) Content of the arbitration agreement.
(3) Specific claims and reasons.
A party shall, when submitting an application, an arbitration agreement, or any other document, in a foreign language, attach a Chinese translation.
Article 6 An applicant shall, when applying to a people's court for enforcement or revocation of an arbitral award made by a Chinese mainland-based arbitral institution, or for recognition and enforcement of a foreign arbitral award, submit an application and an original or authenticated copy of the arbitral award.
An application shall specify the following items:
(1) If the applicant or the respondent is a natural person, his/her name, sex, birth date, nationality and domicile; or if the applicant or the respondent is a legal person or any other organization, its name, domicile, and the name and title of the legal representative or representative.
(2) Main content and effective date of the award.
(3) Specific claims and reasons.
A party shall, when submitting an application, an award, or any other document, in a foreign language, attach a Chinese translation.
Article 7 Where a document submitted by an applicant is contrary to Articles 5 or 6 and remains so upon the explanation of the people's court, the award shall not be accepted.
When an applicant files an application with a people's court not having jurisdiction in the case, the people's court shall notify the applicant to do so with a people's court of competent jurisdiction and, if the applicant does not change the application, make a ruling not granting acceptance.
The applicant may appeal the ruling not granting acceptance.
Article 8 A people's court shall make a ruling rejecting an application if it discovers that the conditions for acceptance are not satisfied after having docketed the case.
If, for a case rejected in a ruling as described in the preceding paragraph, the applicant files an application again and meets the conditions for acceptance, the people's court shall grant acceptance.
A party may appeal the ruling rejecting an application.
Article 9 For an application filed by an applicant, the people's court shall, within seven days, conduct a review and decide whether to grant acceptance.
A people's court shall, within five days of accepting an arbitration-related judicial review case, issue a notice to the applicant and the respondent, informing them of the acceptance and their relevant rights and obligations.
Article 10 Where a respondent objects to the jurisdiction of a people's court which has accepted an arbitration-related judicial review case, the respondent shall file the objection within 15 days after receiving the notice from the people's court. The people's court shall review the objection filed by the respondent and make a ruling. A party may appeal the ruling.
A respondent without a domicile within the territory of the People's Republic of China, who objects to the jurisdiction of a people's court, shall file the objection within 30 days after receiving the notice from the people's court.
Article 11 A people's court shall, when reviewing an arbitration-related judicial review case, form a collegial bench and inquire parties.
Article 12 An arbitration agreement or an arbitral award, which falls under the circumstances as mentioned in Article 1 of the Interpretations of the Supreme People's Court on Several Issues Concerning Application of the Law of the People's Republic of China on Choice of Law for Foreign-Related Civil Relationships (I), is foreign-related.
Article 13 Parties shall make an express declaration of will when choosing by agreement the law applicable to the recognition of the effect of an arbitration agreement, and the law applicable solely to the contract as agreed upon may not be invoked as the law applicable to the recognition of the effect of the arbitration clause of the contract.
Article 14 A people's court shall, when deciding the law applicable to the recognition of the effect of a foreign-related arbitration agreement under Article 18 of the Law of the People's Republic of China on Choice of Law for Foreign-Related Civil Relationships, invoke the law recognizing the effect of the arbitration agreement, where neither party chooses an applicable law, and the application of the law in the place of the arbitral institution will lead to a recognition conclusion regarding the effect of the arbitration agreement different from that of the law in the place of arbitration.
Article 15 Where an agreement is silent on the arbitration institution or the place of arbitration, but it may be determined under the applicable arbitration rules as agreed upon in the arbitration agreement, it shall be determined as the arbitration institution or the place of arbitration as specified in Article 18 of the Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships.
Article 16 When a people's court relies on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards to review a case in which a party applies for the recognition and enforcement of a foreign arbitral award, if the respondent raises a defense that the arbitration agreement is invalid, the people's court shall, according to paragraph 1(a), Article 5 of this Convention, determine the law applicable to the recognition of the effect of the arbitration agreement.
Article 17 Article 237 of the Civil Procedure Law of the People's Republic of China shall apply to the review by any people's court of a case of an application for enforcement of a non-foreign-related arbitral award made by a Chinese-mainland-based arbitral institution.
Article 274 of the Civil Procedure Law of the People's Republic of China shall apply to the review by any people's court of a case of an application for enforcement of a foreign-related arbitral award made by a Chinese-mainland-based arbitral institution.
Article 18 "The arbitrator commits an act of seeking or taking a bribe, practicing favoritism or making falsehood, or making the award by legal abuse, when deciding the case" as described in paragraph 1(6), Article 58 of the Arbitration Law of the People's Republic of China and paragraph 2(6), Article 237 of the Civil Procedure Law of the People's Republic of China means an act determined in an effective criminal legal instrument or a disciplinary action decision.
Article 19 Where an applicant requests withdrawal of the application upon acceptance of the arbitration-related judicial review case by the people's court pending a ruling, withdrawal shall be awarded.
Article 20 A ruling made by a people's court in an arbitration-related judicial review case, except for a ruling not granting acceptance, or rejecting application, or with regard to objection to jurisdiction, shall produce legal effect upon service. Where a party applies for reconsideration, files an appeal, or applies for re-trial, the people's court shall grant no acceptance unless otherwise provided by the law or any other judicial interpretation.
Article 21 The provisions on judicial review of foreign-related arbitration shall apply, mutatis mutandis, to a case of an application for recognition of the effect of an arbitration agreement involving the Hong Kong Special Administrative Region, the Macao Special Administrative Region or Taiwan region, or for enforcement or revocation of an arbitral award involving the Hong Kong Special Administrative Region, the Macao Special Administrative Region or Taiwan region made by a Chinese mainland-based arbitral institution, accepted by a people's court.
Article 22 These Provisions shall come into force on January 1, 2018, and if any judicial interpretation as previously issued by the Supreme People's Court is inconsistent with these Provisions, these Provisions shall prevail.