Provisions of the Supreme People's Court on Several Issues concerning the Hearing of Cases Involving the Judicial Review of Arbitration

Fa Shi [2017] No.22

December 26, 2017

The Provisions of the Supreme People's Court on Several Issues concerning the Hearing of Cases Involving the Judicial Review of Arbitration, adopted at the 1728th meeting of the Judicial Committee of the Supreme People's Court on December 4, 2017, are hereby promulgated and shall come into force as of January 1, 2018.

Provisions of the Supreme People's Court on Several Issues concerning the Hearing of Cases Involving the Judicial Review of Arbitration

To properly hear cases involving the judicial review of arbitration and protect the lawful rights and interests of all parties concerned according to the law, these Provisions are formulated in accordance with the Civil Procedure Law of the People's Republic of China, the Arbitration Law of the People's Republic of China and other applicable legal provisions and in consideration of judicial practices.

Article 1 For the purpose of these Provisions, a case involving the judicial review of arbitration shall include the following,
1. A case involving an application for identifying the validity of an arbitration agreement;
2. A case involving an application for enforcing the arbitral award issued by an arbitration institution in mainland China;
3. A case involving an application for overturning an arbitral award issued by an arbitration institution in mainland China;
4. A case involving an application for recognizing and enforcing an arbitral award from the Hong Kong Special Administration Region, Macao Special Administration Region, or Taiwan Region;
5. A case involving an application for acknowledging and enforcing a foreign arbitral award; and
6. Any other case involving the judicial review of arbitration.

Article 2 In a case involving an application for identifying the validity of an arbitration agreement, the intermediate people's court or the specialized people's court at the place where the arbitration institution agreed upon in the arbitration agreement is located, the arbitration agreement is executed, the applicant is domiciled, or the respondent is domiciled shall have jurisdiction.
Where the case involves an admiralty or maritime dispute over the validity of an arbitration agreement, the maritime court at the place where the arbitration institution agreed upon in the arbitration agreement is located, the arbitration agreement is executed, the applicant is domiciled, or the respondent is domiciled and where there is no maritime court established at the above-said place, the maritime court nearby shall have jurisdiction.

Article 3 Where a foreign arbitral award is related to a case heard by the people's court, and the applicant's application for recognizing the foreign arbitral award due to the fact that neither the respondent nor its property is located within the mainland, the people's court that hears the related case shall have the jurisdiction over the application. Where the people's court that hears the related case is a people's court at the grassroots level, the people's court at the next higher level shall have the jurisdiction over the application for recognizing the foreign arbitral award. However, if the people's court that hears the related case is a high people's court or the Supreme People's Court, the high people's court or the Supreme People's Court may either conduct reviews on their own or order a designated intermediate people's court to conduct a review.
Where a foreign arbitral award is related to a case handled by an arbitration institution in the mainland, and the applicant's application for recognizing the foreign arbitral award due to the fact that neither the respondent nor its property is located within the mainland, the intermediate people's court at the place where the arbitration institution handling the related case is situated shall have jurisdiction.

Article 4 Where the applicant files its application to two or more people's courts with jurisdiction, the people's court that first places the case on file shall have jurisdiction.

Article 5 To file an application with the people's court for identifying the validity of an arbitration agreement, the applicant shall submit the written application and the original arbitration agreement or a copy thereof confirmed to have no errors.
The written application shall specify the following particulars,
1. 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;
2. Contents in the arbitration agreement; and
3. Details about the application and the reasons.
The written application, the arbitration agreement and other documents submitted by the party concerned, if prepared in a foreign language, shall be affixed with their Chinese translations.

Article 6 To file an application with the people's court for enforcing or overturning the arbitral award issued by a domestic arbitration institution, acknowledging and enforcing 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.
The written application shall specify the following particulars,
1. 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;
2. Major contents in the arbitral award and the effective date; and
3. Details about the application and the reasons.
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.

Article 7 Where documents submitted by an applicant fail to comply with the provisions in Article 5 and Article 6, and those submitted after the people's court has made relevant explanations still do not comply with the required provisions, a decision shall be made to dismiss the case.
Where an applicant files an application with a people's court without jurisdiction, the people's court shall notify the applicant of filing its application with the people's court with jurisdiction, and a decision shall be made to dismiss the case if the applicant insists on not filing its application again with the people's court with jurisdiction.
Where an applicant disagrees with the decision made to dismiss the case, it may lodge an appeal.

Article 8 Where a people's court finds the application does not have acceptance requirements fulfilled, after it has put the case on record, a decision shall be made to reject the application.
For a case in which the application is rejected, as mentioned in the preceding paragraph, the second-time application filed by the applicant shall be accepted by the people's court, if it meets the acceptance requirements.
Where an applicant disagrees with the decision made to dismiss the case, it may lodge an appeal.

Article 9 The people's court shall review and decide within seven days whether to accept the application filed by an applicant.
After accepting a case involving the judicial review of arbitration, the people's court shall send a notice within five days to both the applicant and the respondent to have them informed of the particulars on its acceptance of the case and their relevant rights and obligations.

Article 10 Where the respondent has any objection to jurisdiction after the people's court has accepted the case involving the judicial review of arbitration, it shall raise the objection within 15 days upon receipt of the notice from the people's court. The people's court shall review the objection raised by the respondent and make a decision in this regard. Where the party concerned disagrees with the decision, it may bring an appeal.
Where the respondent that has no domicile within the territory of the People's Republic of China has any objection to the jurisdiction of the people's court, it shall raise the objection within 30 days upon receipt of the notice from the people's court.

Article 11 To review a case involving the judicial review of arbitration, the People's Court shall set up a collegiate bench and question the parties concerned.

Article 12 An arbitration agreement or an arbitral award falling under any circumstance given in Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Law of the People's Republic of China on Foreign-Related Civil Relations (I) shall be a foreign-related arbitration agreement or a foreign-related arbitral award.

Article 13 Where the parties concerned identify in an agreement the law applicable to identify the validity of a foreign-related arbitration agreement, they shall make an explicit expression of intent; where the agreement only specifies the law applicable to the contract, such law shall not be considered as the applicable law to identify the validity of arbitration-related stipulations in the contract.

Article 14 Where the parties concerned do not specify the applicable law when the people's court decides on the law that applies to identify the validity of a foreign-related arbitration agreement, in accordance with the provisions of Article 18 of the Law of the People's Republic of China on the Application of Law in Foreign-related Civil Relations, and the application of the law at the place where the arbitration institution is located and the law at the place of arbitration will lead to different results in respect of the validity of the arbitration agreement, the people's court shall determine that the law under which the arbitration agreement is regarded as valid shall apply.

Article 15 Where the arbitration institution or the place of arbitration, though not explicitly specified in the arbitration agreement, could be determined under the applicable arbitration rules as specified in the arbitration agreement, the arbitration institution or the place of arbitration shall be taken as that given in Article 18 of the Law of the People's Republic of China on Application of Law in Foreign-related Civil Relations.

Article 16 Where the people's court uses the Convention on the Recognition and Enforcement of Foreign Arbitral Awards to review a case in which an applicant applies to acknowledge and enforce a foreign arbitral award, but the respondent argues that the arbitral agreement is valid, the people's court shall decide on the law applicable to identify the validity of the arbitral agreement, in accordance with the provisions in Item I under the first paragraph of Article 5 of this Convention.

Article 17 Provisions of Article 237 of the Civil Procedure Law of the People's Republic of China shall apply to the people's court's review of a case in which an application is filed to enforce a non-foreign-related arbitral award issued by a domestic arbitration institution.
The provisions of Article 274 of the Civil Procedure Law of the People's Republic of China shall apply to the people's court's review of a case in which an application is filed for enforcing a foreign-related arbitral award issued by a domestic arbitration institution.

Article 18 The act of an arbitrator to demand or accept bribes, commit graft or pervert the law in making an arbitral award, as stated in Item 6 under the first paragraph of Article 58 of the Arbitration Law of the People's Republic of China and in Item 6 under the second paragraph of Article 237 of the Civil Procedure Law of the People's Republic of China, refers to the act that has been confirmed in an effective criminal legal instrument or a decision for disciplinary measures.

Article 19 An applicant's request to withdraw its application, after the people's court has accepted the case involving the judicial review of the arbitration and before it makes a ruling, shall be permitted.

Article 20 The decision made by the people's court for a case involving the judicial review of arbitration, other than that in which the case is dismissed, the application is rejected, or the jurisdiction is under controversy, shall become legally effective upon service on the parties concerned. Where the party concerned applies for a reconsideration, lodges an appeal or applies for a retrial, the people's court shall not accept the same, unless otherwise stipulated in laws and judicial interpretations.

Article 21 When the people's court accepts a case in which an application is filed for identifying the validity of an arbitral agreement in connection with the Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan Region, or for enforcing or overturning an arbitral award that is issued by a domestic arbitration institution and relates to the Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan Region, the case shall be reviewed with reference to provisions applicable to cases involving the judicial review of foreign-related arbitration.

Article 22 These Provisions shall come into force as of January 1, 2018. Where there is any discrepancy between these Provisions and judicial interpretations previously issued, these Provisions shall prevail.