China - Chapter III.2 - Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

Author(s):

Brenda Horrigan

Felix Hess

Page Count:

32 pages

Media Description:

PDF from "Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition"

Published:

April, 2012

Jurisdictions:

China

Author Detail:

Brenda D. Horrigan is a Partner with Salans LLP based in the firm’s Shanghai and Paris offices, and is Co-Head of the firm’s international arbitration practice group. Ms. Horrigan concentrates on international arbitration with a particular focus on disputes arising in connection with investments in countries of the Former Soviet Union, Central/Eastern Europe and Asia. She has acted as counsel in both commercial and investment treaty arbitrations before the world’s foremost international arbitration institutions, as well as in ad hoc arbitration, and also sits as arbitrator. She has a background as a transactional lawyer and has advised on cross-border debt and equity financings, strategic investment transactions, corporate restructurings and related transactional matters in emerging markets.

Felix Hess is Of Counsel with Salans LLP, based in the firm’s Shanghai office. Mr. Hess concentrates on dispute resolution and international commercial arbitration, and also represents debtors and investors in the course of reorganization of troubled joint ventures and restructuring of distressed investments. He has particular experience in China-related disputes in a variety of industries, including construction, oil and gas, machine building, joint ventures, international trade and IP. He has a background as transactional lawyer and has in that context has extensive experience advising clients on corporate and commercial matters pertaining to investments in the People’s Republic of China.

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Description:

Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

This chapter discusses arbitration in the People’s Republic of China. China is a party to the New York Convention and the Convention on the Settlement of Investment Disputes. China enacted an Arbitration Law effective September 1, 1995, which made it compulsory for all arbitrations conducted within China to be administered by an approved arbitration commission. Thus, much of China’s arbitration law is established through the procedures of the arbitration commission selected to govern the arbitration. The most well known among such institutions is the China International Economic and Trade Arbitration Commission (CIETAC). Arbitration has evolved as the predominant method for resolution of China-related cross border disputes and CIETAC has become one of the most active arbitration institutions by number of cases worldwide. The legal framework for arbitration in China is steadily improving. Some problems however do remain, in particular with respect to the availability of interim relief and the enforcement of arbitral awards in China.

Introduction

[1] The Role of Arbitration in China

Mediation and other forms of alternative dispute resolution have traditionally played, and continue to play, an important role for settlement of disputes in China. Over the past three decades, however, China has seen a tremendous increase in the number of court cases and arbitration cases as a means of formal dispute resolution. According to official statistics, the Chinese People’s Courts heard more than 10.5 million cases in the year 20091 and it is said that arbitration institutions all over China accepted a total of almost 75,000 cases in the same period.2 Nevertheless, mediation remains deeply enshrined as an element of court and arbitration practice. Relevant laws and rules encourage judges and arbitrators to facilitate mediated settlements between the parties and in most cases they attempt to do so in practice.3

Table of Contents:

§ 2.01 Introduction
[1] The Role of Arbitration in China
[2] Arbitration Institutions
[3] Legal Framework
[4] The Structure of Government
[5] Hong Kong
[6] Enforceability of Arbitral Awards
[7] Extent of Judicial Interference

§ 2.02 Features of Arbitration Law in China
[1] Requirements for Effective Arbitration Clauses
[a] Jurisdiction
[b] Arbitrability
[c] No ad hoc Arbitration
[d] Specifying the Arbitration Institution
[e] Arbitration Administered by Foreign Arbitral Institutions
[2] Definition of Foreign-related Arbitration
[3] Relevance of the Distinction between Domestic and Foreign-related Arbitration
[4] Arbitration Rules Published by the Arbitration Institutions
[5] International Arbitration Conventions to which China is a Party
[6] Other Aspects of Chinese Law

§ 2.03 Requirement for Local Counsel

§ 2.04 Commencing an Arbitration
[1] Request for Arbitration
[2] Language of Arbitration
[3] Number of Arbitrators
[4] Nationality of Arbitrators
[5] Appointment of the Arbitrators
[6] Challenge of Arbitrators
[7] Place of Arbitration
[8] Oral Hearings
[9] Interim Relief
[10] Costs
[11] Award on Costs

§ 2.05 Practical Considerations for Conducting the Arbitration
[1] Written Submissions
[2] Evidence
[a] Documentary Evidence
[b] Witness Statements and Cross-examination
[c] Deadlines for Submission of Evidence
[d] Bundles
[e] Examination of Evidence at the Hearing
[f] Document Disclosure
[g] Preservation of Evidence
[3] Procedural Conference
[4] Experts
[5] Procedure at Hearing
[6] Translation & Interpretation
[7] Transcript

§ 2.06 Arbitration Awards
[1] Types of Awards
[2] Form and Contents of Awards
[3] Award on Costs
[4] Correction and Interpretation of Awards

§ 2.07 Recognition and Enforcement and Setting Aside of Arbitral Awards
[1] Domestic Awards
[2] Foreign-related Awards
[3] Enforcement of Foreign Awards in China
[4] Enforcement of Hong Kong Awards in China
[5] Pre-reporting System for Annulment and Non-enforcement of Foreign-related Awards
[6] Practice of Enforcing Arbitral Awards in China