The People’s Courts and Arbitration A Snapshot of Recent Judicial Attitudes on Arbitrability and Enforcement

Abstract

The legislative regime in mainland China is often said to be pro-arbitration. Yet, the People’s Courts retain significant jurisdiction to make rulings with regard to the arbitration process as well as the resulting arbitral award. This article examines a number of recent Chinese court decisions and considers how well the proarbitration rhetoric has played out in reality. The authors observe that certain aspects of the People’s Courts’ recent rulings are already in conformity with international norms, such as the arbitrability of tortious claims in China and its adherence to the doctrine of separability of the arbitration clause. Nevertheless, other aspects of the system remain troubling for foreign parties. These aspects include the Supreme People’s Court’s restrictive approach to intervention by or joinder of parties who are not signatories to the arbitration agreement, uncertainty over the “public policy” and “social and public interest” exceptions to enforcement of arbitral awards and the status of awards issued by foreign arbitration institutions in China.