Arbitration In China Research Articles

An Overview the Development of International Arbitration: A Comparative Study in Perspective of Pakistan and the China

This research provides a comparative analysis of the evolution of international arbitration in Pakistan and China by competing their legal frameworks the evolution of institutions and main challenges the two countries face in adopting international arbitration. It examines the development history of arbitration laws and the application of laws such as the New York Convention, and how each country's legal system has been adapted to comply with global arbitration standards. The building foundation for its arbitration framework in Pakistan is covered with Arbitration Act of 1940 and Recognition and Enforcement (Agreement and Foreign Arbitral Award), 2011. On the other hand, China has scored some notable achievements in the establishment of arbitration institutions, such as the China International Economic and Trade Arbitration Commission (CIETAC), and incorporated modern arbitrations into current laws. Essential elements of the theme of the research include the role of arbitration institutions, enforcement mechanisms and the way how domestic political and economic factors affect the practice of arbitration. Furthermore, the work also explores the difficulties that both nations encounter, such as the problem of unawareness of arbitration, subordination by the judiciary, and demand for more transparence. The study finishes seeking the improvement of international arbitration in the two jurisdictions through legal reforms, institutional support, and enhanced enforcement measures.

International Arbitration in China: 2023 in Review

2023 was a year of progress for international arbitration in China, as there was positive activity in the Ministry of Justice, in the Courts, and in the arbitral institutes, each paving the way toward making China a more favourable venue for international arbitration. There were also encouraging developments abroad as several foreign court decisions recognized awards issued in China under the rules of Chinese arbitration institutions, demonstrating increasing global acceptance of awards issued in China by Chinese institutions, such as the China International Economic & Trade Arbitration Commission.With major amendments proposed to modernize its arbitration law, updates of key arbitral institute rules to be aligned with international practices, and judicial and policy measures in aid of arbitration, China has taken concrete steps to strengthen itself as a more modern international arbitration jurisdiction.

Актуальные тенденции в законодательстве Китая о международном арбитраже

China did not adopt the UNCITRAL Model law in either version and its arbitration legislation often does not reflect the world-recognised practices of international arbitration. However, during the last few years, China has been softening its approach towards both international commercial and investment arbitration. The recent court decisions, adoption of the new Civil Procedure Law and proposal of the Draft Amended Arbitration Law signify gradual recognition of the concept of ‘seat of arbitration’ instead of relying on the domicile of the arbitration institution. Furthermore, Chinese courts have acknowledged the capacity of foreign arbitration institutions to administer disputes within mainland China — a significant shift from past practices where only Chinese arbitration commissions could administer arbitration proceedings in China under the Arbitration Law. This change is also reflected in the Draft Amended Arbitration Law. Another crucial legislative change is adoption of the Foreign State Immunity Law, which came into effect in January 2024. By enacting this law, China has shifted from absolute to restrictive immunity in disputes between a person or entity and a state. Thereby China allowed claims against foreign states arising out of commercial activities or international investment treaties to be considered in Chinese courts. Nevertheless, challenges remain in regards of recognition and enforcement of investment arbitral awards or conducting of investment arbitration in China. First, China’s reservation under the New York Convention 1958 limits recognition and enforcement of foreign awards to ‘commercial’ disputes, excluding investor-state disputes. Besides, it is discussed that China has not taken proper steps to recognise the ICSID awards as national ones for purposes of enforcement, even though it ratified the ICISD Convention. Furthermore, formally under the current Arbitration Law the investment arbitration is not possible. Finally, considering the latest legislative amendments, recent court practice and updated arbitration rules of Chinese arbitration institutions, it can be concluded that China has taken the pro-arbitration approach.

Study on the Selection System of Arbitrators for Ad Hoc Arbitration in China

The selection of arbitrators, as the beginning and core of ad hoc arbitration procedure, needs to be fully regulated by legislation, and the existing norms do not well meet the needs of the selection of arbitrators. Based on the theoretical foundation of autonomy, we explore the constituent elements of the system for the selection of arbitrators in ad hoc arbitration under the international perspective, sort out the existing system and deficiencies in our country, and make suggestions for the improvement of the system for the selection of arbitrators in ad hoc arbitration in our country: on the one hand, we should stipulate the loose conditions for the service of the arbitrators, improve the way of selecting arbitrators, and safeguard the party’s autonomy; on the other hand, we should take the intervention of the institution as the supplement to the party’s autonomy, and solve the deadlock of the selection. On the other hand, institutional intervention should be used as a supplement to party autonomy to resolve the deadlock in the selection. At the same time, the rules on the obligation to disqualify arbitrators should be improved to safeguard the independence of arbitrators and realize justice in arbitration.

Challenges and Countermeasures in Carrying out International Commercial Friendly Arbitration in China’s Free Trade Zones

Challenges and Countermeasures in Carrying out International Commercial Friendly Arbitration in China’s Free Trade Zones

Research on the Reform and Development of International Commercial Arbitration in China

International commercial arbitration is the preferred way to resolve cross-border commercial disputes. Facing new situations and challenges, the government should strengthen the training of international commercial arbitration talents, actively participate in international arbitration rule-making, promote the integration of modern technology with commercial arbitration, improve the laws and regulations on international commercial arbitration, and enhance the publicity to raise the awareness of arbitration. Hence, this can establish a sound international commercial arbitration system in line with China’s national conditions and international standards to further optimize the business environment in China and better promote international economic and trade exchanges.

Research on the Modernization of China Foreign Commercial Arbitration: From the Perspective of Building an International Commercial Arbitration Center

Under the background of social change and the great development of "Belt and Road" policy, China's international commercial arbitration is facing a higher level of development needs. In order to solve the existing problems, draw on the experience of the world's advanced international arbitration centers, improve the concept of arbitration, and improve the level of arbitration services, China should take the goal of building a China international commercial arbitration center comparable to the world-class level, and constantly explore the development path of arbitration. This paper analyzes the present situation and trend of international commercial arbitration in China, discusses the connotation and value of China international commercial arbitration center, put forward from government relations, institutional development, system architecture, modernization can assign four aspects to improve the arbitration center construction scheme, and innovatively put forward the horizontal and vertical two lines and special assigned to the development of the framework. Accordingly, China's international commercial arbitration system should be continuously improved, the credibility and discourse power of China's international commercial arbitration should be enhanced, and China should build an international arbitration brand with Chinese characteristics.

중국 상사중재에서의 임시적 처분 조치에 관한 연구

중국 상사중재에서의 임시적 처분 조치에 관한 연구

Blockchain, metaverses and NFT in civil procedure and arbitration in Russia, China and USA

The research is devoted to the study of new technologies - blockchain, metaverse and NFT - in civil procedure and arbitration in Russia, China and USA. The author analyzes the basic concepts and characteristics of the above technologies and gives examples of their use in judicial practice. Recent US judicial precedents (2021 and 2022), which consolidate the possibility of using blockchain and NFT technologies in court proceedings are looked at. The research aims at shaping the idea of possible application of blockchain, metaverse and NFT technologies in civil proceedings; it is based on the analysis of regulations, judicial practice of Russia, foreign countries, and scientific sources. The employed methodology is empirical methods of comparison, description, and interpretation, theoretical methods of formal and dialectical logic. Private scientific methods include legal-dogmatic method and interpretation of legal norms. The outcome of the research shows that blockchain and NFT technologies have become an effective tool used by the courts of USA and China in the analysis of electronic evidence and some other procedural actions including notification of an unknown defendant through a non-interchangeable token (NFT). The research came to the following conclusions. Blockchain transactions are often called anonymous or at least pseudonymous, but this is not the case. The issue of blockchain anonymity has been raised in several cases heard by US courts. The blockchain analysis of tools industry has allowed the court and the parties to the dispute to analyze transactions on the blockchain and in many cases trace them to an identifiable user, even if such users have taken steps to conceal their identity. It is essential to refer to the US courts experience allowing private companies to conduct Technology Assisted Review (TAR).

COVID-19 and Dispute Resolution in China: Trends in Arbitration and Litigation

AbstractThe COVID-19 pandemic is reshaping the landscape of Chinese dispute resolution. The aim of this article is to outline China's various approaches to such development in times of global pandemic. The article primarily examines the features of online arbitration in China with a special focus on the significance of party autonomy and the authority of the tribunal in handling virtual hearings. This trend prompts the question as to whether virtual hearings and the use of digital technology ensure the protection of data and privacy. Further, the article analyses the impacts of online dispute resolution on litigation and different sets of new rules adopted in China to handle online hearings. It concludes that China successfully addressed most of the raised questions in terms of data and privacy protection, and that the processes through which dispute resolution becomes increasingly digitalised seems to be an irreversible trend that warrants further research into its consequences.

The Complex and Evolving Legal Status of Ad Hoc Arbitration in China

The current People’s Republic of China (PRC) Arbitration Law rejects ad hoc arbitration by requiring the arbitration agreement to specify an arbitration institution. However, such rejection does not constitute a barrier to the enforcement of foreign ad hoc arbitration awards under the New York Convention. To determine the validity of a foreign ad hoc arbitration agreement, China adopts a conflict-of-laws approach in ascertaining its applicable law. Recent years have witnessed China’s initiative to experiment with ad hoc arbitration in its Free Trade Zones (FTZs). The draft revised PRC Arbitration Law published by the Chinese Ministry of Justice (MOJ) in 2021 proposes allowing foreign-related disputes to be resolved by ad hoc arbitration. This article argues that the legal status of ad hoc arbitration in China demonstrates a complex and evolving nature. It notes that while complete legalization of ad hoc arbitration in China is unlikely in the short term, its legal status will continue to evolve, reflecting the complicated relationship between China’s bureaucratized arbitration regime and its increasingly sophisticated arbitration market. Ad Hoc Arbitration, Legal Status, PRC Arbitration Law, Article 16, Article 18, Conflict-of-Laws Approach, Enforcement of Foreign Arbitration Awards, New York Convention, Free Trade Zones, China’s Bureaucratized Arbitration Regime

Examining the Practice of Expedited Arbitration in China: Strengths, Difficulties, and Prospects

Examining the Practice of Expedited Arbitration in China: Strengths, Difficulties, and Prospects

Establishment of International Sports Arbitration System in China: Realistic Needs, Conditions and Specific Paths

Due to the lack of legislation on international sports arbitration institutions and arbitration rules in China, international sports arbitration activities usually lack direct legal support. However, as China successfully hosted the Olympic Games and the Winter Olympic Games successively, Beijing has become the only “Double Olympic City” in the history of the Olympic Games, contributing to the development of international sports arbitration. China has the experience in handling and resolving international sports disputes, and has a stronger motivation to promote and establish better international sports arbitration rules. In 2022, relevant Chinese institutions and organizations have successively passed the new Sports Law (Sports Law), Organizational Rules of the China Sports Arbitration Commission (Draft for Comment) (Organizational Rules) and Rules of Sports Arbitration (Draft for Comment) (Arbitration Rules), and the Chinese Sports Arbitration Rules. This is undoubtedly important progress in the integration of China’s sports arbitration rules with international rules, but it is still worthy of our in-depth consideration in terms of the required conditions, specific paths and supporting systems for the development of international sports arbitration in China.

Ad Hoc Arbitration Reform in China: A Step Forward

In July 2021, the Ministry of Justice (MoJ) released its proposed revisions to the Arbitration Law (AL) for public consultation, sparking hope for the liberalization of ad hoc arbitration in China. However, the planned reform is unlikely to be comprehensive, as it is limited to foreign-related commercial disputes and burdened with procedural requirements. This study finds that the favourable treatment of foreign-related sectors and the insufficient quality of domestic arbitration contribute to China’s pattern of ‘half-measure’ ad hoc arbitration reforms. Since it will take a long time to reduce the disparity between the legal performance of foreignrelated and purely domestic sectors, China has adopted ‘gradualism’ in its legal reform. In doing so it seeks to minimize instability during its transition and maintain the reliability of arbitration. To achieve these goals, this article suggests that further reform of China’s ad hoc arbitration proceed on its dual track, temporarily shutting out domestic sectors while further internationalizing foreign- related ones. China’s Arbitration Law, ad hoc arbitration, gradualism, dual track, domestic arbitration, foreign-related arbitration

What is Included in the Concept of Online Arbitration in China?

The article provides an overview of new forms of dispute resolution – online arbitration on the example of China. Chinese scientists divide online arbitration into two categories: mandatory online arbitration and optional online arbitration. It is proved that optional online arbitration in China, which is currently conducted by private e-commerce platforms (“Taobao ODR”, “Tmall ODR”, “Jingdong ODR”, “Gome ODR”, etc.) and providing crowdsourcing dispute resolution services, can be considered as a fullfledged online arbitration. The only difference between mandatory and optional online arbitration is that the decisions of the latter cannot be enforced through a state court. But e-commerce platforms in China have effective incentives to force the losing party to enforce the arbitration award.

Rising Giants: Charting the Growth of Arbitration in Vietnam and China

The appeal of arbitration, as a mode of dispute resolution, to foreign investors has led to the common wisdom that there is a broad correlation between the growth of the arbitration sector and the growth of the economy as a whole. This common wisdom is however subject of some scepticism in Asia, where arbitration and its association with the Western neoliberal project continues to raise concerns amongst some quarters. This article seeks to dispel this scepticism in the context of two Asian economic powerhouses. By tracking how the arbitration sector in both countries have evolved over time, both quantitatively and qualitatively, the authors observe that economic growth has been matched by a corresponding liberalization of the arbitration sector and the adoption of new standards, as well as the design of novel approaches worthy of consideration by other more established jurisdictions. arbitration, Asia, Vietnam, China.

Extraterritorial Arbitration in China’s Pilot Free Trade Zones and Beyond

Extraterritorial Arbitration in China’s Pilot Free Trade Zones and Beyond

The Future of Foreign Arbitration in the People’s Republic of China: Current Developments and Challenges Ahead

The increased commercial interaction between China and the rest of the world leads to disputes, many of which are resolved through international commercial arbitration. Whereas the arbitration industry in the “People’s Republic of China” (PRC) has been protectionist, recent developments suggest that foreign arbitration institutions may have increasing access to the market, a potential boon to foreign and Chinese parties alike. This article analyses the most recent developments in the area of non-mainland arbitration institutions acting as service providers in mainland China and the potential impact of these developments on Sino-foreign disputes. There have been two notable advancements in foreign arbitration in recent years: (1) the permission given to foreign arbitral institutions to administer foreign-related arbitrations in the Shanghai Lin-Gang Pilot Free Trade Zone, and (2) the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region. Taken together, these developments open the gate to foreign arbitration institution in mainland China, and are signs of progress place at the cusp of the reform of the 1994 China Arbitration Law. Yet there are lingering obstacles to the internationalization of commercial arbitration in China. Accordingly, this article introduces the existing international arbitration regime in mainland China; assesses what the recent developments mean in the context of Sino-foreign disputes; sheds light on possible challenges associated with the changes; and makes recommendations for the on-going reform of arbitration in China.

“One of the First Matters to be Addressed but Distinct” or “Distinct but Inseparable”? The Distinction Between Maritime Entitlement and Sea Boundary Delimitation in the Philippines v. China Arbitration

AbstractThe distinction between disputes of sea boundary delimitation and disputes over the existence of maritime entitlements was one key element of the legal argument that the Philippines brought forward against China in the Philippines v. China Arbitration. On the one hand, the distinction between delimitation and entitlement allowed the Tribunal to establish its jurisdiction on several Philippine submissions despite the jurisdictional exclusions of China's declaration under Article 298(1)(a)(i) of the Law of the Sea Convention. On the other hand, the Tribunal's finding about the lack of China's entitlements has important consequences. China and a number of lawyers objected to the jurisdictional separability of entitlement and delimitation. The aim of this paper is to discuss the question of whether a tribunal can establish jurisdiction on the existence of maritime entitlements in a context where jurisdiction on boundary delimitation is excluded and where a determination of entitlements has consequences for boundary delimitation.

The future of foreign arbitration in the People’s Republic of China: current developments and challenges ahead

ABSTRACT The increased commercial interaction between China and the rest of the world leads to disputes, many of which are resolved through international commercial arbitration. Whereas the arbitration industry in the People’s Republic of China (PRC or ‘mainland China’) has been protectionist, recent developments suggest that foreign arbitration institutions may have increasing access to the market, a potential boon to foreign and Chinese parties alike. This article analyses the most recent developments in the area of non-mainland arbitration institutions acting as service providers in mainland China and the potential impact of these developments on Sino-foreign disputes. There have been two notable advancements in foreign arbitration in recent years: (i) the permission given to foreign arbitral institutions to administer foreign-related arbitrations in the Shanghai Lin-Gang Pilot Free Trade Zone, and (ii) the Arrangement Concerning Mutual Assistance in Court-Ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region. Taken together, these developments open the gate to foreign arbitration institutions in mainland China, and are signs of progress taking place at the cusp of the reform of the 1994 China Arbitration Law. Yet there are lingering obstacles to the internationalization of commercial arbitration in China. Accordingly, this article introduces the existing international arbitration regime in mainland China; assesses what recent developments mean in the context of Sino-foreign disputes; sheds light on possible challenges associated with these changes; and makes recommendations for the ongoing reform of arbitration in China.