Last Updated August 23, 2018

Law and Practice

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Commerce & Finance Law Offices dispute resolution department is a leading force in the Chinese legal market. Consisting of 20+ partners and 60+ associates, we frequently represent our clients in complicated commercial litigations and arbitrations ranging from a full spectrum of industries. Some of our lawyers regularly sit as arbitrator for arbitral proceedings under major institutional and UNCITRAL arbitration rules.

The procedure of arbitration in PRC is governed by:

  • The Arbitration Law, which is the major governing law of the procedure of arbitration in PRC.
  • Interpretation of the SPC on Certain Issues relating to Application of the Arbitration Law of PRC, the judicial interpretation of the Arbitration Law.
  • Regulations issued by the SPC regarding the procedure of arbitration (such as Provisions of the SPC on Issues relating to the Reporting and Review of Cases Involving Arbitration-Related Judicial Review).
  • Official opinions published by the SPC in the form of replies to enquiries from local courts (such as the SPC’s Reply on Several Issues over the Validity of Arbitration Agreement).
  • The applicable institutional arbitration rules.

The arbitration rules that the parties have agreed to apply shall also govern the arbitration procedure.

In arbitration proceedings conducted in PRC, there are no particular procedural steps that are required by law.

As mentioned above, PRC law does not give arbitrators the power to rule on jurisdiction or interim measures. The powers of arbitrators established by PRC law are as follows:

  • The power to collect evidence. According to the Arbitration Law, a tribunal may collect evidence on its own initiative when it deems necessary. (Article 43, Arbitration Law)
  • The power to conduct mediation. Before an award is made by the arbitral tribunal, the tribunal may conduct mediation unless the parties object. If a settlement agreement is reached under such mediation, the arbitral tribunal may endorse the settlement to ensure its enforceability. If such mediation is unsuccessful, the arbitral award shall be made.
  • The power to include a minority opinion. The Arbitration Law provides that arbitrators who have a different opinion from the majority of the tribunal may choose either to sign or not to sign the award (Article 54, Arbitration Law) and their dissenting opinion shall be kept on record (Article 53, Arbitration Law). In practice, arbitrators may explain their dissenting opinion in a written statement, which may be rendered as an attachment to the award.

With respect to the duties of arbitrators, the Arbitration Law requires arbitrators to act independently (Article 8, Arbitration Law), and resolve disputes fairly based on the facts and laws (Article 7, Arbitration Law). The Arbitration Law also provides that an arbitrator shall be removed from a case for any of the following reasons:

  • the arbitrator is a disputing party or an immediate relative of the parties to the case or one of their agents;
  • the arbitrator has a personal interest in the case;
  • the arbitrator has some other relationship with the parties to the case or their agents which may prevent the case from being arbitrated fairly; or
  • the arbitrator has had private meetings with the parties concerned or their agents, or has accepted gifts or has attended banquets provided by the parties concerned or their agents. (Article 34, Arbitration Law)

There are no particular qualifications or other requirements for legal representatives appearing in an arbitration seated in China, which is different from cases before PRC courts. The legal representatives of an arbitration need not be admitted as Chinese-qualified lawyers. In circumstances where the parties concerned entrust a legal representative to handle arbitration matters, a letter of authorisation shall be submitted to the arbitration institution (Article 29, Arbitration Law).

Commerce & Finance Law Offices

6F NCI Tower
A12 Jianguomenwai Avenue
Beijing 100022
People's Republic of China

8610-65693399

8610-65693838

lihongji@tongshang.com http://www.tongshang.com/
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Commerce & Finance Law Offices dispute resolution department is a leading force in the Chinese legal market. Consisting of 20+ partners and 60+ associates, we frequently represent our clients in complicated commercial litigations and arbitrations ranging from a full spectrum of industries. Some of our lawyers regularly sit as arbitrator for arbitral proceedings under major institutional and UNCITRAL arbitration rules.

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