• Journal of Arbitration Studies
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• v.21 no.3
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• pp.115-136
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• 2011

In the past, Chinese arbitral system and Chinese arbitral associations were avoided by international society due to the cases which Chinese court rejected the recognition and enforcement of foreign arbitral awards based on rural protection. Especially Chinese court adjudicated to reject the recognition and enforcement of arbitral awards by interpreting public policy broadly. The abuse of public policy by court threats the existence of commercial arbitration system. Under this awareness, the author figured out Chinese court shows what kind of attitude about public policy of Chinese court in the present through analyzing the cases about rejection of enforcement in Chinese arbitral awards in order to analyze whether Chinese court still maintain the negative attitude like past or there exist changes with public policy which is one of the rejection reasons of recognition and enforcement in foreign arbitral awards as the central figure. Chinese court behaved in an uncooperative attitude about arbitral awards like that it reached a verdict to reject the enforcement of arbitral awards by reason of violation in public policy about several foreign arbitral awards at the beginning stage of establishing arbitration law. However, the situation of abuse in public policy was improved a lot by Chinese prime court which enforces pre-inspection system about judgment of rejection of enforcement in arbitral awards. So, there is no case about rejecting the approval and enforcement of arbitral awards by reason of violation in public policy by Chinese court except Yongning Co. case. Moreover, Chinese court got the trust and support from other countries through reinforcement of applied standard. However, Chinese court had been expressed concern from international society because they highly applied public policy and rejected to enforce arbitral awards in the recent case of Yongning Co.. Therefore, this study examined whether it is appropriate to apply public policy of Chinese court in the case of Yongning Co., and then I concluded that. Although Yongning Co. case is the first case which Chinese prime court agrees with public policy by reason of rejection of approval and enforcement in foreign arbitral awards, in my opinion, it doesn't mean that Chinese court has fundamental change in basic attitude and position about the approval and enforcement of foreign arbitral awards. Chinese court keeps the cautious uses of public policy in legal judgment of foreign arbitral awards and it looks like implementing the obligation in regulation of New York Convention sincerely.

• Journal of Arbitration Studies
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• v.33 no.2
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• pp.3-21
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• 2023

Chinese law does not directly stipulate the criteria for determining the nationality of arbitral awards, and the Civil Procedure Law stipulates that arbitral awards are divided into domestic arbitral awards and foreign arbitral awards based on the location of the arbitration institution managing the arbitration cases. This indirectly classifies the nationality of the arbitral award based on the location of the arbitral institution. However, with regard to the nationality of eight arbitral awards in this paper made in China by the foreign arbitration institutions, the Chinese courts determined the nationality by arbitrarily selecting the criteria for the location of the arbitration institution and the criteria for the place of arbitration, except for arbitral awards made in Hong Kong. China's unclear attitude toward the criteria for determining the nationality of arbitral award has resulted not only obscures the country that can exercise the right to revoke arbitral award, but also obscures the laws and regulations applied to the approval and execution of arbitral awards. In other words, since the right to revoke the arbitral awards resides with the country of nationality of the awards, such an ambiguous attitude in China prevents the parties from responding to the cancellation lawsuit by predicting the nationality of the arbitral awards in advance. Furthermore, since China made a declaration of reciprocity reservations while joining the New York Convention, in cases where the criteria for location of the arbitral institution is applied, if the arbitration institution belongs to a contracting state, the it must apply the New York Convention to approve and execute arbitration decisions, but if it is not a contracting state, it must be approved and executed by mutual arbitration agreements or reciprocity principles. These results can lead to different results in approval and execution of the same arbitral awards depending on how the nationality is determined.

• Journal of Arbitration Studies
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• v.25 no.2
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• pp.97-118
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• 2015

As China has quickly emerged as a global economic power, the total number of international commercial disputes arbitrated by Chinese arbitral institutions has increased dramatically. Along with this, the annulment procedure of arbitral awards in China have been newly brought to the fore. In accordance with the historical background and the demand of the times, the Chinese annulment procedure of arbitral awards reveals distinctive Chinese features. Although it was enacted in the face ofof an unwarranted prejudice against the dispute settlement system by arbitration as well as a deep mistrust of domestic arbitral institutions, the annulment procedure of arbitral awards showed a certain degree of justification and rationality in its initial stages of legislation. However, it is also the case that it has not adapted well to new domestic or foreign arbitration circumstances in the last twenty years. At present, there is a keen interest in revisions to and debates on arbitration law of China. It is necessary to take an active part in the amendment discussion and process of arbitration law. Moreover, we need to reform the annulment procedure of arbitral awards in order to meet the global trend of arbitration law.

• Journal of Arbitration Studies
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• v.26 no.3
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• pp.67-91
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• 2016

In an era where the international investment and trade between Korea and China grow daily, the importance of international arbitration cannot be overstated. The Korean Arbitration Law was enacted with reference to the UNCITRAL Model Law. When the Chinese Arbitration Law was being enacted, the UNCITRAL Model Law was also referred to, but there are some discrepancies between the two. This article conducts comparative analysis based on the Korean and the Chinese Arbitration Laws, the Chinese Civil Procedure Law and the KCAB and the CIETAC arbitration rules. In order to adopt the UNCITRAL Model Law amended in 2006, Korea revised its Arbitration Law in 2016. The revised Law includes a more comprehensive legal regime regarding interim measures, emergency arbitrator, etc. In China, the enforcement of foreign-related arbitral awards and foreign arbitral awards is carried out mainly by intermediate people's courts. In China, the report system to the higher people's court for refusing the enforcement of foreign-related arbitral awards and for refusing the recognition or enforcement of foreign arbitral awards has the effect of safeguarding foreign-related arbitral awards and foreign arbitral awards in China. Both Korea and China joined the New York Convention, and domestic courts may refuse the recognition and enforcement of foreign arbitral awards according to the New York Convention.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.31
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• pp.107-134
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• 2006

Enforcement of an arbitration award is an extremely important issue in arbitration. Arbitration, as a dispute settlement process, is rendered meaningless if it is not possible to enforce an award rendered by an arbitration tribunal. On the other hand, the present international arbitration system guided by the New York Convention and UNCITRAL Model Law is established on the dual supervision from the national courts. The nationality of the international arbitral award closely relates to the supervision of the national court, and the national court is entitled to decide the nationality of the international award in accordance with the conditions set in its own domestic law. The national court may set aside arbitral award made in its territory while the foreign court may refuge enforcement of foreign arbitral awards according to its own law and international convention to which it is a party. The conditions set in the Arbitration Law of the People's Republic of China are in agreement with those set in the UNCITRAL Model Law. The Chinese national court is entitled to set aside international awards made in China in accordance with the Chinese Law. The purpose of this paper is to clarify the Chinesr practice on the revocation of international commercial arbitral awards.

• Journal of Arbitration Studies
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• v.22 no.3
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• pp.25-46
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• 2012

China instituted arbitration law on September 1, 1995, after having legislated the law under the UNCITRAL Model Law. However, Chinese arbitration law has some problems related to the effectiveness of its arbitration agreement, unlike the UNCITRAL Model Law. Thus, parties in dispute who want to settle a dispute based on Chinese arbitration law as governing law have more to take into consideration because there could be serious problems related to the effectiveness of the arbitration agreement. Therefore, this paper attempted to analyze the classification of jurisdiction related to the authorization of effectiveness in arbitration agreement of arbitral organization and Chinese, verify the problems, and suggest the solutions. Moreover, the author tried to verify the problems in applying the law related to the authorization of effectiveness in Chinese arbitration agreements and suggest some improvements. This paper also suggests improvements and problems related to the selection of arbitral organizations among several conditions for effective arbitration agreement in Chinese arbitration law. Finally, the author suggests some cautions and countermeasures related to arbitrations agreement for domestic investors and traders dealing with the Chinese.

• Journal of Arbitration Studies
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• v.29 no.4
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• pp.121-140
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• 2019

China, Hong Kong, Macao, and Taiwan have a singular political relationship. This distinctive relationship creates a unique impact on the nationality of the arbitral awards among the said countries. Each of these regions does not adopt the arbitral award of the other party as either a foreign arbitration award or a domestic arbitration award, but separately adopts the arbitral award in different jurisdictions within the same country. Therefore, in order to approve and enforce their arbitral awards in other areas, they have no choice to apply special laws or the conventions concluded between them, neither the New York Convention nor the individual arbitration laws in those areas. Therefore, this paper reviewed the convention and self-established laws among China, Hong Kong, Macao, and Taiwan regarding the approval and execution of the other arbitral awards. In addition, the domestic laws in China, Hong Kong, Macao, and Taiwan are compared with the New York Convention to ascertain the criteria for distinguishing domestic and foreign arbitral awards. This study also compared and analyzed what criteria were established for the determination of the nationality of the arbitral awards in the domestic law or the convention concluded in pan China. Through the analysis of these contents, the characteristics and problems of criterion for the determination of nationality among China, Hong Kong, Macao, and Taiwan were identified. Based on the results, this study examined the precautions Korean companies entering these regions should use in the arbitration system in these areas.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.113-133
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• 2015

This article reviews some recent decisions of the Supreme People's Court (SPC) of the People's Republic of China (PRC) on the recognition and enforcement of several South Korean arbitral awards. It explains the implementation of the New York Convention in the PRC and in particular the so-called Report System under the current Mainland Chinese law and judicial practice. It identifies some deficiencies in the People's Courts' approaches to the application and interpretation of the New York Convention and argues that the Mainland Chinese courts should adopt the pro-enforcement principle in the determination of the relevant issues under the New York Convention. It proposes further enhancement of the Report System and that the current categorization of 'domestic, foreign-related and foreign' in the context of arbitration agreements and arbitral awards needs to be further reviewed and clarified by the SPC. Last but not the least, it recommends some steps that South Korean parties should take to enhance the enforceability of South Korean Arbitral Awards in Mainland China.

• Journal of Arbitration Studies
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• v.24 no.4
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• pp.49-97
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• 2014

This study is about the availability of Chinese internal arbitration institutions by Korean invested companies. Generally, Chinese internal arbitration institutions lack independence from government. However, because parties seeking an arbitration award have ways to get neutrality from internal arbitration institutions that guarantee party autonomy, these Korean companies can use Chinese internal arbitration institutions to resolve disputes in China. Special attention should be given to the following. First, because Korean companies invested in China are legally in the same position as Chinese companies, unless foreign-related factors intervene, when disputes occur with Chinese companies or individuals, the disputes correspond to internal dispute, and when it comes to choosing the arbitration institution, these Korean companies must choose either a Chinese internal arbitration institution or foreign-related arbitration institution. Second, most Chinese internal arbitration institutions still lack independence from government, which can influence the fairness of arbitration in the future. Therefore, Korean companies invested in China should think about alternative ways to get a minimum impartiality in arbitration cases. Third, the parties are allowed to choose arbitration rules freely in Beijing, Xian, Chongqing, Guangzhou, and Hangzhou arbitration commissions. Therefore, in arbitration cases, the parties can get impartiality by choosing arbitrators according to the arbitration rules which they agree on, or by choosing partially modified arbitration rules of those arbitration commissions. Fourth, in order to get an impartial arbitration award from Chinese internal arbitration institutions in China, it is important for Korean lawyers or arbitration experts -- fluent in Chinese -- to be registered in the List of Arbitrators of Chinese internal arbitration institution by way of signing a MOU between the Korean Commercial Arbitration Board, or the Korean Association of Arbitration Studies and arbitration commissions such as those of Beijing, Xian, Chongqing, Guangzhou, and Hangzhou which comparatively do guarantee party autonomy. Fifth, because application of the preservation of property before application of arbitration is not approved in China, in practice, in order to preserve property before application of arbitration, it is best to file another suit in China based on other legal issue (e.g., tort) independent from the contract which an arbitration agreement is applied to. Sixth, in arbitration commissions which allow different agreement regarding arbitration procedures or arbitration rules, it is possible to choose a neutral arbitrator from a third country as a presiding arbitrator via UNCITRAL arbitration rules or ICC arbitration rules. Seventh, in the case of Chinese internal arbitral award, because the court reviews the substantive matters to decide the refusal of compulsory execution, the execution rate could be relatively lower than that of foreign-related cases. Therefore, when Korean companies invested in China use Chinese internal arbitration institution, they should endure low rate of execution. Eighth, considering the operational experiences of public policy on foreign-related arbitration awards so far, in cases of Chinese internal arbitration award, the possibility of cancellation of arbitral award or the possibility to refuse to execute the award due to public policy is thought to be higher than that of foreign arbitral awards. Ninth, even though a treaty on judicial assistance in civil and commercial matters has been signed between Korea and China, and it includes a provision on acknowledgement and enforcement of arbitral award, when trying to resolve disputes through Chinese internal arbitration institution, the treaty would not be a big help to resolve the disputes, because the disputes between Korean companies invested in China and the party in China are not subject to the treaty. Tenth, considering recent tendency of conciliation by the arbitral tribunal in China and the voluntary execution rate of the parties, the system of conciliation by the arbitral tribunal is expected to affect as a positive factor the Korean companies that use Chinese internal arbitration institution. Finally, when using online arbitration, arbitration fees can be reduced, and if the arbitration commissions guaranteeing party autonomy have online arbitration system, the possibility of getting impartial arbitration award through them is higher. Therefore, the use of online arbitration system is recommended.

• Journal of Arbitration Studies
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• v.31 no.4
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• pp.51-70
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• 2021

Chinese courts seem to be indifferent or ignorant of truncated arbitration. In other words, the Chinese court canceled the arbitration award made by truncated arbitration except for the Pingdingsan Case among the four arbitration cases related to the domestic arbitration award reviewed in this paper on the ground that it violated the composition of the arbitral tribunal or the arbitration procedure. A Chinese court has canceled the arbitration award by judging only based on the composition of the arbitral tribunal and the legal process of the violation of the arbitration procedure not by determining whether the domestic arbitration award made by the truncated arbitration meets the conditions for the application of truncated arbitration as stipulated in the Arbitration Rules. Moreover, it seems that the Chinese court made a serious error in the application of the relevant regulations in the Pingdingsan Case, which ruled that the truncated arbitration did not violate the legal process. In this case, the Chinese court admitted truncated arbitration under logic process that it was not necessary to wait until the final hearing to apply the truncated arbitraion because one arbitrator was absent before the final hearing, but the truncated arbitrator had already formed his/her opinion before the absence. However, in the case of Marshall Investment Corporation, a case related to foreign arbitration, the Chinese court rejected the approval and execution of the truncated arbitration award by strictly applying the laws and timing of the truncated arbitration. Since only one case has been identified in the main text, it is difficult to make a definitive judgment, but considering these cases, it seems to be that the Chinese courts apply different standards to domestic and foreign arbitration awards to determine the legality of truncated arbitration.