• 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.26 no.2
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• pp.3-25
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• 2016

Lately each country tends to provide neutrality and ease of enforcement in order to settle disputes related to international trade through commercial arbitration. In order to expand the use of arbitration systems, most countries accept arbitration agreements as an effective tool agreed between parties that express their intent to settle disputes by the arbitration. It is applied equally to selective arbitration agreements and parties can select either arbitration or lawsuit to settle disputes based on the contract intent for selective arbitration agreements. However, China does not admit the effectiveness of selective arbitration agreements. Chinese courts regard selective arbitration agreements as not valid because the contract of a selective arbitration agreement between parties is not a definite expression to only use the arbitration and there is no exclusion of court jurisdiction. Therefore, the study attempts to consider effective conditions for selective arbitration agreements in the Chinese arbitration act and other relevant regulations, and also verifies the judgment by Chinese courts on relevant disputes. As a result, the study explores some problems and implications of Chinese selective arbitration agreements and suggests some precautions in case Korean companies pursue selective arbitration agreements with Chinese enterprises and investors.

• Journal of Arbitration Studies
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• v.31 no.4
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• pp.29-49
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• 2021

The Chinese Arbitration Law came into force in 1995 and has been implemented for 26 years. As a party to the New York Convention, there are many contradictions and conflicts between the Chinese Arbitration Law and the New York Convention on the issue of ad hoc arbitration, and this institutional disconnection can bring about problems such as misalignment of arbitration powers. On July 30, 2021, China's Ministry of Justice published a draft of the revised Arbitration Law for public consultation, and the draft has generated a lively debate among the public. This article explores the reasonable and inadequate points of the draft of Arbitration Law in light of the recent trends in the use of commercial arbitration in China, the COVID-19, the Free Trade Zone, and the relationship between the Civil Code and the Arbitration Law.

• Journal of Arbitration Studies
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• v.26 no.4
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• pp.63-82
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• 2016

In order to cope with the changes of International Commercial Arbitration, the Shanghai International Economic and Trade Arbitration Commission (SHIAC) regulated an Emergency Arbitrator for the first time, implementing the arbitration rules in China (Shanghai) Pilot Free Trade Zone on May 1, 2014. Moreover, the China International Economic and Trade Arbitration Commission (CIETAC) also regulated the Emergency Arbitrator in the revised arbitration rules on January 1, 2015. However, it caused considerable contradiction that SHIAC and CIETAC admitted an interim measure decision by the Emergency Arbitrator under the circumstance that the Chinese court can impose a preservative measure in the Civil Procedure Code (CPC) and Arbiration Act. This study attempted to compare the main contents of an Emergency Arbitrator regulated in the arbitration rules of SHIAC and CIETAC with arbitration rules of representative arbitral institutions which operate an Emergency Arbitrator. In addition, this study verified the application features and problems through comparing the rule of SHIAC and CIETAC with the rule related to the preservative measure in Chinese law.

• Journal of Arbitration Studies
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• v.16 no.1
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• pp.121-151
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• 2006

As globalisation extends its effect and particularly following China's accession to the World Trade Organization(WTO) in 2001, ever greater numbers of international transactions will feature a Chinese party. China has certainly made efforts in recent years to rectify law problem. While conducting business in China, foreign companies occasionally find themselves embroiled in disputes with Chinese individuals and companies. As foreign businesses invest in the extraordinary market opportunities in China, international arbitration has also become the preferred method for handling disputes with Chinese partners or with other foreign corporation over operations in China. The new Arbitration Rules of the International Economic and Trade Arbitration Commission(CIETAC) came into force on 1 May 2005. The new rules represent a major overhaul of CIETAC arbitration procedures and are sure to enhance CIETAC's position as a leading player in the resolution of China-foreign business disputes. The changes are significant for all companies doing business in China. So, this article investigated some amendments on the basis of 2000 Rules.

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.133-167
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• 2010

The enforcement of commercial arbitration awards in the People's Republic of China is one the controversial obstacles faced by foreign investors in China. The foreign investor will fail to enforce the arbitration award, if the Chinese court refuses the enforcement in China, even if the arbitration tribunal rules the award in favor of foreign investor who is in dispute with Chinese partners. In Korea, we have not many researches in the enforcement of foreign related awards and awards ruled by other jurisdiction. In recent times, Professor Kyung-Ja Cha(2005) and Professor Sun-Jeong Kim(2008) analyzed the enforcement of arbitration awards in China. Professor Kyung-Ja Cha(2005) reports the details of the enforcement statistics of CIETAC during 1990s. Professor Sun-Jeong Kim(2008) analyzed the obstacles of the enforcement of foreign related awards in China. This paper extends their researches in the field of the enforcement of arbitration awards in China. First, this paper extends Professor Kyung-Ja Cha(2005)'s study by introducing the Chinese enforcement situation during the period of 2000-2007. Second, this paper extends Professor Sunjung Kim(2008) emphasizes the local protectionism and the weakness of judiciary as key factors of obstacles to enforce the foreign related awards in People's Republic of China. This paper, additionally, highlights the role of the Guanxi and the antagonism of court toward arbitration institution to enforce the foreign related awards in People's Republic of China. Third, this study provides the recent developments of Supreme People's Court(SPC)'s rules to narrow down the gap between the practices of international arbitration and those of People's Republic of China. The Implications of this study are as follows. First, it is desirable for foreign investors to appoint the CIETAC or BAC as the arbitration commission in China. Second, the local competent attorney is the best choice to solve the respondent's insolvency in China. Third, foreign investors is required to monitor the provisions on the electronic instruments such as EDI and Email in Chinese law.

• Journal of Arbitration Studies
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• v.29 no.1
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• pp.53-70
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• 2019

This study analyzed some cases of the China International Economic and Trade Arbitration Commision (CIETAC) related to the application of the Contracts for the International Sale of Goods (CISG). As a contracting party of the CISG, China has accumulated a considerable amount of experience in applying CISG through commercial arbitrations. This study sought to understand how CISG is operated in commercial arbitration in China. By analyzing actual cases in China, Korean commercial arbitration can avoid mistakes and further improve. This study of Chinese cases will give some useful information for Korean companies. As defined by the CISG, the applicability can be divided into direct application and indirect application. When China joined the CISG, it made a reservation out of Article 1(1)(b). Korea and China are contracting parties to CISG and CISG is, therefore, directly applied. It is beneficial for Korea to understand how CIETAC is indirectly applied in China then. Some of the results of this study are as follows: First, CIETAC made a correct judgment most of the time on the direct application of CISG. However, there were mistakes in the judgment of the nationality of the parties in a few cases. The parties must clearly define applicable laws when entering into a contract. Secondly, the 2012 "CIETAC Arbitration Rules" was revised so that the "party autonomy" was introduced into Chinese commercial arbitration concerning indirect application. Therefore, the principle of autonomy of the parties was not fully recognized in the past judgments. Instead, the domestic law of China was applied in accordance with the reservation of Article 1(1)(b). Thirdly, China did not explain the application of CISG in Hong Kong, which led to ambiguity in concerned countries. Therefore, it is necessary to confirm the status of CISG in Hong Kong. In addition, Korean companies should clearly define the applicable laws when dealing with Hong Kong companies.

• Journal of Arbitration Studies
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• v.4 no.1
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• pp.1-22
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• 1994

• Journal of Arbitration Studies
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• v.20 no.2
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• pp.91-130
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• 2010

This thesis, which mainly focuses on judicial supervision of commercial arbitration in China, will deal with the developing process of arbitration system and analyze the actual condition of judicial supervision in commercial arbitration. And it also focuses on the underlying problems attributed to the excessive judicial intervention and an effort that the related academic world, arbitration industry and legal circles in China start to make in order to improve the system, resolving them. About the time China became a member of the WTO and about the 10th anniversary of the enforcement of Arbitration Law, powerful demands to solve the problems started to exist intensively. Academic field in China integrated these demands into the form of "proposed amendment of arbitration law", which enhanced the independence of arbitration and the autonomy of the involved parties drastically, as it accepted major contents of UNCITRAL Model Law while preserving of original tool of Chinese arbitration system. Separately from the movement in academic field, Supreme People's Court starts to exert itself for the, improvement of arbitration system, by announcing a series of proposed judicial interpretation so that it could collect the public opinion continuously and reflect the gathered opinion in judicial interpretation efficiently. Notwithstanding, there still remains to be ameliorated that the Arbitration Law of the PRC won't be able to overcome original limit when valuating judicial intervention on arbitration in some ways.

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.111-135
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• 2018

As the disputes in the investment and civil/commercial sectors of China and Taiwan have increased due to active cross-strait economic exchanges, the Chinese government is addressing cross-strait disputes through various dispute resolution methods. In recent years, the Arbitration Center Across the Straits (ACAS) has been established to resolve disputes between cross-strait parties, while ACAS Arbitration Rules have been enacted and enforced. ACAS Arbitration Rules are prepared by referring to the Arbitration Act of China and Taiwan, the relevant provisions and practices of the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules and the cross-strait practical affairs of the China International Economic and Trade Arbitration Commission, and the cross-strait practical affairs giving consideration to the specificity of the cross-strait relationship and the characteristics of economic and trade disputes. Therefore, this paper has compared the features and main contents of the ACAS Arbitration Rules with those of the CIETAC Arbitration Rules. This refers to arbitration proceedings such as form and effect of arbitration agreement, decision of place of arbitration, and organization of arbitral tribunal; the provision of consolidation of multiple contracts and arbitration, and the provision of joinder of arbitration parties, which are implementing the "principle of party autonomy" with streamlining arbitration proceedings and reducing costs; "common, simple, and small sum arbitration proceedings which require shorter arbitration proceedings depending on the size of the arbitration object; and regulations on the "interconnection of mediation and conciliation" which is characteristic of China's arbitration system. Based on the above-mentioned main contents of the ACAS Arbitration Rules in China, there are some implications to be considered in the establishment of the Arbitration Rules of the South-North Commercial Arbitration Commission which will be applied to solve commercial and investment disputes arising from the Inter-Korean Economic Cooperation process, suggesting implications such as the need for the rapid composition and operation of the South-North Commercial Arbitration Commission, requirements for selecting arbitrators, expansion of the object of arbitration, specification of concreteness in deciding the place of arbitration, need to create a variety of arbitration proceedings, and application plan of the International Center for Settlement of Investment Dispute (ICSID) or Third Power Arbitration Agency.