CHINA Law and Practice Contributed by: Tim Yimin Liu, Sybil Xueting Yuan and Cassie Wenjing Li, Global Law Office
5. Jurisdiction 5.1 Challenges to Jurisdiction
replacement, a party may request that previously con - ducted proceedings be redone; whether to grant such a request is at the tribunal’s discretion. The tribunal may also decide on its own initiative whether prior proceedings need to be redone. Mainstream arbitration institutions have established formal recusal procedures. Recusal applications are typically decided by the arbitration institution, not by the arbitral tribunal itself. In 2024, for example, CIETAC handled 45 applications for arbitrator recusal under its updated rules, demonstrating the system’s emphasis on independence and impartiality. 4.5 Arbitrator Requirements Although Chinese law does not provide an explicit statutory definition of the standard of “independence and impartiality” for arbitrators, the requirement is embedded in the PRC Arbitration Law, relevant judi - cial interpretations, and the rules of major arbitration institutions. Key safeguards include: the following. • Arbitrators must make a declaration of independ - ence and impartiality before accepting an appoint - ment. • Arbitrators are under a continuing duty to disclose any potential conflicts of interest related to the parties, their counsel or the subject matter of the dispute. • If an arbitrator fails to remain independent or fulfil their disclosure obligations, a party may apply for recusal. Mainstream institutions have implemented strict dis - closure and recusal frameworks. For example, the Code of Ethical Conduct for Arbitrators and Guide - lines for Arbitrator Appointment of CIETAC. In addition, Chinese arbitration institutions have increasingly strengthened internal oversight mecha - nisms. For instance, CIETAC may issue reminders, warnings, reduce remuneration or take other disci - plinary measures against arbitrators who delay pro - ceedings or fail to disclose relevant conflicts – thereby promoting the neutrality and integrity of arbitral pro - ceedings.
Strictly speaking, the PRC Arbitration Law does not formally recognise the principle of competence yet (ie, the arbitral tribunal’s authority to determine its own jurisdiction). Where a party challenges the validity of the arbitration agreement, it is the arbitration institu - tion, rather than the arbitral tribunal, which has the authority to make a decision on the matter (see Article 20 (1) of the PRC Arbitration Law). In practice, the arbitration rules of mainstream arbi - tration institutions permit the arbitration institution to delegate the power to rule on jurisdictional objections to the arbitral tribunal after the tribunal has been con - stituted. Moreover, both arbitration institutions and the courts are empowered by law to decide on jurisdictional objections. Where one party disputes jurisdiction before the arbitration institution while the other party challenges that before a court in parallel, then the court’s ruling prevails over that of the arbitration insti - tution. Notably, Article 30 of the Second Draft Amendment proposes to grant arbitral tribunals the authority to rule on their own jurisdiction. 5.2 Circumstances for Court Intervention Only in limited situations do Chinese courts address the jurisdiction of an arbitral tribunal. • Where the parties disagree on the validity of the arbitration agreement prior to the constitution of an arbitral tribunal, a party may submit the issue either to the arbitration institution or to a Chinese court. The other party may submit such to the court in parallel. If so, then the court will docket and hear the case, and the court’s decision prevails. (See Article 20 of the PRC Arbitration Law.) • Where a party initiates litigation on merits by con - cealing an arbitration agreement when filing the litigation, and the court accepts the case, in this event, the opposing party may raise objection by submitting the arbitration agreement to the court prior to the first court hearing. If so, the court must
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