CHINA Law and Practice Contributed by: Tim Yimin Liu, Sybil Xueting Yuan and Cassie Wenjing Li, Global Law Office
11.3 Standard of Judicial Review Chinese courts apply a self-restrained and deferen - tial standard of judicial review to arbitral awards. This means that courts do not conduct a de novo review of the merits of the case. Chinese courts will not re- examine the factual findings or legal determinations made by the arbitral tribunal, nor will they reassess evidence or correct discretionary errors made by the tribunal on substantive matters. Chinese courts may only set aside arbitral awards on specific statutory procedural grounds or limited sub - stantive grounds. For reference, see 11.1 Grounds for Appeal . China signed and ratified the 1958 New York Conven - tion on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) in 1987. Upon accession, China made two reservations: the reciprocity reservation and the commercial reserva - tion. • The Reciprocity Reservation – China will apply the New York Convention only to awards made in the territory of another contracting state on the basis of reciprocity. • The Commercial Reservation – China will apply the New York Convention only to disputes that are considered contractual or non-contractual com - mercial disputes under Chinese law. 12. Enforcement of an Award 12.1 New York Convention In addition, China has entered into special arrange - ments for the mutual enforcement of arbitral awards with the Hong Kong and Macao Special Administra - tive Regions, such as the Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region (as amended in 2020) and the Arrangement Concerning Mutual Recognition and Enforcement of Arbitral Awards between the Mainland and the Macao Special Administrative Region. These arrangements enable mutual recognition and enforcement of arbi - tral awards between Mainland China and the Hong Kong and Macao SARs, further expanding the scope
The court may: • reject the application to set aside the award; • notify the arbitral tribunal to re-arbitrate; or • set aside the award. Application to the Court to Refuse Enforcement of the Arbitration Award During the enforcement process of an arbitration award, if the party subject to enforcement provides evidence proving that there are statutory grounds for refusal of enforcement, it may apply to the enforce - ment court to refuse enforcement of the arbitration award. Under the PRC Civil Procedure Law, grounds for refusal of enforcement include the following. • The parties did not have an arbitration clause in the contract or failed to reach a written arbitration agreement subsequently. • The subject matter of the award is outside the scope of the arbitration agreement, or the arbitra - tion institution has no jurisdiction. • The composition of the arbitral tribunal or arbitra - tion procedure violated statutory procedures. • The evidence on which the award is based is forged. • The opposing party concealed evidence sufficient to affect a fair award. • The arbitrator engaged in bribery, corruption, parti - ality or made a perverse ruling during arbitration. If the court determines that enforcing the award vio - lates social public interest, it shall also refuse enforce - ment. 11.2 Excluding/Expanding the Scope of Appeal Parties cannot agree to exclude or expand the scope of appeal or challenge. Courts’ review of arbitral awards is confined to a statutory scope, primarily focusing on the fairness of arbitration procedures, the authenticity of evidence, and whether the arbi - tration violates social public interests. This scope of review is mandatory and cannot be excluded, limited or expanded by agreement of the parties.
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