CHINA Law and Practice Contributed by: Paul Zhou and Leslie Shen, SGLA Law Firm
5.3 Timing of Challenge A jurisdictional challenge must be raised before the first oral hearing. If the challenge is raised after the first oral hearing, it will be rejected unless the grounds for challenge arose or became known to the challenging party after the first hearing. This rule is designed to prevent parties from using jurisdictional challenges as a dilatory tactic. If a party participates in the arbitra - tion proceedings without raising a timely jurisdictional challenge, that party is deemed to have waived the objection. The 2025 Arbitration Law codifies the waiv - er principle and provides that a waiver, once made, cannot be retracted. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility In setting-aside or enforcement proceedings, the court reviews jurisdictional determinations on the basis of the grounds listed in Article 71 (setting aside) and Article 76 (refusal of enforcement). The standard of review is generally de novo on legal issues, but defer - ential on factual determinations. The 2025 Arbitration Law narrows the scope of judicial review to align with international practice, providing that the court shall not review the merits of the dispute under the guise of reviewing jurisdiction. The distinction between juris - diction (competence) and admissibility is recognised in Chinese arbitration law: jurisdiction concerns the tribunal’s power to hear the case; admissibility con - cerns whether the claim has been properly brought before the tribunal. The 2025 Amendment clarifies that the court’s review in setting-aside proceedings is lim - ited to jurisdictional and procedural defects, not the substantive correctness of the award. 5.5 Breach of Arbitration Agreement If a party commences court proceedings in breach of a valid arbitration agreement, the other party may apply to the court to dismiss the case and refer the parties to arbitration. The application must be made before the first oral hearing (or, in some courts, before the first substantive submission). If the court finds that a valid arbitration agreement exists, it must dismiss the case and refer the parties to arbitration. If the court incorrectly retains jurisdiction and renders a judgment, the aggrieved party may challenge the judgment on appeal. The 2025 Arbitration Law strengthened the referral mechanism, providing that courts must exam -
now been interpreted to include foreign legal practi - tioners with equivalent qualifications.
5. Jurisdiction 5.1 Challenges to Jurisdiction
Article 31 of the 2025 Arbitration Law codifies a competence-competence principle: the arbitration institution or the tribunal may rule on the validity of the arbitration agreement, including objections to its existence, validity and scope, and a party that chal - lenges the jurisdiction of the tribunal must raise the objection before the first oral hearing. The Chinese model is, however, not a tribunal-primacy regime: where one party requests a decision from the arbitra - tion institution or tribunal and the other applies to the People’s Court, the matter shall be determined by the court – the tribunal’s jurisdictional power is subject to court primacy where parallel court proceedings exist. If the tribunal rules that it has jurisdiction, the aggrieved party may seek court review after the award is rendered; in foreign-related arbitrations, interlocu - tory court review has been available in limited prac - tice pursuant to SPC judicial interpretation, rather than under an express statutory right. The 2025 Amend - ment therefore aligns Chinese law only partially with international practice, and the retained court primacy keeps the Chinese model more court-centred than the LCIA/ICC or UNCITRAL Model Law approach. 5.2 Circumstances for Court Intervention Under the 2025 Arbitration Law, court intervention in jurisdictional matters is confined to: (i) setting-aside or enforcement proceedings, in which the court reviews the tribunal’s jurisdictional ruling; and (ii) evidentiary assistance under Article 55. The court is not permitted to intervene during the pending arbitration to review jurisdictional determinations unless expressly provid - ed by law. This limitation is intended to prevent parties from using court challenges as a tactical device to delay arbitration. The SPC reporting system for for - eign-related awards provides an additional safeguard against incorrect or inconsistent jurisdictional rulings by lower courts.
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