CHINA Law and Practice Contributed by: Yaxing Zhang, Bing San, Yi Cao and Jiahui Zhu, Han Kun Law Offices
• professional legal translation services; • court acceptance fees; • preservation application fees (capped at CNY5,000); • property preservation insurance premiums; • enforcement fee (deducted from recovered assets; see 2.2 Enforcement of Domestic Judgments ); and • legal representation fees. Timeline for Recognition and Enforcement of Foreign Arbitral Awards as well as Hong Kong, Macau and Taiwan Arbitral Awards Recognition phase The standard timeline for recognition of foreign arbi - tral awards as well as Hong Kong, Macau and Taiwan arbitral awards is normally six to 12 months from filing to ruling, which may be extended when jurisdictional challenges are raised or complex factual determina - tions are required. Enforcement phase As detailed in 2.3 Costs and Time Taken to Enforce Domestic Judgments , the statutory enforcement period is nominally six months; however, actual dura - tion varies significantly on a case-by-case basis in practice. Enforcement Fees and Timeline of Domestic Arbitral Awards The fees and timeline for applying for enforcement of domestic awards in Mainland China is detailed in 2.3 Costs and Time Taken to Enforce Domestic Judg- ments . 4.6 Challenging Enforcement of Arbitral Awards Refusing Recognition and Enforcement of Foreign Arbitral Awards According to Article 5 of the New York Convention, Chinese courts may refuse recognition and enforce - ment of foreign arbitral awards in the following cir - cumstances. • Absence or invalidity of the arbitration agreement – for example, if the parties lacked legal capacity, the arbitration agreement is invalid under the law chosen by the parties, or, if the parties have not
chosen the applicable law, the agreement is invalid under the law of the seat of arbitration. • Failure to properly notify the respondent of the appointment of the arbitrator or of the arbitral pro - ceedings, or inability to present the case for other reasons. • The award adjudicates matters beyond the scope of the parties’ arbitration clause – if parts of the award exceed the scope of the arbitration, recog - nition and enforcement will be refused for those non-conforming matters. • The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the parties’ agreement or the arbitration law of the seat of arbitration. • The award has not yet been binding on the parties or has been set aside or suspended by a compe - tent authority in the seat country. • The subject matter of the dispute is not capable of settlement by arbitration under Chinese law, such as cases involving personal status relationships (eg, marriage, adoption, guardianship, succession) or administrative disputes. • The recognition or enforcement of the award would be contrary to Chinese public policy. Refusing Recognition and Enforcement of Hong Kong, Macau and Taiwan Arbitral Awards The circumstances under which Chinese courts may refuse recognition and enforcement of Hong Kong, Macau or Taiwan arbitral awards are largely consistent with those for refusing recognition and enforcement of foreign arbitral awards as outlined above. Refusing Enforcement or Setting Aside Domestic Arbitral Awards Chinese courts may refuse enforcement or set aside domestic arbitral awards in the following circumstanc - es. • Absence of a valid arbitration agreement – the parties did not include an arbitration clause in their contract nor subsequently conclude a written arbi - tration agreement. • Award beyond scope or authority – the matters decided in the award fall outside the arbitration agreement or are beyond the authority of the arbi - tral institution.
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