CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration The Arbitration Law of China, effective on 31 August 1994 and recently revised on 1 Septem- ber 2017, governs arbitration in China. In addi- tion, the Supreme People’s Court has issued the Interpretations of Several Issues Concerning the Application of the Arbitration Law of the People’s Republic of China (2006) and the Provisions of the Supreme People’s Court on Several Issues Concerning Enforcement of Arbitral Awards by People’s Courts (2018). These laws, interpretations, and provisions pro- vide rules on all aspects of arbitration in China, including arbitration agreements, arbitrators, arbitration procedures, evidence, remedies, awards, and enforcement. If an award is not performed, the applicant must apply to the intermediate people’s court where the respondent is domiciled or where the respondent’s property is located to enforce the awards. 13.2 Subject Matters Not Referred to Arbitration According to the Arbitration Law, contractual disputes and other disputes over property rights and interests between citizens, legal persons and other organisations are arbitrable. On the other hand, personal relationship mat- ters, such as marriage, adoption, child custody, maintenance (alimony), and inheritance, are not arbitrable. Finally, administrative disputes that are legally mandated to be handled by administrative organs are also not arbitrable.
13.3 Circumstances to Challenge an Arbitral Award Arbitral awards can be appealed in the courts. To set aside an arbitral award, the applicant must apply to the intermediate people’s court in the place where the arbitration committee is located. The grounds on which arbitral awards can be set aside include the following: • There is no arbitration agreement between the parties. • The award deals with a dispute or contains decisions on matters which are not contem- plated by, or do not fall within, the terms of the arbitration agreement, or the subject mat- ter of the dispute is not arbitrable. • The composition of the arbitral tribunal or the arbitration procedure violates legal require- ments. • The evidence on which the arbitral award is based is fabricated. • The other party has concealed evidence that could have impaired a fair decision of the arbitral tribunal. • The arbitrator(s) has (have) demanded or accepted bribes, committed malpractice or perverted the law in making the arbitral award. Note that the parties cannot appeal arbitral awards on grounds of substantive errors in gen- eral. The only ground that may concern substan- tive errors is that the arbitral award is in conflict with public interest. 13.4 Procedure for Enforcing Domestic and Foreign Arbitration Enforcement of Domestic Arbitration If an arbitral award is not performed, the applicant must apply to the intermediate people’s court where the respondent is domiciled or where the respondent’s property is located to enforce it.
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