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【Arbitration Newsletters (Issue 1 of 2015)】

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【Arbitration Newsletters (Issue 1 of 2015)】


Arbitrators and Mediators of SHIAC,
 
 
We hereby appreciate your long term support on Shanghai International Arbitration Center (the “SHIAC”).

 

In the brand beginning of 2015, we would like to share with you the latest developments of SHIAC. The P.R.C. Supreme People’s Court has released its final opinion on arbitration agreements stipulating to submit disputes to China Economic and Trade Arbitration Commission Shanghai Sub-Commission. Several Rulings then have been rendered by the intermediate courts in Shanghai and Shenzhen afterwards. In accordance with these Rulings, which were all rendered on the ground of the internal formal response from the Supreme Court, it has been firmly confirmed that as an independent arbitration institute, the Shanghai Economic and Trade Arbitration Commission (Shanghai International Arbitration Center) should have jurisdiction over the agreements stipulate the disputes to be submitted for arbitration to the China Economic and Trade Arbitration Commission Shanghai Sub-Commission.  It can reasonably be predicted that rulings with similar conclusions are on the road. We appreciate it very much for your kindly concern on this.

 

Report up by level required by the Supreme People’s Court

On September 4, 2013, the Supreme People’s Court has issued “The Supreme People’s Court’s Notice on Properly Hear the Relative Issues in Judicial Reviews on Arbitration (“Fa (2013) 194 Hao”) to all the High People’s Court and required an internal operation of “report up to the Supreme People’s Court level by level” in the court system. It was ordered in the notice that when parties apply for confirming the validity of arbitration clause,  revoking arbitral awards and/or setting aside the enforcement of the arbitral awards based on the reasons of jurisdiction disputes between China International Economic and Trade Arbitration Commission , China International Economic and Trade Arbitration Commission Shanghai Sub-Commission and China International Economic and Trade Arbitration Commission South China Commission/ Sub-Commission, such applications should be discussed and advised by Judicial Committee and then report the Supreme People’s Court level by level. No decision/ruling could be rendered out before the Supreme People’s Court’s formal reply on such applications.

 

It shall be the SHIAC when parties agreed to submit to “China International Economic and Trade Arbitration Commission Shanghai Sub-Commission”, as have been ruled by the courts

The No.2 Intermediate People’s Court of Shanghai Municipality rendered the Ruling (“(2012) Hu Er Zhong Min Ren (ZhongXie) Zi Di 5 Hao”) on December 31, 2014. In this Ruling, it has been ascertained and affirmed that:

(1) Approved by Shanghai Municipal People's Government in 1988, and organized by Shanghai Council for the Promotion of International Trade, China International Economic and Trade Arbitration Commission Shanghai Sub-Commission was established through a formal procedure and legitimately registered in the Bureau of Justice of Shanghai Municipality, with the Registry Certification of PRC Arbitration Commission obtained;

(2) Approved by Shanghai Municipal Government and agreed by Shanghai Commission for Public Sector Reform, China International Economic and Trade Arbitration Commission Shanghai Sub-Commission has officially been renamed "Shanghai International Economic and Trade Arbitration Commission"; it will also use "Shanghai International Arbitration Center" concurrently as official name.

(3) The agreed arbitral institute, the China International Economic and Trade Arbitration Commission Shanghai Sub-Commission (now renamed Shanghai International Economic and Trade Arbitration Commission) is legally established. Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center) has power to arbitrate and render arbitral awards based upon such arbitration clauses concluded by parties. The arbitration shall be submitted to Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center).

It has been clearly demonstrated in this Ruling that CIETAC has no jurisdiction over the arbitration clauses stipulating to submit disputes to the “China International Economic and Trade Arbitration Commission Shanghai Sub-Commission”, and the so called CIETAC Secretariat Shanghai Office has no power to get access to arbitrations.

 

On January 8 and 9, 2015, the No.2 Intermediate People’s Court of Shanghai Municipality rendered another 12 Rulings (“(2013) Hu ErZhong Min Ren (ZhongXie) Zi Di 14 and 17 Hao, (2014) Hu ErZhong Min Ren (ZhongXie) Zi Di 2, 3, 11, 17, 18, 19, 20, 21, 22 and 23 Hao”) on the validity and jurisdiction of the arbitration agreement stipulating “China International Economic and Trade Arbitration Commission Shanghai Sub-Commission”. It has been ascertained and affirmed that:

The China International Economic and Trade Arbitration Commission Shanghai Sub-Commission [now renamed Shanghai International Economic and Trade Arbitration Commission(Shanghai International Arbitration Center)], as has been agreed by the parties as the dispute resolution institute, is the arbitration institute properly established under the laws. The SHIAC has power to arbitrate and render arbitral awards based upon such arbitration clauses concluded by parties. The disputed arbitration agreements are found valid and obviously the arbitrations shall be accepted and administered by the Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center).

 

What about the agreements involving “China International Economic and Trade Arbitration Commission South China Sub-Commission”

Moreover, on January 6, 2015, Shenzhen Intermediate People’s Court rendered the Ruling on Civil Procedure (“(2013) Shen Zhong Fa She Wai Zhong Zi Di 133 Hao”) and confirmed that South China Economic and Trade Arbitration Commission (Shenzhen Court of International Arbitration) shall have the power to accept the cases involving arbitration agreement which stipulate the disputes shall be submitted to China Economic and Trade Arbitration Commission South China Sub-Commission and render the arbitration award.

 

In this regard, the courts have confirmed the jurisdiction of SHIAC over the arbitration clauses stipulating “China Economic and Trade Arbitration Commission Shanghai Sub-Commission” on the ground of formal responses from the Supreme People’s Court. Given the facts that CIETAC shall have no jurisdiction on the related disputes and its so called Shanghai Office shall have no authority nor power to get access to any of these sort of arbitration. The arbitrations unilaterally accepted by CIETAC and the arbitral awards thereof it would face to the risk of being revoked or setting aside from enforcement in judicial review.

Your kind notice of this letter is much appreciated.

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