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Reply of the Supreme People’s Court to the Request for Instructions from the Shanghai High People’s Court and Other Courts on Cases Involving the Judicial Review of Arbitration Awards Rendered by CI

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(Adopted on the 1655th meeting of the Judicial Committee of the Supreme People’s Court on 23rd June, 2015)

Fa Shi [2015] No.15

 

To Shanghai High People’s Court, Jiangsu High People’s Court, and Guangdong High People’s Court,

 

The implementation of its revised arbitration rules on May 1st, 2012, by the China International Economic and Trade Arbitration Commission (hereinafter referred to as “CIETAC”), and the renaming of and the implementation of new arbitration rules by the former China International Economic and Trade Arbitration Commission South China Sub-Commission (which has been renamed as South China International Economic and Trade Arbitration Commission, also as Shenzhen Court of International Arbitration, hereinafter referred to as “CIETAC South China”) and former China International Economic and Trade Arbitration Commission Shanghai Sub-Commission (which has been renamed as Shanghai International Economic and Trade Arbitration Commission, also as Shanghai International Arbitration Center, hereinafter referred to as “CIETAC Shanghai”), caused disputes over the issues regarding the validity of relevant arbitration agreements, the authority to accept cases of, the jurisdiction of, the enforcement of arbitration awards of the aforementioned arbitration institutions, and other issues, which incurred numerous judicial review cases on requests to confirm the validity of the arbitration agreements, to set aside or not enforce related arbitration awards. Hence, Shanghai High People’s Court, Jiangsu High People’s Court and Guangdong High People’s Court requested instructions from the Supreme People’s Court on related issues.

To protect ipso jure of the parties’ lawful rights, to fully respect  the parties’ autonomy, in consideration of the historical relations of CIETAC, CIETAC South China, and CIETAC Shanghai, from the perspective of supporting and safeguarding the healthy development of arbitration industry as well as promoting the establishment of diversified dispute resolution mechanisms, after discussions, we hereby issue our reply as follows:

1. CIETAC South China or CIETAC Shanghai shall have jurisdiction over the cases where the parties concerned concluded their arbitration agreements and consented to submit certain disputes to “CIETAC South China Sub-Commission” or “CIETAC Shanghai Sub-Commission” prior to the date of CIETAC South China’s renaming as South China Economic and Trade Arbitration Commission or CIETAC Shanghai’s renaming as Shanghai International Economic and Trade Arbitration Commission. Where any party concerned requests the people’s court to determine the relevant arbitration agreement as invalid, applies to set aside or not enforce the arbitration award on the ground of absence of jurisdiction by CIETAC South China or CIETAC Shanghai, the people’s court shall not support such claims.

CIETAC shall have jurisdiction over the cases where the parties concerned concluded their arbitration agreements and consented to submit certain disputes to “CIETAC South China Sub-Commission” or “CIETAC Shanghai Sub-Commission” prior to the effective date hereof, but after the date (including the date) of CIETAC South China’s renaming as South China Economic and Trade Arbitration Commission or CIETAC Shanghai’s renaming as Shanghai International Economic and Trade Arbitration Commission. However, where any party concerned applies to set aside or not enforce the arbitration award on the ground of absence of jurisdiction by CIETAC South China or CIETAC Shanghai provided that the respondent raises no objection to the jurisdiction of CIETAC South China or CIETAC Shanghai in the abovementioned cases applied by the claimant and accepted by CIETAC South China or CIETAC Shanghai, the people’s court shall not support such claims.

CIETAC shall have jurisdiction over the cases where the parties concerned concluded their arbitration agreements and consented to submit certain disputes to “CIETAC South China Sub-Commission” or “CIETAC Shanghai Sub-Commission” after the effective date (including the date) hereof.

2. Where the claimant in an arbitration case requests the arbitration institution to determine the jurisdiction over the case at the time of applying for arbitration, and the respondent files a lawsuit in the people’s court before the first hearing of the arbitration tribunal, applying for confirming the validity of the arbitration agreement after arbitration institution’s decision on confirmation of the validity of the arbitration agreement and its jurisdiction over the case, the people’s court shall accept and render a ruling. Where the claimant or arbitration institution claims that the people’s court shall not accept the aforementioned lawsuit by the respondent in accordance with the Article 3 of the Reply of the Supreme People’s Court on Several Issues Regarding to Confirming the Validity of the Arbitration Agreements (Fa Shi [1998] No.27) or Paragraph 2 of Article 13 of the Interpretation of the Supreme People’s Court on Several Issues Regarding the Application of the Arbitration Law of the People’s Republic of China (Fa Shi [2006] No.7), the people’s court shall not support such claim.

3. Where, prior to the effective date hereof, CIETAC, CIETAC South China, or CIETAC Shanghai accepted cases without the authority or jurisdiction in accordance with Article 1 herein, and the parties concerned apply to set aside or not enforce the arbitration award on the ground of absence of jurisdiction by such arbitration institution after it has been rendered, the people’s court shall not support such claim.

4. Where, prior to the effective date hereof, CIETAC accepted the same arbitration case with CIETAC South China or CIETAC Shanghai, and any party concerned applies to the people’s court for confirming the validity of the arbitration agreement before the first hearing of the arbitral tribunal, the people’s court shall hear the plea and render a ruling in accordance with Article 1 herein.

Where, prior to the effective date hereof, CIETAC accepted the same arbitration case with CIETAC South China or CIETAC Shanghai, and no parties concerned applied to the people’s court for confirming the validity of the arbitration agreement before the first hearing of the arbitral tribunal, the arbitration institution that accepted the case at first shall have jurisdiction over the case.

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