亚洲争议评论 | 杨玲：仲裁地概念在中国内地的演进

This article was originally published on Asian Dispute Review, Issue 1, 2022.

This article describes the gradual development of the concept of the seat of arbitration in Mainland China, from initial non-recognition by the courts, to its implied application in judicial practice and government policies, to its explicit acceptance in the current (2021) Draft Amendment to the Chinese Arbitration Law 1994.

Introduction 

On 30 July 2021, the Ministry of Justice (MoJ) of the People's Republic of China (PRC) released a Draft Amendment to the Chinese Arbitration Law 1994 (the Draft Amendment) for public consultation. [1] If enacted, it signals that the concept of the seat of arbitration will be formally introduced in Chinese arbitration legislation, providing solid legislative support to its judicial application and further aligning it with internationally recognised standards and practices.

Non-recognition of the seat of arbitration under the current Arbitration Law

Although the international arbitration community generally agrees that the nationality of arbitral awards should be based on the seat of arbitration, the current Chinese Arbitration Law 1994 (Arbitration Law) and judicial practice have for a long time applied a test based on the place of the arbitration commission rather than the seat.

Article 16 of the Arbitration Law stipulates that a valid arbitration agreement shall contain a reference to a designated arbitration commission. Accordingly, in the landmark Züblin case (2004), an arbitration clause which provided that “[a] rbitration: [International Chamber of Commerce] (ICC) Rules, Shanghai shall apply” was held by the PRC Supreme People's Court (SPC) to be invalid on the ground that the clause did not specify a proper arbitral institution under Chinese law. [2] 

Furthermore, art 57 of the Arbitration Law provides that “[a] party may apply for setting aside an arbitration award to the intermediate people's court in the place where the arbitration commission is located.” Articles 237 and 273 of the PRC Civil Procedure Law 1991, as amended in 2017 (the Civil Procedure Law) provide that a party may apply to a competent People's Court for the enforcement of an arbitral award made by a domestic or foreign-related arbitration commission. However, no provision is made as to the competent court in relation to the setting aside of an award made in an arbitration administered by a foreign arbitral institution.

In addition, art 18 of the PRC Law on the Application of Laws to Foreign-Related Civil Relationships 2010 provides that “the laws [of the place] in which the arbitration commission is located or the law of the seat of arbitration shall apply” where the parties have not chosen by agreement the law applicable to the arbitration agreement.

It appears from the most relevant laws on arbitration in Mainland China listed above that the location of an arbitral institution carries the preponderance of weight, compared with the seat of arbitration.

Progressive recognition of the seat by the PRC judiciary

In recent decades, however, the seat of arbitration has been increasingly recognised by the Chinese judiciary, particularly the SPC.

To begin with, the way in which the arrangements for mutual enforcement of awards between Mainland China and Hong Kong have evolved serves as a good example. From 1995 to 2009, the institutional test of the place of arbitration was dominant both in law and in the SPC's practice. In 1999, the SPC signed an arrangement for the mutual enforcement of arbitral awards between Mainland China and Hong Kong (the Enforcement Arrangement 1999). [3] While a ‘Hong Kong award’ under this Arrangement refers to an award made in Hong Kong in accordance with the Hong Kong Arbitration Ordinance (Cap 609), a ‘Mainland award’ is defined as an award made by a Mainland arbitral institution, a list of which shall be provided by the State Council. The most well-known case of a Mainland court's decision under the Enforcement Arrangement 1999 was handed down in 2004. In its reply to the Shanxi High People's Court in a case concerning an award made by an ICC tribunal in Hong Kong, the SPC held that the nationality of the award was French, on the ground that the ICC was an arbitral institution established in France. [4]

The position changed significantly in 2009. A Notice issued by the SPC on Issues Concerning the Enforcement of Hong Kong Arbitral Awards in Mainland China confirmed that awards made in Hong Kong by overseas institutions, such as the ICC, were to be regarded as Hong Kong awards rather than French awards and were to be subject to the Enforcement Arrangement 1999. [5] This clearly indicates the application of the seat test. A Supplementary Arrangement to the Enforcement Arrangement 1999 was promulgated in November 2020. This makes further changes to the original Arrangement by defining ‘Mainland awards’ as those made in accordance with the Arbitration Law and no longer applies the institutional test. [6]

Further, leading cases provide another prism through which to observe jurisprudential developments on the seat of arbitration in Mainland China. Although Mainland China is not a case law precedent-based jurisdiction, decisions of the SPC are persuasive in lower courts.

In Degao Steel (2009), the disputed award was made in Beijing by an ICC tribunal. [7] The Ningbo Intermediate People's Court held that the award was a “non-domestic award” under the New York Convention 1958, in essence rejecting the concept of the seat of arbitration. It is worth noting, however, that the ruling could not be regarded as representing the SPC's view, since it was never referred to the SPC under the Mainland's pre-reporting arrangements for the enforcement of awards.

In Longlide (2013), the arbitration agreement stipulated that the dispute was to be submitted to the ICC and arbitrated in Shanghai. [8] The SPC held that the parties had selected a specific arbitral institution, so that, in accordance with art 16 of the Arbitration Law, the arbitration agreement was valid. This was the first time that the SPC had ever confirmed as valid an arbitration agreement which subjected parties to case administration by an overseas arbitral institution but specified the seat of arbitration to be a Mainland Chinese city.

In Daesung Industrial (2020), the arbitration clause provided that the dispute was to be arbitrated by a Singapore International Arbitration Centre (SIAC) tribunal in Shanghai. [9] The Shanghai No 1 Intermediate People's Court held that the arbitration clause was valid, on the ground that the parties had selected a specific arbitral institution in accordance with the Arbitration Law. This was the second case in which the SPC confirmed the validity of an arbitration agreement specifying a Mainland Chinese city as the seat, but with the arbitration administered by an overseas arbitral institution.

In Brentwood (2020), the seat of arbitration approach was adopted by the SPC for the first time to determine the nationality of the award. In this case, the parties agreed that disputes were to be referred to the ICC and arbitrated at the place of the project (i.e., Guangzhou). [10] The Guangzhou Intermediate People's Court held that (1) an arbitral award made under the auspices of a foreign arbitral institution in Mainland China may be regarded as a Chinese foreign-related arbitral award rather than a French award, and (2) in accordance with art 273 of the Civil Procedure Law, a party may apply for its enforcement to the Intermediate People's Court either (i) at the place of the respondent's residence, or (ii) where the respondent's property is located.

All of the latter three cases discussed above were reported to and the validity of their subject arbitration agreements recognised by the SPC. Longlide and Dacheng Industrial confirmed the validity of arbitration agreements that subject parties to arbitration in Mainland China administered by overseas arbitral institutions, while Brentwood provided further guidance for determining the nationality of arbitral awards and the legal basis for their enforcement.

The Chinese government's attitude to foreign arbitral institutions

During the past five years, the Chinese government has issued several policy decisions in Shanghai, Beijing, and Hainan to support overseas arbitral institutions in conducting business in Mainland China. Accordingly, the SPC has issued opinions supporting the establishment of representative offices by overseas arbitral institutions in Mainland China.

In 2015, the State Council issued the Master Plan for the China (Shanghai) Pilot Free Trade Zone (the FTZ), allowing international arbitral institutions to open offices in the FTZ. Echoing the Master Plan, the SPC issued its Opinions on the Provision of Judicial Safeguards for the Construction of Pilot Free Trade Zones in 2016. Between 2015 and 2016, HKIAC, SIAC and the ICC each established representative offices in Shanghai. This was closely followed by the Master Plan for the China (Shanghai) Pilot Free Trade Zone Lin-gang Special Area and the Master Plan for the China (Beijing) Pilot Free Trade Zone.

The most frequently asked question with regard to these policies is whether they demonstrate that Mainland China is now opening its doors to foreign arbitral institutions. Some may be inclined to think this way. It may well be, however, that foreign-related cases could always have been submitted to overseas arbitral institutions under Chinese law from as early as the 1950s, so that, in reality, nothing substantial has changed.

Another frequently raised question is whether Chinese law has resolved the issue of whether foreign arbitral institutions can administer cases seated in Mainland China. Again, neither the policies nor the opinions of the SPC discussed above have categorically answered this question, meaning that they did not and could not, in and of themselves, change any current law or the SPC's practice relating to the seat of arbitration.

Bringing the seat of arbitration into the Draft Amendment

The Draft Amendment, if enacted, appears to recognise and introduce the concept of the seat of arbitration.

Article 27 provides for the nationality of an arbitral award, stating that “an arbitral award shall be deemed to be the award made at the seat of arbitration.” This seems to echo the Brentwood decision, making clear from a legislative perspective that an arbitral award made in Mainland China by a foreign arbitral institution is a Chinese foreign-related arbitral award. Thus, parties to the award may apply directly to a competent Chinese court for its enforcement under the Civil Procedure Law rather than under the New York Convention.

Article 21 of the Draft Amendment stipulates that an arbitration agreement is valid only if there is a mutual intention by the parties to arbitrate expressed in writing. This indicates that the requirement of “a designated arbitration commission” for an arbitration agreement to be valid will be removed. Correspondingly, the point raised in the Longlide and Daesung Industrial cases about whether an agreement to designate a foreign arbitral institution could constitute a valid choice of “a designated arbitration commission” would cease to exist in legislative terms.

Article 77 of the Draft Amendment provides that “a party may apply for setting aside an arbitral award to the intermediate people's court in the seat of arbitration.” This makes clear that the seat of arbitration will also become an exclusive connection point in other regards, including determinations by competent courts as to the setting aside of awards.

There are, however, several remaining issues left unresolved by the Draft Amendment with regard to PRC-seated arbitration administered by foreign arbitral institutions. Thus, for example, it is still uncertain:

1. Whether parties to these arbitrations are equally eligible to seek interim measures in Mainland courts as those in cases administered by Mainland arbitral institutions;
2. Which court would be competent to set aside awards handed down in such arbitrations;
3. Whether, except with regard to special provisions for arbitration involving foreign elements, the competent court would assist and supervise such arbitrations in the same manner as domestic arbitrations; and
4. Whether parties to PRC-seated arbitrations administered by designated Hong Kong arbitral institutions may seek interim relief under the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region 2020.

Conclusion

The introduction of the concept of the seat of arbitration by the Draft Amendment clarifies the nationality of arbitral awards in Mainland-seated arbitrations administered by foreign arbitral institutions. It also simplifies the requirements as to validity of arbitration agreements and establishes connection points for determining the law applicable to arbitration agreements and the competent assisting or supervising courts.

By including the seat of arbitration, the Draft Amendment echoes existing judicial practice and government policies with regard to the law applicable to PRC-seated arbitrations administered by foreign arbitral institutions. At the time of writing, further steps still need to be taken by the MoJ and other Chinese government departments to enable the Draft Amendment finally to be passed by the National People's Congress of the PRC. Nevertheless, the fact that the Draft Amendment introduces the concept of the seat of arbitration is an extremely exciting development and welcome news to all arbitration practitioners.

References（Please swipe up and down to see）

[1] Arbitration Law of the People's Republic of China (2021 Amendment) (Draft for Comments), available at http://www.moj.gov.cn/pub/sfbgw/zlk/202107/t20210730_432958.html. Editorial note: See also Yihua Chen, Revision of China's Arbitration Law: A New Chapter [2021] Asian DR 156-163; New and emerging dispute resolution legislation: Amendment of the PRC Arbitration Law [2021] Asian DR 204.

[2] Reply of the Supreme People's Court to the Request for Instructions on the Case concerning the Application of Züblin International GmbH and Wuxi Woke General Engineering Rubber Co Ltd for Determining the Validity of the Arbitration Agreement [2003] Min Si Ta Zi No 23.

[3] Arrangement of the Supreme People's Court for the Mutual Enforcement of Arbitral Awards Between the Mainland and the Hong Kong Special Administrative Region (1999), available at http://www.court.gov.cn/shenpan-xiangqing-108.html.

[4] Letter of Reply of the Supreme People's Court to the Request for Instructions on the Case of Wei Mao International (Hong Kong) Co Ltd v Shanxi Tianli Industrial Co Ltd of Not Executing the Final Award 10334/AMW/BWD/TE of the International Court of Arbitration of International Chamber of Commerce [2004] Min Si Ta Zi No 6.

[5] Notice of the Supreme People's Court on Issues Related to the Enforcement of Hong Kong Arbitral Awards in Mainland China, Fa [2009] No 415.

[6] Supplemental Arrangement of the Supreme People's Court for the Mutual Enforcement of Arbitral Awards Between the Mainland and the Hong Kong Special Administrative Region (2021), available at http://www.court.gov.cn/fabu-xiangqing-303291.html.

[7] DUFERCO SA v Ningbo Arts & Crafts Import & Export Co Ltd [2008] Yong Zhong Jian Zi No 4. The arbitration agreement stipulated that the dispute was to be submitted to the International Court of Arbitration of the International Chamber of Commerce (ICC) and arbitrated in China.

[8] Reply of the Supreme People's Court to the Request for Instructions on Application for Confirming the Validity of an Arbitration Agreement in the Case of Anhui Long Li De Packaging and Printing Co Ltd v BP Agnati SRL [2013] Min Ta Zi No 13. In the arbitration agreement, the parties agreed both that disputes should be referred to the ICC International Court of Arbitration and that “the place of jurisdiction shall be Shanghai, China.”

[9] Daesung Industrial Gases Co Ltd v Praxair (China) Investment Co Ltd [2020] Hu 01 Min Te No 83. The arbitration clause stipulated that the “dispute shall be finally submitted to the Singapore International Arbitration Centre (SIAC) for arbitration in Shanghai.”

[10] Brentwood Industries v Guangdong Fa-anlong Mechanical Equipment Manufacture Co Ltd [2015] Sui Zhong Fa Min Si Chu Zi No 62. The arbitration agreement stipulated that the dispute was to be submitted to the ICC International Court of Arbitration for arbitration at the site of the project.

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说 明：文章仅代表作者个人观点，不应视为HKIAC的立场或观点。

关于作者

杨   玲HKIAC副秘书长兼上海代表处首席代表杨玲毕业于武汉大学国际法研究所，获得法学博士和法学硕士学位。2018年1月加入HKIAC之前，杨玲是华东政法大学国际法学院副教授，从事国际仲裁的教学、实践和研究近九年。在商事仲裁和投资仲裁领域，杨玲已出版专著两本及发表论文30余篇。杨玲曾在法国马赛第三大学（2007-2008）和美国波士顿大学（2016-2017）从事访问学者研究，并作为独立观察员参与联合国国际贸易法委员会（UNCITRAL）第二工作组和第三工作组的活动。杨玲也是《上海国际仲裁评论》的执行主编。

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