On 15 July 2015, the Supreme People’s Court released its Reply at the Requests of the Shanghai and other High People’s Courts for Instructions on Cases Involving Judicial Review of Arbitral Awards Made by the CIETAC and its Former Sub-Commissions adopted at the 1655th meeting of its Judicial Committee. The Reply took effect as from 17 July 2015.
The full text of the Reply is as follows:
Reply of the Supreme People’s Court at the Request of the Shanghai and other High People’s Courts for Instructions on Cases Involving the Judicial Review of Arbitral Awards Made by the CIETAC and its Former Sub-Commissions
(Adopted at the 1655th meeting of the Judicial Committee of the Supreme People’s Court on 23 June 2015, Fa Shi [2015] No.15)
Shanghai High People’s Court, Jiangsu High People’s Court, and Guangdong High People’s Court:
As the China International Economic and Trade Arbitration Commission (hereinafter referred to as "CIETAC") implemented its revised Arbitration Rules on 1 May 2012 and the former CIETAC South China Sub-Commission (which has changed the name into the South China International Economic and Trade Arbitration Commission and uses concurrently the name of Shenzhen Court of International Arbitration, hereinafter referred to as "SCIA") and the former CIETAC Shanghai Sub-Commission (which has changed the name into the Shanghai International Economic and Trade Arbitration Commission and uses concurrently the name of Shanghai International Arbitration Center, hereinafter referred to as "SHIAC") have changed their names and implemented new arbitration rules, some parties have disputed over issues such as the validity of the relevant arbitration agreements and the authority of each of the above arbitration institutions to accept arbitration cases, their respective jurisdiction over arbitration cases and the enforcement of their arbitral awards, and have requested the people’s courts to confirm the validity of the arbitration agreements or to apply for the setting aside or non-enforcement of the relevant arbitral awards, hence giving rise to many judicial review cases. The Shanghai High People’s Court, the Jiangsu High People’s Court and the Guangdong High People’s Court have requested the Supreme People’s Court for instructions on the relevant issues.
In order to protect the legal rights and interests of the arbitration parties in accordance with the law and fully respect the parties’ autonomy, taking into account the historical relationship between CIETAC and SCIA/SHIAC, and with the view of supporting and safeguarding the healthy development of arbitration as well as promoting the establishment of alternative dispute resolution system, the Supreme People’s Court hereby makes the following replies to the relevant issues after careful study:
1. Where the parties signed an arbitration agreement agreeing to submit their disputes to the "China International Economic and Trade Arbitration Commission South China Sub-Commission" or the "China International Economic and Trade Arbitration Commission Shanghai Sub-Commission" for arbitration before the SCIA changed its name into the South China International Economic and Trade Arbitration Commission or the SHIAC into the Shanghai International Economic and Trade Arbitration Commission, SICA or SHIAC shall have jurisdiction over the arbitration case. Where any of the parties requests a people’s court to confirm such arbitration agreement as invalid or applies for the setting aside or non-enforcement of the arbitral award on the ground that SICA or SHIAC has no jurisdiction to arbitrate, such a request or application shall not be affirmed by the people’s court.
Where the parties signed an arbitration agreement agreeing to submit their disputes to the "China International Economic and Trade Arbitration Commission South China Sub-Commission" or the "China International Economic and Trade Arbitration Commission Shanghai Sub-Commission" for arbitration after the SCIA changed its name into the South China International Economic and Trade Arbitration Commission or the SHIAC into the Shanghai International Economic and Trade Arbitration Commission (including the date of the name change) but before this Reply takes effect, CIETAC shall have jurisdiction over such arbitration cases. However, where the claimant applies to SCIA or SHIAC for arbitration and the respondent raises no objection to the jurisdiction of SCIA or SHIAC, if any of the parties applies for the setting aside or non-enforcement of the arbitral award after it is made on the ground that SCIA or SHIAC has no jurisdiction to arbitrate, such an application shall not be affirmed by the people’s court.
Where the parties sign an arbitration agreement agreeing to submit their disputes to the "China International Economic and Trade Arbitration Commission South China Sub-Commission" or the "China International Economic and Trade Arbitration Commission Shanghai Sub-Commission" for arbitration after this Reply takes effect (including the effective date), CIETAC shall have jurisdiction over such arbitration cases.
2. Where the claimant in an arbitration case requests the arbitration institution to decide on its jurisdiction over the case at the same time of applying for arbitration, and the arbitration institution has made a decision that the arbitration agreement is valid and it has jurisdiction over the case, if later before the first hearing by the arbitral tribunal, the respondent files a lawsuit with a people’s court applying for confirmation of the validity of the arbitration agreement, the people’s court shall accept the lawsuit and make a ruling. Where the claimant or the arbitration institution pleads that the people’s court shall not accept the lawsuit pursuant to Article 3 of the Reply of the Supreme People’s Court on Several Issues Involved in Confirming the Validity of Arbitration Agreements (Fa Shi [1998] No. 27) and the second paragraph of Article 13 of the Interpretation of the Supreme People’s Court on Certain Issues Relating to Application of the Arbitration Law of the People’s Republic of China (Fa Shi [2006] No. 7), such a pleading shall not be affirmed by the people’s court.
3. Where, before this Reply takes effect, an arbitration case that should not have been accepted by CIETAC, SCIA or SHIAC according to Article 1 of this Reply but has been already accepted thereby, if any of the parties applies for the setting aside or non-enforcement of the arbitral award after it is made on the ground that the arbitration institution has no jurisdiction to arbitrate, such an application shall not ge affirmed by the people’s court.
4. Where, before this Reply takes effect, the same arbitration case has been accepted by CIETAC and SCIA or SHIAC, if any of the parties to the case applies to a people’s court for confirmation of the validity of the arbitration agreement before the first oral hearing by the arbitral tribunal, the people’s court shall hear the lawsuit and make a ruling in accordance with Article 1 of this Reply.
Where, before this Reply takes effect, the same arbitration case has been accepted by CIETAC and SCIA or SHIAC, if none of the parties to the case applies to a people’s court for confirmation of the validity of the arbitration agreement before the first oral hearing by the arbitral tribunal, the arbitration institution that first accepted the case shall have jurisdiction over the case.
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