The Regulations on Report of Arbitration Judicial Review Case for Review (FS[2017] No. 21, hereinafter referred to as Regulations on Report for Review) and Regulations for Some Problems on Hearing Arbitration Judicial Review Case (FS[2017] No. 22, hereinafter referred to as Arbitration Judicial Review Regulations) by the Supreme People’s Court, passed by No. 1727, No.1728 meetings of the Judicial Committee of the Supreme People’s Court, have been published on December 26, 2017, and put into force from January 1, 2018. To understand more comprehensively and accurately apply to judicial interpretation, a brief introduction to the background, purpose of developing two judicial interpretations and understanding of main contents will be given herein.

I.Background and Process of Developing Two Judicial Interpretations

The contradiction between the growing demand of the people for dispute resolution and the lack of judicial resources has put forward an urgent demand for the establishment of a diversified dispute resolution mechanism. Arbitration, as an important way of diversified dispute resolution mechanism, has been paid more and more attention by the parties and has become an important way to resolve disputes because of its many characteristics, such as fully embodying the autonomy of the parties, flexibility and convenience, one-off conclusion, strong confidentiality, and strong extraterritorial enforcement. The decision of the fourth plenary session of the 18th CPC Central Committee clearly pointed out that it is necessary to perfect and perfect the diversified dispute resolution mechanism, perfect the arbitration system and enhance the credibility of arbitration. In June 2016, the Supreme People’s Court issued "opinions on the People’s Court to further deepen the reform of the diversified dispute resolution mechanism", calling for strengthening the connection with arbitration institutions and actively supporting the reform of the arbitration system.

The characteristics of arbitration itself determine that its healthy and orderly development must rely on judicial supervision and support. China's Arbitration Law came into effect in September 1995, and the Supreme People’s Court issued and implemented the interpretation on several issues concerning the application of the Arbitration Law of the People’s Republic of China (hereinafter referred to as the Interpretation of the Arbitration Law) in September 2006. The Arbitration Law and the Interpretation of the Arbitration Law have played an active role in the People’s Court to correctly hear arbitration judicial review cases according to law and to promote the healthy and orderly development of the arbitration cause. However, with the deepening of reforms in various fields, new situations and new problems continue to emerge. The existing Arbitration Law and related judicial interpretations have been difficult to adapt to the needs of the development of arbitration system in some aspects. The Supreme People’s Court has decided to regulate the relevant issues through the formulation of judicial interpretations on the basis of full investigation and research on the problems existing in arbitration judicial review cases so as to correctly hear arbitration judicial review cases and promote the healthy and orderly development of the arbitration cause and the establishment of a diversified dispute resolution mechanism.

II.Notes on Contents of Judicial Interpretation

1.On the Arbitration Judicial Review Case Uniformly Applied to Provisions for Report for Review

China joined the "Convention on the Recognition and Enforcement of Foreign Arbitral Awards" (hereinafter referred to as the New York Convention) as early as 1987. In order to better fulfill the provisions of international conventions, the Supreme People’s Court has gradually established an internal reporting system for judicial review of foreign-related arbitration cases (hereinafter referred to as the " Internal Application System ") by issuing relevant notices since 1995. The Internal Application System requires that if the People’s Court intends to determine the invalidity, cancellation or non-execution of foreign-related arbitration agreements and refuses to recognize and execute foreign arbitration awards, it must submit them to the higher People’s Court of its jurisdiction for examination and finally submit them to the Supreme People’s Court for reply before making a ruling. The establishment of the Internal Application System has played an active role in the People’s Court's accurate application of the law and the unification of the judgment standard in the trial of foreign-related arbitration judicial review cases, and has better guaranteed the correct trial of foreign-related arbitration judicial review cases. However, the system needs to be further improved in the following aspects: first, the system of internal application is established in the form of notification, and the legal effect is not strong; Second, the system of internal application is limited to the field of foreign-related arbitration judicial review cases. No similar system has been established in non-foreign-related arbitration judicial review cases, which is not conducive to the overall, orderly and healthy development of the arbitration cause. Thirdly, the Internal Application System lacks standardization in terms of specific procedures. Therefore, it is necessary to formulate judicial interpretation to standardize and perfect the system.

The internal reporting system only applies to foreign-related Hong Kong, Macao and Taiwan arbitration judicial review cases, and has not been able to establish an effective management, guidance and supervision system for non-foreign-related Hong Kong, Macao and Taiwan arbitration judicial review cases. In practice, the number of cases applying for cancellation or non-enforcement of non-foreign-related Hong Kong, Macao and Taiwan arbitration awards is much higher than those applying for cancellation or non-enforcement of foreign-related Hong Kong, Macao and Taiwan arbitration awards. In practice, there are indeed some errors in the application of the law in the judicial review of non-foreign-related Hong Kong, Macao and Taiwan arbitration cases. Since the arbitration judicial review case is final in the first instance, the parties concerned do not have the right to appeal, review and apply for retrial, and the People’s Court that protested against the procuratorial organ will not accept it. Once misjudged cases occur, the parties concerned lack effective remedies. it is necessary to establish corresponding systems to regulate non-foreign-related cases involving Hong Kong, Macao and Taiwan. Therefore, the Nuclear Reporting Issue stipulates that the nuclear reporting system shall be uniformly applied to cases of judicial review of arbitration involving Hong Kong, Macao and Taiwan that do not distinguish between foreign-related cases of judicial review of arbitration. Such provisions are conducive to the overall standardization of arbitration judicial review cases and to the development of the arbitration cause.

2.On the Review Permission of Arbitration Judicial Review Case

Based on the consideration of the judicial power of People’s Courts at all levels and the number of cases accepted, the Nuclear Reporting Issue stipulates whether the case is related to Hong Kong, Macao and Taiwan. For foreign-related cases involving judicial review of Hong Kong, Macao and Taiwan arbitration, the original provisions of the Internal Application System will still be continued and will be finally reviewed by the Supreme People’s Court. Judicial review of non-foreign-related Hong Kong, Macao and Taiwan-related arbitration cases shall be finally reviewed by the higher People’s Court. In order to protect the legitimate rights and interests of all parties on an equal footing, the principle of public interest should be carefully applied. If the party's domicile crosses provincial administrative regions or the People’s Court that accepts the case intends not to execute or revoke the arbitration award on the grounds that it is against the public interest of society, it should be reported to the Supreme People’s Court for examination and approval.

3.On the Report of Other Cases Involving Effectiveness of Arbitral Agreement for Review

In the civil cases accepted by the People’s Court, the People’s Court's decision not to accept, reject the lawsuit, and objection to jurisdiction may involve the examination of the validity of the arbitration agreement. Such cases are essentially the same as those that confirm the validity of the arbitration agreement. Therefore, Article 7 of the Reporting Nuclear Issue Regulation stipulates that in civil cases, if the parties refuse to appeal against the People’s Court's decision not to accept, reject the lawsuit, or objection to jurisdiction because of the validity of the arbitration agreement, if the second instance court intends to conclude after examination that the arbitration agreement is not established, invalid, invalid, invalid, and unclear in content and cannot be implemented, it shall be reported step by step according to the provisions of Article 2 of this regulation. It should be pointed out that the parties may appeal against the above three types of rulings made by the court of first instance according to law. No matter how effective the first instance ruling is in the arbitration agreement, if the parties do not appeal, it shows that the parties accept the result. In this case, the higher court does not need to interfere too much. Therefore, the reporting of nuclear issues is only an appeal case against the first instance ruling of the parties. If the second instance court considers after examination that the arbitration agreement is not established, invalid, invalid, and the content is unclear and cannot be implemented, it shall report nuclear issues step by step in accordance with the provisions.

4.On the Type of Arbitration Judicial Review Case

The expression of " arbitration judicial review cases" in the two judicial interpretations mainly considers that the People’s Court exercises judicial supervision over arbitration in accordance with the law in reviewing such cases. This expression has become a common title in judicial practice and has been used many times in some judicial interpretations and normative documents issued by the Supreme People’s Court.

Provisions on Judicial Review of Arbitration Article 1 according to the Arbitration Law, Civil Procedure Law and other legal provisions, combined with judicial practice, the specific types of arbitration judicial review cases currently accepted by the People’s Court are clarified. It mainly includes the following five categories: (1) cases applying for confirmation of the validity of arbitration agreements;(2) application for enforcement of arbitration awards made by arbitration institutions in Mainland China;(3) applying for cancellation of arbitration award cases of arbitration institutions in Mainland China;(4) applying for approval and enforcement of arbitration awards in Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan region;(5) Cases applying for recognition and enforcement of foreign arbitral awards. At the same time, it stipulates " other arbitration judicial review cases" as a cover clause, leaving room for some new types of cases that may occur in the future. For example, the Supreme People’s Court issued the " opinions on providing judicial guarantee for the construction of the free trade test zone" on December 30, 2016, stating: " if enterprises registered in the free trade test zone mutually agree to arbitrate relevant disputes at specific locations in the Mainland in accordance with specific arbitration rules and by specific personnel, the arbitration agreement may be deemed valid. ”Here refers to " three specific" arbitration cases, i.e. temporary arbitration cases where the place of arbitration is the mainland. The margin clause can leave room for such cases.

 There is an opinion that item (2) above should be amended to read " application for non-enforcement of arbitral awards made by arbitration institutions in Mainland China". We did not adopt the opinion. First of all, according to the provisions of the second paragraph of Article 237 and the third paragraph of Article 274 of the Civil Procedure Law, it is a matter for the People’s Court to examine ex officio whether the execution of the arbitration award is against the public interest. It does not require the respondent to file an application or defense of non-execution. Even if the respondent does not file an application or defense of non-execution, the People’s Court should also examine whether the execution of the arbitration award is against the public interest. Secondly, the People’s Court shall file a case based on the application for execution filed by the applicant. if the respondent has any objection, it shall raise a plea of non-execution. If the applicant has not applied for execution, there is no case of filing a case based on the application for non-execution filed by the respondent alone. Therefore, the Judicial Review of Arbitration stipulates that such cases should be expressed as "cases applying for enforcement of arbitral awards made by arbitration institutions in Mainland China".

There is also a view that two types of cases should be added: evidence preservation in arbitration cases and property preservation in arbitration cases. The Judicial Review of Arbitration stipulates that the five types of cases currently stipulated involve the People’s Court's exercise of judicial supervision over arbitration cases, which is different from the nature of arbitration preservation cases. Cases of arbitration preservation shall generally be the responsibility of the executing agencies of the People’s Courts at all levels. The relevant departments of the Supreme People’s Court are also formulating judicial interpretations on the enforcement of arbitration award cases and preservation. Enforcement cases are different from arbitration judicial review cases in terms of filing, review procedures, and legal basis. Therefore, Arbitration Judicial Review Regulations do not cover the preservation of evidence and property in arbitration cases.

5.On the Jurisdiction of Arbitration Judicial Review Case

Regarding the jurisdiction of arbitration judicial review cases, where there are clear provisions on laws and judicial interpretations, the Arbitration Judicial Review Provisions have not been repeated, but only provide for the jurisdiction of cases in the following two situations.

(1)On the Jurisdiction of the Case of Application for Confirmation of the Validity of Arbitral 

Agreement For such cases, Article 12 of the Interpretation of the Arbitration Law stipulates: " Cases in which the parties apply to the People’s Court for confirmation of the validity of the arbitration agreement shall be under the jurisdiction of the intermediate People’s Court where the arbitration institution is located as agreed in the arbitration agreement; If the arbitration organization agreed in the arbitration agreement is not clear, it shall be under the jurisdiction of the intermediate People’s Court of the place where the arbitration agreement is signed or where the respondent has his domicile. Application to confirm the effectiveness of the international arbitration agreement cases, arbitration agreement by the arbitration agreement, the arbitration agreement is signed, the applicant or the jurisdiction of the intermediate People’s Court of the place of domicile of the respondent. Cases involving the validity of an arbitration agreement for maritime disputes shall be under the jurisdiction of the maritime court of the place where the arbitration institution, the place where the arbitration agreement is signed, and the place where the applicant or respondent has his domicile. If there is no maritime court at the above location, it shall be under the jurisdiction of the nearest maritime court.”This Article provides for the application for confirmation of domestic and foreign-related arbitration agreements, distinguishes between different connection points and determines the jurisdiction court, and at the same time provides for the jurisdiction of the maritime court for arbitration agreements involving maritime disputes.

The Judicial Review of Arbitration stipulates that Article 2 no longer distinguishes between domestic cases and foreign-related cases, provides a uniform standard for determining jurisdiction, adopts the Arbitration Law to interpret Article 12 standards for determining the validity of foreign-related arbitration agreements and cases involving maritime and maritime disputes, and stipulates that cases applying for confirmation of the validity of arbitration agreements shall be under the jurisdiction of the intermediate People’s Court or special court at the place where the arbitration organization agreed upon in the arbitration agreement is located, the place where the arbitration agreement is signed, the place where the applicant has his domicile, and the place where the respondent has his domicile. The provisions of this Article are mainly based on the following considerations: first, in recent years, we have been emphasizing the need to establish a unified and centralized management mechanism for domestic and international arbitration judicial review cases, and it is no longer appropriate to determine the jurisdiction court by distinguishing the cases applying for confirmation of the validity of domestic and foreign-related arbitration agreements from different connection points. Article 12 of the Interpretation of the Arbitration Law does not distinguish between domestic cases and foreign-related cases when stipulating the jurisdiction of cases involving the validity of arbitration agreements in maritime disputes. Second, there is an opinion that Article 12 of the Arbitration Law explains that "cases in which the parties apply to the People’s Court for confirmation of the validity of the arbitration agreement shall be under the jurisdiction of the intermediate People’s Court where the arbitration institution is located as agreed in the arbitration agreement." If the arbitration organization agreed in the arbitration agreement is not clear, the provisions of the arbitration agreement or the jurisdiction of the intermediate People’s Court at the place where the respondent has his domicile are not perfect. As for the lawsuit filed by the parties to confirm the validity of the arbitration agreement, whether the agreed arbitration organization is clear or not may be the dispute between the parties and the reason for claiming the invalidity of the arbitration agreement. It needs the court to accept the case and make a determination after examination. However, according to the interpretation of Article 12 of the Arbitration Law, it may be inappropriate to first identify whether the agreed arbitration institution is clear about this issue that should be examined and identified after accepting the case when determining the jurisdiction of the case. Therefore, the interpretation of Article 12 of the Arbitration Law is amended. In order to resolve possible jurisdictional conflicts, Article 4 of the Arbitration Judicial Review Regulation further stipulates that if an applicant applies to more than two People’s Courts with jurisdiction, the People’s Court that initiated the case shall have jurisdiction.

(2)On the Jurisdiction of the Application for Recognition of Foreign Arbitral Awards Involving 

Related Cases Article 546 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China (hereinafter referred to as the Interpretation of the Civil Procedure Law) stipulates: "if a legally effective judgment, ruling or foreign arbitral award made by a foreign court needs to be executed by a court of the People’s Republic of China, the parties concerned shall first apply to the People’s Court for recognition. The People’s Court shall, after examining and ruling for recognition, execute it according to the provisions of part iii of the Civil Procedure Law. If a party only applies for recognition but does not apply for enforcement at the same time, the People’s Court will only examine whether recognition should be recognized and make a ruling. ” Therefore, only through legal recognition procedures can foreign arbitral awards have legal effect in our country's jurisdiction. With regard to the jurisdiction of such cases, Article 283 of the Civil Procedure Law stipulates: " if the award of a foreign arbitration institution needs recognition and enforcement by the People’s Court of the People’s Republic of China, the parties concerned shall apply directly to the intermediate People’s Court of the place where the person subjected to enforcement has his domicile or where his property is located, and the People’s Court shall handle it in accordance with the international treaties concluded or acceded to by the People’s Republic of China, or in accordance with the principle of reciprocity.”In the case where the domicile and property of the respondent are not within the territory of our country, and the applicant needs our country's courts to recognize the validity of foreign arbitral awards due to some needs of hearing related cases, it is impossible to determine the jurisdiction court that can accept the application of the parties for recognition of foreign arbitral awards according to the provisions of Article 283 of the Civil Procedure Law. In order to fully protect the legitimate rights and interests of the parties concerned, Article 3 of the a Judicial Review of Arbitration stipulates that foreign arbitral awards are related to cases heard by the People’s Court or the arbitration institution in Mainland China. Neither the domicile nor the property location of the respondent is in Mainland China. If the applicant applies for recognition of foreign arbitral awards, it shall be under the jurisdiction of the People’s Court that accepts the related cases or the intermediate People’s Court where the arbitration institution is located. At the same time, considering that the People’s Court may accept related cases at any level from the grassroots People’s Court to the Supreme People’s Court, the Article further stipulates that if the People’s Court that accepts related cases is a grassroots People’s Court, the People’s Court that applies for recognition of foreign arbitral awards shall be under the jurisdiction of the People’s Court at the next higher level of the grassroots People’s Court. If the People’s Court that accepts related cases is a higher People’s Court or a Supreme People’s Court, the above-mentioned court shall decide to review or appoint an intermediate People’s Court to review the case.

6.On the Acceptance of Arbitration Judicial Review Case

There has always been a lack of clear regulations on the acceptance of arbitration judicial review cases, especially on how to deal with cases that do not meet the conditions for acceptance. The provisions of Articles 5 and 6 of the Arbitration Judicial Review on the documents to be submitted for the application of the applicant are those that should be reviewed when the People’s Court files a case as to whether the applicant's application meets the conditions for acceptance. Therefore, Article 7 of the Arbitration Judicial Review Regulation stipulates that the documents submitted by the applicant do not conform to the provisions of Articles 5 and 6. If the documents submitted after the court's interpretation still do not conform to the provisions, it shall be ruled inadmissible. At the same time, it also stipulates that the applicant applies to a court that does not have jurisdiction over the case, and the court shall inform the applicant to apply to a court that has jurisdiction. If the applicant still does not change the application, the ruling will not be accepted.

There was also a lack of clear regulations on how to deal with cases found to be not in conformity with the conditions of acceptance after the court filed the case. The provisions of Articles 208 and 212 are explained with reference to the Civil Procedure Law, and Article 8 of the Arbitration Judicial Review Regulation stipulates that if it is found that the case does not meet the conditions for acceptance after filing, it shall rule to reject the application. The People’s Court shall accept the decision to reject the application for the case, the applicant shall apply again and meet the conditions of acceptance, and the People’s Court shall accept the application.

The Provisions on Judicial Review of Arbitration are further clarified. If a party refuses to accept or reject the application, it may appeal. This provision is mainly based on the following considerations: first, Article 154 of the Civil Procedure Law stipulates that the decision not to accept or reject a lawsuit can be appealed. Although the review procedure of an arbitration judicial review case is different from the ordinary procedure, the provisions of Article 154 shall be applicable to decisions made by the People’s Court in civil proceedings. Second, Article 8 of the Supreme People’s Court's regulations on the recognition and enforcement of arbitral awards in Taiwan, which came into effect on July 1, 2015, clearly stipulates that the parties may appeal against the decision of inadmissibility. In order to ensure the consistency of judicial interpretation provisions and the uniformity of legal application, this provision should also be made for arbitration judicial review cases.

7.On the Jurisdiction Objections

There has always been a lack of clear regulations as to whether the parties to the arbitration judicial review case can raise objections to jurisdiction. The practice of courts in different places is also different, and it is urgently needed to be clear. As for the jurisdiction courts of arbitration judicial review cases, laws and judicial interpretations have made clear provisions, so the parties should also be allowed to raise jurisdictional objections to such cases. At present, there is no provision on respondent's submission of defense opinions in arbitration judicial review cases. Therefore, in determining the time limit for respondent's objection to jurisdiction, arbitration judicial review requires that if the respondent has any objection to jurisdiction, it shall be submitted within 15 days from the date of receipt of the notice of acceptance, and a 30 - day time limit shall be set for parties that do not have residence within the territory of our country. At the same time, according to the provisions of Article 154 of the Civil Procedure Law, it is clear that the parties can appeal against the ruling of jurisdiction objection. This is consistent with the Judicial Review of Arbitration, which stipulates that decisions on inadmissibility and rejection of applications can be appealed.

8.On the Arbitral Agreement and Foreign Nature Judgment Standard of Arbitral Award

Article 1 of the Supreme People’s Court's Interpretation of Several Issues Concerning the Application of the Law Applicable to Foreign-related Civil Relations of the People’s Republic of China (I) (hereinafter referred to as the Interpretation of the Law Applicable to Foreign Affairs) clearly stipulates how to judge whether a civil relation has foreign-related factors. Accordingly, the Provisions on Judicial Review of Arbitration also stipulate the criteria for judging foreign-related arbitration agreements and foreign-related arbitration awards, that is, arbitration agreements and arbitration awards that have laws applicable to interpret the situations specified in Article 1 are foreign-related arbitration agreements and foreign-related arbitration awards.

9. On the Agreement for Selecting Applicable Law for Foreign Arbitration Agreement

In practice, the parties often conclude arbitration clauses in contracts and agree on the law applicable to contracts, which involves the question of whether the parties can regard the law applicable to contracts as the law applicable to the validity of arbitration clauses (agreements) in contracts. Based on the principle of independence of arbitration agreement set forth in Article 19 of the Arbitration Law, the principle that the court has been holding for many years in judicial practice is that if the parties agree on the law applicable to the arbitration agreement, they must make a clear intention that the law applicable to their agreed contract cannot of course be regarded as the law confirming the validity of the arbitration clause (agreement) in the contract. The Judicial Review of Arbitration stipulates that Article 13 specifies this issue.

10. On the Confirmation of the Applicable Law for Arbitral agreement based on the Locality of the Arbitral Authority or of the Arbitration

Article 18 of the Law of the People’s Republic of China on the Legal Application of Foreign-related Civil Relations (hereinafter referred to as the Law Applicable) stipulates: " the parties may choose the law applicable to the arbitration agreement by agreement. If the parties have no choice, apply the Arbitration Law of the location or the place for arbitration law. The Article stipulates that the applicable law for confirming the validity of foreign-related arbitration agreements is divided into two levels, and in the second level there are two parallel options, namely, the law of the place where the arbitration institution is located or the law of the place of arbitration. One situation that may arise in this way is that the laws of the place where the arbitration institution is located and the place where the arbitration is held will make different determinations as to the validity of the arbitration agreement. In order to correctly apply the provisions of the law applicable to arbitration, starting from the principle of supporting arbitration, Article 14 of the Arbitration Judicial Review Provisions stipulates that in this case, the law confirming the validity of the arbitration agreement shall be applied as the applicable law, and the parties shall be supported to the greatest extent in resolving disputes through arbitration.

11. On the Accurately Identify Arbitral Authority and Arbitration Site

Article 18 of the Law Applicable to Laws stipulates: " the parties may agree to choose the law applicable to the arbitration agreement. If the parties have no choice, apply the arbitration law of the location or the place for Arbitration Law. In judicial practice, the arbitration agreement signed by some parties does not clearly stipulate the arbitration institution and the place of arbitration, but according to the arbitration rules applicable to the agreement, the arbitration institution or place of arbitration can be identified. Provisions on Judicial Review of Arbitration Article 15 in combination with judicial practice, if an arbitration institution or place of arbitration can be determined according to the arbitration rules agreed upon by the parties, it shall be recognized as the arbitration institution and place of arbitration referred to in Article 18 of the Law Applicable to arbitration, and the law applicable to the examination of cases by the People’s Court shall be determined accordingly.

12. On the Applicable Law for Determining the Effectiveness of Arbitral Agreement when Applicable to New York Convention

When examining the validity of foreign-related arbitration agreements, the applicable law should first be confirmed. Cases of application for confirmation of the validity of the arbitration agreement and cases of application for recognition and enforcement of foreign arbitral awards accepted by the court may involve cases of examination and determination of the validity of the foreign-related arbitration agreement, but the conflict norms applicable to the determination of applicable law in these two types of cases are different.

As far as the cases accepted by the court for confirming the validity of foreign-related arbitration agreements are concerned, the applicable law should be determined according to China's conflict norms. Article 16 of the Judicial Interpretation of the Arbitration Law stipulates: " the examination of the validity of foreign-related arbitration agreements shall be governed by the law agreed upon by the parties; If the parties have not stipulated applicable law but agreed to arbitration, arbitration law; There is no agreement applicable laws have not agreed to arbitration or the arbitration agreement is unclear, the application of the law. Article 18 of the Law Applicable to Laws stipulates: " the parties may agree to choose the law applicable to the arbitration agreement. If the parties have no choice, apply the arbitration law of the location or the place for arbitration law. Article 14 of the Interpretation of Law Applicable Law stipulates: " if the parties have not chosen the law applicable to the foreign-related arbitration agreement, have not agreed on an arbitration institution or place of arbitration, or if the agreement is unclear, the People’s Court may apply the law of the People’s Republic of China to determine the validity of the arbitration agreement.”According to the above provisions, in the cases of confirming the validity of foreign-related arbitration agreements heard by the People’s Court, the principles for determining the applicable law are: ( 1 ) the applicable law agreed upon by the parties;（2） The location of the arbitration institution or the law of the place of arbitration (the Interpretation of the Arbitration Law only specifies the law of the place of arbitration ).（3） The court is the mainland law of our country.

When applying the New York Convention to review cases of recognition and enforcement of foreign arbitral awards, the issue of confirming the validity of the arbitration agreement may also be involved. Article 5, paragraph 1 (a), of the Convention stipulates: " if the parties to the agreement mentioned in Article 2 have some kind of incapacity under the law applicable to them, or the agreement is invalid according to the law of the parties as the basis of the agreement, or if no law is specified as the time limit, it is invalid according to the law of the country where the award is made. ”Accordingly, when examining whether foreign arbitral awards should be recognized and enforced, if the examination of the validity of the arbitration agreement is involved, the applicable principles for determining the applicable law are: (1) personal law of the parties (determination of the parties' capacity to act);（2）The law chosen by the parties concerned;（3）The law of the country where the ruling is made.

The biggest difference between the above two types of cases in confirming the applicable law is that in the case of confirming the validity of the arbitration agreement, if the parties have not chosen the applicable law or agreed on a clear arbitration institution and place, the court shall apply the law of the court, that is, the law of the Mainland of China, to confirm the validity of the arbitration agreement. However, according to the provisions of the New York Convention, if the parties do not choose the applicable law for the validity of the arbitration agreement, they shall make a determination of the validity of the arbitration agreement according to the law of the country where the award is made. Since the arbitration award has already been made, the place of award should be determined.

In judicial practice, when the People’s Court applies the New York Convention to examine cases of application for recognition and enforcement of foreign arbitral awards, it involves the erroneous application of conflict norms in the determination of the validity of arbitration agreements, that is, the application of the Arbitration Law to interpret Article 16 or Article 18 of the Law Applicable to determine the applicable law, but does not determine the applicable law in accordance with the provisions of the convention. Therefore, Article 16 of the Arbitration Judicial Review Provisions clarifies this issue.

13. On the Review of the Applicable Law for Applying for Enforcement of Domestic Arbitral Award and Foreign Arbitral Award

Article 237 of the Civil Procedure Law regulates the enforcement of domestic arbitral awards and stipulates that it is in part III enforcement procedures. Article 274 regulates the enforcement of foreign-related arbitration awards. It is stipulated in part IV special provisions on foreign-related civil proceedings. Article 274 of the Civil Procedure Law was originally Article 260 of the Civil Procedure Law in 1991 and has not been amended so far (only the relevant serial number was adjusted when the Civil Procedure Law was amended). When the Civil Procedure Law was promulgated and implemented in 1991, the Arbitration Law had not been promulgated. At that time, the foreign-related arbitration organizations were mainly China International Economic and Trade Arbitration Committee and China Maritime Arbitration Committee. The two arbitration organizations only accepted foreign-related arbitration cases. Therefore, the 1991 Civil Procedure Law was formulated as follows: " in the case of an award made by a foreign-related arbitration institution of the People’s Republic of China, if the respondent provides evidence to prove that the arbitration award is under any of the following circumstances, the People’s Court shall form a collegial panel to examine and verify the award and decide not to execute it. ” The essence of this Article is to stipulate the circumstances under which foreign-related arbitration awards should not be executed, while the provisions of Article 237 of the Civil Procedure Law shall apply to the examination of non-foreign-related arbitration awards.

After the promulgation and implementation of the 1995 Arbitration Law, the general office of the State Council issued a notice on several issues that need to be clarified in order to implement the Arbitration Law of the People’s Republic of China on June 8, 1996 (Guo Ban Fa [ 1996 ] No. 22 ). Article 3 of the notice stipulates: " the main responsibility of the newly established arbitration Committee is to accept domestic arbitration cases; Foreign arbitration cases the parties voluntarily choose arbitration committee newly formed the newly established Arbitration Commission may accept; The promulgation of this notice has enabled the existing arbitration institutions in Mainland China to accept foreign-related and domestic arbitration cases. Therefore, there is no longer any distinction between the so-called domestic arbitration institutions and foreign-related arbitration institutions.

Due to the need to apply different laws to the examination of the enforcement of foreign-related arbitral awards and domestic arbitral awards, Article 17 of the Arbitration Judicial Review Regulation clarifies this issue in order to avoid ambiguity in the expression of relevant provisions of the Civil Procedure Law, that is, the People’s Court shall apply the provisions of Article 237 of the Civil Procedure Law to the examination of non-foreign-related arbitral awards made by arbitration institutions in mainland China. The People’s Court shall apply the provisions of Article 274 of the Civil Procedure Law to the examination of cases applying for the enforcement of foreign-related arbitration awards made by arbitration institutions in the Mainland of China.

14. On the Validity Determination in Arbitration Judicial Review Case

As for the issue of when the People’s Court's ruling will take effect, whether to allow appeal, reconsideration, and application for retrial in arbitration judicial review cases, although some previous judicial interpretations have been involved, they are still lacking in systematism and comprehensiveness. Article 20 of the Arbitration Judicial Review Regulation specifies this issue, that is, except for the three types of rulings of inadmissibility, rejection of applications and objection to jurisdiction, the People’s Court may make rulings in reviewing arbitration judicial review cases, including rulings confirming the validity of arbitration agreements, rulings on whether to revoke arbitration awards of Mainland China's arbitration institutions, rulings on whether to implement arbitration awards of Mainland China's arbitration institutions, rulings on whether to recognize and execute Hong Kong, Macao and Taiwan arbitration awards, rulings on whether to recognize and execute foreign arbitration awards, rulings on whether to allow withdrawal of applications, etc., all of which have legal effect once served, do not allow the parties to apply for reconsideration, appeal or apply for retrial. This provision is mainly based on the following reasons: first, Article 154 of the Civil Procedure Law only stipulates that the parties to three types of decisions, namely, inadmissibility, dismissal of prosecution and objection to jurisdiction, can appeal, and does not stipulate that other decisions can appeal; Second, some previous judicial interpretations and approvals also reflected this basic principle, stipulating that the decision not to execute the arbitration award, whether to revoke the arbitration award, the application for retrial by the parties concerned will not be accepted, and the protest by the people's procurator ate will not be accepted, etc. Thirdly, the efficiency of arbitration is an important reason why the parties choose to settle disputes through arbitration. If too many procedures such as reconsideration, appeal and retrial are set up in the judicial review of arbitration cases, the arbitration results will remain uncertain for a long time, which will lead to the disappearance of the advantage of the efficiency of arbitration in resolving disputes and will also run counter to the principle of " arbitration is final" stipulated in Article 9 of the Arbitration Law. At the same time, in order to avoid conflicts with other laws or judicial interpretations that may be issued in the future, the Article further stipulates " except as otherwise provided by laws and judicial interpretations."

15. On the Effectiveness Determination in Arbitration Judicial Review Case

Because Hong Kong, Macao and Taiwan regions and the mainland are in different jurisdictions, in judicial practice, the relevant provisions of foreign-related cases are applied to the trial of Hong Kong, Macao and Taiwan-related cases. Article 551 of the interpretation of the Civil Procedure Law stipulates: " the People’s Court may refer to the special provisions applicable to foreign-related civil proceedings when trying civil proceedings involving Hong Kong, Macao special administrative region and Taiwan.  ” Article 21 of the Provisions on Judicial Review of Arbitration specifies the legal application of the application for confirmation of the validity of Hong Kong, Macao and Taiwan-related arbitration agreements and the application for execution or cancellation of Hong Kong, Macao and Taiwan-related arbitration awards made by mainland arbitration institutions, i.e. referring to the relevant provisions applicable to foreign-related cases.

As for arbitration judicial review cases applying for approval and enforcement of arbitration awards in Hong Kong, Macao and Taiwan regions, the Supreme People’s Court has clearly stipulated judicial interpretations such as " arrangements for mutual enforcement of arbitration awards between the Mainland and Hong Kong special administrative region", " arrangements for mutual approval and enforcement of arbitration awards between the Mainland and Macao special administrative region" and " provisions for approval and enforcement of arbitration awards in Taiwan region". Therefore, the relevant provisions can be directly applied to judicial review of such cases, and there is no need to refer to the relevant provisions applicable to foreign-related cases.

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*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.