Good afternoon. I'm quite glad to be at this event to commemorate the 60th anniversary of the New York Convention. Thank you very much for inviting me to discuss this topic with so many experts here today.

First of all, I clearly remember 10 years ago, at the 50lh anniversary of the New York Convention. The UNCITRAL sent a questionnaire to all the state members of the New York Convention. This questionnaire was sent to the central government of China and was passed to the Department of Treaty and Law of the MOFCOM, and then finally into my hand. I answered all the questions very carefully, and followed up all the major reports of that questionnaire. I remember clearly that one report showed that some countries set a limitation for the application of the enforcement of an arbitral award. If one of the parties is a natural person, then the limitation is one year, if both the applicant and the respondent of the arbitral award are legal persons, then the limitation is 6 months. Although the report did not list the name of the country, I clearly knew that, the country mentioned is China. It points out a very unique character in China.

Many changes happened in the ten years from 2008 to 2018. Because of the modification of laws in China, the above situation has changed a lot. Now the limitation sets forth is 2 years in a whole no matter for natural person or legal person.

From the morning session, we knew that it was in December 1986 that China was approved to join the New York Convention by the standing committee of the 6th National People's Congress. The Convention was taken into effect on April 22, 1987. It has been 30 years till now in which China has encountered great changes. First is a change on legislation, the promulgation of the Civil Procedure Law of China, and the amendment of it in 2008 and 2012. There are a lot of arbitration stipulations involved.

Then in 1994, the first legislation on arbitration, the Arbitration Law of China, came to the stage, and it took into effect in 1995, 20 years till now. These are all the major changes happening in China after joining the New York Convention.

In the judicial aspect, we also encounter great changes. In the past 30 years, we can clearly notice that more and more arbitral awards were recognized and enforced under the New York Convention and the judges of the Chinese courts gained a deeper understanding of the New York Convention. Taking today’s opportunity，I would like to introduce what is based on our understanding of the judicial courts, like what we have done to promote the consistency of interpretation of the Convention.

Firstly, right before the New York Convention coming into effect in China, the Supreme Court of China promulgated the Notification of China's entry into the New York Convention on April 10, 1987. On April 22, 1987, the Convention came into effect in China. The Notification was quite important. Firstly, it explained the two reservations made by the Chinese government when signing the Convention and set a standard for the judges to understand these two reservations. One is reciprocal reservation and another is commercial reservation. Especially for the second one, the Notification explained in details what is contractual commercial relationship and what is not.

Now we often discuss whether the arbitral awards of ISDS can be recognized and enforced under the New York Convention in China and talk about such commercial reservation made by Chinese government. It clearly excludes the recognition and enforcement of arbitral awards of ISDS. The Notification in 1987 laid down the ground for such situation.

Of course, as time goes by, we are also thinking whether we should remain in the situation or not? It is still under discussion now. So we can see that the Notification issued by the Supreme Court in 1987 is of vital importance even now. The Notification also mentions several other points, for example the court with jurisdiction to hear the case, the time limitation for application, and the procedure matters, etc. Why it is so important? Because we should aware that the time is 1987, at that time even the Civil Procedure Law did not come out. By the year 1991，when the Civil Procedure Law came into the stage, we can see the last part of the law writes about foreign arbitral awards, which is strongly influenced by the 1987 Notification. Thus, the Notification shows from one aspect the effort made by the Supreme Court to better apply the New York Convention.

Secondly, I want to talk about the reporting system, which means in the case of refusal to recognize and enforce the foreign arbitral award under the New York Convention, it needs to be reported to the Supreme Court level by level, and the final decision should be made after approval. This reporting system was clarified by a judicial document of the Supreme Court in 1995. If an intermediate court accepts applies for recognition and enforcement of a foreign arbitral award from a party, and the intermediate court is preparing to refuse to recognize and enforce it, it must report to the higher court of the place. If the High Court agrees with the refusal of the intermediate Court, it must report to the Supreme Court, and with the consent of the Supreme Court, the court can make an opinion or award that refuses to recognize and enforce the foreign arbitral award. This is the reporting system established in 1995.

I believe everyone would be quite familiar. Because of such system, the Supreme Court got a chance to know many cases regarding the recognition and enforcement of foreign awards. All these awards are by nature New York Convention awards. Although some of them can also be enforced according to the reciprocal principle under the Civil Procedure Law, New York Convention covers a large scale, with currently 159 member states. Thus actually we have not yet applied the reciprocal principle in practice.

Till now, benefiting from the reporting system, the Supreme Court heard a lot of cases under New York Convention in China. By analyzing these cases, we deepened our thought and understanding of New York Convention.

For example, as early as 2003, in the case regarding Zublin International GmbH applied for a recognition and enforcement of arbitral award rendered by ICC in Shanghai under the New York Convention, we made a thorough research of the meaning of the first and second sentence of Article 1.1 of the New York Convention. The first sentence states that “This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a Stale other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal”. The second sentence states that “It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.” Meanwhile, we also studied the guidelines made by UNCITRAL on New York Convention. We learned that in order to absorb more States to join, the Convention applies a compromise attitude regarding on the nationality of an arbitral award. Some are affirmed by the place of arbitration, others are affirmed by the governing law of arbitration procedures. Both the two situations can be recognized under the New York Convention. So by analyzing this case, we gained a deep understanding of the first and second sentence of Article 1.1 of the New York Convention and also learned whether the reciprocal reservation under Article 1.3 will have an influence of the case.

In another case, when discussing the validity of the underlying arbitration clause, we conducted a thorough research on the relationship between Article 2 and Article 5.1.1. We noticed two goals of the New York Convention: first is to make an effective interpretation of the arbitration agreement and support the validity of the arbitration agreement as far as possible; second is to grand the recognition and enforcement of an arbitral award among member States as far as possible. In specific cases, can we apply Article 2 to invalidate an arbitration agreement and thus refuse to recognize and enforce an arbitral award? Article 2 sets a specific stipulation about arbitration agreement. Our judges had different views on this issue at that time. But now we think that the reasons applied to refuse the recognition and enforcement an arbitral award must be exclusively cited from Article 5. Article 2 only lays down reasons about the validity of arbitration agreement, not for the recognition and enforcement an arbitral award.

In another case from the High Court of Hebei province, we conducted a thorough research on Article 4 and see whether it can be used for a refusal of the recognition and enforcement of an arbitral award. According to the study, we realized that Article 4 is only about the requirement on submitting certain materials to court. It sets down the precondition for a court to hear the case but not as the legal ground for a refusal of the recognition and enforcement of an arbitral award. The only legal ground must be Article 5.

Chinese judges also have the most research on Article 5 of the New York convention. I can clearly recite each clause of Article 5 even in a Z to A order. And in a large number of case studies, we deepened the understanding of the 7 reasons for refusal of recognition and enforcement of foreign arbitral awards. Here because of time limit, I will not talk about that. But I have done several discussions on that in other seminars. In the morning session of today's event, Professor LIU Jingdong also talked a lot regarding this.

I think it is because of the reporting system, that the Supreme Court has the opportunity to learn from different cases and by replying to the lower level court, making a deep understanding and application of each article under the New York Convention. We have published all these thoughts and case materials in a book series called “Judicial Guidance of Foreign Related Commercial and Maritime Cases". It was published every 2 edition per year since 2000. There are special sections in the book that deal with the validity of arbitration agreement, the report of the recognition and enforcement of foreign arbitral awards, and the reply notes of the Supreme Court. These books are good guidance for judges in China. This is the second point I want to adjust regarding the efforts that the Supreme Court made for unify the explanation and application of New York Convention.

Thirdly and more importantly, the Supreme Court made interpretations of laws to unify understandings. According to the Legislation Law of China, the Supreme Court can make interpretations of laws on the hard questions in practice in order to unify judicial standard.

I believe everyone here is clear that Civil Procedural Law is the root of recognition and enforcement of foreign arbitral award. Not only in the 1992 amendment, but also the lately 2015 amendment, the Interpretation of the Civil Procedural Law made by the Supreme Court has some parts refer to this issue. Especially the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, amended in 2015, lays down several points about the recognition and enforcement of foreign arbitral award. For example, it clearly states that award rendered by ad hoc arbitration in foreign jurisdictions can be recognized and enforced in Chinese courts under the New York Convention.

Other procedural stipulations like the formation of judicial tribunal, making inquiry of the parties and differentiating recognition from enforcement are also laid down in this 2015 Interpretation.

Besides, in the morning session, one interpretation mentioned by professor LU Song, Interpretation of the Arbitration Law of China, is also very important. Others like Relevant Provisions of the Supreme People's Court on Issues concerning Applications for Verification of Arbitration Cases under Judicial Review, promulgated at the end of 2017, which also mentioned by professor LIU Jingdong in the morning session. This Provision actually raises the reporting system in 1995 into legislation interpretation. There is a historical heritage.

At the end of last year, Provisions of the Supreme People's Court on Several Issues concerning Trying Cases of Arbitration-Related Judicial Review was also promulgated by the Supreme Court. It sets a general standard of procedure in order to unify judicial practice. This is the third aspect.

Fourth, the Supreme Court has strengthened its interpretation of the New York Convention by building an intelligent court system. Currently we are engaging to build an information management platform that all the courts in China can easily share materials and information with each other on it. Before that, the Supreme Court has also set up a website for the trial of foreign related commercial and maritime cases which include the same information. By building such intelligent court system, the Supreme Court aims to take advantage of the information technology in order to promote the New York Convention and strengthen its interpretation and application.

Fifth, the Supreme Court has endeavored to enhance understanding of the New York Convention by training judges and strengthening international exchanges. Regarding the training of judges, every year, the Supreme Court conducts a national training program for judges of foreign-related commercial and maritime trials in the national judicial college of judges. One of the required courses is the course on judicial review of international commercial arbitration.

In addition, the Supreme Court often sends judges to attend meetings organized by the UNCITRAL, especially the second working group of the UNCITRAL. I myself attended such meetings in New York and Vienna, more than a decade ago, to discuss the relevant situations of the New York Convention. The Supreme Court duly followed the work of the UNCITRAL, including its current discussion on the enforceability of commercial mediation

agreements. At the same time, we are also actively sending judges to international conferences like today to exchange experience, enhance understanding and improve the interpretation of the New York Convention.

For the sake of time, I take today's opportunity to review the above five efforts taken by the Supreme Court for the application and interpretation of the New York Convention in China. Chinese courts always hold a very positive attitude to arbitration, protecting the validity of the arbitration agreements and recognizing and enforcing the arbitral awards as far as possible. This is also the goal of New York Convention. In specific judicial practice, the judges from all court levels in Guangdong, Shanghai, etc. who will make speeches after me will also introduce more information in judicial practice so that everyone can see that Chinese courts in judicial practice strongly support arbitration. I think we will, as always, adhere to such a basic idea in the future and at the same time always follow the future progress of the UNCITRAL, making our due contribution to the development of international commercial arbitration and international trade law.

Thank you!

Editor's Note: This article is the keynote speech delivered by Gao Xiaoli, the Deputy Chief Judge of the 4th Civil Division of SPC, at the 60th anniversary of the New York Convention and the 'Belt and Road' seminar supported by the SPC and co-organized by the United Nations Commission on International Trade Law (UNCITRAL) and the Shenzhen Court of International Arbitration (SCIA) on May 15, 2018.

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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.