1. What disputes can be resolved by arbitration?

Disputes that can be resolved by arbitration need to meet two requirements: in terms of subject, the parties should be equal in civil status; in terms of object, the dispute must be contract disputes and other property rights disputes. It should be noted that if a contract includes an arbitration clause, tort disputes arising from breach of such contract should also be resolved by arbitration. On the basis of meeting the two aforementioned legal requirements, parties may impose restrictions on scope of arbitration in an arbitration agreement.

Article 2 of the Draft Arbitration Law (Revised) has deleted "equal subjects", which provides a legal basis for disputes to be resolved through arbitration between parties in unequal civil status, such as those in investment disputes and sports disputes.

2. What types of disputes cannot be submitted to arbitration?

You may have heard of doctrine of non-arbitrability, which mainly discusses about types of disputes that cannot be resolved by arbitration even if there is a valid arbitration agreement. These types of non-arbitrable disputes include: disputes involving identity and personal rights and interests, such as marriage, adoption, guardianship, custody, support, inheritance, etc.; administrative disputes that should be handled by administrative authorities according to law, but whether disputes under administrative agreements are non-arbitrable is a case-by-case analysis; monopoly civil disputes, the mainstream view is that monopoly disputes arising from the signing and performance of contracts are non-arbitrable, which is also clarified in Article 3 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law to the Trial of Monopoly Civil Disputes (Draft for Public Consultation)"; disputes over dissolution of a company, etc.

3. What are legal requirements for an arbitration agreement?

The current Arbitration Law requires an arbitration agreement to be in writing, which can be in the form of a contract, letter, data message (including telegram, telex, fax, electronic data interchange and e-mail), etc.; and its contents shall include parties’ intention to arbitration, matters to be arbitrated and a selected arbitration institution.

In fact, a complete arbitration agreement, in addition to meeting the aforementioned legal requirements, is better to include also seat of arbitration, language of arbitration, governing law of the arbitration agreement, the number of arbitrators, qualification requirements and method of constituting the arbitral tribunal. If an arbitration institution is selected, arbitration agreement can be drafted by referring to template agreement/clause recommended by such arbitration institution.

Article 21 of the Draft Arbitration Law (Revised) removes requirements of "matters to be arbitrated" and "selected arbitration institution", which is a significant amendment meaning that arbitration in Mainland China is no longer limited to institutional arbitration.

4. If an arbitration agreement is silent on governing law/seat of arbitration/language of arbitration, how is it determined?

Governing law of an arbitration agreement concerns determination of validity of the arbitration agreement and interpretation of its provisions. The governing law of a foreign-related arbitration agreement may be chosen by parties or, if such arbitration agreement is silent on governing law, it shall first be left to parties to negotiate and, if no agreement can be reached, governing law of the arbitration agreement may be determined as the law of either the location of the agreed arbitration institution or as the law of the agreed seat of arbitration.

Article 90 of the Draft Arbitration Law (Revised) adds that the governing law agreed by the parties shall apply to the determination of the validity of foreign-related arbitration agreements; if the parties have not agreed on the governing law of the foreign-related arbitration agreement, law of seat of arbitration shall apply; if there is no agreement on the governing law and seat of arbitration or such agreement is unclear, the court may apply law of the People's Republic of China to determine the validity of the arbitration agreement.

Seat of arbitration carries legal significance as it determines the governing law of an arbitration agreement (if not selected and agreed in the arbitration agreement) and the competent court for judicial supervision of the arbitration proceedings, and is different from location of hearings which is only geographic. The current Arbitration Law still gives the legal meaning of "seat of arbitration" mostly to the “location of the selected arbitral institution", although there are some adjustments in practice, for example, it is now clear that seat of arbitration is used to determine nationality of an arbitral award for which arbitral award made in arbitration administered by foreign arbitral institutions in Mainland China is regarded as a foreign-related arbitral award. If an arbitration agreement is silent on seat of arbitration, likewise, parties will first negotiate and, if no agreement is reached, the seat of arbitration will be determined in accordance with applicable arbitration rules, generally as the location of the selected arbitration institution or other places under some specific circumstances. For example, Article 27 of the Arbitration Rules of the Beijing Arbitration Commission (2022) provides that "(1) Unless otherwise agreed by the parties, the seat of arbitration shall be the location of the BAC. The BAC may also determine other places as the seat of arbitration according to the specific circumstances of the case. (2) The arbitral award shall be deemed to have been made at the seat of arbitration."

Article 27 of the Draft Arbitration Law (Revised) provides that if the parties in a foreign-related arbitration have not agreed on the seat of arbitration, or if the agreement is unclear, the arbitral tribunal shall determine the seat of arbitration; if the dispute does not have foreign-related elements, the seat of arbitration shall be the location of the arbitral institution administering the case.

If an arbitration agreement is silent on the language of arbitration, again it is first left to parties to negotiate, and if no agreement is reached, it will be determined in accordance with applicable arbitration rules. In general, the arbitration institution or the arbitral tribunal may decide Chinese or another language as the language of arbitration considering circumstances of the case. For example, Article 72 of the Arbitration Rules of the Beijing Arbitration Commission (2022) provides that "(1) The parties may agree upon the language(s) to be used in the arbitral proceedings. Where the parties make no such agreement, the BAC or the arbitral tribunal, as the case may be, may determine that Chinese and/or any other language(s) shall be used in the arbitral proceedings according to the particular circumstances of the case." Parties may also change the language of arbitration by consensus during the course of the arbitral proceedings.

5. Under what circumstances will an arbitration agreement be held invalid?

An arbitration agreement will be held invalid under the current Arbitration Law if one of the following circumstances exists:

• types of arbitration in the arbitration agreement are non-arbitrable at law;
• the arbitration agreement is entered into by persons with no or limited civil capacity;
• a party uses coercion to force the other party to enter into an arbitration agreement;
• the arbitration agreement is silent or unclear as to matters to be arbitrated or the arbitration institution;
• the arbitration agreement includes that disputes can either be submitted to arbitration or be filed with court. However, if it is agreed that "arbitration first, then litigation", such arbitration agreement (if meeting legal requirements) is valid but agreement on litigation is invalid.

Article 21 of the Draft Arbitration Law (Revised) removes the requirements of " matters to be arbitrated" and "having a chosen arbitration institution", which means that arbitration agreements will no longer be deemed invalid for failure to agree on an arbitration institution.

6. If a contract is invalid, will the arbitration clause within the contract also be invalid?

An arbitration clause within a contract is independent, specifically meaning that such arbitration clause and the main contract are separable and independent of each other in terms of formation, validity and governing law.

Examination of whether an arbitration clause is formed is based on the same "offer- and-acceptance" framework as for general contracts, though the main issue is whether there is an agreement of intention of arbitration between parties and only when it is necessary, validity and formation of the entire contract will be considered when making such examination.

Validity of the arbitration clause is examined based on governing law to the arbitration clause, and alteration, dissolution, termination or invalidity of the main contract does not affect validity of the arbitration clause as within. Further, if formation of the main contract is challenged, such issue will need to be resolved by arbitration.

Article 23 of the Draft Arbitration Law (Revised) provides that "The arbitration agreement shall exist independently, and the alteration, dissolution, invalidity, nullity, revocation or termination of the contract shall not affect the validity of the arbitration agreement." Compared with the current Arbitration Law, the independence of the arbitration clause is further clarified by the addition of "circumstances in which the contract is not effective or is revoked".

7. How do I challenge an arbitration agreement if I believe it is invalid?

If you intend to raise challenge to validity of an arbitration agreement, you may file a jurisdictional objection with the arbitration institution during the arbitration proceedings, or you may apply to the competent court for confirming such arbitration agreement is invalid. It is important to note that if the arbitration institution has already accepted your application and issued a decision, your application afterwards to the competent court for the same application will be rejected. In addition, if you have already filed an application for jurisdictional objection with the arbitration institution and the arbitration institution has expressly decided to authorize the arbitral tribunal to make a jurisdictional decision, your application to the competent court with the same contents will be rejected by the court, as your choice is considered as irreversible and should be one or the other.

As to domestic arbitration agreements, you may file such application to the intermediate court where the arbitration institution is located, or if agreement on arbitration institution is unclear, you may apply to the intermediate court where the arbitration agreement was signed or where the respondent is domiciled; as to foreign-related arbitration agreements, you may apply to the intermediate court where the arbitration institution is located, where the arbitration agreement was signed, or where you or the respondent is domiciled.

The time for filing such an application must be before the first hearing in the arbitration proceedings.

Article 28 of the Draft Arbitration Law (Revised) affirms the arbitral tribunal's autonomous right to review its jurisdiction with significant modifications to the current Arbitration Law. For example, the time for objections to be filed is limited to the time limit for defence set out in the applicable arbitration rules; the arbitral tribunal has the power to decide on objection, and the arbitration institution may decide whether to continue the arbitration proceedings on the basis of prima facie evidence before the arbitral tribunal is established; and the competent court shall not accept an objection filed directly by a party without applying to the arbitral tribunal (or the arbitration institution before the tribunal is established) first.

8. How are costs of arbitration allocated?

The current Arbitration Law does not provide for allocation of costs of arbitration, but only requires that allocation costs of arbitration shall be stated and included in the arbitral award. Therefore, you may consider first agreeing on allocation of arbitration costs in the arbitration agreement with the other party. Arbitration institutions generally provide for allocation of arbitration costs in their arbitration rules, for example, Article 52 of the Beijing Arbitration Commission's Arbitration Rules (2022) provides that the arbitral tribunal has the power to determine allocation of costs of arbitration and other costs actually incurred. In principle, unless otherwise agreed by the parties, costs of arbitration shall be borne by the losing party, and in the event of a partial winning and partial losing, the arbitral tribunal shall determine proportion of the parties' respective share according to outcomes of the case. Notwithstanding these principles, the arbitral tribunal will take into account performance of the parties in the arbitration proceedings and whether there was any deliberate delay in the arbitration proceedings or non- cooperation with the arbitral tribunal when considering allocation of arbitration costs.

9. Can I claim the other party to compensate for my legal costs such as attorneys’ fees?

Likewise, the current Arbitration Law does not provide any rules for compensation for parties’ legal costs such as attorneys' fees. You may reach agreement on such compensation in the arbitration agreement with the other party. The arbitration rules generally provide that the arbitral tribunal has the power to award the losing party to reimburse or compensate the winning party for reasonable costs actually incurred. For example, Article 52 of the Beijing Arbitration Commission Arbitration Rules (2022) provides that the arbitral tribunal may, pursuant to a party’s request, order that the losing party shall bear the winning party’s reasonable costs and expenses for the conduct of the arbitration, including but not limited to attorneys’ fees, costs of preservation measures, travel and accommodation expenses, and notarial fees. Where the arbitral tribunal determines amount of these costs and expenses, it shall take into consideration outcomes of the case, its complexity, the actual workload of the parties or their attorneys, the amount in dispute, and any other relevant factors. It is important to note that the BAC arbitration rules specifically use the phrase "pursuant to a party’s request", which means that if you intend to claim attorney's fees, you need to expressly raise it as a claim.

10. Can I apply for third-party funding in support of arbitration?

The current Arbitration Law does not prohibit parties in an arbitration from applying for third-party funding, and in fact, third-party funding has emerged in arbitration practice. Thus, you may apply to a third party to fund the arbitration. Nonetheless, you need to be careful about issues of disclosure, conflict of interest, and confidentiality arising from third-party funding to avoid triggering application of legal circumstances under which an arbitration award may be set aside or be held unenforceable.

11. What is the legal status of arbitration institutions?

Article 14 of the current Arbitration Law clearly stipulates that arbitration institutions are independent from administrative agencies and have no subordinate relationship with them. Although for historical reasons, most of the current arbitration institutions operate in an administrative manner, there are some arbitration institutions (e.g., Shenzhen Court of International Arbitration/SCIA, Hainan International Arbitration Court/HIAC), drawing on good practice of international arbitration institutions, have developed a corporate governance structure led by a board of directors which provides a model for other arbitration institutions in this aspect.

Articles 13 and 16 of the Draft Arbitration Law (Revised) clarify that an arbitration institution is a non-profit legal person providing public interest services, has legal personality and shall establish a non-profit corporate governance body.

Arbitration institutions, as alternative dispute resolution service providers, are naturally of a certain public interest and thus need to be subject to a certain degree of regulation. At the administrative level, Article 10(3) of the current Arbitration Law provides that establishment of an arbitration institution shall be subject to registration with provincial judicial administrative department of its location. At the level of industry self-regulation, arbitration institutions are compulsory members of the China Arbitration Association (an association legal person) and are bound by its constitution and rules, etc. At the judicial level, the courts also indirectly supervise conduct of arbitration institutions through their judicial supervision of arbitration.

Article 12 of the Draft Arbitration Law (Revised) further provides express requirements for registration system of arbitration institutions and authorizes the State Council to formulate administrative measures for the registration of arbitration institutions to be implemented.

Arbitration institutions exercise and play different functions and roles at different stages of the arbitration process. In terms of case management, compared with their international counterparts, arbitration institutions in Mainland China play a leading role in case management through a case secretary system which covers main aspects of the arbitration proceedings, from acceptance of the case to establishment of the arbitral tribunal till the rendering of the award. Their works include but not limited to arrangement of venue and facility for hearing, collection of fees and remuneration, and correspondences with participants, and so on, throughout the entire process. In addition, Article 13(3) of the current Arbitration Law requires an arbitration institution to have a panel list of arbitrators, for which the arbitration institution is in charge of selection of arbitrators, disciplinary removal of arbitrators, and communication in the arbitration process after establishment of the arbitral tribunal.

Article 18 of the Draft Arbitration Law (Revised) clarifies that the panel list of arbitrators only has "recommended" attributes and respects fully parties' right to choose arbitrators.

12. Must an arbitration institution be selected in an arbitration agreement?

Article 16(2)(c) and Article 18 of the current Arbitration Law provide for the validity of arbitration agreements from both sides of the coin. An express and clear selection of an arbitration institution is a necessary condition on validity of an arbitration agreement. In judicial practice, courts are required to find in favor of validity of an arbitration agreement when examining establishment of "an express and clear selection of an arbitration institution". For example, if arbitration rules of a specific arbitration institution are included in an arbitration agreement, it is deemed to have agreed to arbitrate with that arbitration institution, unless arbitration rules provide otherwise. In addition, if the name of an agreed arbitration institution is unclear or imprecise, yet a specific arbitration institution can be identified, parties are deemed to have selected that specific arbitration institution. This shows that courts are basically friendly towards arbitration and do not easily deny validity of an arbitration agreement.

The Draft Arbitration Law (Revised) no longer requires selection of an arbitration institution to be a condition on validity of an arbitration agreement and, further, Article 91 provides expressly that commercial disputes with foreign elements may be agreed to be arbitrated on an ad hoc basis (i.e arbitration by an ad hoc arbitral tribunal).

13. Can I choose a foreign arbitration institution to administer the arbitration?

You may agree to have a foreign arbitration institution to administer the arbitration when your case falls within one of the following circumstances for which your case is regarded as having foreign elements:

In addition, judicial practice holds the view that an arbitral award made by a foreign arbitration institution having city in Mainland China as seat of arbitration is considered as a foreign-related arbitral award made in Mainland China. Thus, if you apply for enforcing such awards in Mainland China, you do not need to go through the recognition procedure first and related provisions on enforcement of Chinese procedural laws (i.e. law and practice of arbitration and civil procedure) will apply directly.

14. Are there any restrictions on agreeing to an ad hoc arbitration?

Since the current Arbitration Law requires selection of an arbitration institution as a condition on validity of an arbitration agreement, basically the current arbitration practice holds a negative view towards legality of arbitrations conducted by arbitrators appointed by parties directly by themselves without an arbitration institution (i.e. ad hoc arbitration), except for arbitration cases in some special areas (e.g. Free Trade Zones).

Articles 91, 92 and 93 of the Draft Arbitration Law (Revised) specifically add and regulate ad hoc arbitration (i.e. arbitration by an ad hoc arbitral tribunal), but limit its application to "commercial disputes with foreign elements".

15. What happens if an arbitral tribunal cannot be formed in an ad hoc arbitration or if recusal of an arbitrator is necessary?

Ditto. The current Arbitration law has no relevant provisions on ad hoc arbitration. According to Article 92 of the Draft Arbitration Law (Revised) for establishment of an arbitral tribunal and recusal of an arbitration in an ad hoc arbitration, the parties may negotiate and agree to entrust an arbitration institution to provide such assistance. If no agreement on entrustment is reached, a party may apply for the intermediate court at seat of arbitration or location of the parties or the place with which the dispute is closely connected for designation of an arbitration institution to provide such assistance.

16. How do I initiate an emergency arbitration?

The current Arbitration Law does not include explicit provisions related to emergency arbitration, and rules for emergency arbitration are mostly found in arbitration rules of various arbitration institutions. Generally speaking, an emergency arbitration is a special arbitration proceeding whereby parties can apply to an arbitration institution for appointment of an emergency arbitrator to decide on taking interim measures before or after commencement of the arbitration proceedings, as shown in the following table.

Article 49 of the Draft Arbitration Law (Revised) expressly affirms for the first time the emergency arbitration (arbitrator) system.

17. How long would an emergency arbitration proceeding take generally?

Emergency arbitration proceeding is naturally urgent and subject to strict time limits. Usually, an emergency arbitrator is required to make a decision within approximately 15 days of accepting the appointment. At the same time, taking into account procedural steps taken prior to appointment of an emergency arbitrator (e.g. decision on acceptance, payment of fees, appointment, etc.) and also special circumstances (e.g. recusal, reappointment of the emergency arbitrator, etc.), the process will probably take a further 10-15 days. Thus, all together, an emergency arbitration procedure may take approximately one month from the time that the applicant submits application for emergency arbitration.

18. What types of interim measures can I apply for in arbitration?

There are three types of interim measures provided at Chinese procedural law, namely, asset preservation, action preservation and evidence preservation, as detailed in the table below.

Article 43 of the Draft Arbitration Law (Revised) specifies types of interim measures, in addition to three types of measures (asset, action and evidence preservation) mentioned above, which also include other short-term measures deemed necessary by the arbitral tribunal.

19. How do I enforce an arbitral tribunal's decision on granting an interim measure?

Enforceability of a decision on granting an interim measure by an arbitral tribunal largely depends on whether law of the place where such decision is to be enforced recognizes and gives enforceable effect to such decision.

Since current judicial practice and law only permit courts in Mainland China exercise such power to grant interim measures, it is difficult to enforce an arbitral tribunal's interim measure decision in Mainland China but still it has persuasive power to parties in arbitration. However, if such decision is to be enforced in a place of a country or region beyond Mainland China and subject to law of that country or region, you may apply for enforcing such interim measure decision by an arbitral tribunal before local courts.

Articles 43 and 46 of the Draft Arbitration Law (Revised) give the arbitral tribunal the power to issue interim measures, but also make it clear that power to issue interim measures for preservation before an arbitration application is filed is reserved only to courts.

20. What should I do if I object to the arbitral tribunal’s decision on interim measures?

Subject to applicable arbitration rules, under certain conditions, you may be able to request for revoking, modifying or suspending such interim measure decision.

In addition, if such interim measure decision is made by an emergency arbitrator, you may apply for setting aside, modifying or suspending such interim measure decision after the arbitral tribunal is fully established, as decision made by an emergency arbitrator is not binding on the arbitral tribunal.

21. What are statutory requirements for becoming an arbitrator?

The current Arbitration Law firstly requires that arbitration commissions should appoint fair and decent persons as arbitrators, and also requires that arbitrators must satisfy one of statutory requirements: (a) those who have obtained legal professional qualification through National Judicial Examination for legal professions and have been engaged in arbitration work for at least eight years; or (b) those who have practiced as a lawyer for at least eight years; or (c) those who have served as a judge for at least eight years; or

(d) those who conduct legal research and teaching with senior professional titles; or (e) those who have possess legal expertise and are engaged in economic and trade or other professional works with senior professional titles or are at equivalent professional level.

In practice, arbitration institutions may have special requirements for arbitrators, such as the China International Economic and Trade Arbitration Commission (CIETAC) issued the "Regulations on the Qualification of Arbitrators", in which requirements for arbitrators, in addition to the statutory requirements, include devoting to arbitration, having a high moral character, adhering to the principle of independence and impartiality, upholding the Articles of Association of CIETAC and abiding by the Arbitration Rules and the Code of Conduct for Arbitrators, and ensuring sufficient capacity and time to handle cases.

Article 18 of the Draft Arbitration Law (Revised) retains the original statutory requirements, while clarifying the circumstances under which an arbitrator may not act as an arbitrator, including (i) those who are incapable of civil conduct or have restricted capacity of civil conduct; or (ii) those who have been imposed on a criminal penalty, except for those who have committed a criminal offence in negligence; or (iii) those who, according to law, are in other circumstances incapable of acting as an arbitrator.

22. How is an arbitral tribunal constituted?

Firstly, you may check the number of arbitrators agreed in the arbitration agreement, which is usually three arbitrators or a sole arbitrator. If the arbitration agreement is silent on the number, quite a few international arbitration institutions may have sole arbitrator as a default choice in arbitration rules, while many arbitration institutions in Mainland China tend to have three arbitrators as a default choice.

In the case of a three-arbitrator tribunal, generally, each party may choose or entrust the Chairman of the arbitration institution to appoint an arbitrator, and the parties may jointly choose or entrust the Chairman of the arbitration institution to appoint the third arbitrator. The third arbitrator will act as the presiding arbitrator.

In the case of a sole arbitrator, the parties may jointly choose or entrust the Chairman of the arbitration institution. In practice, the third arbitrator of a three-arbitrator tribunal and the sole arbitrator are appointed by the Chairman of the arbitration institution in most instances.

You may pay special attention to rules on constitution of the arbitral tribunal in multile- party arbitration. For instance, Article 29 of the Arbitration Rules of CIETAC (2015) provides that for multiple-party tribunal, if either the claimant side or the respondent side fails to jointly select, or jointly entrust the Chairman of CIETAC to appoint an arbitrator, the Chairman of CIETAC may appoint all three arbitrators and designate one of them as the presiding arbitrator.

Article 51 of the Draft Arbitration Law (Revised) draws on good practices in international arbitration by giving priority to the parties in selecting an arbitrator, and in the event of failure to do so, the arbitration institution shall make the appointment; in addition, the process of determining the third arbitrator of a three-member arbitral tribunal shall be, in order, that the parties shall jointly make the choice first, and in the event of failure to make such choice, then the two arbitrators who have already been selected or appointed shall jointly select the third arbitrator, and in the event of failure to make such selection by the two arbitrators, lastly the arbitration institution may make the appointment.

23. What are the legal obligations of arbitrators?

The current Arbitration Law requires arbitrators to recuse themselves under certain circumstances, but does not expressly specify disclosure obligations of arbitrators. In practice, quite a few arbitration institutions in Mainland China have issued their own corresponding codes of conduct or norms for arbitrators, like the Code of Conduct for Arbitrators, Rules for Training of Arbitrators and Rules for Evaluating the Behavior of Arbitrators of the CIETAC, and the Code of Conduct for Arbitrators of the Beijing Arbitration Commission, which requires that arbitrators should be independent, impartial, diligent and prudent in hearing cases, maintain neutrality, adjudicate independently, disclose circumstances which may lead to possible recusal when accepting the selection or appointment of arbitrators in writing and continue to fulfill disclosure obligation during the arbitration proceeding.

Article 52 of the Draft Arbitration Law (Revised) clarifies the disclosure obligations of arbitrators, including that arbitrators shall sign a statement guaranteeing independence and impartiality and shall disclose in writing the circumstances of which they are aware that may lead the parties to have reasonable doubts about their independence and impartiality.

24. When must an arbitrator recuse himself or herself?

The current Arbitration Law stipulates that an arbitrator must recuse himself or herself if he or she: (a) is a party to the case or a near relative of a party or a party representative;

(b) has an interest in the case; (c) has other relationships with a party or a party representative in the case that may affect his or her independence and impartiality; or

(d) meets with a party or a party representative in private or accepts gifts or entertainments from a party or a party representative.

The scenario (c) as above is a catch-all circumstance for which arbitration institutions issue rules on specific circumstances in this scenario (c). For example, Article 7 of the Rules for Evaluating the Behavior of Arbitrators of the CIETAC stipulates that those who have other relationships with the parties and party representatives in the arbitration, which may affect fair arbitration, mainly include: (1) the arbitrator has previously advised on the same case to a party or a party representative; (2) the arbitrator has recommended or introduced a representative candidate to a party; (3) the arbitrator has served as a witness, appraiser, forensic examiner, defense attorney, counsel in the same case or a related case; (4) the arbitrator is currently a colleague of a party or a party representative or used to be a colleague thereof within the past two years; (5) the arbitrator is currently the legal adviser or representative of a party or affiliated organizations of a party within the past two years; (6) the close relative of the arbitrator currently works for the same organization of a party or its representative; (7) the arbitrator or the arbitrator’s close relative has a possible right of recourse with regard to any party; (8) the arbitrator or his or her close relative shares collective rights or obligations with a party or its representative, or has any other kind of collective interests with a party or its representative; and (9) other circumstances that may raise a reasonable doubt as to the impartiality of the arbitration proceeding.

25. How is a new arbitrator replaced after an arbitrator has recused himself or herself?

The recusal of an arbitrator requires that the arbitrator be re-selected or appointed in the same manner as before.

The current Arbitration Law only provides for the manner of selecting or appointing an arbitrator and does not impose a time limit on such selection or appointment. Arbitration rules of most arbitration institutions require a party to select or entrust the Chairman of the arbitration institution to appoint an arbitrator within fifteen days from the date of receipt of the notice of arbitration. In the case of a replacement of a new arbitrator, a shorter period of time is usually given to the parties, for example Article 24 of the Arbitration Rules of Beijing Arbitration Commission (2022) requires the parties to make a new selection within five days from the date of receipt of the notice of arbitration.

26. If I am a foreign party, do I need to notarize and legalize documents to prove my identity in the arbitration?

In litigation proceeding, foreign parties are required to have identity related documents notarized and legalized when submitting to court, such as certificate of incorporation of the company, identity certificate and passport page of the person in charge, and power of attorney to the representative, etc. Usually, this is not a mandatory requirement in arbitration proceeding. Nonetheless, sometimes the arbitral tribunal may direct or require the foreign party to provide notarized and legalized version of identity documents if necessary in the proceeding.

27. Can I join an additional party after the arbitration proceedings have commenced?

The arbitration agreement is the basis and cornerstone of arbitration. As such, you may check first whether the additional party to be joined is or is likely to be bound on the same arbitration agreement in the existing arbitration case. The current Arbitration Law does not contain provisions relating to joinder of a third party to arbitration, but major arbitration institutions in Mainland China have their own rules designed for joinder of additional parties. For instance, Article 18 of the Arbitration Rules of the CIETAC (2015) provides that a party to an arbitration proceeding may request for joining an additional party on the basis of an arbitration agreement that prima facie binds the additional party.

If you intend to join an additional party to the arbitration, it is advised to do so before the establishment of the arbitral tribunal. Because if the arbitral tribunal has already been established, the additional party may request to nominate or entrust the Chairman of the arbitration institution to appoint an arbitrator, for which the arbitral tribunal will have to be re-established.

28. Are there restrictions on party representative?

Unlike litigation, there are no restrictions on party representative in arbitration under the current Arbitration Law. You may appoint a counsel or another person to act as your representative in arbitration. If you appoint a counsel, there is no restriction on his/her areas of practice, and he/she can be a Chinese lawyer or a foreign lawyer. You may determine appropriate arbitration representatives considering the governing law of the merits and the needs of the case.

There is also no statutory limit on the number of party representatives in arbitration but some arbitration institutions may have such restriction in their arbitration rules, which may vary from one arbitration institution to another. For example, both current Arbitration Rules of CIETAC and Beijing Arbitration Commission have no limitation on the number of party representatives, while Shanghai International Arbitration Centre requires the number of agents to be limited to one to five in its rules, and if you need to appoint more than six, you will need to apply in writing and give reasons. Ordos Arbitration Commission limit the number of agents to one or two in its rules.

It is important to note that if you are represented by a Chinese lawyer who is also a sitting arbitrator of the arbitration institution, this may be considered existing a conflict of interest. Rules of most arbitration institutions do not prohibit lawyer-arbitrators from acting as counsel in arbitration cases administered by themselves, but there are exceptions. For instance, Article 9 of the Code of Conduct of Arbitrators of Beijing Arbitration Commission, expressly prohibits arbitrators from acting as a party representative in arbitration cases administered by it, including cases of setting-aside or enforcement of Beijing Arbitration Commission awards. In practice, there are quite a few cases in which arbitrators have been asked to recuse themselves from arbitration and also cases for the setting aside of the award for the same reason that the party representative is a sitting arbitrator of the arbitration institution which administered the case. However, the prevailing view is that a sitting arbitrator acting as a party representative in arbitration does not necessarily constitute a circumstance that would lead to the setting aside of the award.

29. Must expert witnesses be appointed by the arbitral tribunal?

There are two main categories of expert witnesses, those who provide technical services such as appraisals, audits, evaluations, tests, etc., mainly for technical issues, and those who provide legal services such as explanations or advice on foreign laws or complex legal issues. Expert witnesses may be Chinese or Chinese institutions, or foreigners or foreign institutions, and may be appointed by the parties themselves or appointed by the arbitral tribunal as required.

Expert witnesses, broadly speaking, include appraisal experts, and since appraisal opinion by an appraisal expert is itself one of the types of evidence stipulated in the Civil Procedure Law, you should pay attention to whether such expert has the relevant qualifications when you select or jointly select an expert witness with the other party. In practice, some arbitration institutions have internal rosters of recommended expert witnesses.

30. What is the process of involving expert witnesses in arbitration?

The expert witness shall submit to the arbitral tribunal and the parties a statement of his or her qualifications and a declaration of his or her impartiality and independence, which may also form part of the expert report.

After being appointed, the expert witness is required to complete the expert report on his or her own within a reasonable period of time as required and to send it to the parties for their comments on the expert report upon its completion.

If either party requests the expert witness to attend the hearing, the expert witness shall, with the consent of the arbitral tribunal, attend the hearing and, at the hearing, explain the expert report, answer questions from the arbitral tribunal and questions from either party with the permission of the arbitral tribunal, etc. If necessary, the expert witness will submit additional expert opinions on relevant issues after the closure of the hearing. The parties may continue to comment on the additional expert opinion of the expert witness.

31. Is there a time limit for initiating arbitration?

You may initiate arbitration at any time technically. However, if you do not file the arbitration case within statutory limitation period, your claims would not be supported in the case that the counterparty raises defence that your claims are time-barred. The current Arbitration Law provides that limitation period for litigation also applies to arbitration cases, i.e. three years from the day when the claimant knows or should have known of the impairment of right as well as the respondent, and such period may be suspended or interrupted under certain circumstances as prescribed by law.

For example, if a buyer fails to pay the purchase price as agreed in a contract of sale, the seller may initiate arbitration at any time to demand the buyer to pay the purchase price as agreed; however, if the seller initiated arbitration three years after the buyer expressly refuses to pay the purchase price, the buyer may raise the defence that the seller's arbitration claim for payment of the purchase price is time-barred.

32. Must I comply with pre-arbitration conditions if any?

Arbitration clause is designed to resolve contractual disputes for which such clause inevitably would be influenced by commercial logic and local culture. It is not uncommon to find pre-arbitration procedures like negotiation, mediation, expert review, etc. in practice, which are designed to mitigate adversarial nature of arbitration so that the parties may achieve resolution of disputes in a commercial context. Such clause is called as a "multi-tiered dispute resolution clause".

There are different opinions on whether pre-arbitration procedures should be considered as part of arbitration procedures in existing judicial practice in Mainland China. The Supreme People's Court confirms in the meeting minutes of national symposium on courts’ trial practice that failure to satisfy pre-arbitration procedures shall not be considered as a non-compliance of arbitration procedure. Although such confirmation is limited to recognition and enforcement of awards under the New York Convention, by trend we believe that this confirmation reflects arbitration-friendly judicial attitude which will be extended to all types of arbitration judicial review cases in the near future.

To conclude, at this stage, compliance with pre-arbitration procedures can effectively avoid risk that arbitral award would be challenged for failure to follow such pre- arbitration procedure.

33. What are general steps in the arbitral proceeding?

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34. Do arbitral tribunals hear all cases orally?

The arbitration case in principle is heard orally unless otherwise provided in the arbitration agreement by parties or provided in the applicable arbitration rules, for which the arbitration can be a documents-only one without oral hearings. For instance, Article 25 of the Arbitration Rules of the Beijing Arbitration Commission (2022) provides that " (4) If the parties agree to a documents-only arbitration, or if the arbitral tribunal considers an oral hearing unnecessary and the parties so agree, the arbitral tribunal may decide the arbitration on the basis of the documents submitted by the parties."

The COVID-19 hindered offline hearings whilst at the same time promoted the popularity of online hearings. Most arbitration rules give arbitral tribunal the authority to decide or consult with the parties on mode of hearing. For instance, Article 25 of the Arbitration Rules of the Beijing Arbitration Commission (2022) provides that " (1) The arbitral tribunal shall hold an oral hearing. The mode of such a hearing includes an in- person hearing and a virtual hearing."

In addition, as mentioned earlier, the place of arbitration is not a geographical concept in the physical sense, but a legal concept that has the effect of anchoring the nationality of the arbitral award as well as the competent court to conduct judicial review of the arbitration. Therefore, the hearing venue is not necessarily the place of arbitration and the parties may agree on a place of hearing different from place of arbitration. For instance, Article 28 of the Arbitration Rules of the Beijing Arbitration Commission (2022) provides that "(1) Unless the parties otherwise agree, in-person hearings shall be held at the BAC’s premises."

Paragraph 3 of Article 27 of the Draft Arbitration Law (Revised) clarifies for the first time the difference between the place of arbitration and the place of hearing, specifying that "the determination of the place of arbitration shall not affect the parties or the arbitral tribunal's agreement on, or choice of, a suitable place for conducting arbitration activities, such as deliberation and hearing, that is different from the place of arbitration, in light of the circumstances of the case".

35. What is the process of an arbitration hearing?

36. How does the arbitral tribunal allocate burden of proof between the parties?

Article 43(1) of the current Arbitration Law only provides principle for burden of proof, i.e., the parties shall provide evidence for their own claims. Arbitration rules also include principled rules on this. For instance, Article 33 of the Arbitration Rules of the Beijing Arbitration Commission (2022) provides that "(1) Each party shall bear the burden of proving the facts relied upon to support its claim or defense."

In view of the above principled provisions, in practice, an arbitral tribunal will usually reasonably allocate burden of proof by taking into account the factors of the arbitration case, such as governing law of the arbitration proceedings and merits of case, ability of the parties to prove their cases, etc. Such consideration will also be influenced by their background in legal education and practicing experience. For example, if most of the members of the arbitral tribunal have legal education or practice background in Mainland China (i.e., civil law system), the place of arbitration is in Mainland China, and the governing law of merits is the Chinese law, very likely the arbitral tribunal may make reference to litigation legal practice in Mainland China and consider actual case circumstances to make a reasonable allocation of the burden of proof between the parties.

Article 63(3) of the Draft Arbitration Law (Revised) clearly provides that the arbitral tribunal shall have the power to make judgements on the validity of the evidence and its probative value, and to allocate the burden of proof in a reasonable manner in accordance with the law.

37. What is deadline for the arbitral tribunal to render an arbitral award?

The award will usually be made after the conclusion of the hearings yet the specific time for delivering the award shall be considered in context of the arbitration proceedings in accordance with the applicable arbitration rules. Arbitration rules in major institutions prescribe that foreign-related arbitration or international commercial arbitration cases are generally made within six months after the constitution of the arbitral tribunal; domestic arbitration cases within four months and if summary proceedings are applicable, the corresponding period will be even shorter i.e. within two to three months after the constitution of the arbitral tribunal. For instance, Article 48 of the Arbitration Rules of the Beijing Arbitration Commission (2022) provides that " The arbitral tribunal shall render its award within 4 months of its constitution [Articles 20 and 21]. If there are special circumstances justifying an extension to this period, the Secretary-General may approve an extension of an appropriate time period at the request of the presiding arbitrator."

However, since the time taken for certain procedures in the arbitration proceedings (e.g., appraisal, etc.) is not counted into the above time limit, and the arbitral tribunal may extend the above period of time with the approval of the arbitral institution, thus the actual time taken for the making of the arbitral award may exceed the above period of time. For instance, Article 35 of the Arbitration Rules of the Beijing Arbitration Commission (2022) provides that " (6) Any period of time taken to conduct an appraisal shall not be taken into account for the purposes of calculating the time limits provided for in Articles 48, 59 and 68 of these Rules."

38. Can I request for mediation in arbitration?

You may request for mediation before the arbitral tribunal makes its award. The mediation procedure can either be organized by the arbitral tribunal (tribunal mediation) or by a mediator other than the arbitral tribunal (independent mediation). Whichever mode of mediation you choose, the ongoing arbitration proceedings will be suspended until the mediation proceedings are concluded (successful or unsuccessful). It is important to note that independent mediation requires you to pay a separate mediation fee, whereas tribunal mediation usually does not have such requirement.

The current Arbitration Law only provides for tribunal mediation whilst independent mediation is mostly found in the arbitration rules of various arbitration organizations. For instance, Article 44 of the Beijing Arbitration Commission's Arbitration Rules (2022) provides that "(1) During the arbitral proceedings, the parties may enter into a voluntary settlement agreement or may apply to the Mediation Center of the BAC for mediation by the mediators of the Mediation Center in accordance with the Mediation Rules of the Mediation Center of the BAC."

Article 69(2) of the Draft Arbitration Law (Revised) explicitly provides for independent mediation for the first time, specifically, "If the parties voluntarily choose mediation by a mediator other than the arbitral tribunal after the arbitral tribunal has been constituted, the arbitration proceedings are suspended. If the parties reach a mediation agreement, they may request for the resumption of the arbitration proceedings, and the original arbitral tribunal shall make a mediation statement or an award in accordance with the content of the mediation agreement; or they may withdraw their application for arbitration. If no mediation agreement is reached, the arbitration proceedings shall continue at the request of the parties."

39. Does the mediator in a mediation in arbitration have to be an arbitrator?

As mentioned above, if you choose mediation by an arbitral tribunal, the mediator is a member of the arbitral tribunal and at that time acts as an arbitrator; if you choose independent mediation, the mediator you choose can be a non-arbitrator. You may choose the mediator either from the roster of recommended mediators set up by the arbitral institution or from those who are not included in the roster, provided that you provide the necessary contact details of the mediator to be chosen.

40. How exactly does mediation work in arbitration?

Mediation by the arbitral tribunal may be initiated either at the application of the parties or by the arbitral tribunal at a hearing after enquiring about the parties' intentions. Mediation can be carried out in various ways, usually by the arbitral tribunal in the form of ex parte meetings, where the arbitral tribunal communicates individually with each party to convey the needs of the parties and to find a consensus with a view to reaching a settlement.

If a consensus is reached in the mediation, the parties may choose to withdraw their claim or request the tribunal to make a mediation statement or award in accordance with the consensus reached in the mediation. If they choose to withdraw their claim, they can still re-initiate arbitration in the future if the mediation agreement is not effectively honored; if they choose to make a mediation statement or award, they can choose to enforce it through the court.

If the mediation fails, the arbitration proceedings suspended as a result of the commencement of the mediation proceedings will be resumed. At the same time, the parties may not invoke any statement, opinion, view or proposal made by the other party or the arbitral tribunal during the mediation process as a basis for their claim, defence or counterclaim in subsequent arbitral, judicial or any other proceedings.

41. When does an arbitral award become legally effective?

An arbitral award becomes legally effective once it is made and is legally binding on all parties to the arbitration. If a settlement agreement is reached through mediation in the arbitration, the arbitral tribunal may issue a statement of mediation which shall become legally effective only after all the parties acknowledge receipt of it in writing, and in the case that one party repudiates and refuses to receive such statement, the tribunal shall resume the arbitral proceeding and render the award instead promptly. The award needs to be signed by the arbitrators and stamped with the seal of the arbitration institution. An arbitrator who disagrees with the award may or may not sign the award.

42. Are there any legal remedies if I am not satisfied with the outcome of the arbitration?

Under the current Arbitration Law, you may apply for setting aside an arbitral award or for non-enforcement of the award in an ongoing enforcement proceeding. If you choose to apply for setting aside the award, you shall make such application within six months from the date of receipt of the award; if you choose to apply for non-enforcement of the award, you shall make a written application to the enforcement court within fifteen days from the date of receipt of the notice of enforcement. It is noted that you may only file such written application after the enforcement proceeding is initiated. In addition, if, in the course of the enforcement proceeding, you have applied for setting aside the award and such application has been accepted by the competent court, or you have filed an application for non-enforcement of the award and provided sufficient security, the enforcement court may decide to suspend the enforcement proceeding.

Article 78 of the Draft Arbitration Law (Revised) shortens the period for applying for setting aside an award from six months to three months, with reference to the UNCITRAL Model Law on International Commercial Arbitration; and Article 80 deletes the requirement for the parties to file a request for review of non-enforcement at the stage of the enforcement proceedings, and at the same time grants the enforcement court the right to take the initiative in reviewing whether or not an award is against the public interest.

43. If I am not satisfied with the outcome of the arbitration, can I apply for a re- arbitration?

Re-arbitration is a special procedure attached to procedure for setting aside an arbitral award. You cannot apply for re-arbitration directly, but you can apply for setting aside the arbitral award, in which, if the statutory circumstances are met, the court may notify the arbitral tribunal to re-arbitrate the case and decides to stay the setting aside proceedings. The re-arbitration can only be initiated if the arbitral tribunal agrees to it; if the arbitral tribunal refuses to re-arbitrate or does not re-arbitrate within a period of time directed by the court, the setting aside proceedings will be resumed.

The current Arbitration Law provides that the court may notify the arbitral tribunal to re-arbitrate the case in the following circumstances: (i) the evidence on which the arbitral award is based is forged; or (ii) the opposing party has withheld evidence which is sufficient to affect the fairness of the award. In practice, initiation of re-arbitration is not limited to the aforementioned statutory circumstances, the court tends to notify the arbitral tribunal of re-arbitration in order to give the arbitral tribunal the opportunity to correct itself.

It should be noted that the re-arbitration proceedings are still heard by the original arbitral tribunal and the scope of the tribunal's hearings needs to be centered on issues of the award that the court found to be defective; the parties may not, in principle, add or waive part of claims or raise counterclaims; and they may not withdraw the original arbitration claim unless the parties agree to do so or such withdrawal of the claim is not detrimental to the interests of others.

If a party is dissatisfied with the re-arbitral award, it may apply for setting aside the re- arbitral award within six months from the date of receiving the re-arbitral award.

Article 80 of the Draft Arbitration Law (Revised) adds the circumstances under which re-arbitration proceedings may be initiated, namely, including (i) where the evidence on which the award is based is false due to objective reasons; (ii) where the respondent has not been notified of the appointment of an arbitrator or of the conduct of the arbitration proceedings or has failed to make a presentation for any other reason that does not fall within the respondent's responsibility, and which can be remedied by re- arbitration; and (iii) where the establishment of the arbitral tribunal or the procedure of the arbitration violates the statutory procedure or the agreement of the parties to such an extent that the rights of the parties are seriously impaired, which can be remedied by re-arbitration." The procedural requirements for re-arbitration are clarified, such as that the re-arbitration shall in principle be conducted by the original arbitral tribunal, but if an application for annulment is made on the basis of irregularities in the composition of the arbitral tribunal or in the conduct of the arbitration court, a separate arbitral tribunal shall be constituted to conduct the arbitration, and the people's court may, depending on the circumstances of the case, set a time limit for the hearing in the notice of re-arbitration.

44. Which court do I apply to for enforcement of an arbitral award[1]?

For awards made in Mainland China, you may apply for enforcement to the intermediate people's court at the place of residence of the party subject to enforcement or the location of the property to be enforced. If the award is foreign-related and the party subject to enforcement or its property is not in the territory of the People's Republic of China, you can apply for recognition and enforcement of the award before a foreign court with jurisdiction, in which case the specific court with jurisdiction needs to be determined according to the local court procedural law.

For foreign awards, similarly, you may apply for recognition and enforcement directly to the intermediate people's court at the place of domicile of the respondent or the place where its property is located. If the place of domicile of the respondent or its property is outside the territory of the People's Republic of China, you may apply to the intermediate people's court at the place of domicile of the respondent or at the place where it has a proper connection with the disputes under the award.

For awards made in Hong Kong and Macao, you can apply for recognition and enforcement to the intermediate people's court of the place where the respondent is domiciled or where the property is located. It should be noted that if the respondent's place of domicile or the location of the property is within the jurisdiction of different intermediate people's courts in the Mainland China, you can choose one of the people's courts to apply for the enforcement of the award, and may not apply to two or more people's courts separately; if the respondent has a place of residence or property available for enforcement in both the Mainland China and Hong Kong, you may apply to the courts of the two places for enforcement, and at the request of the other court, the courts of the two places shall provide each other with information on the enforcement of the arbitral awards of the other side, and the total amount of the property to be enforced by the courts of the two places shall not exceed the amount determined by the award.

For awards made in Taiwan, you may apply for recognition to the intermediate people's court or specialized people's court at your place of domicile or habitual residence, or at the place of domicile or habitual residence of the respondent, or at the place where the property is situated, and the award will then be enforced by the executive body of the receiving court after it has been recognized.

45. Under what circumstances will a court refuse to enforce an arbitral award?

For foreign-related awards in Mainland China, the court may refuse to enforce the award if : (1) the parties did not have an arbitration clause in the contract or did not reach an arbitration agreement in writing; (2) the respondent was not notified of the appointment of the arbitrator or the arbitration proceedings or the respondent did not present its position for other reasons not attributable to the respondent (iii) the establishment of the arbitral tribunal or the arbitration procedure did not comply with the arbitration rules; (iv) the matter to be awarded does not fall within the scope of the arbitration agreement or the arbitral institution is not competent to arbitrate; or (v) the people's court determines that the enforcement of the award is contrary to the public interest.

For domestic awards in Mainland China, the court may refuse to enforce the award if :

(1) the parties did not have an arbitration clause in the contract or did not reach a written arbitration agreement after the fact; (2) the matter to be awarded did not fall within the scope of the arbitration agreement or the arbitral institution did not have authority to arbitrate; (3) the establishment of the arbitral tribunal or arbitration procedure is in violation of the statutory procedure; (iv) the evidence on which the award is based is forged; (v) the other party has concealed from the arbitration institution evidence which is sufficient to affect the fairness of the award; (vi) the arbitrators have committed acts of corruption and bribery, fraud and wrongdoing, and perverted the law in the arbitration of the case; and (vii) the people's court determines that the enforcement of the award is contrary to the social and public interests.

For foreign awards, if the award is made in a New York Convention member state, the court mainly relies on the New York Convention to decide whether or not to recognize and enforce the award. In plain words, the court may refuse to recognize and enforce an award if (i) there is no arbitration agreement; (ii) parties were not given proper notice and opportunity to be heard; (iii) the tribunal exceeded its authority to arbitrate; (iv) procedures violate the arbitration rules and the law of the place of arbitration; (v) the award is not final; (vi) the matter in dispute in the award is not arbitrable; and (vii) the award is contrary to public policy/interest. If the award is not made in a New York Convention member state, the court will follow the principle of reciprocity when deciding on recognition and enforcement of the award. For awards made in Hong Kong, Macao and Taiwan, the relevant circumstances for non-recognition and enforcement are similar to those under the New York Convention.

Article 82 of the Draft Arbitration Law (Revised) unifies the standard of review for the enforcement of domestic awards and foreign-related awards, i.e., "The parties shall perform the award. If a party fails to perform, the other party may apply for enforcement to an intermediate people's court with jurisdiction. If the people's court determines upon examination that the enforcement of the award is not contrary to the public interest of society, it shall rule that the enforcement shall be confirmed; otherwise, it shall rule that the enforcement shall not be confirmed. The ruling shall be served on the parties and the arbitral institution. Where the award is ruled by the people's court not to be confirmed for enforcement, the parties may apply for arbitration in respect of the dispute in accordance with a renewed arbitration agreement, or they may sue in the people's court."

46. If I disagree with the court's decision not to enforce the award, can I still appeal?

For awards made in Mainland China, if the court rendered ruling not to enforce, you are not allowed to file a review of such ruling or appeal to a higher court. However, you may initiate arbitration based on a new written arbitration agreement reached between the parties, or you may file a lawsuit directly.

47. Which court do I apply to set aside an arbitral award?

For awards made by arbitration institutions in Mainland China, you may apply to the intermediate people's court at the place of arbitration for setting aside the award. For foreign-related awards made by foreign arbitration institutions in Mainland China, you may apply to the intermediate people's court at the place of arbitration for setting aside the award.

Article 77 of the Draft Arbitration Law (Revised) provides that an application for setting aside an award shall be made to the intermediate people's court of the place of arbitration, further clarifying the application of the place of arbitration standard.

48. Under what circumstances will a court set aside an arbitral award?

The current Arbitration Law has different standards of review for the setting aside of domestic and foreign-related awards.

For domestic awards, the circumstances under which the court may set aside the award include: (a) there is no arbitration agreement; (b) the matter to be decided does not fall within the scope of the arbitration agreement or the arbitration institution is not authorized to arbitrate; (c) the establishment of the arbitral tribunal or the arbitration procedure is in violation of the statutory procedures; (d) the evidence on which the award is based is forged; (e) the opposing party conceals evidence that is sufficient to affect the fairness of the decision; (f) the arbitrator arbitration of the case has solicited or accepted a bribe, acted in favour of his own interests or perverted the law in making the award; or (vii) the court finds that the award is contrary to the public interest of society. It should be noted that if you apply for setting aside the award in circumstances other than those stipulated in the law, the court will not usually rule in your favour.

The circumstances under which a court may set aside a foreign-related award include:

(i) where the parties have not provided for an arbitration clause in the contract or have not subsequently reached a written arbitration agreement; (ii) where the respondent has not been notified of the appointment of an arbitrator or the conduct of the arbitration proceedings or has failed to make a representation for reasons not attributable to the respondent; (iii) where the establishment of the arbitral tribunal or the arbitration proceedings are not in conformity with the arbitration rules; (iv) where the matter of the award does not fall within the scope of the arbitration agreement or the arbitral institution does not have the power to arbitrate; (v) where the people's court finds that enforcement of the award is against the public interest; or (vi) the subject matter of the award does not fall within the scope of the arbitration agreement or the arbitration institution does not have the power to arbitrate; (vii) the people's court finds that the enforcement of the award is contrary to the public interest.

Article 77 of the Draft Arbitration Law (Revised) unifies the standard of review for the setting aside of domestic and foreign-related awards, while adding the circumstances for setting aside cases obtained by fraudulent acts such as malicious collusion and falsification of evidence, suspected false arbitration, and partial setting aside of awards.

49. How long does the procedure for setting aside an arbitral award usually take?

The requirement under the current Arbitration Law is for the court to issue a decision on the setting aside of the award or dismissal of the application within two months from the date of the court's acceptance of the application to set aside the award. In practice, certain arbitration-friendly and experienced courts will take a shorter period of time.

50. Are there any legal remedies available to me against a decision to set aside an arbitral award?

According to the current Arbitration Law, the system of final and binding arbitral award shall apply to arbitration. The court’s ruling of setting aside the award will become legally effective once it is served on you, and you cannot apply for review, appeal or apply for a retrial of such ruling. Even if the procuratorate lodges an objection against such ruling, the court will not accept such objection.

Usually, the probability of an error in a decision is very low as courts internally implements a review and approval system when handling the judicial review cases, i.e. courts’ decisions in question have to be sent to the higher people’s court or the Supreme People's Court for review and approval before rendering any ruling. However, if such rulings do contain errors, and further if the case itself does not need to go through the review and approval procedure internally, there still exist other legal remedies, such as the court may correct the erroneous rulings ex officio through the review procedure.

Article 81 of the Draft Arbitration Law (Revised) adds a reconsideration of the ruling on the setting aside of the award, which reads, “If a party is dissatisfied with the ruling on the setting aside of the award, it may apply for reconsideration to the people's court at a higher level within ten days from the date of receipt of the ruling. The people's court shall make a ruling within one month from the date of accepting the application for reconsideration."