Helena H.C. Chen - Partner, Pinsent Masons LLP

1. Helena H.C. Chen
Partner
Pinsent Masons LLP
Nov. 23, 2015
Arbitration in China– A Brief
Report on Recent Developments

2. Helena H.C. Chen
helena.chen@pinsentmasons.com
• Qualified in Taiwan, mainland China and New York State
• Ph.D., Peking University (China) ; Ph.D., National Taiwan
University
• FCIArb; Listed on the panels of arbitrators of CIETAC, SIAC,
KLRCA, KCAB, ACICA, SHIAC, SCIA, BAC, CAA, LCIA-
MIAC Arbitration Centre etc
• Member of the SIAC Users Council
• listed on the panel of mediators of CCPIT/CCOIC Mediation
Center; Associate Mediator of SMC
• Vice-chair of the Dispute Mediation Center of CAA
• Recommended Experts of the Construction Dispute Board
(DB) of Beijing Arbitration Commission
• named to the International Who’s Who of Construction
Lawyers for four consecutive years from 2011

3. Overview
PRC Arbitration Law (effective from 1995)
Arbitration Commissions: 235
National Caseload (1995-2014): 919,814
Disputed Amount (1995-2014): 1,408.9 billion
RMB

4. Brief Introduction to Arbitration in China
0
10000
20000
30000
40000
50000
60000
70000
80000
90000
100000
110000
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
37,304
48,339
60,84461,47565,377
74,811
78,923
88,473
96,378
104,257
113,660
Annual Caseload of Arbitration
Commissions in Mainland China
4

5. Brief Introduction to Arbitration in China
0
50
100
150
200
250
300
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
51.5
65.4
72.5 75.3
95.7 96.1 93.2
113.3
135.1
164.6
265.5
Total Amount in Dispute Handled by Arbitration
Commissions in Mainland China (in billions of RMB,
by year)
61
%
5

6. Brief Introduction to Arbitration in China
0
200
400
600
800
1000
1200
1400
1600
1800
2009 2010 2011 2012 2013 2014
1567
1219
1413 1521
1596
1785
Annual Caseload of Foreign-Related Arbitration
in Mainland China
6

7. CIETAC- number of cases

8. CIETAC: Disputed Amount

9. Foreign-related v Domestic (Dual Track System)
Foreign awards
• Foreign-related arbitration: an
arbitration involves “foreign elements”:
 One of the parties is foreign
 the subject matter of the dispute is
located outside of China or
 the facts establishing, amending,
or terminating the parties
relationship occur outside of the
PRC
• Domestic arbitration (ie no foreign
elements)

10. Foreign-related v Domestic
• If no other foreign
elements: domestic
arbitration
• If no other foreign
elements: foreign-
related arbitration
PRC
Foreign Parent Co.
Subsidiary/WFOE PRC
Foreign Headquarter
Branch
office

11. Foreign-related vs Domestic
Foreign-related
arbitration
Domestic arbitration
• Foreign arbitration
institutions
V X
• Rules of foreign
arbitration institutions
or UNCITRAL
Arbitration Rules
V X
• Foreign Seat of
arbitration
V X
• Reporting System V X

12. Foreign-related vs Domestic
Foreign-related
arbitration
Domestic arbitration
• Foreign law as the
governing law for
matters concerning the
validity of an
arbitration agreement
V X
• Foreign law as the
governing law of the
substantive contract
V
(unless otherwise
required by law)
X
• Grounds for annulment
or non-enforcement of
awards
Fake evidence;
concealed evidence that
may affect the
impartiality of an award

13. Foreign arbitration institution to
administer arbitration cases in PRC?
• In a case with foreign elements, can parties agree to an
foreign arbitration institution and the place of arbitration
in PRC?
– Longlide case
– “Any dispute arising from or in connection with this
contract shall be submitted to arbitration by the
International Chamber of Commerce (‘ICC’) Court of
Arbitration [sic] according to its arbitration rules, by
one or more arbitrators. The place of jurisdiction shall
be Shanghai, China. The arbitration shall be
conducted in English.”

14. Longlide case
• Longlide case (2013/3/25)
– SPC: The clause is valid: it contained all of the
elements required by Article 16 of PRC Arbitration
Law for a valid arbitration clause, namely:
• (i) an express intention to arbitrate,
• (ii) the matters to be submitted to arbitration and
• (iii) a designated arbitration institution/commission
(仲裁委员会).
• Do it signal a possible opening-up of the mainland
Chinese arbitration market to foreign institutions?

15. Longlide case
• Remaining issues:
– How to enforce the award?
• Domestic award?
• Foreign award? Non-domestic award?
– Interim measures
• Would a PRC court accept an application
forwarded by a foreign arbitration institution?
– Does a PRC court have jurisdiction to vacate the
arbitral award?
• “the court located at the place of the arbitration
commission”
• Foreign-related arbitral award?

16. Foreign Arb
Institutes
入 駐

17. 2015/11/19 HKIAC Shanghai Rep Office

18. Recent Developments
• New Rules
– CMAC Arbitration Rules (2015/1/1)
– CIETAC Arbitration Rules (2015/1/1)
– SHIAC Arbitration Rules (2015/1/1)
– BAC Arbitration Rules (2015/4/1)
• Arbitration Rules 2015: Aligning
BAC with International Best
Practices, China Law, Vol. 112

19. CIETAC Split- 2012
CIETAC-Shanghai
SHIAC/上海国际仲
裁中心
CIETAC-South China
SCIA/深圳国际仲裁院

20. SPC’s Reply Letter, 2015/7/17

21. • http://www.out-
law.com/en/articles/201
5/september/chinese-
arbitration-adapts-to-
international-market--/

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