China is not a signatory of the CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS and also, there are only few countires which have the bi-lateral agreement with China. Therefore, there are a lot of non-Chinese judgments cannot be enforced in China. The only way for the foreign parties is to file the lawsuit in China.
2011年6月29日星期三
Recognition and enforcement of Foreign Judgment in China
Recognition and enforcement of Foreign Judgment in China
The Civil Procedure Law of China provides the process to enforce judgments granted by a non-PRC court (“Foreign Judgment”) in China[1] A Foreign Judgment holder may in theory file a petition directly with the competent people’s court in China for recognition and enforcement of the Foreign Judgment, or the court that granted the Foreign Judgment (“Judgment Court”) may make a judgment recognition and enforcement request (“R&E Request”) to the competent people’s court in China, requesting that the Foreign Judgment be recognized and enforced ,but practically it is very rare for a PRC court to recognize and enforce a foreign judgment.
1. Basis for a Foreign Judgment holder to file a petition
1). Bi-lateral Treaties on reciprocal judgment recognition and enforcement
If China and the country where the forum is located are parties to a treaty on reciprocal judgment recognition and enforcement (“R&E Treaty”), the Judgment Court’s R&E Request should be directed to the competent people’s court through the means provided in the treaty.
China has entered into bi-lateral R&E Treaties with many countries, including France, Italy, Spain, Russia, Australia, Turkey and Argentina.[2].
2) Multi-lateral treaties
PRC courts may also recognize and enforce Foreign Judgments under multi-lateral treaties acceded to by China, e.g. the International Convention on Civil Liability for Oil Pollution Damage 1969. There is a International Convention named CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS, which is specified on the matters of recognizing and enforcing Foreign Judgments but China is not party to it yet.
3)The basis of reciprocity
If an R&E Treaty does not exist between China and the country where the Judgment Court locates, PRC courts may also recognize and enforce Foreign Judgments on the basis of reciprocity, which means that judgments granted by PRC courts had been recognized and enforced in that country previously. It remains to be seen whether one precedent case of a foreign court’s recognition and enforcement of a PRC judgment would suffice to establish reciprocity. For example, a federal district court in the United States of America (“USA”) recognized and enforced a judgment granted by a PRC court in 2009[3]. It is not yet clear whether this would be sufficient to establish reciprocity between USA and China for the purpose of reciprocal judgement recognition and enforcement. However, this precedent case provides a ground for prospective applicants who are holding judgements granted by USA courts and seeking to enforce the judgments in China.
2. last resort when the Foreign Judgment holder can not file a petition
If neither treaty nor reciprocity is available to a Foreign Judgment holder, the last resort is to bring action (again) in the competent people’s court in China. In tort cases, the competent court is the people’s court of the place where the infringing act took place or the place of domicile of the defendant. If the defendant has no domicile in China, the people’s court of the place where the defendant’s detainable property or representative agent is located may have jurisdiction over the action. The Foreign Judgment may be considered by the PRC court during hearing.
3.The competent court
The competent court for recognizing and enforcing a foreign judgment is the intermediate people’s court of the place where the person (against whom the Foreign Judgment was granted) resides or where that person’s property is located. After the competent court has reviewed the petition or the R&E Request according to any applicable international treaties concluded or acceded to by China or based on the principle of reciprocity, the competent court will decide whether to recognize and enforce the Foreign Judgment.
4.Situations for the court to refuse to recognize and enforce a Foreign Judgment
The Civil Procedure Law of China does not specify the conditions under which a competent people’s court may refuse to recognize and enforce a Foreign Judgment. Generally, if an R&E Treaty is available, that treaty would set forth the issues to be considered by the PRC courts in reviewing judgments granted by the courts of the country that is party to that treaty for the purpose of enforcement in China. From our experience, R&E Requests may be refused for various reasons and circumstances, e.g. the competent people’s court may find that the relevant Foreign Judgment was made by an incompetent foreign court, the competent people’s court may hold the view that the relevant Foreign Judgment has no effect under the laws of the country where the Judgment Court locates, the same cause of action may have already proceeded to trial in China, or the recognition and enforcement of the relevant Foreign Judgment would damage Chinese sovereignty, security or public order.
[1] Article 266 of The Civil Procedure Law of China provides: “ After a people’s court of the People’s Republic of China reviews an application or pleading for the recognition and enforcement of a legally effective judgment or ruling rendered by a foreign court according to the international treaties concluded or acceded to by the People’s Republic of China or based on the principle of reciprocity, if the court considers that such a judgment or ruling does not contradict the basic principles of the laws of the People’s Republic of China nor violates the national, social, and public interest of China, the court may render a ruling to recognize its force. Where the enforcement is necessary, the court may issue an order to enforce a foreign judgment according to the relevant provisions of this Law. If a legally effective judgment or ruling rendered by a foreign court contradicts the basic principles of the law of the People’s Republic of China or the national, social, and public interest of China, the people’s court shall reject the application of recognition and enforcement. ”
[2] From our database, other countries are Peru, Romania, Poland, Hungary, Lithuania, Ukraine, White Russia, Greek, Cyprus, Egypt, United Arab Emirates, Kuwait, Tunisia, Morocco, DPRK, Laos, Vietnam, Uzbekistan, Tajikistan, Kyrgyzstan, Kazakhstan, Bulgaria, Cuba and Mongolia.
[3] HUBEI GEZHOUBA SANLIAN INDUSTRIAL CO., LTD and HUBEI PINGHU CRUISE CO;, LTD. Vs ROBINSON HELICOPTER COMPANY, INC.,
2011年6月13日星期一
Chinese lawyer: Validity for arbitration agreement/clause in China...
Chinese lawyer: Validity for arbitration agreement/clause in China...: "Content of an Arbitration Agreement [82T171] [Law Excerpt] An arbitration agreement shall include the following contents: (1) Manifestatio..."
Validity for arbitration agreement/clause in China
Content of an Arbitration Agreement [82T171]
[Law Excerpt]
An arbitration agreement shall include the following contents:
(1) Manifestation of the intention to request arbitration;
(2) Arbitrable matters; and
(3) Selected arbitration commission. Article 16 Arbitration Law of the People's Republic of China
[Headnote]
The relevant contract between the appellant and the appellee states that any disputes and economic liabilities between them should be resolved through consultation, and should be submitted to the local arbitration institution for arbitration in the case of failure of the consultation. In the court's opinion, even though the expression of the arbitration agreement was not standard, the parties' intention for arbitration was truthfully manifested therein. The court was also of the opinion that it would not cause any misunderstanding because there was only one arbitration institution in that area, which was the Dongying Arbitration Commission. Therefore, the court determined the arbitration agreement valid. Diao Jiankao v. Dongying Jinlei Jianan Limited (Dispute over Jurisdiction in a Contract Agreement) [Dongying Intermediate Court (2005)Dongying Intermediate Court, Civil Division (Jurisdiction), Final Ruling, Case No. 7][20050324]
The contract entered into by the parties concerned clearly specifies that any disputes arising from the contract should be timely resolved through consultation by the parties, or could be submitted to the local administrative authority in charge of construction for mediation, and the parties also agreed to submit disputes to the Kunming Arbitration Commission for arbitration if the mediation failed. This agreement was deemed to be the arbitration clause agreed upon by the parties. The court was of the opinion that such arbitration clause had clearly manifested the parties' intention to request for arbitration and had clearly specified the arbitrable matters, i.e., any dispute arising from the performance of the contract, which should be submitted to the selected arbitration commission for arbitration. As such, the court determined that the arbitration clause involved in this case, as agreed upon by the parties, was valid. A Case of Yunnan Ruiyu Real Estate Development Co., Ltd. Applying for Withdrawing the Arbitration Award [Kunming Intermediate Court (2004) Kunming Intermediate Court, 1st Civil Division, Initial Ruling, Case No. 180][20041207]
(1) According to Article 12 of the Service Contract on Well Drilling concluded by and between the applicant Mitchell, (Guizhou) Well Drilling Engineering Co., Ltd. (hereinafter referred to as "Well Drilling Company"), and the respondent, Weixin Yuntou Yudean Zhaxi Energy Co., Ltd., (hereinafter referred to as "Zhaxi Company") dated August 23, 2007, both parties had reached an agreement on the settlement of disputes. The said Service Contract reflected the true intention of both parties and did not violate any laws or regulations. Thus, it should be valid. (2) According to the claims made by the applicant in arbitration proceedings, the applicant mainly applied for revocation of the contract and compensation for losses. According to the Service Contract of Well Drilling Engineering and the correspondence submitted, either of the parties could be deemed to have been negotiating for a change in project design and the responsibility for expenses arising in the performance of the contract from January 2008 when the drilling was ceased to the time the dispute was submitted for arbitration. During this process, neither party proposed to revoke the contract and the applicant's cessation of drilling activities did not indicate a contractual breach. In addition, the correspondence between the parties did not show an intention to revoke the contract. The applicant was not justified in alleging that the cessation of drilling activities was an indication of the existence of a dispute. Thus, the parties could be conclusively held to have had a dispute concerning the revocation of the contract and compensation for loss only at the time the revocation of the contract was proposed. (3) In accordance with Article 12 of the Service Contract on Well Drilling and Article 45 of Contract Law, the stipulation of "90 days after the dispute arises" was the condition for the parties to institute the arbitration proceedings. It was on June 17, 2008 that Yunnan Cihong Law Firm served a legal notice on the applicant stating that the respondent would take legal recourse if the applicant did not resume the drilling activities. As such, the parties could be deemed to have disputed on whether the contract should be performed at that time, and the respondent instituted the arbitration on June 25, 2008, which did not fall outside the "90 days after the dispute arises" clause as specified in the contract. (4) Article 12 of the Service Contract on Well Drilling concluded between the parties indicated that both parties reached an agreement on the matters subject to arbitration and the selection of the arbitration institution, which was in conformity with Article 16 of Arbitration Law. Based on the above, it was legally compliant for the respondent to institute arbitration proceedings. Therefore, a valid arbitration agreement existed between and was final and binding upon both parties. Application by Mitchell (Guizhou) Well Drilling Engineering Co., Ltd. for Vacation of Arbitration Award [(2009) Kunming Intermediate Court, 1st Civil Division, Initial Ruling, Case No. 13][20090223]
(1) According to a Contract for Sale and Purchase of Commodity Housing concluded by and between the applicants, Qiu Donglan and Wu Feng, and the respondent, Kunming Bangsheng Real Estate Development Co., Ltd., both parties agreed to submit the dispute to Kunming Arbitration Commission.(2) Neither party submitted evidence of its disagreement with Article 14 of the said contract nor that it signed the contract under duress. Having full capacity for civil conduct, the two applicants affixed their names to the contract which proved that the contract reflected the true intention of both parties. (3) The said article was a standard clause and the applicants failed to submit evidence showing the existence of circumstances specified in Article 52 and Article 53 of Contract Law, or circumstances where the party supplying the standard term excluded its own liability, increased the other party's liability, or deprived the other party of any material rights, thereby sufficiently invalidating the standard term. Thus, the said article should not be deemed invalid. (4) Article 14 of the Contract for Sale and Purchase of Commodity Housing executed between the parties clearly specified the necessary content required for an arbitration agreement as required by Article 16 of the Arbitration Law. Thus, the said article should be the arbitration agreement concluded between both parties. In addition, the applicants failed to submit relevant evidence showing the existence of the circumstances set forth in Article 17 and Article 18 of the Arbitration Law and the arbitration agreement stated in the contract indicated the true intention of the parties. Therefore, the said arbitration agreement should be valid. Application by Qiu Donglan and Wu Feng for Confirming Validity of an Arbitration Agreement [(2009) Kunming Intermediate Court, 1st Civil Division, Initial Ruling, Case No. 1][20090121]
Neither did the applicant, Villagers' Committee of Dongzhao Village, Xincheng Street, Huiji District, Zhengzhou, nor the respondent, Henan Shenghuang Industrial Development Co., Ltd., raise an objection to the authenticity of their Agreement on Urban and Rural Cooperation Reforming of Dongzhao and Longzewenyuan. Article 14 of the agreement provided: "where any dispute arises during the performance of this agreement, both parties should conduct timely negotiation; where negotiation fails, either party might apply to the local district government for mediation; where mediation is unable to settle the dispute, either party might submit the dispute to the Zhengzhou Arbitration Commission for arbitration." Considering the content of the arbitration clause of the contract concluded between both parties, the intention to resort to arbitration was clear, and the matters subject to arbitration did not fall outside the legally specified scope of arbitration. Moreover, the arbitration clause contained a selected arbitration institution and was clear and valid. The arbitration clause did not stipulate that the dispute might be resolved through litigation. The word "might" specified in the arbitration clause was used mainly in connection with the subject, which meant that "either party" might institute arbitration proceedings; it did not indicate the institution of either arbitration or a lawsuit. Thus, it did not fall under the circumstances for invalidating an arbitration agreement as specified in Article 7 of the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the "Arbitration Law of the People's Republic of China". In conclusion, the said arbitration clause between both parties should be valid. Application of Villagers' Committee of Dongzhao Village, Xincheng Street, Huiji District, Zhengzhou Applying for Confirming Invalidity of Arbitration Clause [(2009) Zhengzhou Intermediate Court, 3rd Civil Division, Initial Ruling, Case No. 756][20090901]
The provisions of the Measures on Financial Leasing of Industrial and Commercial Bank of China were merely reference when Harbin Zhengyanghe Wood Comprehensive Processing Factory (hereinafter referred to as "Wood Factory") and Heilongjiang Bureau of Forest Industry Industrial concluded a leasing contract with Commercial Bank of China, Senrong Branch of Harbin. In the contract, the concerned parties failed to specify dispute resolution through arbitration. Article 9 of the above-mentioned Measures provides: "any dispute in connection with a leasing contract should be resolved through negotiation or arbitration". However, the Measures were a departmental regulation, among which the provisions related to arbitration were not definite or operational at the time when both parties failed to reach an agreement through negotiation. The three copies of the Financial Leasing Contract explicitly stipulated that where any breach or dispute in connection with the contract occurred, either party was entitled to bring the lawsuit before a people's court. Thus, the court of the original instance properly accepted hearing of this dispute. Industrial and Commercial Bank of China, Senrong Branch of Harbin v. Harbin Zhengyanghe Wood Comprehensive Processing Factory & Heilongjiang Bureau of Forest Industry (Dispute involving a Leasing Contract) [Supreme Court (1999) Supreme Court, Economic Division, Final Ruling, Case No. 285][20020719]
The House Lease Contract concluded by and between Xi'an Lanxi Industrial Limited (hereinafter referred to as "Lanxi Company") and Xi'an Sanfu Properties Management Co., Ltd. (hereinafter referred to as "Sanfu Company") reflected the true intention of both parties. There was a clear stipulation on dispute resolution in Article 9 of the said contract, which stated, "any dispute arising from the execution and performance of this contract or in connection with this contract should be amicably resolved through negotiation; where negotiation fails, it should be submitted to the China International Economic and Trade Arbitration Commission, Shanghai Branch for arbitration. Regarding the dispute arising out of a delay in payment of rent by Party B (hereinafter referred to as "Sanfu Company") during the performance of the contract, Party A (hereinafter referred to as "Lanxi Company") had the right to settle the dispute through judicial procedures. The said stipulation on arbitration manifested the intention of the parties to resort to arbitration, the issues to be arbitrated and the selected arbitration commission, which fulfilled the requirements of the essential elements of a valid arbitration agreement. In the meantime, both parties agreed that the dispute arising from delay in payment of rent should be separated from the issues subject to arbitration settlement through litigation. Such agreement did not conflict with the original agreement on arbitration. Considering that Lanxi Company had filed the lawsuit before the relevant court in accordance with that agreement, this court dismissed the application by Lanxi Company for confirming that the stipulation on arbitration in the said House Lease Contract was invalid. Xi'an Lanxi Industrial Limited v. Xi'an Sanfu Properties Management Co., Ltd. (Application for Confirming Validity of Arbitration Clauses) [Shanghai Second Intermediate Court (2003) Shanghai Second Intermediate Court, 2nd Civil Division, (Civil Case), Initial Ruling, Case No. 64][20040312]
In Article 43 of the disputed cooperative joint venture contract, it was only stipulated that "any dispute arising from the implementation of, or relating to this Contract, should be settled through friendly negotiation between the two parties concerned and that the dispute should be submitted to an arbitration organization for arbitration through arbitration procedures in the event of an unsuccessful negotiation between the parties". However, this clause failed to specify the arbitration commission or the place of arbitration. As a result, the arbitration clause was unenforceable due to indefinite content. Therefore, this case should not fall under the jurisdiction of an arbitration organization. Harbin Underground Construction Projects Co., Ltd v. Yonghua (China) Investment Co., Ltd and Harbin Yonghua Public Facilities Co., Ltd (Case involving objection to jurisdiction over dispute concerning Sino-Foreign equity joint venture contract) [Supreme People's Court (2005) Supreme Court, 4th Civil Division, Final Ruling, Case No., 13][20050425]
According to the equity joint venture contract, a dispute arising between all parties relating to the equity joint venture from the implementation of this Contract, and which could not be resolved through negotiation, may be submitted to the Foreign Economic and Trade Arbitration Commission of China Council for the Promotion of International Trade (hereinafter referred to as "FETAC of CCPIT") for arbitration in accordance with the arbitration procedures concerned. The "FETAC of CCPIT" as stipulated under the equity joint venture contract has now been renamed as "China International Economic and Trade Arbitration Commission". Considering that the said arbitration clause covered the content which was clear and specific and that the arbitration organization was in existence, the dispute in this case should be subject to the arbitration of the arbitration organization as agreed. Hong Kong Jinrui Development Co., Ltd v. Fengyang County Zhonghai Medical Apparatus Co., Ltd (Dispute over Sino-Foreign equity joint venture contract) [Hefei Intermediate Court (2003) Hefei High and New Tech Industry Development Zone Court, 2nd Civil Division, Initial Ruling, Case No. 042][20030806]
It was stipulated under Article 10 of the Agreement on the Issuance of Convertible Bonds concluded by the four concerned parties to this case that "the four parties shall settle any dispute arising during the performance of this Agreement in a proper manner. Where a dispute fails to be settled through consultation, it shall be submitted for arbitration. This Agreement shall be governed by the laws of Hong Kong Special Administrative Region of the People's Republic of China." Pursuant to the relevant provisions of Article 16 of the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the Arbitration Law of the People's Republic of China, the four concerned parties may stipulate the applicable law to determine the effect of the arbitration clause but such stipulation must be clear. The applicable law stipulated in the contract for settling disputes under the contract should not be used to determine the effect of an arbitration clause involving foreign elements. In other words, the applicable law determining the effect of the arbitration clause should be distinguished from the applicable law for the settlement of disputes. Under the arbitration clause, the four concerned parties agreed that "this agreement shall be governed by the laws of Hong Kong Special Administrative Region of the People's Republic of China". Such stipulation was liable to give rise to ambiguity as to whether the stipulated applicable law was to determine the effect of the arbitration clause or for the settlement of disputes under the contract. Thus, it should not be deemed as a clear stipulation of the applicable law for determining the effect of the arbitration clause. In addition, the Agreement on the Issuance of Convertible Bonds contained no stipulation on the place of arbitration. Therefore, the Lexi Fori, or the laws of Mainland China should be applied in determining the effect of the said arbitration clause. China Hi-Tech Wealth Group Co., Ltd and Beijing Beida Jade Bird Group Co., Ltd v. Guangsheng Investment and Development Co., Ltd and Hong Kong Jade Bird Technology Development Co., Ltd (Dispute involving contract for security of loan) [Supreme Court (2006) Supreme Court, 4th Civil Division, Final Ruling, Case No. 28][20070608]
Interpretation of the Supreme People's Court concerning Some Issues on Application of the Arbitration Law of the People's Republic of China
Interpretation of the Supreme People's Court concerning Some Issues on Application of the Arbitration
Announcement of the Supreme People's Court
The "Interpretation of the Supreme People's Court concerning Some Issues on Application of the Arbitration Law of the People's Republic of China", which was adopted at the 1375th meeting of the Judicial Committee of the Supreme People's Court on December 26, 2005, is hereby promulgated, and shall come into force on September 8, 2006.
August 23, 2006
Interpretation of the Supreme People's Court concerning Some Issues on Application of the Arbitration Law of the People's Republic of China
(Adopted at the 1375th meeting of the Judicial Committee of the Supreme People's Court on December 26, 2005, Interpretation No. 7 [2006] of the Supreme People's Court)
In accordance with the "Arbitration Law of the People's Republic of China", the "Civil Litigation Law of the People's Republic of China" and other legal provisions, we hereby give our interpretation as follows concerning some issues on application of law for the people's courts to try arbitration-related cases:
Article 1 The term "agreements for arbitration in other written forms" as prescribed in Article 16 of the Arbitration Law shall include the agreements on resorting to arbitration which are reached in the forms of contracts, letters or data message (including telegraph, telefax, fax, electronic data interchange and e-mail), etc.
Article 2 Where the parties concerned synoptically agree that the matters to be arbitrated are contractual disputes, the disputes arising out of formation, effectiveness, modification, assignment, performance, liabilities for breach, interpretation, rescission, etc. of the contract may all be ascertained as matters to be arbitrated.
Article 3 Where the name of an arbitration institution as stipulated in the agreement for arbitration is inaccurate, but the specific arbitration institution can be determined, it shall be ascertained that the arbitration institution has been selected.
Article 4 Where an agreement for arbitration only stipulates the arbitration rules applicable to the dispute, it shall be deemed that the arbitration institution is not stipulated, unless the parties concerned reach a supplementary agreement or may determine the arbitration institution according to the arbitration rules agreed upon between them.
Article 5 Where an agreement for arbitration stipulates two or more arbitration institutions, the parties concerned may choose either arbitration institution upon agreement when applying for arbitration; if the parties concerned cannot agree upon the choice of the arbitration institution, the agreement for arbitration shall be ineffective.
Article 6 Where an agreement for arbitration stipulates that the disputes shall be arbitrated by the arbitration institution at a certain locality and there is only one arbitration institution in this locality, the arbitration institution shall be deemed as the stipulated arbitration institution. If there are two or more arbitration institutions, the parties concerned may choose one arbitration institution for arbitration upon agreement; if the parties concerned fail to agree upon the choice of the arbitration institution, the agreement for arbitration shall be ineffective.
Article 7 Where the parties concerned agree that they may either apply to the arbitration institution for arbitration or bring a lawsuit with people's court for settlement of dispute, the agreement for arbitration shall be ineffective, unless after one party applies to the arbitration institution for arbitration, the other party fails to propose any objection within the period prescribed in Paragraph 2 of Article 20 of the Arbitration Law.
Article 8 Where a party concerned is merged or divided after concluding an agreement for arbitration, the agreement for arbitration shall be binding upon the successor of its rights and obligations.
Where a party concerned has died after concluding an agreement for arbitration, the agreement for arbitration shall be binding upon the inheritor who inherits his rights and obligations in the matter to be arbitrated.
The circumstances prescribed in the preceding two paragraphs shall not be applicable if the parties concerned have otherwise agreed between each other when concluding the agreement for arbitration.
Article 9 Where the credits or debts are entirely or partially assigned, the agreement for arbitration shall be binding upon the assignee, unless the parties concerned have otherwise agreed, or the assignee explicitly objects to the assignment of the credits or debts or does not know there is a separate agreement for arbitration.
Article 10 Where a contract does not become effective or is cancelled after being formed, the effectiveness of the agreement for arbitration shall be ascertained under Paragraph 1 of Article 19 of the Arbitration Law.
Where the parties concerned reach an agreement for arbitration regarding a dispute when concluding the contract, the effectiveness of the agreement for arbitration shall not be impacted if the contract is not formed.
Article 11 Where a contract stipulates that an effective arbitration clause in another contract or document shall apply in order to settle the disputes, the parties concerned shall, when a contractual dispute arises, resort to arbitration according to the said arbitration clause.
Where a relevant international treaty applicable to contracts involving foreign interests contains an arbitration provision, the parties concerned shall, when a contractual dispute arises, resort to arbitration in accordance with the arbitration provision in the international treaty.
Article 12 A case in which a party concerned applies to the people's court for confirmation of the effectiveness of an agreement for arbitration shall be under the jurisdiction of the intermediate people's court at the locality of the arbitration institution agreed upon in the agreement for arbitration; if the arbitration institution in the agreement for arbitration is not clearly stipulated, the said case shall be under the jurisdiction of the intermediate people's court at the locality of conclusion of the agreement for arbitration or at the respondent's domicile.
A case on applying for confirmation of the effectiveness of an agreement for arbitration involving foreign interests shall be under the jurisdiction of the intermediate people's court at the locality of the arbitration institution agreed upon in the agreement for arbitration, at the locality of conclusion of the agreement for arbitration, or at the claimant's or respondent's domicile.
A case on the effectiveness of an agreement for arbitration of a maritime dispute shall be under the jurisdiction of the maritime court at the locality of the arbitration institution agreed upon in the agreement for arbitration, at the locality of conclusion of the agreement for arbitration, or at the claimant's or respondent's domicile; if there is no maritime court at the above-mentioned places, it shall be under the jurisdiction of the nearest maritime court.
Article 13 As required by Paragraph 2 of Article 20 of the Arbitration Law, if a party concerned fails to object to the effectiveness of the agreement for arbitration prior to the first hearing in the arbitral tribunal, and then applies to the people's court for confirming the agreement for arbitration as ineffective, the application shall not be accepted by the people's court.
Where, after an arbitration institution makes a decision on the effectiveness of an agreement for arbitration, a party concerned applies to the people's court for confirming the agreement for arbitration as effective or applies for revoking the arbitration institution's decision, the application shall not be accepted by the people's court.
Article 14 The term "the first hearing" as mentioned in Article 26 of the Arbitration Law shall refer to the first trial in court, which is organized by the people's court after expiry of the period for defense, excluding all procedural activities prior to the trial.
Article 15 A people's court shall, when trying a case for confirmation of the effectiveness of an agreement for arbitration, form a collegial panel to make examination, and shall inquire of the parties concerned.
Article 16 The examination of the effectiveness of an agreement for arbitration which involves foreign interests shall be governed by the laws agreed upon between the parties concerned; if the parties concerned did not agree upon the applicable laws but have agreed upon the place of arbitration, the laws at the place of arbitration shall apply; if they neither agreed upon the applicable laws nor agreed upon the place of arbitration or the place of arbitration is not clearly agreed upon, the laws at the locality of the court shall apply.
Article 17 Where a party concerned applies for revocation of an arbitral award on a ground not prescribed in Article 58 of the Arbitration Law or Article 260 of the Civil Litigation Law, the application shall not be supported by the people's court.
Article 18 The term "no agreement for arbitration" as prescribed in Item (1) of Paragraph 1 of Article 58 of the Arbitration Law shall refer to that the parties concerned did not reach an agreement for arbitration. If the agreement for arbitration is ascertained as ineffective or is revoked, it shall be deemed that there is no agreement for arbitration.
Article 19 Where a party concerned applies for revocation of an arbitral award on the ground that the matter under arbitration goes beyond the scope of the agreement for arbitration, and the application is found true from examination, the people's court shall revoke the excessive part in the arbitral award. If, however, the excessive part is inseparable from other matter under arbitration, the people's court shall revoke the arbitral award.
Article 20 The term "violation of legal procedures" as prescribed in Article 58 of the Arbitration Law shall refer to violation of the arbitration procedures prescribed in the Arbitration Law or a circumstance under which the arbitration rules chosen by the parties concerned might affect the correct award for the case.
Article 21 Where a case regarding which a party concerned applies for revoking the domestic arbitral award is under any of the following circumstances, the people's court may, in accordance with Article 61 of the Arbitration Law, notify the arbitral tribunal to arbitrate the case for a second time within a time limit:
(1) The evidence on which the arbitral award is based is forged; or
(2) The other party concealed any evidence, which is enough to impact the impartial award.
The people's court shall state in the notice the specific ground for requiring re-arbitration.
Article 22 Where an arbitral tribunal fails to begin the re-arbitration within the time limit specified by the people's court, the people's court shall rule to terminate the revocation procedures; if the re-arbitration is not begun, the people's court shall rule to resume the revocation procedures.
Article 23 Where a party concerned is dissatisfied with a re-arbitration award, it may, within six months as of service of the re-arbitration award, apply to the people's court for revocation of the re-arbitration award in accordance with Article 58 of the Arbitration Law.
Article 24 With respect to a case regarding which a party concerned applies for revocation of the arbitral award, the people's court shall form a collegial panel to try it, and inquire of the parties concerned.
Article 25 Where, after a people's court accepts the application filed by a party concerned for revocation of the arbitral award, the other party applies for enforcement of the same arbitral award, the people's court that accepts the said enforcement application shall rule to suspend the enforcement after the acceptance.
Article 26 Where, after the application filed by a party concerned to the people's court for revocation of the arbitral award is rejected, the said party proposes its demur to no enforcement in the enforcement procedures on the same ground, such a demur shall not be supported by the people's court.
Article 27 Where a party concerned did not object to the effectiveness of an agreement for arbitration in the arbitration procedures, and requests revocation of the arbitral award or proposes demur to no enforcement on the ground of ineffectiveness of the agreement for arbitration after the arbitral award is rendered, the people's court shall not support its request or demur.
Where a party concerned objects to the effectiveness of an agreement for arbitration in the arbitration procedures, but requests revocation of the arbitral award or proposes demur to no enforcement on that ground after the arbitral award is rendered, the request or demur shall be supported by the people's court if it is found from examination to conform to Article 58 of the Arbitration Law or Article 217 or 260 of the Civil Litigation Law.
Article 28 Where a party concerned requests no enforcement of a letter of arbitral reconciliation or an arbitral award rendered on the basis of the reconciliation agreement between the parties, such a request shall not be supported by the people's court.
Article 29 A case regarding which a party concerned applies for enforcement of the arbitral award shall be under the jurisdiction of the intermediate people's court at the domicile of the party under enforcement or at the locality of the properties to be enforced.
Article 30 When actually required by the trial of a case on revocation or enforcement of an arbitral award, the people's court may ask the arbitration institution to make an explanation or may consult arbitration files from the relevant arbitration institution.
The ruling rendered by a people's court in the process of handling a case involving arbitration may be served on the relevant arbitration institution.
Article 31 The present Interpretation shall come into force as of the date of promulgation.
In case any previous judicial interpretation promulgated by the present court is inconsistent with the present Interpretation, the present Interpretation shall prevail.
2011年6月10日星期五
service process Hague Service convention in China
Below please find our brief descriptions on service under Hague Service Convention in China:
(1) According to the Hague
(i) Within five (5) days upon receipt of the Documents by the Department of Judicial Assistance and Foreign Affairs of the PRC Ministry of Justice (“MOJ”), MOJ shall forward them to the PRC Supreme People’s Court (“Supreme Court”).
(ii) The Supreme Court shall forward the Documents to the competent higher people’s court within 5 days upon receipt, which shall then forward the Documents to the competent intermediate people’s court, i.e., within 3 days upon receipt.
(iii) The intermediate court shall finish the process of service within 10 days upon receipt of the Documents. Upon completion of the service, the Intermediate Court shall deliver a proof of service to Higher Court , which will forward the same to the Supreme Court, and then the Supreme Court to MOJ.
(iv) MOJ shall complete a certificate based on the proof of service and send it to the applicant of the service according to the Hague Service Convention, stating that the Documents have been served and specifying the method, place and date of service and the person to whom the Documents are delivered. If the Documents fail to be served, the certificate shall set out the reasons for the failure.
2011年6月8日星期三
service process Hague Service convention in China
Service turnaround time can take between 4-7 months through the Central Authority of China.The turnaround time of 4-7 months means it may take that long for plaintiff to receive the proof of service from China.
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