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INTERNATIONAL ENFORCEMENT OF ARBITRAL AWARDS: Enforcement in China

INTERNATIONAL ENFORCEMENT OF ARBITRAL AWARDS: Enforcement in China. 27 June 2014 Dr. Shujing SUI / Partner Deheng Law offices (Shenzhen), China E-mail address: suisj@dehenglaw.com. Background . International conventions - China acceded to the NY convention on Dec. 2nd, 1986 ；

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INTERNATIONAL ENFORCEMENT OF ARBITRAL AWARDS: Enforcement in China

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  1. INTERNATIONAL ENFORCEMENT OF ARBITRAL AWARDS:Enforcement in China 27 June 2014 Dr. Shujing SUI / Partner Deheng Law offices (Shenzhen), China E-mail address: suisj@dehenglaw.com

  2. Background • International conventions - China acceded to the NY convention on Dec. 2nd, 1986； - entered into force as of April 22, 1987 • National law -The Civil Procedure Law of the People’s Republic of China ( Revised in 2012 ), ( “ the Civil Procedure Law of PRC ” ) Article 283, refers to the NY Convention and makes convention primarily applicable

  3. How to apply in China ? One party applies for recognition and enforcement, submitting documents as required The intermediate people's court receives the application and review two months If intermediate people's court agrees that the award shall be recognized, issue ruling If intermediate people's court reviews and tends to refuse to recognize award, reports… six months The award shall be enforced Reports to the Higher Court, then reports to the Supreme Court; only after a reply, then ruling

  4. Statistics and Trend Statistics: 2002-2006 ( from 17 provinces or cities in China ) • Application received: 74 • Refusal cases : 5 • Ratio: 6.76 % 2000– Sep., 2011 • Reporting cases:56 • Refusal cases : 21 • Ratio : 37.5 % Trend

  5. Why being refused ?

  6. A Case Analysis • Case Analysis : - Suppose there is an arbitral award, one party is German company, the other party is Chinese company, the seat of Arbitration is Hongkong. • Question: - If German company will start application in China , should they apply to the NY convention? • The Arrangement on Reciprocal Enforcement of Arbitral Awards in Mainland and the Hong Kong Special Administrative Region ("the Arrangement") - If the seat of arbitration is Hong Kong, the awards should be deemed Hong Kong awards - Not the NY convention, but the arrangement • What is the advantage ? - not apply for recognition, but for enforcement

  7. Suggestion Suggestion: Take Hongkong as seat of Arbitration • Contrary to Chinese Public policy ? Violation of Chinese judicial sovereignty and the jurisdiction of the Chinese courts, constitutes contrary to Chinese public policy (2) Is ad hoc arbitration agreement recognized ? The validity of an ad hoc arbitration agreement is recognized if the arbitration occurs outside Mainland China ( including Hong Kong, Macau and Taiwan), and the law of the place of arbitration allows ad hoc arbitration.

  8. Thank you !Deheng Offices

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