The Supreme People's Court (‘SPC’) has issued a pair of judicial interpretations to clarify the procedures for the Chinese courts when hearing and reporting cases involving judicial review of arbitration decisions.
On 26 December 2017, the SPC issued two judicial interpretations to clarify the trial and reporting procedures in cases involving the judicial review of arbitration, which took effect 1 January 2018.
Under the Relevant Provisions on Issues involving the Reporting of the Judicial Review of Arbitration Cases, the reporting procedure for foreign (that is, non-mainland China) and foreign-related arbitration is extended to domestic arbitration cases. Key changes include:
- A people's court that reviews a domestic arbitration case and finds an arbitration agreement to be invalid, or that revokes or refuses to enforce an arbitral decision of a domestic arbitral tribunal, must report to and obtain approval from the higher people's court in its jurisdiction.
- In cases involving parties from different provinces, and cases where the basis for setting aside or refusing to enforce a domestic arbitral decision is against the public interest, the higher people's court must also report to and obtain approval from the SPC.
The other judicial interpretation (namely, the Provisions on Several Issues Concerning the Trial of Judicial Review of Arbitration Cases) clarifies various issues surrounding the applicable law of an arbitration agreement. For example, where the parties intend to choose a particular law governing the validity of an arbitration agreement or clause, they must do so expressly, and a general choice of law provision governing the underlying contract is not sufficient to clearly express that intent.