Provisions Relevant to Issues of Referring Arbitration-related Judicial Review Cases for Review

(Promulgated by the Supreme People's Court on December 26 2017 and effective as of January 1 2018.)

SPC Interpretation [2017] No.21

These Provisions have been formulated pursuant to laws such as the PRC Civil Procedure Law, and the PRC Arbitration Law, and by taking into account trial practice, in order to correctly try arbitration-related judicial review cases, make the adjudication criteria uniform, protect the lawful rights and interests of concerned parties in accordance with the law and ensure the development of arbitration.

Article 1: For the purposes of these Provisions, the term “arbitration-related judicial review case” includes the following types of cases:

(1) cases involving an application for confirmation of the validity of an arbitration agreement;

(2) cases involving an application for enforcement of an arbitration award rendered by a domestic arbitration institution;

(3) cases involving an application for the vacation of an arbitration award rendered by a domestic arbitration institution;

(4) cases involving an application for the recognition and enforcement of an arbitration award of the Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan;

(5) cases involving an application for the recognition and enforcement of a foreign arbitration award; and

(6) other types of arbitration-related judicial review cases.

Article 2: If, in handling an arbitration-related judicial review case that involves a foreign country or Hong Kong, Macao or Taiwan, an intermediate people's court or specialized people's court proposes, after examination, to find an arbitration agreement invalid, to deny enforcement of or to vacate an arbitration award rendered by a domestic arbitration institution, to deny recognition and enforcement of an arbitration award from the Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan or to deny recognition and enforcement of a foreign arbitration award, it shall refer the same to the higher people's court under whose jurisdiction it falls for review.  If, following review, the higher people's court proposes to agree, it shall refer the same to the Supreme People's Court for review.  It may render its ruling, in light of the review opinions of the Supreme People's Court, only after the Supreme People's Court has conducted its review.

If, in handling an arbitration-related judicial review case that does not involve a foreign country or Hong Kong, Macao or Taiwan, an intermediate people's court or specialized people's court proposes, after examination, to find an arbitration agreement invalid, or to deny enforcement of or to vacate an arbitration award rendered by a domestic arbitration institution, it shall refer the same to the higher people's court under whose jurisdiction it falls for review.  It may render its ruling, in light of the review opinions of the higher people's court, only after the higher people's court has conducted its review.

Article 3: If, in an arbitration-related judicial review case that does not involve a foreign country or Hong Kong, Macao or Taiwan as specified in the second paragraph of Article 2 hereof, the higher people's court proposes to uphold the finding that the arbitration agreement is invalid or the denial of enforcement or vacation of an arbitration award of a domestic arbitration institution rendered by an intermediate people's court or specialized people's court, it shall, under the following circumstances, refer the same to the Supreme People's Court for review and may only render its ruling, in light of the review opinions of the Supreme People's Court, after the Supreme People's Court has conducted its review:

(1) the domiciles of the parties to the arbitration-related judicial review case are located in different provincial-level administrative areas; or

(2) the enforcement of the arbitration award of the domestic arbitration institution is denied or the award is vacated on the grounds that it runs counter to the public interest.

Article 4: In cases where a referral for review is made by a lower-level people's court to a higher-level people's court, a written report and the case materials shall be submitted together with the referral.  The review opinions and specific grounds shall be clearly provided in the written report.

Article 5: If, after receipt of the referral application by the lower-level people's court, the higher-level people's court deems the facts of the case to be unclear, it may make inquiries with the parties or return the case to the lower-level people's court for supplementation and ascertainment of the facts before re-submission.

Article 6: A higher-level people's court shall provide its review opinions to the lower-level people's court in the form of a reply letter.

Article 7: Where, in a civil procedure case, a party is dissatisfied by the ruling rendered by a people's court not to accept the case, to dismiss the case or on an opposition to jurisdiction in view of the validity of an arbitration agreement, and files an appeal, and the people's court at second instance, after review, finds that the arbitration agreement was not formed, is invalid, has become null and void or that its content was unclear and thus unenforceable, it is required to refer the same, level by level, for review in accordance with Article 2 hereof.  It may render its ruling, in light of the review opinions of the higher-level people's court, only after the higher-level people's court has conducted its review.

Article 8: These Provisions shall be effective as of January 1 2018.  In the event of any inconsistencies between these Provisions and judicial interpretations promulgated in the past by this court, these Provisions shall prevail.