Worldwide: China's Supreme People's Court Takes Clear Steps To Support BRI Arbitration

Last Updated: 31 August 2018
Article by Peter Hirst

China's position as a political and economic global power is well recognised but, from a dispute resolution point of view, it is fair to say that China has not historically been a jurisdiction of choice for international parties. This is in part due to concerns, in some cases justified, by judicial actions and decisions, that arbitral awards will not be appropriately respected by the Chinese courts.

Recently however the Chinese Supreme People's Court (SPC) has taken steps to implement a more pro-arbitration stance. It is not coincidental that the SPC's initiatives take place alongside the Belt & Road Initiative (BRI) which China is pursuing to increase its regional connectivity and stimulate trade. BRI projects have and will give rise to disputes, many of which are likely to be referred to arbitration given its suitability for resolution of disputes between international parties.

Understandably, the Hong Kong International Arbitration Centre (HKIAC), Singapore International Arbitration Centre (SIAC) and the International Chamber of Commerce (ICC) have taken steps to promote themselves as centres for the resolution of BRI disputes. However, even where a dispute is resolved in a well-respected arbitration jurisdiction, concerns remain over the enforceability of any resulting award in China. Will the SPC's new 'Provisions' successfully address these concerns and provide reassurance to foreign contracting parties?

SPC Provisions

The SPC's changes are implemented via 'Provisions'1 . The pro-arbitration stance demonstrated by the Provisions can be seen in a few key areas:

  • Clear pro-arbitration guidelines in interpreting arbitration agreements

    • When interpreting the governing law of an arbitration agreement, Chinese courts will look first to any agreement between the parties. Failing agreement on the law of the arbitration agreement, the Chinese courts will look to the law of the parties' agreement but this will not necessarily be determinative of the validity of the arbitration agreement. Rather, the courts will look to the law of the forum (seat) or where the chosen arbitral institution is based (for global institutions they look to its 'mother' location eg. Paris for the ICC). If the law of the forum and the law of the home of the institution are different, the court will apply the law which renders the arbitration agreement valid2.
  • Avoidance of unpredictable results

    • Where an arbitration agreement is subject to review by the courts, a first instance court's decision should be reported to the People's High Court in the relevant provincial-level region. For foreign arbitrations, and in certain circumstances domestic arbitrations, the decision must then be reported to the SPC before enforcement can be refused. These 'higher' courts are to confirm the decision of the 'lower' court which should limit the opportunity for inconsistent and erroneous results3. The reporting system is not new, but the extension to domestic arbitration is.
    • Previously, the SPC issued a Notice4 requiring courts of all levels to designate specialised divisions to handle review of arbitral cases. This, combined with the reporting procedure should ensure a familiarity with arbitration and the pro-arbitration approach encouraged by the SPC.
    • Establishment of new China International Commercial Courts in Shenzhen and Xi'An as organs of the SPC with specific powers to consider applications for conservatory measures in arbitration proceedings and enforcement or set aside proceedings relating to the enforcement of international commercial arbitration awards5.
  • Clarity on enforcement

    • Clear definition of when enforcement of an award can be refused with the power to remit the award to the tribunal for revision, supplementation or explanation6
    • Previously, parties could challenge enforcement of an arbitral award at any time until conclusion of the enforcement. The new Provisions state that an award debtor has 15 days from receipt of the enforcement notice to challenge the enforcement7. This is notably a short timetable but provides greater clarity for award creditors.
    • Generally, though subject to certain exceptions, no appeal of a decision to enforce an arbitral award8

Steps in the right direction

It will of course take time for the new procedures to become familiar and for international parties to be comforted that China is a reliable jurisdiction for enforcement of arbitral awards. Understandably, concerns remain in some areas such as that the requirement for approval from the SPC could delay the enforcement process though doing so in the interests of a fair result. There are also concerns over the remaining disparity between domestic and foreign awards (particularly if an investment has been structured through a local company thus rendering an award potentially 'domestic'), the level of party involvement in this reporting process and transparency over the decisions made. This said, it is encouraging to see recognition from the SPC that China has work to do to be a leading arbitration jurisdiction and all steps in this direction should be welcomed.


1 Provisions of the Supreme People's Court on Judicial Review of Arbitral Matters; Provisions of the Supreme People's Court on Reporting and Confirming Judicial Review Decisions regarding Arbitral Matters; Provisions on Courts' Handling of Arbitral Award Enforcement Cases; Provisions of the Supreme People's Court on Several Issues Regarding the Establishment of International Commercial Courts

2 Provisions of the Supreme People's Court on Judicial Review of Arbitral Matters, Article 13, 14

3 Provisions of the Supreme People's Court on Judicial Review of Arbitral Matters, Article 2

4 Notice on Some Issues Concerning the Centralised Handing of Judicial Review of Arbitration

5 Provisions of the Supreme People's Court on Several Issues Regarding the Establishment of International Commercial Courts

6 Provisions on Courts' Handling of Arbitral Award Enforcement Cases, Article 3, 4

7 Provisions on Courts' Handling of Arbitral Award Enforcement Cases, Article 8

8 Provisions of the Supreme People's Court on Judicial Review of Arbitral Matters, Article 20

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions