| A.Main content,mindset and viewpointsThis dissertation is a research on the issues in the arbitration legal system involved in “Arbitration of Overseas Arbitral Institutions in mainland China ",based on the latest policy of the China and its courts actively promoting the establishment of business offices by overseas arbitral institutions in the Lin-gang Special Area of China(Shanghai)Pilot Free Trade Zone(“Lin-gang”)and their commencement of foreign-related arbitration activities.The main content of this dissertation and its mindset of the argument is: when it has become a trend to permit overseas arbitral institutions to arbitrate in mainland China,to interpret and analyze the latest policy regulating the establishment of business offices and commencement of foreign-related arbitration activities by overseas arbitral institutions,combining China’s legislation,cases,policies,and theories,through a comparative study of extraterritorial laws,the New York Convention and other international treaties,to demonstrate and resolve the long-standing three major legal issues of "nature of arbitral institution ","Nationality of arbitral award",and "judicial review of arbitration" of overseas arbitral institutions’ arbitration in mainland China,and put forward specific legislative suggestions for the amendment of the PRC Arbitration Law.The key viewpoints and conclusions of this dissertation are: a.Through a theoretical analysis of arbitral institutions and the interpretation of the relevant provisions of the PRC Arbitration Law,it is feasible,to refer to relevant examples,to expand the legal explanation of overseas arbitral institutions and their business offices in Lin-gang,and finally recognize them as arbitral institutions defined in the PRC Arbitration Law,and provide demonstration of the legal and policy basis permitting them to conduct foreign-related arbitral activities in the Lin-gang from the perspective of access of arbitral institutions;b.By sorting out and comparative studying of the theory of nationality of arbitral awards,it is essential to discard current unreasonable standard of arbitral institution,domestic legislation and judicial practice should truly establish and apply internationally accepted "arbitration seat" standard and enforce the awards issued by overseas arbitral institutions in mainland China in accordance with China’s foreign-related arbitral award;c.Regarding the judicial review of business offices of overseas arbitral institutions by a court in mainland China,this dissertation proposes operable plans on courts’ jurisdiction,judicial review procedures,and judicial review specifications,it is in line with China’s public interest to review by a court of the arbitration seat to control the arbitral activities of overseas arbitral institutions in mainland China;d.Regarding the related legislative issues in the PRC Arbitration Law involved in the solutions to the aforementioned three legal issues,this dissertation proposes the amendment to the PRC Arbitration Law" from the aspects of arbitral institutions,arbitration venues,arbitral procedures,arbitral awards,and judicial review of arbitration and to rearrange in accordance with the three major sections of the “Organization Law of Arbitral Institutions”,“Procedure Law on Arbitral Activities” and “Judicial Review Law on Arbitration”;and e.The starting point and purpose of the policy of promoting arbitration by overseas arbitral institutions in mainland China is to actively create an "international commercial arbitration destination" with international influence in mainland China.Shanghai has the first-mover advantage and the most realistic basis.The introduction of overseas arbitral institutions will quickly gather the international arbitration resources,thereby realizing the goal set by the central government for Shanghai to build a "Globally International Arbitration Center in the Asia-Pacific",and enhancing China’s international influence and competitiveness in the field of international civil and commercial dispute resolution.B.Anatomy of the themeThe meaning of the theme of "Arbitration of Overseas Arbitral Institutions in mainland China" discussed in this dissertation is: the specific scenario of an arbitration case in which the overseas arbitral institution treats mainland China as the arbitration seat in the arbitration procedure administered by it and the arbitral award issued by the arbitral tribunal.Although has existed for long,such arbitration practice has been a difficulty in the past two decades,because of the inconsistency and incompatibility between China’s arbitration legal system including PRC Civil Procedure Law and PRC Arbitration Law and the common theories and practices of international commercial arbitration.These include: arbitral institutions,the effectiveness of arbitration agreements,nationality of awards,standards of arbitration seat,recognition and enforcement of awards,etc.,which constitute the core content of the international commercial arbitration system.The theme discussed is compared to be a scalpel precisely targeting the long disturbing illness in the existing China’s arbitration legal system.With the further deepening of reform and opening up in China,promotion of the innovation and development of the arbitration system as the construction of the free trade zone,especially the new policy in Lin-gang,these issues now have new opportunities and external conditions for solution.Therefore,this question needs urgent answers from the theoretical and practical levels,especially from the legislative and judicial levels.The dissertation’s argumentation requires clear up of the understanding of the theoretical issues involved in the above legal issues,compare and reference of international treaties and extraterritorial systems,and rectification of China’s current relevant specific systems.The research object of this dissertation is a policy and problem-oriented path of institutional change whose content being promoted is in line with the reform direction and development path of the internationalization of China’s arbitration legal system.The internationalization of China’s arbitration is a grand theme with a slogan.It is difficult to unify the standards of arbitration internationalization.From the perspective of arbitration users alone,attracting more and more foreign parties to choose mainland China as the arbitration seat in the arbitration cases administered by overseas arbitral institutions shall be an index of China’s arbitration internationalization.Under the premise of the top-level design of China’s top-down arbitration system requiring Shanghai to be a "Globally International Arbitration Center in the Asia-Pacific",it is crucial for mainland China to be agreed as the arbitration seat by more domestic and foreign parties,besides Chinese arbitral institutions being selected,and then Chinese law will be the applicable law for arbitration procedures,so that Chinese courts will have jurisdiction to conduct judicial review of related arbitration which is one of the important criteria to determine and examine the internationalization of China’s arbitration.This is also the standpoint of this dissertation and the criteria for evaluation of the system.C.StructureBased on the abovementioned analysis of the theme,the full text focuses on resolving the issues in the existing policies,and under the value judgment of adhering to China’s position and being conducive to the construction of an international arbitration center and a popular "arbitration seat",and solves three major issues:(1)the identity of the institution: that is,the nature and status of overseas arbitral institutions(and their business offices)and whether they can arbitrate in mainland China;(2)the nature of the award: that is,the type of and nationality of the arbitral awards issued by overseas arbitral institutions(and their business offices);(3)judicial review: that is,how to conduct judicial review and provide judicial support to overseas arbitral institutions(and their business offices).Therefore,the argumentation of this dissertation runs through the main line of "the nature of the arbitral institutions-the arbitral awards’ nationality-judicial review of arbitration",and finally puts forward legislative suggestions on amending the PRC Arbitration Law.Therefore,the structure of the article is as follows: Chapter One introduces the origin of the issue of overseas arbitral institutions’ arbitration in mainland China and the latest developments under the new Lin-gang policy;Chapter two discusses the nature of the business offices of overseas arbitral institutions and demonstrates the issue of the admission of overseas arbitral institutions to China’s arbitration legal service market;Chapter three discusses the nature and nationality of the awards issued by the business offices of overseas arbitral institutions;Chapter four discusses the issue of judicial review of the business offices of overseas arbitral institutions;and Chapter five analyzes the thinking path and legislative suggestions for the amendment of PRC Arbitration Law.The main content and ideas of each chapter are briefly introduced as follows.D.Main content of each chaptera.Chapter one: Origin and Development of the Issue of Overseas Arbitral Institutions’ Arbitration in mainland ChinaThe first section studies the typical cases involving overseas arbitral institutions in mainland China in the past two decades.Regarding issues such as the validity of arbitration agreements and the enforcement of arbitral awards in these cases,inconsistencies have emerged in the judicial practice of the Supreme People’s Court,reflecting the large divergence in judicial interpretation caused by the lack of legislation.It is mainly reflected in three major issues: the vague agreement of the arbitration institution,the opening of the arbitration legal service market,the nature of the arbitral awards and the legal basis for enforcement.As the situation evolves,the position and attitude of the Supreme People’s Court have also changed from approval to the subsequent denial,and in recent years,to the gradual recognition of the validity of overseas arbitral institutions’ arbitration in mainland China.Recognizing the validity of overseas arbitral institutions’ arbitration in mainland China and resolving their operability are current and future trends.The second section introduces the situation of overseas arbitral institutions entering the China(Shanghai)Pilot Free Trade Zone(“Shanghai FTZ”).Meaningful explorations of China’s arbitration system have been carried out in the early stages of the construction of the Shanghai FTZ,and the national level has promoted the introduction of policies for internationally renowned commercial dispute resolution institutions to enter the Shanghai FTZ.Subsequently,four well-known overseas arbitral institutions,including the Hong Kong International Arbitration Center(“HKIAC”),established representative offices in the Shanghai FTZ to further expand the influence of overseas arbitral institutions in mainland China.In July 2019,the “Overall Plan for Lin-gang Special Area of China(Shanghai)Pilot Free Trade Zone” issued by the State Council allowed well-known overseas arbitration and dispute resolution institutions to establish business offices in Lin-gang to conduct foreign-related arbitration activities.Since then,the Shanghai Municipal Government and the Shanghai Municipal Bureau of Justice have implemented this policy and issued further documents,jointly establishing the issue of allowing overseas arbitral institutions to establish their business offices in Lin-gang.The Supreme People’s Court and the Shanghai High People’s Court have successively issued judicial documents,expressing from the judicial branch the support for overseas arbitral institutions to set up business offices and conduct foreign-related arbitration activities in Lin-gang.The third section discusses the role and significance of the admission of overseas arbitral institutions.Both the central to the local government,and from the administration to the judiciary,are all actively promoting the entry of overseas arbitral institutions in the form of "an arbitral institution"(that is,some kind of commercial presence)into mainland China,which will attract more international civil and commercial disputes to be settled in China,and upgrade China’s international influence and competitiveness in the field of international civil and commercial dispute resolution.At the same time,operable regulations are still absent about how to link the overseas arbitral institutions’ arbitration in mainland China to China’s relevant laws and judicial systems.Relevant legal issues left over have not been solved as the scenario changes,which are still the three major issues: the nature of the institutions,the nationality of the awards and the judicial review,constituting the main contents of the subsequent three chapters of this dissertation.b.Chapter two: Nature and Admission of the Overseas Arbitral InstitutionsRegarding the obstacles for overseas arbitral institutions to fully enter the Chinese market,we must first resolve the issue of status and qualifications of overseas arbitral institutions entering mainland China.Admission of overseas arbitral institutions is essentially a specific administrative act which is dependent on each country to decide whether to allow an overseas arbitration institution to conduct activities and the scope of its activities.Regarding the legal status of overseas arbitral institutions’ business offices in Lin-gang to conduct arbitration activities under the Chinese legal framework,further study of the legal nature of the business offices shall be needed to justify their entry and the basis for conducting arbitration activities.Meanwhile,issues and suggestions on improving legislation and providing judicial support are also provided.The first section interprets the substantive legal basis for the nature of arbitration institutions.Looking at the style and structure of the PRC Arbitration Law,it takes the arbitration institution as the main line,and shows the traces of arbitration institution-based in its design.Through the comparison of extraterritorial arbitration institutions,the common characteristics of arbitration institutions in different legal systems can be summarized.The actual attributes of arbitration institutions should also be analyzed from their proper attributes.It is also necessary to read the provisions of the "Arbitration Institution" in the PRC Arbitration Law from a development perspective.Rather than focusing on the "name" of the arbitration institution,it is more important to examine its "nature" and essential characteristics.All of the arbitration institutions in PRC Arbitration Law are preset as domestic arbitration institutions.If overseas arbitral institutions are to be granted the status of arbitration institutions under PRC Arbitration Law,further analysis of the definition of the arbitration institutions in the PRC Arbitration Law,comparative law study of the nature of arbitration institutions,and the idea of expanding the interpretation of the Arbitration Institutions in the PRC Arbitration Law shall be carried out.The second section explores the nature and supervision requirements of business offices set up by overseas arbitration institutions.The mechanism will be interpreted through policy analysis,and the supervision requirements for domestic activities after its establishment will be analyzed,so as to further clarify the nature of the business office and its functions in engaging in foreign-related arbitration activities.Regarding the nature of business office,the Administrative Measures for Business Offices Established by Overseas Arbitration Institutions in Lin-Gang Special Area of China(Shanghai)Pilot Free Trade Zone(“Administrative Measures”)does not include the definition,nor does it specify whether the business offices are branches of overseas arbitral institutions or independent arbitral institutions established by overseas arbitral institutions in Lin-gang.Through interpretation and analysis,it can be preliminarily considered that the "business office" is a professional service institution as a "quasi-arbitration institution".It can be defined as a quasi-arbitration professional service institution established by an overseas arbitral institution in Lin-gang,which is permitted solely to conduct foreign-related arbitration.The third section discusses the opening of the arbitration market and the admission of overseas arbitral institutions.From the perspective of industry and social division of labor,the idea that commercial arbitration services are regarded as a type of legal service(particularly in favor of foreign-related legal services)has become increasingly accepted.The development of the commercial arbitration service market has brought problems of opening and participating in international competition.Allowing overseas arbitral institutions to set up legal entities with arbitration activities functions in Lin-gang can effectively implement their role as arbitration institutions.The current laws have no mandatory prohibition of an overseas arbitral institution’s arbitration activities in mainland China,which should be recognized from the perspective of respecting the autonomy of the parties.Under the new policy,overseas arbitral institutions will conduct procedural administration in mainland China through a quasi-arbitration institution.The seat of arbitration will be set in mainland China.This approach is in line with the characteristics of institutional arbitration,which can realize the localization of arbitration agency management and judicial review of arbitration,minimizing relevant legal risks.The court should actively support in judicial review overseas arbitral institutions’ foreign-related arbitration activities through the establishment of business offices in Lin-gang,in the absence of violations of China’s laws and public interests.This policy marks the further opening of China’s arbitration market and the diversification of arbitration subjects,conforming to the reform direction of the international development of China’s arbitration.c.Chapter three: Nature And Nationality of Awards Issued by Overseas Arbitral InstitutionsRegarding the issue of arbitration by overseas arbitral institutions in mainland China,it is necessary to discuss the nature and nationality of the awards issued in mainland China.Such awards shall be categorized either as "foreign awards" or "non-domestic awards" under the New York Convention,or "foreign-related award" in China’s domestic awards,thereby solving the question of what judicial review procedures should be applied in recognition and enforcement process.Starting with the general theory of the nationality of international commercial arbitral awards,the first section discusses the connotation of the nationality of international commercial arbitral awards,the legal significance of determining the nationality of arbitral awards,the general criteria for determining the nationality of arbitral awards,and definition and legal meaning of arbitration seat.The "arbitration seat" is closely related to the domicile of the arbitration institution,but not the same for granted.The arbitration seat is related to the nationality of the arbitral award,to the applicable law and effect of the arbitration agreement,determines the applicable law of the arbitration procedure and constitutes an important basis for the nullification procedure and the premise of applying the New York Convention.The arbitration seat is usually specially agreed made by the parties in the arbitration agreement or a special provision in the applicable arbitration rules stipulated by the parties.The second section conducts a comparative law study on the nationality of arbitral awards,introduces the rules and regulations on nationality of awards in the New York Convention and the United Nations Commission on International Trade Law’s(“UNCITRAL”)Model Law on International Commercial Arbitration,and compares the United States,Britain,Germany,and France rules on the determination of nationality.From the analysis,arbitration seat is the key criterion for determining the nationality of an arbitral award.The arbitration seat is the place where arbitration activities are conducted in the legal sense.Its legal significance includes determining the nationality of the arbitral award,determining the application of the law in the arbitration procedure,and allocating the supervision power of the arbitral award.In practice,the arbitration seat is usually agreed by the parties.Although once challenged by the “non-domestic” theory,this does not affect the courts of most countries to use the standard to determine the nationality of arbitral awards and their judicial review authority.The third section studies the issue that China’s legislation and judiciary should establish the standard for arbitration seat.The lack of legislation on the concept of arbitration seat causes the confusion of the standard in determining the nationality of international commercial arbitration awards and makes it difficult to determine the nationality for overseas arbitral institutions’ arbitral awards issued in mainland China.Therefore,the "arbitration seat" standard shall be adopted instead of the "arbitration institution" standard.At the same time,through reflection on the implementation of "non-domestic awards",it is believed that under the current circumstances,the awards made by overseas arbitral institutions in mainland China should be recognized as China’s foreign-related awards and judicial review should be conducted accordingly.d.Chapter four: Judicial Review and Support to Overseas Arbitral InstitutionsAfter business offices set up by overseas arbitral institutions commence their arbitration activities,related judicial review issues will inevitably arise,that is,the application for confirmation of the effectiveness of the arbitration agreement,the application for the enforcement or nullification of arbitral awards,and judicial support for arbitration interim measures.With no precedent,this type of judicial review of arbitration needs feasible proposals based on the analysis and demonstration of the systems and principles established by the existing laws and judicial interpretations,which finally provide for the amendment of the PRC Arbitration Law.The first section discusses judicial review of arbitration agreements involving business offices.It specifies the competent court conducting judicial review of arbitration agreement based on the existing judicial interpretation,with reference to the model of the Shanghai Financial Court,and with reference to the model of the International Commercial Court.At the same time,it analyzes the conflicts that may arise between the competent-competent mechanism in the arbitration rules of overseas institutions and our jurisdiction mechanism,and a new way to confirm the validity of an arbitration agreement.The second section discusses the judicial review of arbitral awards issued by business offices.It studies the competent courts determining nullification and enforcement of awards,and then discusses the issue of the connection between nullification and(non)enforcement systems under the framework of the Supreme People’s Court’s recently issued judicial interpretation to judicial review.As the business offices in Lin-gang can only accept foreign-related arbitration cases,the review and determination of "foreign-related factors" is an important part of judicial review.Furthermore,in recent years,the identification of "foreign-related factors" in China’s judicial practice has been expanding.The third section analyzes the issues of judicial support related to interim measures for business offices.Due to the lack of a clear basis for the application of interim measures for overseas arbitral institutions’ arbitration in mainland China,with reference to the relevant breakthrough regulations in maritime arbitration cases in China,the mechanism and cases of the "Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region",the arbitration preservation mechanism in the International Commercial Court,it establishes a preservation mechanism for arbitration activities conducted by business offices established by overseas arbitral institutions,so as to support and protect the parties’ application and enforcement of property preservation,evidence preservation,conduct and other interim measures before and during arbitration.e.Chapter five: Thinking Path and Legislative Suggestions for AmendmentWith the continuous advancement of arbitration practice in China,the current PRC Arbitration Law needs to be amended to adapt to the development and changes of arbitration practice.The content related to the arbitration of overseas arbitral institutions in mainland China can be incorporated into the thinking and important content of the amendment to the PRC Arbitration Law.The first section discusses the top-level design and specific path of the revision of the PRC Arbitration Law in general.The Arbitration Law was included in the legislative plan of the Standing Committee of the 13 th National People’s Congress in 2018.The central level has also made a top-level design of the arbitration system that improves the arbitration system and enhances the credibility of arbitration.The revision of the Arbitration Law should adhere to the development direction of combining internationalization and localization.The rapid development of international and domestic commercial arbitration,the support and promotion of the central government at the national strategic level,the foundation laid by the judicial interpretation of judicial review of arbitration by the Supreme People’s Court,and the continuous enrichment of arbitration theory and research have provided the preliminary conditions to the amendment of the PRC Arbitration Law.Through the analysis of the current style of the Arbitration Law,it is possible to determine the path of revision from the three parts of the Arbitration Organization Law,the Procedure Law for Arbitration Activities,and the Arbitration Judicial Review Law.The second section proposes amendment opinions on the relevant content of the Arbitration Institution and the Arbitration Procedure in the PRC Arbitration Law.The PRC Arbitration Law is an organizational law regulating the supervision and governance mechanism of arbitration institutions,and also a procedural law regulating arbitration activities.To regulate the relevant content of arbitration by overseas arbitral institutions in mainland China,it is essential to make corresponding adjustments to the Arbitration Institution and the Arbitration Procedure in the PRC Arbitration Law.The object shall be expanded to include the overseas arbitral institutions and their business offices.The Arbitration Procedure part shall also have the institutional space and normative requirements for arbitration activities conducted by overseas arbitral institutions.The third section discusses the suggestions for improving the content of judicial review of arbitration in the PRC Arbitration Law in accordance with the actual needs of judicial review of arbitration of overseas institutions.By establishing the arbitration seat standard under the PRC Arbitration Law structure,connected with the applicable law of the arbitration agreement,the nationality of the arbitral award,the nullification and non-enforcement of the arbitral award,and the recognition and enforcement of the arbitral award,it improves the categorization of existing arbitral awards,and further establishes a more scientific judicial review system for arbitral awards,and proposes suggestions to the amendment from the aspects of review subjects,review models,review methods,and procedural relief.f.Conclusion: Return of Judicial Activism to Legislative CentralismThe legal obstacles encountered by overseas institutions in arbitration in mainland China reflect the problems in legislation.Under the circumstances that the "Arbitration Law" cannot be amended immediately,this problem is currently solved by the new policy in Lin-gang and the institutional development path of three levels of administration,justice and legislation.The State Council,the Shanghai Municipal Government,and the Shanghai Municipal Bureau of Justice propose new policies from administrative level.The Supreme People’s Court and the Shanghai High People’s Court subsequently gave strong support at the judicial level through the introduction of judicial safeguard opinions.Eventually it will return to the amendment to the PRC Arbitration Law at the legislative level.It can be said that this is a representative microcosm in the field of arbitration in the way of "opening forcing reforms" in the whole economic and social development of China.Following reform and implementation depends on whether the issue-oriented,goal-oriented,and result-oriented approaches can be organically unified in the process of constructing this system.1.Issue-oriented: Through in-depth analysis of existing issues,it is a efficient and effective solution relying on existing administrative and judicial promotion model.The arbitration of overseas arbitration institutions in mainland China is a long exiting issue for more than two decades.Based on this issue,the arbitration system reform and innovation will be promoted through the new policy of establishing business offices.First,from the administrative level,it follows the path of top-down administrative promotion in the innovation in Shanghai FTZ from promoting the international development of local arbitration institutions to absorbing overseas arbitration institutions,and then proposing Shanghai to be a Globally International Arbitration Center in the Asia-Pacific.Secondly,for the reform and innovation measures introduced at the administrative level,the Supreme People’s Court and the Shanghai High People’s Court have issued opinions on judicial support and protection.From the perspective of judicial interpretation,they have exerted judicial initiative on limited legislative content and made it consistent with actual and expansive interpretation.In a situation where legislation cannot be revised in a timely manner,judicial activism helps to solve relevant practical problems through judicial approaches.Finally,as a statutory country,China needs transform the results in resolving the issue of arbitration by overseas arbitral institutions in mainland China at the administrative and judicial level to the legislative level of the amendment to the PRC Arbitration Law.2.Goal-oriented: The current policy needs to serve the construction of a popular "arbitration seat" in mainland China,and Shanghai to build a Globally International Arbitration Center in the Asia-Pacific.The purpose of allowing and encouraging overseas arbitral institutions to arbitrate in mainland China is to make cities in mainland China an "international commercial arbitration destination" with international influence.Among the many inland cities,Shanghai has the first-mover advantage and innate conditions,and it can take the lead to become the "Globally International Arbitration Center in the Asia-Pacific".In this process,the Supreme People’s Court,as the highest judicial authority,not only plays an important role in ensuring the correct understanding and application of the law,but also in promoting the formation of public policies..In order to cope with the problems of overseas arbitral institutions conducting arbitration in mainland China,the arbitration system reform measures such as the establishment of business offices in Lin-gang have been launched with the goal of attracting more international civil and commercial disputes to be resolved in China and to enhance their international influence and competitiveness in the field of international civil and commercial dispute resolution with the core of building mainland China into an "international commercial arbitration destination".3.Result-oriented: The results of the innovative policy should eventually return to the level of arbitration legislation,and the revision of the PRC Arbitration Law should also highlight the concept of "Great Country Justice".In order to improve the international commercial arbitration system,China should emphasize the judicial concept of "Great Coun... |
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