Theory Of The Legal Obstacles And Solutions Of The Hong Kong Arbitration Institutions Arbitrate In The Mainland Of China

With the establishment of Shenzhen-Hong Kong Cooperation on Modern Service Industries in Qianhai Area and the opening of Hong Kong International Arbitration Center Shanghai office,the Hong Kong arbitration institutions provide arbitration services in the mainland market is expected to increase.However,there are still many legal obstacles to be resolved for the Hong Kong arbitration institutions arbitrate in the mainland China.For the arbitration award of the Hong Kong arbitration institutions arbitrate in the mainland China,as the standards of the character of the arbitration award are different,the Hong Kong courts deem it is not the Hong Kong award on the basis of "place of award" standard.The Hong Kong courts also deem it is not the mainland award on the basis of the Hong Kong Arbitration Ordinance.The mainland courts think it is the Hong Kong award according to "the place of arbitration institution" standard.According to the laws of the mainland and Hong Kong,there will be many legal obstacles to the Hong Kong arbitration institution arbitrate in mainland China.First,for the validity of the arbitration agreement,it is necessary to find the law of application of law of the arbitration agreement to determine the applicable law.Because Law of the Application of Law for Foreign-related Civil Relations for the applicable law of arbitration agreement is not clear,the validity of the arbitration agreement may appear contradictory results.Second,according to the law,the arbitration award of the Hong Kong arbitration institution arbitrate in mainland China can't be implemented by the courts of the mainland China and Hong Kong,in this case,the arbitration as one of the important measures to solve the civil and commercial disputes will invalid.Third,the mainland courts and the Hong Kong courts shall not be able to carry out effective judicial supervision on the arbitration award of the Hong Kong arbitration institutions arbitrate in the mainland China.In 2016,the Supreme People's Court issued the "Supreme People's Court on the construction of free trade zone to provide judicial protection opinions".It carried out a breakthrough step for ad hoc arbitration and the abroad arbitration organizations including the Hong Kong arbitration institutions carry out arbitration activities in the mainland.From the "opinions" ideas,first,I suggest that delete the “selected arbitration committee” as a condition of the validity of arbitration agreements.Second,I suggest that the mainland laws clearly define the applicable law of arbitration agreement.Third,I recommend that the standard of the character of the arbitration award should be changed from the "arbitration institution" to the "place of award" standard to solve the problems that the arbitration award of the Hong Kong arbitration institutions arbitrate in the mainland can't be implemented.Finally,I suggest to improve the judicial supervision of the mainland court to the arbitration award in order to protect the rights of the party's judicial relief.