The Court’s September 2013 notice on the CIETAC split: When will greater transparency come to the Court?

In early September, 2013, the Supreme People’s Court (the Court) issued the Notice on Certain Issues Relating to Correct Handling of Judicial Review of Arbitration Matters (最高人民法院关于正确审理仲裁司法审查案件有关问题的通知)(Fa [2013] No. 194) (the Judicial Review Notice).  This clunky sounding notice relates to the split between CIETAC and its former sub-commissions, the Shanghai International Economic and Trade Arbitration Commission (the Shanghai International Arbitration Center) and the Shenzhen International Economic and Trade Arbitration Commission (the Shenzhen Court of International Arbitration). It is therefore relevant to the thousands of companies (and their lawyers) that have CIETAC Shanghai or CIETAC Shenzhen/South China arbitration clauses in their contracts.

The Judicial Review Notice dispute was not published on the Court’s official website or the website of the national court system (which it also operates)  but the text was distributed by local lawyers associations (one is linked here) and was published by Peking University’s Chinalawinfo service.   It became the subject of law firm alerts and other publications in Chinese and English (some English alerts are linked here and Chinese alerts are linked here).

The Judicial Review Notice is not a judicial interpretation and is not required to be made public.  It is a Court normative document (discussed in an earlier blogpost). Court normative documents address new issues or phenomena where the Court is of the view that the law is not settled enough for judicial interpretations. The Judicial Review Notice, which (as described in the above client alerts) requires certain lower court rulings related to the CIETAC split to be considered by lower court judicial committees and reported up level by level to the Court.  On the topic of judicial committee, see my earlier article on the subject–Article on judicial committees and as mentioned in an earlier blogpost, the Court is reconsidering)  These new procedures affect the rights of litigants in these cases as well as parties (or potential parties) to arbitration proceedings in the Shanghai International Arbitration Center and Shenzhen Court of International Arbitration.  However, relevant regulations do not require that all Court normative documents be made public.

The Court leadership is requiring more transparency of the lower courts.  They need also to turn their attention to their own documents and consider where the Court can be more transparent, because that will also be a step forward in (as the Court’s slogan has it) “Vigorously Strengthening a Fair Judiciary and Continuously Increasing Judicial Credibility”.

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