Supreme People’s Court strengthens judicial review of arbitration

liu guixiang at arbitration summit

Judge Liu Guixiang speaking at the China Arbitration Summit

At China’s Arbitration Summit in late September, Liu Guixiang, Chief Judge of the #1 Circuit Court, called attention to a notice that the Supreme People’s Court (SPC) issued earlier this year to strengthen judicial review of arbitration. The notice (Notice concerning some questions regarding the centralized handling of judicial review of arbitration cases关于仲裁司法审件归口办理有关问题的通知) is linked to the likely increasing number of cases involving judicial review of arbitration matters, linked to the increasing number of arbitrations involving Chinese parties (and the One Belt One Road initiative) both in China and elsewhere in the world, including Hong Kong International Arbitration Centre.  (The notice highlights data collection problems).

The notice, reproduced below, is not an SPC judicial interpretation. Unlike judicial interpretations, notices are not required to be published. It seems that the SPC itself has not officially published it, but several official websites have published it, as have a number of Wechat accounts.

A quick search reveals that the notice drew on  a 2014 study by the Guangdong courts summarizing the results of pilot projects  (including Shenzhen) that the SPC commissioned, involving cooperation with the now independent Shenzhen Court of International Arbitration. As is usual, Guangdong and Shenzhen have led the way as pilot areas for judicial reform. The study highlighted a list of problems with the way lower courts review arbitration related issues, including lack of consistency in reviewing cases. The study also highlighted problems in tracking case data.

As Judge Liu also mentioned (as has this blog), the SPC is working on a comprehensive judicial interpretation on that subject).  That judicial interpretation is still being drafted, with the #4 Civil Division of the SPC taking the lead.

A very rough translation and some comments written in italics follow. (Many thanks to an anonymous and well-informed follower of this blog for bringing the notice to my attention and for some thoughts.) Please call translation glitches/mistakes to my attention.

最高人民法院
关于仲裁司法审查案件归口办理
有关问题的通知

法[2017]152号

Supreme People’s Court

Notice Concerning Some Questions regarding the centralized handling of judicial review of arbitration cases

Fa (2017) #152

各省、自治区、直辖市高级人民法院,解放军军事法院,新疆维吾尔自治区高级人民法院生产建设兵团分院:

To the provincial, autonomous region, directly administered municipality higher people’s courts, People’s Liberation Army Military Court,  Production and Construction Corps Branch of the Xinjiang Autonomous Region Higher People’s Court:

为依法正确审理仲裁司法审查案件,保证裁判尺度的统一,维护当事人的合法权益,促进仲裁事业健康有序发展及多元化纠纷解决机制的建立,现就各级人民法院办理仲裁司法审查案件的有关问题通知如下:

To try correctly judicial review of arbitration cases according to law and guarantee a unified yardstick for judicial decision-making, protect the legal rights of parties, promote the healthy and orderly development of arbitration matters and the establishment of a diverse dispute resolution mechanism, we notify the various levels of the people’s court handling judicial review of arbitration cases of the following:

一、各级人民法院审理涉外商事案件的审判庭(合议庭)作为专门业务庭(以下简称专门业务庭)负责办理本通知规定的仲裁司法审查案件。

I.  The trial divisions (collegial panels) trying foreign-related commercial cases shall be the specialized trial divisions (below, “specialized trial divisions) responsible for undertaking the judicial review of arbitration as set out in this notice.

This means that SPC is requiring trial divisions (or collegial panels, in smaller courts) handling foreign-related commercial matters to be responsible for reviewing the arbitration related matters described in the next paragraph. It is a plus for competency/consistency in arbitration-related matters.

二、当事人申请确认仲裁协议效力的案件,申请撤销我国内地仲裁机构仲裁裁决的案件,申请认可和执行香港特别行政区、澳门特别行政区、台湾地区仲裁裁决的案件、申请承认和执行外国仲裁裁决等仲裁司法审查案件,由各级人民法院专门业务庭办理。

II.  In cases in which a party applies to have the validity of an arbitration agreement recognized, cases in which application is made to cancel a domestic arbitration commission’s award, cases in which application is made to recognize (认可) and enforce a Hong Kong SAR or Macau SAR arbitration award, recognize (认可) and enforce a Taiwan area arbitration award, application is made to recognize (承认) and enforce a foreign arbitral award, shall be handled by the specialized trial divisions of each level of court.

This paragraph describes the types of cases covered by the notice–the types of judicial review of arbitration matters and that these cases should be handled by the specialized trial division of each level of court designated in the paragraph I. There is a difference in terminology (bolded above, but not in the original Chinese) when referring to the recognition of arbitral awards from Hong Kong, Macau, and Taiwan as distinguished from foreign arbitral awards, emphasizing that awards from these jurisdictions are considered part of “one country.”  Notice that cases involving domestic arbitration awards or disputes over the validity of an arbitration agreement to submit a dispute to domestic arbitration are also to be reviewed by the specialized trial division.  A big plus for consistency and competency in judicial review of arbitration matters.

专门业务庭经审查裁定认可和执行香港特别行政区、澳门特别行政区、台湾地区仲裁裁决,承认和执行外国仲裁裁决的,交由执行部门执行。

When a specialized trial division, after review, has ruled to recognize and enforce a Hong Kong Special Administrative Region, Macau Special Administrative Region, Taiwan Region arbitration award, recognize and enforce a foreign arbitral award, the enforcement shall be transferred to the enforcement departments for enforcement.

三、一审法院作出的不予受理、驳回起诉、管辖权异议裁定涉及仲裁协议效力的,当事人不服该裁定提起上诉的案件,由二审人民法院专门业务庭办理。

III.  When the first instance court makes a ruling which relates to the validity of an arbitration agreement relating not to accept, to reject a filing or objection to jurisdiction, and a party  disagrees with the ruling and appeals, the specialized trial division of the second instance court should handle it.

This  provision channels appeals relating to arbitration matters to specialists in the second instance courts, again a plus for competency and consistency.

四、各级人民法院应当建立仲裁司法审查案件的数据信息集中管理平台,加强对申请确认仲裁协议效力的案件,申请撤销或者执行我国内地仲裁机构仲裁裁决的案件,申请认可和执行香港特别行政区、澳门特别行政区、台湾地区仲裁裁决的案件,申请承认和执行外国仲裁裁决的案件,以及涉及确认仲裁协议效力的不予受理、驳回起诉、管辖权异议等仲裁司法审查案件的信息化管理和数据分析,有效保证法律适用的正确性和裁判尺度的统一性。此项工作由最高人民法院民事审判第四庭与人民法院信息技术服务中心具体负责。

IV. Each level of people’s court should establish a centralized administrative platform for the judicial review of arbitration awards, to strengthen the informatized management and data analysis of cases regarding applications to confirm the validity of an arbitation agreement, cases regarding applications to cancel or enforce arbitration awards of our domestic arbitration institutions, applications to recognize and enforce Hong Kong Special Administrative Region, Macau Special Administrative Region, Taiwan Region arbitration awards, cases regarding applications to recognize and enforce foreign arbitral awards, and cases relating to the judicial review of arbitration such as refusal to accept, reject the filing, or objection to jurisdiction and others relating to the confirmation of the validity of an arbitration agreement; the effective guarantee of the correct application of law and of a unified yardstick for judicial decision-making.  The #4 Civil Division of the Supreme People’s Court and the People’s Courts Information Technology Service Center shall be specifically responsible for this work.

IV. This paragraph requires a platform to be established to enable better data collection of arbitration related cases. Data collection appears to be an ongoing issue for the courts.  2015 SPC rules on case file numbers (thank you to Chinalawtranslate.com for this translation), are aimed to create more consistency in filing numbers for cases, and will also be helpful in this process. Inconsistency in case files numbers was identified as a problem in the Guangdong study.) The SPC’s #4 Civil Division (in charge of cross-border civil and commercial matters) and the Information Technology Service Center are the ones responsible for ensuring this platform works.  The notice does not require data results to be made public. The legal and professional public (in China and elsewhere in the world) would look forward to regular big data reports on this.

最高人民法院

2017年5月22日

Supreme People’s Court

May 22, 2017

_______________________________________

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Supreme People’s Court update on the last 5 years of cross-straits judicial assistance (with 15 model cases)

2009-2014 cross-straits judicial assistance (from chinacourt.org website)

2009-2014 cross-straits judicial assistance (from chinacourt.org website)

On 20 June, the Supreme People’s Court  issued a report on the past 5 years of judicial assistance with Taiwan, featuring three bar charts, a table and 15 model cases, linked here.  Judicial assistance between the mainland and Taiwan in 2013 was the subject of a blogpost earlier this year.  The execution of two brothers in Taiwan, on the basis of testimony from witnesses on the mainland who were not made available for cross-examination, illustrate vividly some of the Issues related to judicial assistance, as further described here.

Most of the judicial assistance has been in the form of requests for delivery on the mainland of judicial documents from Taiwan (almost 30,000 in the past 5 years), but has also included recognition and enforcement of Taiwan court judgments (270 in the past 5 years), requests for obtaining evidence on the mainland (610).

The model cases summarize the requests made and the assistance provided, rather than the original judgments or rulings in these cases.  (Prior blogposts on the topic of model cases are linked here and Mark Cohen’s analysis is found here).

The statistics reflect the closer interactions between the two sides of the Taiwan straits, including the flood of Taiwan investment into the mainland, and cross-straits personal interactions (including cross-straits marriages and crimes committed by Taiwanese on the mainland). I look forward to comments and further analysis from Taiwan lawyers, scholars and others on the significance of these statistics and other related issues.