About Grandall and Simon Bai Grandall, founded in 1998, currently boasts over 680 partners and over 5,000 attorneys, paralegals and supporting personnel, with 36 offices in major cities worldwide. BAI Xianyue has been practicing as a Chinese lawyer for 25 years, advising a large number of domestic companies, foreign-invested jointventures, as well as multinationals. He has been involved in various litigation and arbitration cases as counsel and in the capacity of arbitrator. He was panel member of both the Ad hoc Division of Court of Arbitration for Sports (CAS AHD), for the 18th Asian Games in 2018 and CAS AHD during Beijing Winter Olympic Games in 2022. He has acted as sole, presiding arbitrator and counsel under the rules of the BAC, CIETAC, SHIAC, CAS, SCIA, HKIAC, SCC etc. 1Article 16 of the Arbitration Law of the People’s Republic of China: “An arbitration agreement shall include arbitral clauses stipulated in the contract and other written agreements which request arbitration to be made prior to or following the occurrence of a dispute. An arbitration agreement shall include the following: (1) the expression of an application for arbitration; (2) subject matters for arbitration; (3) the selected arbitration commission.” 2Article 17 of the Arbitration Law of the People’s Republic of China: “An arbitration agreement shall be deemed invalid in any of the following circumstances: (1) the matters to be arbitrated exceed the scope of arbitration provided for by law; (2) the arbitration agreement was concluded by persons without legal capacity or with limited legal capacity; (3) one party has forced conclusion of the arbitration agreement through coercive means.” refuse to recognize or set aside such award. In particular, where a local court inclines to reject the recognition or enforcement of a foreign award, it has to report the contemplated decision to the Supreme Court for final review and approval, which, as a result, substantially reduces the success rate of such attempt over the years according to official statistics released. Thanks to such continuous efforts by Supreme Court, China has enjoyed a good reputation of consistently fulfilling its obligations under New York Convention. Does the same arbitration law govern both domestic and international arbitration proceedings? If not, how do they differ? Yes. China’s current Arbitration Law contains provisions on both domestic arbitration and foreignrelated arbitration, with Chapter VII (9 articles in total) containing special provisions on “foreign-related arbitration”, focusing mainly on the scope of foreign-related arbitration, the selection of arbitrators, foreignrelated arbitration commissions and special provisions on the setting aside and enforcement of foreign-related arbitral awards. Meanwhile, Chapter VII also provides that “where there are no provisions in this Chapter, other relevant provisions of this Law shall apply”. China’s current Arbitration Law was promulgated in 1994, which has been in force for 30 years nearly unchanged except small amendments made in 2009 and 2017. Certain provisions of China’s current Arbitration Law are alleged to be not in line with international standards. On 30 July 2021, the Ministry of Justice of China issued the Draft Amendments to Arbitration Law which makes significant changes to the existing Arbitration Law and is open for public comment. The Draft still distinguishes between foreign and domestic arbitration and draws heavily on the United Nations Model Law on International Commercial Arbitration. These amendments intended to resolve existing problems in the current Arbitration Law and enhancing the international competitiveness of China’s arbitration by introducing international best practices. However, the amendments to the Arbitration Law remain to be officially adopted. WWW.LAWYER-MONTHLY.COM 89 Contact Bai Xianyue 28/F, China Life Financial Center, No.38 Qufu Road, Heping District, Tianjin 300042, China Tel: +86 22 85586588 Email: baixianyue@grandall.com.cn www.grandall.com.cn China’s current Arbitration Law was promulgated in 1994, which has been in force for 30 years nearly unchanged except small amendments made in 2009 and 2017.
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