Interpretation and Application of the New York Convention in China

Mo, John Shijian

doi:10.1007/978-3-319-50915-0_7

John Shijian Mo⁴

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 23))

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Abstract

Chinese courts have generally taken a favorable position toward enforcement of the New York Convention. Most Chinese court decisions have followed the same or similar practices as foreign courts. It does appear that Chinese courts are basically reluctant to adopt liberal or activist positions when interpreting and enforcing the Convention. Of note, for example, even though Chinese arbitration law has not recognized ad hoc arbitration in China, Chinese courts have still recognized and enforced awards made in ad hoc arbitration in accordance with the Convention. This example illustrates that Chinese courts sometimes prioritize compliance with Convention requirements though they attempt to remain aligned with general domestic civil procedure law principles in understanding China’s international obligations.

John Shijian Mo is Ph.D. in Law, Sydney University of Australia, Chair Professor and Dean of Faculty of Law, University of Macau, Titular Member of the International Academy of Comparative Law (IACL).

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Notes

1.
The Standing Committee of the NPC, ‘The Decision to Accede to the New York Convention’ <http://www.npc.gov.cn/wxzl/gongbao/2000-12/16/content_5001874.htm>.
2.
The NSC, ‘The Notice on the Implementation of the New York Convention Ratified by China, 10 April 1987’ <http://www.people.com.cn/item/flfgk/gwyfg/1987/113715198721.html>.
3.
Civil Procedure Law of the People’s Republic of China 1991.
4.
The Standing Committee of the NPC, ‘The Decision to Accede to the New York Convention’ <http://www.npc.gov.cn/wxzl/gongbao/2000-12/16/content_5001874.htm>. UNCITRAL, ‘Status Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)’ <http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html> accessed on March 3, 2015.
5.
UNCITRAL, ‘Status Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)’ <http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html> accessed on March 3, 2015, Note (h).
6.
This is evident in most laws including statutory interpretations of arbitration law. For example, the Arbitration Law only regulates institution-based arbitration and Article 283 of the Civil Procedure Law only refers to institution-based foreign arbitral awards.
7.
Arbitration Law of the People’s Republic of China 1994 (“Arbitration Law”) articles 66 and 72.
8.
John Mo, “Reform of Arbitration System in China after China’s Accession to WTO” (2001) 27 China Law 23-25, 83-96, in both English and Chinese; Xu Hehe, “Establishment of Ad Hoc Arbitration in China”, (2006) 8 Forward Position 141-143, in Chinese. Huang Siyi, “Importance of Establishing Ad Hoc Arbitration in China, (2012) 1 Lanzhou Academic Journal 201-203, in Chinese.
9.
Decided by the Ningbo Intermediate Court in 2008, the case summary is available in Song Lianbin and Wang Jun, “International Chamber of Commerce Arbitrated in Mainland China: Access, Nationality of the Award and Enforcement – commenting on the ruling of the Ningbo Court”, (2011) 40:3 Journal of Northwest University (Philosophy and Social Sciences Edition) 154-161, in Chinese.
10.
Song Lianbin and Wang Jun, “International Chamber of Commerce Arbitrated in Mainland China: Access, Nationality of the Award and Enforcement – commenting on the ruling of the Ningbo Court”, (2011) 40:3 Journal of Northwest University (Philosophy and Social Sciences Edition) 154-161, in Chinese.
11.
Song Lianbin and Wang Jun, “International Chamber of Commerce Arbitrated in Mainland China: Access, Nationality of the Award and Enforcement – commenting on the ruling of the Ningbo Court”, (2011) 40:3 Journal of Northwest University (Philosophy and Social Sciences Edition) 154-161, in Chinese.
12.
Chinese Ministry of Foreign Affairs , ‘China’s Position Paper submitted to 67^th Session of the UN General Assembly on 19 Sept 2012, Section 7(1)’ <http://www.fmprc.gov.cn/mfa_chn/wjb_602314/zzjg_602420/t970916.shtml>.
13.
These are the 1999 Arrangement for Mutual Enforcement of Arbitral Awards between Mainland China and Hong Kong SAR, and the 2007 Arrangement for Mutual Recognition and Enforcement of Arbitral Awards between Mainland China and Macau SAR. The mutual recognition and enforcement of arbitral awards between Mainland China and Taiwan is based on some unilateral but coherent acts of Mainland China and Taiwan. In Mainland China, arbitral awards made in Taiwan can be recognized and enforcement in pursuance of the 1998 Decision of the NSC on the Recognition of Civil Judgments Made in Taiwan Region, which makes specific reference to the recognition and enforcement of Taiwanese arbitral awards. In Taiwan, arbitral awards made in Mainland China are enforceable under the Act Governing Relations between the People of the Taiwan Area and the Mainland Area, Article 74.
14.
06- 01798 (C.D. Ca.l 2009), U.S. Court of Appeals, 9th Circuit - Case No. 09-56629.
15.
Mitsubishi Corp.(Hong Kong) Ltd v Yangtze Three Gorges Investment Company and Others, NSC, 1999 Jing Final No 426 <http://www.110.com/panli/panli_47833.html>.
16.
Mitsubishi Corp.(Hong Kong) Ltd v Yangtze Three Gorges Investment Company and Others, NSC, 1999 Jing Final No 426 <http://www.110.com/panli/panli_47833.html>.
17.
Mitsubishi Corp.(Hong Kong) Ltd v Yangtze Three Gorges Investment Company and Others, NSC, 1999 Jing Final No 426 <http://www.110.com/panli/panli_47833.html>.
18.
NSC, ‘Reply of the NSC on the Case between Zublin International GmbH and Wuxi Woco-Tongyong Rubber Engineering Co concerning Validity of Arbitration Agreement’, 8 July 2004, Doc No (2003) Civil Court Four Others 23.
19.
The Judicial Interpretation was issued on 2 June 2006 in the form of the Reply of the NSC concerning the Application by Hanjin Shipping to Recognize and Enforce London Arbitral Award, collected in Wan Erxiang and Others, ed, Guidance to Foreign Related Commercial and Maritime Trials in China, (2006) 2 People’s Court Press, 2006 75-82, in Chinese. Hanjin Shipping Co., Ltd. v. Guangdong Fuhong Oil Co. Ltd., Supreme People’s Court, China, 2 June 2006, [2005] Min Si Ta Zi No. 53.
20.
NSC ‘The Reply of the NSC to the Request for Instructions on Denying Recognition and Enforcement of a
Mongolian Arbitration Court Default Award, 2009’ in WAN Erxiang (ed) 20 Guide on Foreign-Related Commercial and Maritime Trial in China (People’s Court Press Beijing 2010) 87-93, in Chinese.
21.
NSC ‘The Reply of the NSC to the Request for Instructions on Denying Recognition and Enforcement of a
Mongolian Arbitration Court Default Award, 2009’ in WAN Erxiang (ed) 20 Guide on Foreign-Related Commercial and Maritime Trial in China (People’s Court Press Beijing 2010) 87-93, in Chinese.
22.
NSC ‘The Reply of the NSC to the Request for Instructions on Denying Recognition and Enforcement of a
Mongolian Arbitration Court Default Award, 2009’ in WAN Erxiang (ed) 20 Guide on Foreign-Related Commercial and Maritime Trial in China (People’s Court Press Beijing 2010) 87-93, in Chinese.
23.
NSC ‘The Reply of the NSC to the Request for Instructions on Denying Recognition and Enforcement of a
Mongolian Arbitration Court Default Award, 2009’ in WAN Erxiang (ed) 20 Guide on Foreign-Related Commercial and Maritime Trial in China (People’s Court Press Beijing 2010) 87-93, in Chinese.
24.
NSC ‘The Reply of the NSC to the Request for Instructions on Denying Recognition and Enforcement of a
Mongolian Arbitration Court Default Award, 2009’ in WAN Erxiang (ed) 20 Guide on Foreign-Related Commercial and Maritime Trial in China (People’s Court Press Beijing 2010) 87-93, in Chinese.
25.
NSC, ‘Art 12 of the NSC Judicial Interpretations on a Number of Issues of Arbitration Law, issued on 23 August 2006, Law Interpretation (2006) No 7’, available in Collection of Judicial Interpretations (Legal Publishing House China 2013) 3-373-375, in Chinese.
26.
NSC, ‘Art 12 of the NSC Judicial Interpretations on a Number of Issues of Arbitration Law, issued on 23 August 2006, Law Interpretation (2006) No 7’, available in Collection of Judicial Interpretations (Legal Publishing House China 2013) 3-373-375, in Chinese.
27.
NSC, ‘Art 12 of the NSC Judicial Interpretations on a Number of Issues of Arbitration Law, issued on 23 August 2006, Law Interpretation (2006) No 7’, available in Collection of Judicial Interpretations (Legal Publishing House China 2013) 3-373-375, in Chinese.
28.
NSC, ‘Art 13 of the NSC Judicial Interpretations on a Number of Issues of Arbitration Law, issued on 23 August 2006, Law Interpretation (2006) No 7’, available in Collection of Judicial Interpretations (Legal Publishing House China 2013) 3-373-375, in Chinese.
29.
Article 26 of the Arbitration Law provides that if the plaintiff commences legal proceeding in court and the defendant presents a valid arbitration agreement to the court prior to the first formal hearing of the proceeding, the court should dismiss the case in favor of arbitration, unless the arbitration agreement is invalid. However, if the defendant does not object to the court jurisdiction prior to the first hearing, it is assumed that the defendant has given up the arbitration agreement, and the court should try the case. The first formal hearing excludes hearings on various preliminary matters. NSC, ‘Art 14 of the NSC Judicial Interpretations on a Number of Issues of Arbitration Law, issued on 23 August 2006, Law Interpretation (2006) No 7’, available in Collection of Judicial Interpretations (Legal Publishing House China 2013) 3-373-375, in Chinese.
30.
This is what the Xiamen Maritime Court decided in 2012 in a dispute between a shipping company and a Mr He - who did not appear at the first court hearing because there was no valid contact address to serve the notice of court proceeding. The Fujian Provincial Supreme Court confirmed the decision of the Maritime Court in 2013. The case summary is reported on the website of Xiamen Maritime Court at <http://xmhsfy.gov.cn/InfoList.aspx?nid=37&id=200>.
31.
Decision of 22 April 2009, 4 (2008) Yong Zhong Jian Zi as determined by the Ningbo Intermediate Court of Zhejiang Province. The English summary of this case and the original judgment in Chinese can be found in the New York Convention Guide site at http://www.newyorkconvention1958.org/index.php?lvl=author_see&id=180.
32.
Decision of 22 April 2009, 4 (2008) Yong Zhong Jian Zi.
33.
Decision of 22 April 2009, 4 (2008) Yong Zhong Jian Zi.
34.
Zublin International GmbH v Wuxi Woco-Tongyong Bubber Engineering Co., [2003] Min Si Ta Zi No 23 (SPC 8 July 2004) available online at: <http://www.cuplfil.com/case_detail.asp?infoid=40>.
35.
Zublin International GmbH v Wuxi Woco-Tongyong Bubber Engineering Co., [2003] Min Si Ta Zi No 23 (SPC 8 July 2004).
36.
Zublin International GmbH v Wuxi Woco-Tongyong Bubber Engineering Co., [2003] Min Si Ta Zi No 23 (SPC 8 July 2004).
37.
Zublin International GmbH v Wuxi Woco-Tongyong Bubber Engineering Co., [2003] Min Si Ta Zi No 23 (SPC 8 July 2004).
38.
Zublin International GmbH v Wuxi Woco-Tongyong Bubber Engineering Co., [2003] Min Si Ta Zi No 23 (SPC 8 July 2004).
39.
Zublin International GmbH v Wuxi Woco-Tongyong Bubber Engineering Co., [2003] Min Si Ta Zi No 23 (SPC 8 July 2004).
40.
For example, Tianrui Investment v. Yiju Hotel, the case was reported in the form of NSC judicial interpretation, see the Reply of the NSC on the Applicant Tianrui Hotel Investment Co. Ltd and the Respondent Hangzhou Yiju Hotel Management Co. Ltd’s Request on Recognition of an Arbitral Award, (2010), in WAN Erxiang ed, Guide on Foreign-Related Commercial and Maritime Trial in China, Vol. 20, People’s Court Press, 2010, pp 94-99 (in Chinese), in this case, the arbitral tribunal decided that the arbitration clause was binding up the parties, and the NSC decided in 2010 that the award did not violate mandatory requirement of Chinese law and there was not conflict between the award and litigation proceedings between the parties in China because the litigation was related to matters outside the arbitration agreement of the parties. See also, Unicon v. Tianbao, Suzhou Intermediate Court, 2010, available at http://www.ccmt.org.cn . The case involves the recognition and enforcement of an arbitral award made by the Ukrainian Chamber of Commerce.
41.
For example, Gerald Metals Inc v Wuhu Mental Plant and Wuhu Henxin Copper Group Comp Ltd, The case summary and the judicial interpretation given by the NSC is available at http://www.lawxp.com/statute/s540605.html . Voest-Alpine Trade v. Jiangsu Foreign Trade, Nanjing Intermediate Court, 2008, available at http://www.lawyee.org.
42.
The 1999 dispute involved a Singaporean seller and a Chinese buyer for cocoa sales. The parties communicated via faxes but the Chinese buyer refused to sign the formal contract sent to it by the seller due to disagreement on the final terms in the written agreement. The seller relied on an early fax sent to the buyer to resort the dispute to the Cocoa Association of London for arbitration which, in turn, held that it had jurisdiction over the dispute (despite the written objection by the Chinese buyer) and issued an award in favor of the seller. When the seller sought recognition and enforcement of the award in the Intermediate Court of Wuxi, Jiangsu Province in 2001, the court was uncertain whether the award should be refused under Article V.1(a) of the Convention or on the ground of public interest because, in the view of the court, there was no valid contract of sale between the parties under both the Vienna Sales Convention and Chinese Contract Law due to the failure to sign the final written contract of sale. The Intermediate Court sought advice from the Provincial Supreme Court, which in turn sought direction from the NSC. The NSC court issued a written reply on 12 June 2003 stating that the award should be refused in accordance with the relevant CPL provision and the relevant rules of the NSC concerning the Convention. This judicial interpretation is collected in Wan Erxiang and Others (eds.), 3 (2003) The Study and Guidance to Foreign Related Commercial and Maritime Trials in China, (People’s Court Press 2003) 97-107, in Chinese.
43.
W Erxiang et al (eds.), 3 The Study and Guidance to Foreign Related Commercial and Maritime Trials in China, (People’s Court Press, 2003) 97-107, in Chinese.
44.
W Erxiang et al (eds), 3 The Study and Guidance to Foreign Related Commercial and Maritime Trials in China, (People’s Court Press, 2003) 97-107, in Chinese.
45.
United Nations Information Service, “China Withdraws “Written Form” Declaration Under the United Nations Convention on Contracts for the International Sale of Goods (CISG)” <http://www.unis.unvienna.org/unis/pressrels/2013/unisl180.html>.
46.
The Interpretation is a reply to inquiry made by the Provincial Supreme Court of Chongqin, available at <http://china.findlaw.cn/fagui/p_1/136434.html>, in Chinese.
47.
The Interpretation is a reply to inquiry made by the Provincial Supreme Court of Chongqin, available at <http://china.findlaw.cn/fagui/p_1/136434.html>, in Chinese.
48.
The Interpretation is a reply to inquiry made by the Provincial Supreme Court of Chongqin, available at <http://china.findlaw.cn/fagui/p_1/136434.html>, in Chinese.
49.
Beijing University Lawyee Database, <http://www.lawyee.net/Case/Case_Display.asp?ChannelID=2010100&keyword=%C3%C0%B9%FAVOEST%2DALPINE%B9%FA%BC%CA%C3%B3%D2%D7%B9%AB%CB%BE%B0%B8&RID=277493#>.
50.
Beijing University Lawyee Database, <http://www.lawyee.net/Case/Case_Display.asp?ChannelID=2010100&keyword=%C3%C0%B9%FAVOEST%2DALPINE%B9%FA%BC%CA%C3%B3%D2%D7%B9%AB%CB%BE%B0%B8&RID=277493#>.
51.
Beijing University Lawyee Database, <http://www.lawyee.net/Case/Case_Display.asp?ChannelID=2010100&keyword=%C3%C0%B9%FAVOEST%2DALPINE%B9%FA%BC%CA%C3%B3%D2%D7%B9%AB%CB%BE%B0%B8&RID=277493#>.
52.
Beijing University Lawyee Database, <http://www.lawyee.net/Case/Case_Display.asp?ChannelID=2010100&keyword=%C3%C0%B9%FAVOEST%2DALPINE%B9%FA%BC%CA%C3%B3%D2%D7%B9%AB%CB%BE%B0%B8&RID=277493#>.
53.
Beijing University Lawyee Database, <http://www.lawyee.net/Case/Case_Display.asp?ChannelID=2010100&keyword=%C3%C0%B9%FAVOEST%2DALPINE%B9%FA%BC%CA%C3%B3%D2%D7%B9%AB%CB%BE%B0%B8&RID=277493#>.
54.
Beijing University Lawyee Database, <http://www.lawyee.net/Case/Case_Display.asp?ChannelID=2010100&keyword=%C3%C0%B9%FAVOEST%2DALPINE%B9%FA%BC%CA%C3%B3%D2%D7%B9%AB%CB%BE%B0%B8&RID=277493#>.
55.
Dunavant SA v Import and Export Comp Ltd of Huafang Group [2006] available at <http://www.ccmt.org.cn/showws.php?id=3189>.
56.
Dunavant SA v Import and Export Comp Ltd of Huafang Group [2006] available at <http://www.ccmt.org.cn/showws.php?id=3189>.
57.
Dunavant SA v Import and Export Comp Ltd of Huafang Group [2006] available at <http://www.ccmt.org.cn/showws.php?id=3189>.
58.
The Arbitration Law, Articles 70-71.
59.
Cosmos Marine Managements. A. v Tianjin Kaiqiang Trading Company Ltd, [2006] Min Si Ta Zi No. 34. The case summary is seen in the “Reply of NSC on Whether to Recognize and Enforce the London Arbitration Award concerning Vessel ABRA” issued on 10 January 2007 <http://law.legaldaily.com.cn/law_content.php?law_id=0b105cf1504c4e241fcc6d519ea962fb1689&key_word>.
60.
Cosmos Marine Managements. A. v Tianjin Kaiqiang Trading Company Ltd, [2006] Min Si Ta Zi No. 34.
61.
Cosmos Marine Managements. A. v Tianjin Kaiqiang Trading Company Ltd, [2006] Min Si Ta Zi No. 34.
62.
Cosmos Marine Managements. A. v Tianjin Kaiqiang Trading Company Ltd, [2006] Min Si Ta Zi No. 34.
63.
Cosmos Marine Managements. A. v Tianjin Kaiqiang Trading Company Ltd, [2006] Min Si Ta Zi No. 34.
64.
Cosmos Marine Managements. A. v Tianjin Kaiqiang Trading Company Ltd, [2006] Min Si Ta Zi No. 34.
65.
Cosmos Marine Managements. A. v Tianjin Kaiqiang Trading Company Ltd, [2006] Min Si Ta Zi No. 34.
66.
Shin-Etsu Chemical Capitalia v Jiangsu Zhongtian Technology Co., Ltd, [2008] Min Si Ta Zi No. 18. The case was decided by the Provincial Supreme Court of Jiangsu in 2008 after receiving direction from the NSC. The Reply of NSC concerning the Report to Refuse to Recognize the Arbitral Award Number 04-05 of the Japanese Commercial Arbitration Association in Tokyo is available at <http://code.fabao365.com/law_500504_1.html>.
67.
Shin-Etsu Chemical Capitalia v Jiangsu Zhongtian Technology Co., Ltd, [2008] Min Si Ta Zi No. 18.
68.
Shin-Etsu Chemical Capitalia v Jiangsu Zhongtian Technology Co., Ltd, [2008] Min Si Ta Zi No. 18.
69.
Shin-Etsu Chemical Capitalia v Jiangsu Zhongtian Technology Co., Ltd, [2008] Min Si Ta Zi No. 18.
70.
Shin-Etsu Chemical Capitalia v Jiangsu Zhongtian Technology Co., Ltd, [2008] Min Si Ta Zi No. 18.
71.
Guangzhou Maritime Court (1997) <http://www.cnarb.com>.
72.
Guangzhou Maritime Court (1997) <http://www.cnarb.com>.
73.
Guangzhou Maritime Court (1997) <http://www.cnarb.com>.
74.
Guangzhou Maritime Court (1997) <http://www.cnarb.com>.
75.
Guangzhou Maritime Court (1997) <http://www.cnarb.com>.
76.
Guangzhou Maritime Court (1997) <http://www.cnarb.com>.
77.
Guangzhou Maritime Court (1997) <http://www.cnarb.com>.
78.
Contestar Shipping v. Sinotrans Zhanjiang, a summary of the case is found in the “China Institute of Applied Jurisprudence” (ed) The Selected NSC Cases: Civil Cases (1992-1999) (Legal Publishing House Beijing 2001) 2052-2061, in Chinese.
79.
NSC, ‘The Reply of the NSC to an Application by Boertong Corp. for Recognition and Enforcement of a Foreign Arbitral Award [on Boertong v. Liantaichang Commerce]’ in W Erxiang (ed) 14 Guide on Foreign-Related Commercial and Maritime Trial in China (People’s Court Press, Beijing, 2006) 94-96, in Chinese.
80.
Ibid.
81.
Gerald Metals Inc v Wuhu Mental Plant and Wuhu Henxin Copper Group Comp Ltd., [2003] Min Si Ta Zi No. 12. The case was decided by the Provincial Supreme Court of Anhui in 2003 after having obtained direction from the NSC which issued a reply as a form of judicial interpretation as the request of the Provincial Supreme Court. The case summary and the judicial interpretation given by the NSC is available at http://www.lawxp.com/statute/s540605.html.
82.
Gerald Metals Inc v Wuhu Mental Plant and Wuhu Henxin Copper Group Comp Ltd., [2003] Min Si Ta Zi No. 12.
83.
Gerald Metals Inc v Wuhu Mental Plant and Wuhu Henxin Copper Group Comp Ltd., [2003] Min Si Ta Zi No. 12.
84.
Ibid.
85.
NSC, ‘The Reply of the NSC on the Request for Instruction on Whether to Enforce the CIETAC Arbitral Award Jing Arbitration No. 0379 (2008)’ in W Erxiang (ed) 14 Guide on Foreign-Related Commercial and Maritime Trial in China (People’s Court Press, Beijingm 2010) 100-107, in Chinese.
86.
Hemofarm DD and Others v Yongning Pharmaceutical Comp Ltd, [2008] Min Si Ta Zi No. 11. The Jining Intermediate Court applied for guidance from the Provincial Supreme Court of Shandong which in turn sought direction from the NSC which issued a judicial interpretation by way of a reply to the inquiry to the Provincial Supreme Court in June 2008. The reply of the NSC and the case summary is available at <http://www.fsou.com/html/text/chl/1327/132739.html>.
87.
Hemofarm DD and Others v Yongning Pharmaceutical Comp Ltd, [2008] Min Si Ta Zi No. 11.
88.
Shin-Etsu Chemical Capitalia v Jiangsu Zhongtian Technology Co., Ltd, [2010] Min Si Ta Zi No. 32. The case was decided by the Provincial Supreme Court of Jiangsu in 2008 after having received direction from the NSC. The Reply of NSC concerning the Report to Refuse to Recognize the Arbitral Award Number 04-05 of the Japanese Commercial Arbitration Association in Tokyo is available at http://code.fabao365.com/law_500504_1.html.
89.
Ibid.
90.
Ibid.
91.
Ibid.
92.
Ibid.
93.
Bunge Agribusiness Singapore Pte Ltd v Guangdong Fengyuan Cereal and Oil Group Comp Ltd, [2006] Min Si Ta Zi No. 41. The reply and the case summary are available at http://law.legaldaily.com.cn/law_content.php?law_id=45cef8e5b9570959bd9feaacae2bf38d1642&key_word=.
94.
Bunge Agribusiness Singapore Pte Ltd v Guangdong Fengyuan Cereal and Oil Group Comp Ltd, [2006] Min Si Ta Zi No. 41.
95.
N Darwazeh and F Yeoh, ‘Recognition and Enforcement of Awards under the New York Convention: China and Hong Kong Perspectives’ (2008) 25 J. of Int’l Arb 837
96.
Ibid. Mr Wang was arrested in 2006 for alleged economic crimes and other misconduct and he was late sentenced to five years in jail; the impact, if any, of Mr Wang’s arrest on Chengdu Intermediate Court’s decision is however unclear. This case was however widely reported in Chinese media. For example, see: Caijin.com.cn, July 2008 <http://www.caijing.com.cn/2008-07-28/100076639.html>.
97.
PepsiCo v. Pepsi-Cola Sichuan and PepsiCo China v. Yunlv Co, [2005] Cheng Ming Chu Zi Di No. 912. The summary of the case is also available at http://www.cnarb.com/algy/cloutcases/china/200911/12897_9.html.
98.
N Darwazeh and F Yeoh, ‘Recognition and Enforcement of Awards under the New York Convention: China and Hong Kong Perspectives’ (2008) 25 J. of Int’l Arb 837.
99.
NSC, ‘The Reply of the NSC to the Request for Instructions on a Refusal to Recognize and Enforce an ICC Award’ in W Erxiang (ed) 19 Guide on Foreign-Related Commercial and Maritime Trial in China (People’s Court Press, Beijing, 2009) 111-125, in Chinese.
100.
Ibid.
101.
Ibid.
102.
Ibid.
103.
Ibid.
104.
Article 4 of the Notice states that the court should refuse to recognize and enforce a foreign arbitral award if it determines any situation in Article V exists.
105.
Article 36 of the Draft Rules states that at the application of a party, the court should refuse to recognize and enforce a foreign arbitral award which has not become binding or has been set aside or suspended from enforcement.
106.
For the support to the conventional approach, see X Xinshen, ‘The Recognition and Enforcement of International Commercial Arbitral Awards Which Has Been Set Aside in Dispute’ (2007) 63 Beijing Arbitration, Legal Publishing House China 71, in Chinese. For the support to the liberal view which argues that China should recognize and enforce foreign arbitral awards in special cases for the purpose of protecting its own interests, see L Xiaona, ‘The Recognition and Enforcement of Arbitral Award Which Has Been Set Aside in International Commercial Arbitration’ (2006) 1 New Angle of View 136, in Chinese; C Nanfang, ‘Preliminary Analysis of the Recognition and Enforcement of Arbitral Award Which Has Been Set Aside in China’ (2012) 3 FAZHIYUJINGJI 9, in Chinese.
107.
The NSC Notice concerning the Implementation of New York Convention, Article 2.
108.
NSC, ‘The Reply of the NSC on the Proposal to Refuse the Recognition and Enforcement of an MNAC Arbitral Award’ in W Erxiang (ed) 19 Guide on Foreign-Related Commercial and Maritime Trial in China (People’s Court Press, Beijing, 2010) 97-100, in Chinese.
109.
Ibid.
110.
Ibid.
111.
Ibid.
112.
Ibid.
113.
In fact, in the provisions referred to above, the concept in Chinese should be translated as “social public interest”. But, in view of the author, there is no real difference between “public interest” and “social public interest” in the context of Chinese law, and accordingly, has adopted the term “public interest” in the paper.
114.
The case was decided by the Provincial Supreme Court of Jiangsu in 2008 after having received direction from the NSC. The Reply of NSC concerning the Report to Refuse to Recognize the Arbitral Award Number 04-05 of the Japanese Commercial Arbitration Association in Tokyo is available at http://code.fabao365.com/law_500504_1.html.
115.
Ibid.
116.
Ibid.
117.
Ibid.
118.
Ibid.
119.
Ibid.
120.
The Reply of the NSC on a Case Regarding an Application by ED & F Man (Hong Kong) Co. Ltd for Recognition and Enforcement of an SAL Arbitral Award, 2003, available at www.lawyee.net.
121.
Ibid.
122.
Ibid.
123.
Ibid.
124.
Ibid.
125.
The Reply of the NSC on the Case Regarding an Application by GRD Minproc Ltd for Recognition and Enforcement of an SCC Arbitral Award, (2009) in WAN Erxiang, ed, Guide on Foreign-Related Commercial and Maritime Trial in China, Vol. 18, Beijing, People’s Court Press, 2009, pp 135-142, in Chinese.
126.
Hemofarm DD and Others v Yongning Pharmaceutical Comp Ltd, [2008] Min Si Ta Zi No. 11. The Jining Intermediate Court applied for guidance from the Provincial Supreme Court of Shandong which in turn sought direction from the NSC which issued a judicial interpretation by way of a reply to the inquiry to the Provincial Supreme Court in June 2008. The reply of the NSC and the case summary is available at http://www.fsou.com/html/text/chl/1327/132739.html.
127.
Hemofarm DD and Others v Yongning Pharmaceutical Comp Ltd, [2008] Min Si Ta Zi No. 11.
128.
Ibid.
129.
Ibid.
130.
Article 4 of the Notice states that the court should refuse to recognize and enforce a foreign arbitral award if it determines any situation in Convention Article V exists.
131.
COSCO Guangzhou v. Marships Connecticut, Guangzhou Maritime Court (1990) case summary available at http://www.lawtime.cn.
132.
The NSC Reply to the Shanghai Supreme Court Concerning the Application by Miko Comp Ltd for the Recognition and Enforcement of an Arbitral Award, 1999, available at http://china.findlaw.cn/fagui/p_1/170801.html.
133.
Ibid.
134.
Ibid.
135.
Besides the cases discussed in the paper, see also Vysanthi Shipping v. China Food, Oil & Feed, Tianjin Maritime Court, 2004, available at http://www.chinalawinfo.com. Scheuer v. Lehman, “The Reply of the NSC to Peter Scheuer’s Application for Enforcement of an AAA Arbitral Award” (2006) WAN Erxiang (ed.) 14 Guide on Foreign-Related Commercial and Maritime Trial in China (People’s Court Press Beijing 2007) 87-93, in Chinese.
136.
(1997) Guangzhou Maritime Court, available at http://www.pkulaw.cn.
137.
Ibid.
138.
See “Exceeding the Limitation for Enforcement, the China Court Says ‘No’ to London Arbitration”, 19 March 2008, available at http://www.gzhsfy.org/shownews.php?id=8140.
139.
Ibid.
140.
Ibid.
141.
Ibid.
142.
Ibid.
143.
Macor Neptun v. Shanghai Mechanical, see the Reply of the NSC to a Case Regarding an Application by Macor Netpun for Recognition and Enforcement of an Arbitral Award, 2001, available at http://www.lawyee.net.
144.
Weimao v. Tianli Enterprise, The Reply of the NSC to the Request for Instructions on Refusing Enforcement of the ICC Arbitral Award, 2004, available at http://www.lawtime.cn.
145.
Xiamen Intermediate Court, 1995, available at http://vip.chinalawinfo.com.
146.
Ibid.
147.
Ibid.
148.
Ibid.
149.
Ibid.
150.
939 F.Supp. 907 (1996).
151.
For example, L Linyun, ‘Preliminary Discussion on the Recognition and Enforcement of Arbitral Award Which Has Been Set Aside in International Commercial Arbitraiton’ (2003) 50:03 Journal of Adult Education of Gansu Political Science and Law Institute 47-50, in Chinese; X Xinshen ‘The Recognition and Enforcement of International Commercial Arbitral Awards Which Has Been Set Aside in Dispute’ (2007) 63 Beijing Arbitration, China Legal Publishing House 71, in Chinese; L Xiaona, ‘The Recognition and Enforcement of Arbitral Award Which Has Been Set Aside in International Commercial Arbitration’ (2006) 1 New Angle of View 136, in Chinese; and C Nanfang, ‘Preliminary Analysis of the Recognition and Enforcement of Arbitral Award Which Has Been Set Aside in China’ (2012) 3 FAZHIYUJINGJI 19, in Chinese.
152.
M Zhiyao, ‘Preliminary Discussion on the Shortcomings and Improvement of the New York Convention’ (2009) 70 Beijing Arbitration 80-89, in Chinese.
153.
Ibid.
154.
C Nanfang, ‘Preliminary Analysis of the Recognition and Enforcement of Arbitral Award Which Has Been Set Aside in China’ (2012) 3 FAZHIYUJINGJI 19, in Chinese.
155.
F Jia, ‘Improvement and Reform of the New York Convention’ (2000) 2 383-471 International Commercial Law Review 396-399, in Chinese.
156.
L Yaqiong, ‘Preliminary Discussion on the Present State of Ad Hoc Arbitration in China’ (2010) 8 Legality Vision 40, 79, in Chinese; G Wei, ‘Nationality of Arbitral Awards- Comment on Double Standards in Chinese Judicial Practices’ (2011) 40:5 Journal of Northwest University( Philosophy and Social Sciences Edition) 153-158 in Chinese; H Siyi, ‘Importance of Developing Ad Hoc Arbitration In China’ (2012) 1 Lan Zhou Xue Kan 201-203, in Chinese; and S Chenkai, ‘Obstacles for Applying Ad Hoc Arbitration in China’ (2013) 3 Legality Vision 112-113, in Chinese.
157.
H Tingsong, ‘Recognition and Enforcement of Awards Made on Line under the System of New York Convention’ (2008) 3 Journal of Huaqiao University (Philosophy and Social Sciences) 85-90, in Chinese.
158.
Ibid, 86.
159.
H Yaying, ‘Application of Law to Arbitration Clauses under the New York Convention- Comment Also on Judicial Practices of China in Past 20 Years’ (2009) 2 Law Science (Journal of Northwest University of Political Science and Law 161-168, in Chinese.
160.
It should be emphasized that an arbitral award becomes a New York Convention award only when it is made in the territory of a member of New York Convention, or considered to be a non-local award by the country where it is enforced, and to be enforced in another territory of a member state.
161.
For example, ibid, and Z Xiuwen, ‘The New York Convention and the Determination of the Validity of Arbitration Clause in International Commercial Arbitration’ (2009) 7 Hebei Law Science 6-10, in Chinese.
162.
Huang Siyi, “Importance of Establishing Ad Hoc Arbitration in China, (2012) 1 Lanzhou Academic Journal 166, in Chinese.
163.
Mitsubishi Corporation Ltd (Hong Kong) v Three Gorges Investment Company Ltd and Others (1999) NSC, Jin Final 1999, No 426, available at http://www.fabang.com/a/20110826/394266_2.html.
164.
Ibid.
165.
Ibid.
166.
Fei Jia, “Improvement and Reform of the New York Convention”, 2000, Vol 2, International Commercial Law Review 383-471, at 454, in Chinese.
167.
Fei Jia, “Improvement and Reform of the New York Convention”, 2000, Vol 2, International Commercial Law Review 383-471, at 456, in Chinese.
168.
Fei Jia, “Improvement and Reform of the New York Convention”, 2000, Vol 2, International Commercial Law Review 383-471, at 459, in Chinese.
169.
Fei Jia, “Improvement and Reform of the New York Convention”, 2000, Vol 2, International Commercial Law Review 383-471, at 463, in Chinese.
170.
For example, Li Linyun, “Preliminary Discussion on the Recognition and Enforcement of Arbitral Award Which Has Been Set Aside in International Commercial Arbitraiton”, (2v003) 50:03 Journal of Adult Education of Gansu Political Science and Law Institute 47-50, in Chinese; Xie Xinshen, “The Recognition and Enforcement of International Commercial Arbitral Awards Which Has Been Set Aside in Dispute” Beijing Arbitration 63 (Legal Publishing House China 2007) 71, in Chinese; Liu Xiaona, “The Recognition and Enforcement of Arbitral Award Which Has Been Set Aside in International Commercial Arbitration”, (2006) 1 New Angle of View p 136, in Chinese; and Cun Nanfang, “Preliminary Analysis of the Recognition and Enforcement of Arbitral Award Which Has Been Set Aside in China”, (2012 No 3) 306 FAZHIYUJINGJI 19, in Chinese.

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Faculty of International Law, Univeristy of Macau, CUPL, 25 Xi Tu Chen Road, Haidian District, Beijing, 100088, China
John Shijian Mo

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Mo, J.S. (2017). Interpretation and Application of the New York Convention in China. In: Bermann, G. (eds) Recognition and Enforcement of Foreign Arbitral Awards. Ius Comparatum - Global Studies in Comparative Law, vol 23. Springer, Cham. https://doi.org/10.1007/978-3-319-50915-0_7

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Published: 18 July 2017
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