WANG JING CO Recognition and Enforcement of Foreign

WANG JING & CO. 敬海律师事务所 Recognition and Enforcement of Foreign Arbitral Awards in China Mr. WANG Jing 王敬 Managing Partner 管理合伙人 October 2013 Wang Jing & Co.

Main Points 1. Applicable conventions, laws and judicial interpretations 2. System of approval 3. Grounds for Refusal and Recognition Strategies Wang Jing & Co.

I. Applicable conventions, laws and judicial interpretations Wang Jing & Co.

Applicable conventions, laws and judicial interpretations l China’s accession, in 1987, to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, usually referred to as the New York Convention 1958. l Every award made by an arbitral tribunal in a country contracted to the New York Convention shall in principle be recognized and enforced in China. Wang Jing & Co.

Applicable conventions, laws and judicial interpretations l All applications for the recognition and enforcement of foreign arbitral awards shall be filed to a people’s court at intermediate level, in the jurisdiction where the party subject to enforcement is domiciled or where the property to be enforced is located. l The courts have two months to review and examine the application and if it is granted and the award recognized, enforcement should under normal circumstances be completed within six months of such ruling. Wang Jing & Co.

II. System of Approval Wang Jing & Co.

System of Approval l An intermediate People’s Court that intends to refuse recognition of a foreign arbitral award must seek approval from the Higher People’s and the latter, if in agreement, must in its turn seek approval from the Supreme People’s Court. Wang Jing & Co.

III. Grounds for Refusal and Recognition Strategies Wang Jing & Co.

Grounds for Refusal and Recognition Strategies l The parties were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; l The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; Wang Jing & Co.

Grounds for Refusal and Recognition Strategies l The award deals with a difference not considered by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; Wang Jing & Co.

Grounds for Refusal and Recognition Strategies l The composition of the arbitral authority or the arbitral procedure was in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; l The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. Wang Jing & Co.

Grounds for Refusal and Recognition Strategies l Alternatively, the people’s court also has the right to examine ex officio whether Chinese law permits the subject matter in dispute to be settled by arbitration and whether the foreign arbitral award violates China’s public policy. Wang Jing & Co.

Two frequently raised objections l The arbitration agreement or the arbitral clause is invalid under applicable law — the law designated in the arbitration agreement or, if there is no such law, then the law of the country where the award is made or, if failing the laws mentioned above, the law of the forum. l The party against which enforcement is invoked did not receive a notice of arbitration or was otherwise unable to present its case Wang Jing & Co.

Case [(2006)SZMSZZ No. 0002] l The applicant presented the original contract which contained a clause “Rules & Arbitration Liverpool” to counter the first argument. Given that both parties had not agreed on the applicable law, the court confirmed the validity of such arbitration law applying the law of the country where the award was made - the Arbitration Act 1996 of England. Wang Jing & Co.

Case [(2006)SZMSZZ No. 0002] l To submit to the people’s court materials that prove the contrary: l mail or notarization records giving evidence of the sending of notices and documents by mail, as well as other legal records and certifications l The applicant presented the mail records and notarized affidavits proving that the notices were well received Wang Jing & Co.

Case [(2006)SZMSZZ No. 0002] l The foreign arbitral award was successfully recognized and enforced in China. Wang Jing & Co.

WANG JING & CO. 敬海律师事务所 Thank You ! Mr. WANG Jing Managing Partner October 2013 王敬 管理合伙人 Wang Jing & Co.