5 Arbitration Agreement: (Articles 5 and 6)

Subject(s):

Arbitral agreements — Jurisdiction — Preliminary objections — Recognition and enforcement — Treaties, binding force — Applicable law

This chapter discusses the important subject of arbitration agreement, covering Article 5 and Article 6 of the CIETAC Rules. Article 5.1 defines ‘arbitration agreement’ as ‘an arbitration clause in a contract or any other form of a written agreement concluded between the parties providing for the settlement of disputes by arbitration’. In practice, arbitration agreements may be established in one of the following three ways in China: contract clause; submission agreement; and incorporation by reference. The chapter then looks at the statutory requirements for a valid arbitration agreement; the common defects of arbitration agreements; the separability of arbitration agreements; and the binding effect of an arbitration agreement on non-signatory parties. Meanwhile, Article 6 sets forth provisions with regard to objection to arbitration agreement and/or arbitral jurisdiction. The chapter considers several aspects of the court’s procedure in deciding on objection to arbitration agreement, and the Reporting Mechanism of the PRC courts in regard to deciding on arbitration-related matters.