Challenging jurisdiction and anti-suit provisions in China
Produced in partnership with Arthur Dong of AnJie Law Firm
Challenging jurisdiction and anti-suit provisions in China

The following Arbitration guidance note Produced in partnership with Arthur Dong of AnJie Law Firm provides comprehensive and up to date legal information covering:

  • Challenging jurisdiction and anti-suit provisions in China
  • Total challenges
  • Partial challenges
  • The deadline for challenging jurisdiction of an arbitral tribunal
  • Who has the authority to make a decision upon a jurisdiction challenge?
  • Governing law for judging the validity of the arbitration agreement
  • Binding force of jurisdictional decisions
  • Process regulating the judicial review of the validity of arbitration agreements

Challenging the jurisdiction of a Chinese arbitral institution to hear a matter always requires challenging the binding force of an arbitration agreement. Article 5 of the Arbitration Law of the People’s Republic of China (the Arbitration Law) gives arbitral tribunals exclusive authority to hear cases when the parties ‘have concluded an arbitration agreement’. At the same time, article 5 of the Arbitration Law prevents the people's court from accepting a case ‘unless the arbitration agreement is null and void’.

Chinese law envisages two types of challenges to the jurisdictions of arbitral tribunals, namely:

  1. total challenges—as the name implies, are challenges to dispute the existence or validity of the jurisdiction granting arbitration clause

  2. partial challenges—admit the existence of an arbitration clause but refute that the dispute is within the scope of the arbitration clause being relied upon

A party challenging the validity of an arbitration agreement may, according to article 20 of the Arbitration Law, ‘request the arbitration commission to make a decision or apply to the people's court for a ruling’ (note: the term 'arbitration commission' is interchangeable with the term 'arbitration institution'. In China, arbitration institutions have historically been called arbitration commissions. More recently, Chinese institutions and practitioners have begun to refer to arbitration commissions as arbitration institutions to conform with international nomenclature. Very recently, some institutions now refer to themselves as