The Chinese Economy

ISSN: 1097-1475 (Print) 1558-0954 (Online) Journal homepage: http://www.tandfonline.com/loi/mces20

Arbitration Within the China (Shanghai) Pilot Free

Trade Zone

Bin Wang

To cite this article: Bin Wang (2017) Arbitration Within the China (Shanghai) Pilot Free Trade
Zone, The Chinese Economy, 50:4, 274-282, DOI: 10.1080/10971475.2017.1321893

To link to this article: http://dx.doi.org/10.1080/10971475.2017.1321893

Published online: 17 Jul 2017.

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 The Chinese Economy, 50: 274–282, 2017
Copyright # Taylor & Francis Group, LLC
ISSN: 1097-1475 print/1558-0954 online
DOI: 10.1080/10971475.2017.1321893

none defined
Arbitration Within the China (Shanghai) Pilot
Free Trade Zone

Bin Wang
KoGuan Law School of Shanghai Jiao Tong University, Shanghai, China
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Arbitration, with its perceived benefits of economy in time and expenses, confidentiality,
enforceability, neutrality, and liberty from national laws’ restraints, is the preferred choice for
dispute within the SPFTZ. The establishment of the SPFTZ Arbitration Court and the promulgation
of SPFTZ Arbitration Rules and the Opinions provide strong support of dispute settlement in the
SPFTZ, and understanding the innovations and features of those rules will definitely help
businessmen choose a better method to resolve the disputes and to the maximum extent to protect
their property and rights.

Keywords: FTZ, SHIAC, SPFTZ arbitration rules

INTRODUCTION

On September 29,2013, the China (Shanghai) Pilot Free Trade Zone (SPFTZ) was established
and, from that day, it has commenced to carry out institutional reform and innovation in
the fields of investment, foreign trade, finance, and post-filing supervision to form a legal
framework for investment and trade within the zone.1 To cultivate international and legalization
business environment is one of the targets provided in the Overall Scheme of China (Shanghai)
Pilot Free Trade Zone (the Scheme).2 In order to achieve this target, it is necessary to build a
good-functioning system of legal disputes settlement. Due to the increasing needs from
commercial and financial sectors, the number of dispute settlements is far beyond the capacity
of the Free Trade Zone Court of Shanghai Pudong New Area People’s Court (the FTZ Court).
Therefore, as the widely adopted method by different countries and international economic
organizations to settle such disputes, arbitration, with its perceived benefits of economy in
time and expenses, confidentiality, enforceability, neutrality, and liberty from national laws’
restraints, is the preferred choice for dispute within the SPFTZ.
As an important institutional arrangement of dispute settlement and guarantee of legal
system in the SPFTZ, China (Shanghai) Pilot Free Trade Zone Arbitration Court (SPFTZ
Arbitration Court) was set up as a stationed branch of Shanghai International Arbitration
Commission (SHIAC) on October 23, 2013.3 However, the China (Shanghai) Pilot Free Trade
Zone Arbitration Rules (SPFTZ Arbitration Rules) was not formulated until April 30, 2014 and
became effective on May 1, 2014.4

Address correspondence to Bin Wang, KoGuan Law School, Shanghai Jiao Tong University, 1954 Huashan Road,
Shanghai 200030, China. E-mail: wangbin72@sjtu.edu.cn
 ARBITRATION WITHIN THE CHINA SPFTZ 275

Shortly after the SPFTZ Arbitration Rules come into effect, the Shanghai No. 2 Intermediate
People’s Court (Shanghai No. 2 Intermediate Court), which was designated by the higher court
to be in charge of reviewing arbitration cases by SHIAC, issued “Opinions on Judicial Review
and Enforcement of Arbitration Cases Applying the China (Shanghai) Pilot Free Trade Zone
Arbitration Rules” (the Opinions).5 The Opinions provide strong judicial support for the
implementation of the SPFTZ Arbitration Rules (Chen, Cui, and Bi, 2014) Henceforth, a
Trinitarian SPFTZ arbitration mechanism has been built and is consisted of an arbitration
institution in SPFTZ, arbitration rules for SPFTZ, and the opinions on judicial review
(Yuan, 2014).
All these rules and opinions enable the SPFTZ Arbitration Court to commence on its
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operation at once. However, there are several issues which concern persons who want to specify
those rules in their agreement for potential disputes.

THE RELATIONSHIP AMONG CHINA INTERNATIONAL ECONOMIC AND TRADE

ARBITRATION (CITEAC) AND SHANGHAI INTERNATIONAL ARBITRATION
COMMISSION (SHIAC) AND SHENZHEN COURT OF INTERNATIONAL
ARBITRATION (SCIA)

The Split of CITEAC and Its Sub-Commissions

In the past two years, the arbitration institution in China underwent a radical and profound
revolution, two former subcommissions (now known as Shanghai International Economic
and Trade Arbitration Commission/Shanghai International Arbitration Commission “SHIAC”
and the South China International Economic and Trade Arbitration Commission/Shenzhen
Court of International Arbitration “SCIA,” respectively) have declared their independence from
CIETAC and published their own sets of arbitration rules (Pandjaitanon, 2014).
The separation of CIETAC and its former Shanghai and South China subcommissions was
triggered by the announcement of new China International Economic and Trade Arbitration
Commission Arbitration Rules (the CIETAC Arbitration Rules 2012), which was promulgated
in January 2012 and came into force on May 1, 2012. Article 2(8) of the CIETAC Arbitration
Rules 2012 stipulates that, “Where the subcommission/arbitration center agreed upon by the
parties does not exist or where the agreement is ambiguous, the Arbitration Court [in Beijing]
shall accept the arbitration application and administer the case.”6 In comparison to Article 2(6)
of the CIETAC Rules 2005, the CIETAC Rules 2012 is deemed as abolishing the autonomy
of the former CIETAC Shanghai and South China subcommissions by requiring default
administration over all cases under CIETAC arbitration clauses, regardless of whether the place
of arbitration was mentioned or not. In the view of the CIETAC Shanghai and South China
subcommissions, the CIETAC Arbitration 2012 Rules had undermined their jurisdiction and
interests. In response, both subcommissions refused to implement those Rules. On August 1,
2012 CIETAC announced suspension of its authorization of these two subcommissions to
accept and administer arbitration cases (Zheng, 2015). As a result of this announcement, both
subcommissions jointly declared on August 4, 2012 that they would become independent
arbitral institutions, and followed this by changing their names.7 The CIETAC South China
SubCommission renamed itself dually as the South China International Economic and Trade
 276 B. WANG

Arbitration Commission (SCIETAC)/Shenzhen Court of International Arbitration (SCIA) on

October 22, 2012.8 The CIETAC Shanghai SubCommission renamed itself as the Shanghai
International Economic and Trade Arbitration Commission/Shanghai International Arbitration
Center (SHIAC) on April 11, 2013.9 Both adopted their own arbitration rules as a departure
from those of CIETAC and created their own panel lists of arbitrators. As a result of these
separations, there were challenges about jurisdiction of the arbitration commission and validity
of the arbitration agreement by arguing that SHIAC and SCIA are not the designated arbitration
commission in arbitration clauses (Zheng, 2015).
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“Level-by-Level” Mechanism and Practices

Under Article 16 of the People’s Republic of China Arbitration Law (Arbitration Law of PRC),
a clear stipulation of arbitration commission is one of the prerequisites of a valid arbitration
agreement. To resolve the jurisdiction dispute between SCIA, SHIAC, and CIETAC, on the
date of September 4, 2013, the Supreme People’s Court (SPC) released the Notice on Certain
Issues Relating to Correct Trial on Cases of Judicial Review on Arbitration (Fa [2013] No.194)
(the Notice) to the courts at all levels nationwide. Under the Notice, the Supreme Court asked
all courts to implement a “level-by-level reporting system” when reviewing applications
objecting the validity of an arbitration agreement, to set aside or not to enforce a CIEATC
arbitral award, on the basis of the jurisdictional dispute among the CIETAC institutions (Chen,
Cui, and Liu, 2013). In other words, when a claimant applied to recognize the effectivity of the
arbitration agreement regarding the jurisdiction of the case or applying to revoke or not enforce
the award of such arbitration institute, after the trial committee discussed and before the
people’s court made any judgment, it should report level by level to the SPC. The Supreme
Court intended to provide a uniform standard on judicial review of the cases and give clear
guidance to the parties (Chen, Cui, and Liu, 2013). However, the “level-by-level” mechanism
has not dealt with the root of the problem. Actually, the judgments from Shanghai No.2
Intermediate Court,10 Shenzhen Intermediate Court,11 and Beijing No.2 Intermediate Court12
all indicate that they recognize SHIAC and SCIA as the successor of the respective subcommis-
sions of CIETAC and their jurisdictions to execute arbitration agreements which had chosen the
said subcommissions as the arbitration institute for dispute settlement.

Reply of the SPC on Cases Involving the Judicial Review of Arbitration Awards
Rendered by CIETAC and Former CIETAC Subcommissions

On July 15, 2015, the SPC issued its long-awaited notice relating to the validity of arbitration
agreements and the enforceability of arbitral awards involving CIETAC and its former South
China and Shanghai subcommissions. The notice came into effect July 17, 2015.13 It offers
guidance on the determination of jurisdiction, the effectiveness of awards before this notice
was released, and the enforcement of the awards. For a party who intends to commence an
arbitration proceeding in connection with an affected arbitration agreement, the determination
of jurisdiction depends on the date in which the relevant subcommission has changed its name
and when the arbitration agreement in question is signed. If the arbitration agreement was
concluded prior to the date of name change, the former subcommission would have jurisdiction.
 ARBITRATION WITHIN THE CHINA SPFTZ 277

If, however, the arbitration agreement was entered into on or after the date of the relevant name
change, CIETAC would have jurisdiction. Accordingly, an arbitration commenced pursuant to
an arbitration clause specifying “CIETAC, Shenzhen” should, where the agreement was
concluded before October 22, 2012, be submitted to SCIA. Where, however, the agreement
was entered into on or after that date, it should be submitted to CIETAC. Similarly, requests
for arbitration before April 8, 2013, specifying “CIETAC, Shanghai” should be submitted to
SHIAC, whereas requests for arbitration in connection with later arbitration agreements should
be submitted to CIETAC.
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INNOVATIONS OF THE SPFTZ ARBITRATION RULES

The SPFTZ Arbitration Rules will apply where the parties have agreed to submit their disputes
to SHIAC and have opted for the said Arbitration Rules to apply to the parties, substantial
issues, or subject of the dispute is concerning the SPFTZ, unless the parties agree otherwise;
or where the parties have agreed to refer disputes to the FTZ Arbitration Court or have referred
disputes to SHIAC to be conducted by the FTZ Arbitration Court, unless the parties agree
otherwise (Pandjaitan and Tang, 2014). Therefore, understanding the innovation and advantages
of the FTZ Rules will help parties make better choose to protect their property and rights.

Interim Measures

Compared to the rough rules in both the CIETAC Rules 2015 and the SHIAC Rules 2015
regarding the interim measures, the SPFTZ Arbitration Rules set a separate chapter in respect
of interim measures and put forththat all measures can be applicable to protect property or
evidence from transferring or damage: (a) property preservation measures; (b) evidence
preservation measures; and (c) measures requiring a party to perform certain acts or prohibiting
a party from performing certain acts; (d) pre-arbitration interim measures; (e) emergency
arbitrator procedures; and (f) procedures for changes of interim measures.
One of the most outstanding innovations with respect to the SPFTZ Arbitration Rules is the
introduction of a comparatively comprehensive range of the emergency procedures: Under
the SPFTZ Arbitration Rules, during the period between the acceptance of a case and the
constitution of the tribunal, a party may submit a written application to seek interim relief from
a provisional arbitrator.14 The SPFTZ Arbitration Rules provide that the provisional arbitrator
must issue an urgent decision within 20 days of its appointment or by the tribunal within 20
days of its receipt of the application for interim measures. In summary, the SPFTZ Arbitration
Rules set out relatively quick timelines for the appointment of a provisional arbitrator and the
rendering of a decision, so that the parties can obtain interim relief as quickly as possible.
However, parties who apply to interim measures under the SPFTZ Arbitration Rules still
need support from the local PRC courts, both when applying for the measures and at the stage
of enforcement. The Opinion issued by the Shanghai No. 2 Court on May 4, 2014 could help to
solve this problem. Among other matters, the Shanghai No. 2 Court has laid down specific
time limits for handling applications for, and enforcement of, interim measures in context
of arbitrations under the SPFTZ Arbitration Rules. Specifically, the Shanghai No. 2 Court
 278 B. WANG

Opinions has stated that “if a party applies for preservation before or during the arbitration, such
application shall be immediately accepted,” and that “in urgent cases, if the corresponding
requirements provided in laws are satisfied, a decision shall be made within 24 hours and then
transferred for enforcement immediately” (Chen, Cui, & Bi, 2014).

Recognizing Appointment of Open-Listed Arbitrators

The appointment of arbitrators is recognized as one of the arbitration’s most desirable features.
Some arbitration institutions allow the parties to select their arbitrators freely as the default rule,
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however, other arbitrations, such as CIETAC, only allow the parties to appoint arbitrators from
a panel previously designed by the relevant arbitration institution (Bu, 2014). In general, the
former method is called a open-listed method and the later method is called a closed-list
method.
The SPFTZ Arbitration Rules provides a dual mechanism model for arbitrator appointment
(see Bu, 2014). Pursuant to Article 27 of the SPFTZ Arbitration Rules, parties “may either
appoint arbitrators from the Panel of Arbitrators or recommend persons from outside of the Panel
of Arbitrators as the arbitrator.” Parties “may also reach an agreement on joint recommendation
of a person who is outside the Panel of Arbitrators as the presiding/sole arbitrator.” Article 9
(Judicial Review of Arbitrators Appointed outside the Panel) of the Opinions clearly provides
that “where one party/parties recommends/jointly recommend arbitrators or the presiding (sole)
arbitrator out of the Panel of Arbitrators, it shall be recognized under the judicial review, if the
appointment has been affirmed by the Chairman of SHIAC, the appointed persons satisfy the cri-
terion on qualification provided in Article 13 of the Arbitration Law of PRC, and the proceedings
of appointment are legitimate under the SPFTZ Arbitration Rules and relevant provisions of
Chinese laws.” This provision enables the parties to recommend and select arbitrators outside
the panel more freely.

Arbitration Ex Aequo Et Bono Under the SPFTZ Arbitration Rules

An award ex aequo et bono generally refers to an arbitral award with binding effect that is
made, as authorized by both parties, under the principle of ex aequo et bono regarding the
substantive issues of a dispute. Awards ex aequo et bono can greatly satisfy parties’ need for
autonomy, especially when dealing with controversies and disputes which are difficult to be
resolved by laws and rules, yet still complying with the pursuit of substantive justice under
private international law and international commercial arbitration (Chen, Cui, and Liu, 2013).
However, for a long time, an award ex aequo et bono is not recognized in China, which causes
uncertainty when enforcing such an award.
Article 56 of the SPFTZ Arbitration Rules stipulates that “If the parties have so agreed in the
arbitration agreement, or have made a written application upon agreement consensus during the
arbitration proceedings, the tribunal may render the award ex aequo et bono, under the condition
that such an award shall not violate any mandatory provisions of laws and public policies.” In
addition, Article 13 of the Opinions provides that “where the tribunal renders an award ex aequo
et bono, the proceedings may be recognized in judicial review, if the proceeding is agreed to
jointly by the parties in writing, does not violate mandatory provisions of Chinese laws, and
 ARBITRATION WITHIN THE CHINA SPFTZ 279

the award rendered in the proceeding complies with the SPFTZ Arbitration Rules” (Chen, Cui,
& Bi, 2014)
It could see that although the SPFTZ Arbitration Rules recognized an award ex aequo et
bono, it still set many restricted conditions for execution of such award.

Setting Up Minimum Threshold to Summary Procedure

A de Minimis threshold of RMB 100,000 for the summary procedure to apply under which the
dispute will be determined by a sole arbitrator and an award rendered within three months
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(rather than within six months under the standard procedure), and a small claims procedure
for claims that do not exceed RMB 100,000 (Yeoh, Ang, and Lam, 2014). This innovation
has provided great convenience to the business and increases the efficiency of the PTZ
Arbitration Court.

ISSUES OF THE SPFTZ ARBITRATION RULES

As shown above, the SPFTZ Arbitration Rules 2015 clearly adopt many practices utilized at
other major international arbitration institutions. Nevertheless, in order to further development
of the SPFTZ Arbitration Rules, there are still a number of issues that must be resolved. The
ultimate goal of arbitration is an award that can be, if necessary, enforced in a judicial court.
First of all, the utilization of many innovations in the SPFTZ Arbitration Rules is uncertainty
because of their potential conflicts with provisions of the Arbitration Law of PRC. For example,
the SPFTZ Arbitration Rules have recognized the implied arbitration agreements; however, this
kind of arbitration agreement has not been clarified in the Arbitration Law of PRC, in the other
words, according to Article 16, Article 17, and Article 18 of the Arbitration Law of PRC, the
implied arbitration agreement is not allowed in China (Zhang, 2014). Furthermore, the support-
ing measures for implementation of those innovations in the civil procedures are absent. For
example, the SPFTZ Arbitration Rules allow the SPFTZ Arbitration court to decide whether
to take interim measures or not. However, according to the civil procedure law in China, only
the local court has the jurisdiction to decide the award of interim measures. Meanwhile, unlike
China, many countries recognized the concurrent power of the court and the arbitral tribunal,
which means either the court or the arbitral tribunal can decide whether to take an interim
measure or not. Therefore, whether such kind of decision or award could be enforced in China
remains unclear (Li, 2014).
In addition, as introduced earlier, China has a complicated system of arbitration, and the
rules of each arbitration institute are not always same. These questions exist not only in the
SPFTZ Arbitration Rules and the SHIAC Rules, but also in the CIETAC Rules and Chinese
arbitration system.

CONCLUSION

After more than three decades of economic reforms and opening up, China has become
the second largest economy in the world, and China now is an upper-middle income country
 280 B. WANG

(Song, 2015). On the one hand, this great achievement makes people feel proud of the country,
but on the other hand, similar to many other middle-income countries, China faces significant
challenges, including income inequality, regional disparity, rural-urban divide, food safety,
environmental pollution, urban congestion, political corruption, and social disorder (Lu
2011). How well the new Chinese leadership can cope with these problems will prove
significant in determining the trajectory of China’s sociopolitical development (Zhao 2015).
Shanghai Pilot Free Trade Zone is established under this transformational period. Unlike other
bonded areas developed in Shanghai, for example Waigaoqiao Free Trade Zone, SPFTZ will
explore further opening policies in the areas of financial, trade, shipping, and other areas,
and the government will also explore the policy revolution in tax, RMB free exchange, and
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relevant regulations and rules. How to arrange capital flow freely within the FTZ and out is
the principal and crucial issue to resolve. It’s widely known that China has achieved great suc-
cess in attracting foreign investment in past years, for example, many multinational companies,
especially the world top 500 companies, have set up their offices or representatives in Shanghai.
However, the strict regulation and control on capital flow obstruct the development of foreign
investment in Shanghai and other places in China. In the other words, the real innovation
needed in the FTZ is not free trade, but the new financial system matched with the free trade.
Notwithstanding, more international, commercial environments require a more conventional,
efficient dispute settlement method to match with it, and arbitration as an important multiple
dispute resolution system may be the most appropriate for this. First, the nature of high
autonomy makes the tribunal able to accept and hear a case regardless of the limitation of
geography, rank jurisdiction, and even nationality. This kind of autonomy also reflects during
the activity of the arbitration including but limited to the jurisdiction of the arbitration, the rule
used in arbitration, and the election of the arbitrators. Second, to handle the complex new kinds
of financial disputes, arbitration has the advantage. Unlike judges in courts, arbitrators may be
the expert or professional in the domain; therefore, their experience and professional advantage
will help them make decisions more considerately and favorable for businesses.
The implications of the above measures, procedures, and other new rules included in the FTZ
Arbitration Rules are groundbreaking. To some extent, this illustrates the fact that SHIAC and
the SPFTZ Arbitral Tribunal are working hard to accommodate the expectations of foreign
investors to have a modern, consistent, and fair dispute resolution system in Shanghai FTZ with
a more diversified pool of arbitrators and thereby strengthen confidence in investing in SPFTZ.
In addition, we hope the SPFTZ Arbitration Rules could exert the reform model effects of
Shanghai FTZ, and formulate reproducible, propagable experiences to push the reforms of
the Arbitration Law of PRC.

NOTES

1. See http://en.china-shftz.gov.cn/About-FTZ/Introduction/.
2. See the Notice of the Council related to issue and press the “Scheme of China (Shanghai) Pilot Free Trade
Zone” (State Issue [2013] No.38) (《国务院关于印发 < 中国（上海）自由贸易试验区总体方案 > 的通知》（国发
(2013)38号)), http://finance.people.com.cn/n/2013/0927/c1004-23060686.html.
3. See Interpretations of the Opinions on Judicial Review and Enforcement of Arbitration Cases Applying the
China (Shanghai) Pilot Free Trade Zone Arbitration Rules, http://www.shiac.org/English/NewsDetails.aspx?tid=7&
nid=701.
 ARBITRATION WITHIN THE CHINA SPFTZ 281

4. See at http://www.china-shftz.gov.cn/PublicInformation.aspx?GID=3ca690fe-ac4b-4558-8a31-03fc086a64a
6&CID=953a259a-1544-4d72-be6a-264677089690&MenuType=1&navType=0.
5. See http://law.wkinfo.com.cn/legislation/detail/MTAxMDAxMDk2MTk%3D?searchId=10c3e7452a10426-
c879a6e3cc61d3714&index=1&q=%E4%B8%8A%E6%B5%B7%E8%87%AA%E8%B4%B8%E5%8C%BA%E4%B
B%B2%E8%A3%81
6. This article has been revised in the CIETAC Arbitration Rules 2015, which stipulate that “Where the
sub-commission/arbitration center agreed upon by the parties does not exist or its authorization has been terminated,
or where the agreement is ambiguous, the Arbitration Court shall accept the arbitration application and administer
the case.” See http://www.cietac.org.cn/index.php?m=Page&a=index&id=14
7. See Joint Announcement of CIETAC Shanghai Commission and CIETAC South China Commission, http://
www.sccietac.org/web/news/notice_detail/1489.html.
8. See http://epaper.legaldaily.com.cn/fzrb/content/20121211/Articel12003GN.htm.
Downloaded by [University of Toronto Libraries] at 14:05 05 August 2017

9. See http://www.cietac-sh.org/About.aspx?tid=2.
10. See December 31, 2014, the Civil Judgement made by the Shanghai No.2 Intermediate Court, (2012) Hu
ErZhong Min Ren (ZhongXie) Zi Di No.5. (2014年12月31日, 上海市第二中级人民法院作出“ (2012) 沪二中民认
(仲协)字第 5 号”《民事裁定书》) Retrieved from http://wenshu.court.gov.cn/.
11. See Jan 6, 2015, the Civil Judgement made by the Shenzhen Intermediate Court, (2013) ShenZhongZhongFa
She WaiZhongZi Di No.133. (2015 年1月6日, 深圳市中级人民法院作出 (2013) 深中法涉外仲字第 133 号《民事裁
定书》。) Retrieved from http://wenshu.court.gov.cn/.
12. See Feb 13, 2015, the Civil Judgement made by the Beijing No.2 Intermediate Court, (2014) ErZhong Min
TeZi Di No.07708. (2015 年2月13 日, 北京市第二中级人民法院依法作出 (2014) 二中民特字第 07708 号《民事裁
定书。》) Retrieved from http://wenshu.court.gov.cn/.
13. See the Reply of the Supreme People’s Court to the Request for Instructions from the Shanghai High
People’s Court and Other Courts on Cases Involving the Judicial Review of Arbitration Awards Rendered by CIETAC
and Former CIETAC Sub-Commissions, (Adopted on the 1655th meeting of the Judicial Committee of the Supreme
People’s Court on June 23, 2015), (Fa Shi [2015] No.15).
14. See FTZ Arbitration Rules at art 12(2). See http://www.cietac-sh.org/upload_files/file/2016/
20160228220537_5047.pdf

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