笔记

Class 1 Introduction to Arbitration in China
1.Before the Enactment of PRC Arbitration Law

 1950s
Establishment of the earliest foreign-related arbitration institutions (which were later renamed as
CIETAC 中国国际经济贸易仲裁委员会 and CMAC 中国海事仲裁委员会) under the CCPIT 中
国国际贸易促进委员会
 Since the reform and opening-up, a great increase of the arbitration caseload
-In 1986, China acceded to the New York Convention
-Chaos 混乱 : myriad different and often conflicting regulations that governed arbitration of
commercial nature
Disputes over economic contracts, property insurance, transportation, purchase and sale of
industrial and mining products, purchase and sale of agricultural products, etc.: party or parties
can file a lawsuit before the people’s court after the arbitral award is rendered 经济合同、财产保
险、运输、工矿产品购销、农产品购销等纠纷：仲裁裁决作出后，当事人可以向人民法院
提起诉讼(e.g.: Art. 49 of the 1981 version of Economic Contract Law of the People’s Republic of
China, which was revised in its 1993 Amendment)
Dispute over a railway transport contract 铁路运输合同纠纷 : arbitration shall be based on
agreement; no court proceedings can be sought after arbitration (Art. 32 of the 1990 version of
Railway Law of the People’s Republic of China) 仲裁以协议为基础，仲裁后不得向法院提起
诉讼（1990 年版《中华人民共和国铁路法》第 32 条）
2.Current Legal Framework

 PRC Arbitration Law PRC 仲裁法
Promulgated in 1994, effective since 19951994 年颁布，1995 年生效
Embraced most principles of the UNCITRAL Model Law, but with some differences 采纳了《贸
易法委员会示范法》的大部分原则，但有一些不同之处
No substantial amendment for almost thirty years 近三十年未作重大修改
 Arbitration-related provisions in the PRC Civil Procedure Law《中华人民共和国民事诉讼
法》中与仲裁有关的规定
First introduced in 1982 for trial implementation and officially implemented on 9 April 1991 1982
年首次提出试行，1991 年 4 月 9 日正式实施
Revised in 2007, 2012, 2017 and 2021 2007 年、2012 年、2017 年和 2021 年修订
 Judicial interpretations 司法解释
3.Structure of PRC Arbitration Law
Principles and Basic System
 Principles of commercial arbitration in China
Art. 4: party autonomy as basis 当事人意思自治是基础
Art. 7: fairness and reasonableness 公平合理
Art. 8: independence of arbitration 仲裁的独立性
Art. 40: confidentiality 保密
 Basic system
Art. 4 & 6: Arbitration shall be based on the concluded arbitration agreement.仲裁应以订立
的仲裁协议为基础
Art.5: The court shall not accept the case where an arbitration agreement has been concluded.
法院不受理已订立仲裁协议的案件
Art. 9: Arbitral award shall be final and binding.仲裁裁决应具有法律效力
 Bifurcated regime 分叉制度

Domestic arbitration 国内仲裁
Foreign-related arbitration 涉外仲裁
4.Difference with UNCITRAL model law

《贸易法委员会国际商事仲裁示范法》（1985 年）
（1）Arbitration agreement
Article 16 of the PRC Arbitration Law

An arbitration agreement shall include arbitration clauses provided in the contract and
agreements for arbitration that are concluded in other written forms before or after disputes arise.
An arbitration agreement shall contain the following elements:
1. The intention to arbitrate
2. Subject matter for arbitration
3. A designated arbitration commission
--------------------------------------------
Article 7(1) and 7(2) of the UNCITRAL Model Law
1. An agreement by the parties to submit to arbitration all or certain disputes

2. An arbitration clause in a contract or in the form of a separate agreement
3. The arbitration agreement shall be in writing
（2）Interim measures 临时（保全）措施

If a party applies for property preservation, the arbitration commission shall forward the
party’s application to the people’s court in accordance with the relevant provisions of the Civil
Procedure Law

If a party applies for evidence preservation, the arbitration commission shall forward the
party’s application to the basic-level people’s court at the place where the evidence is located
-------------------------------------------------
Article 17(1) of the UNCITRAL Model Law
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party,
grant interim measures…
Article 17J of the UNCITRAL Model Law

A court shall have the same power of issuing an interim measure in relation to arbitration
proceedings…
（3）Seat of arbitration
No clear definition on set of arbitration

A party may apply for setting aside an arbitral award to the intermediate people’s court at the
place where the arbitration commission is located…
------------------------------------------------
Article 20(1) of the UNCITRAL Model Law
The parties are free to agree on the place of arbitration. Failing such agreement, the place of
arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the
case, including the convenience of the parties.
5.Reporting mechanism 报告机制

-Reporting mechanism applies to
Determination on (in)validity of arbitration agreement (foreign- related+ overseas)
Application for setting-aside arbitration award（foreign-related）申请撤销仲裁裁决
Application for non-enforcement （ non-recognised ） of arbitral award (foreign- related+
overseas)申请不执行（不承认）仲裁裁决
-Functions
To centralize the decision-making re arbitration-related matters by PRC courts
Reflect a pro-arbitration attitude
-Relevant PRC laws
1995 SPC Notice on Reporting Mechanism
2017 SPC Provisions on Reporting Mechanism
Intermediate People’s Court High People’s Court Supreme People’s Court
6.Three nos
（1）NO ad hoc arbitration 没有临时仲裁
Article 16 of the PRC Arbitration Law provides that, a valid arbitration agreement must contain,
among others, a designated arbitration commission
Articles 10 and 11 of the PRC Arbitration Law provides that
arbitration commissions shall be established by relevant departments and chambers of commerce
organized by the people’s governments and registered with the judicial administrative department
arbitration commissions shall have their own domiciles and articles of association, and the articles
of association shall be formulated in accordance with the PRC Arbitration Law
（ 2 ） No arbitration seated in mainland china administered by a foreign arbitration
institution 外国仲裁机构不得在中国大陆进行仲裁
For a long time, it had been consistently held that a foreign arbitration institution does not
constitute a valid “arbitration commission” under Article 16 of the PRC Arbitration Law; e.g.
Shenhua Coal case
（3）No extraterritorial arbitration for non-foreign related disputes 非涉外争议不得进行域
外仲裁
Article 278 of the PRC Civil Procedure Law provides that
With respect to disputes which arise from foreign-related economy, trade, transportation or
maritime activities, the parties have included an arbitration clause in their contract or have
subsequently reached a written arbitration agreement which provides that such disputes shall be
submitted for arbitration to a foreign-related arbitration institution of the People's Republic of
China or another arbitration institution, no party may institute an action in a people’s court
There are no express provisions for non-foreign related disputes. SPC used to hold that it means
the laws do not permit parties to submit non-foreign related disputes to overseas arbitration
7.Three nos: development

（1）No ad hoc arbitration
According to a SPC opinion issued in December 2016, the companies registered within FTZ may
arbitrate disputes in specific locations, with specific arbitration rules and by specific persons.
（2）No arbitration seated in Mainland administered by a foreign arbitration institution
Foreign arbitration institutions are permitted to establish case management offices in Mainland (to
be discussed).
（3）No extraterritorial arbitration in non-foreign-related disputes
Foreign-related elements are re-defined (to be discussed).
8.Development: ad hoc arbitration

Opinions of the SPC on Providing Judicial Guarantee for the Building of Pilot Free Trade Zones
(Dec 2016)《最高人民法院关于为自由贸易试验区建设提供司法保障的若干意见》（2016
年 12 月）第 3 段。
Para. 3 of Art. 9 provides that, “If two enterprises registered in FTZ agree that relevant disputes
shall be submitted to arbitration at a specific place in Chinese mainland, with specific arbitration
rules and by specific persons, the arbitration agreement may be determined as valid.” 第九条第三
款规定第 9 条规定："在自贸试验区内注册的两家企业约定将有关争议提交中国内地特定地
点、特定仲裁规则、特定人员仲裁的，可以认定该仲裁协议有效。"
The first as hoc arbitration award in china was rendered on 30 june 20232023 年 6 月 30 日，
中国首例临时仲裁裁决作出
CMAC as the appointing authority designated by parties

A cooperation agreement dispute between a PRC natural person and a HK company
Arbitration agreement: “All disputes arising out of or in connection with this Agreement shall be
resolved by arbitration as agreed to by the parties, applying the Ad Hoc Arbitration Rules of the
China Maritime Law Association …The appointing authority shall be the China Maritime
Arbitration Commission or the China Maritime Arbitration Commission Qingdao Arbitration
Center” 中国仲裁委员会作为当事人指定的指定机构某中国自然人与某香港公司之间的合作
协议纠纷仲裁协议： "因本协议引起的或与本协议有关的一切争议，应按当事人约定，适
用《中国海商法协会临时仲裁规则》，通过仲裁解决......指定机构为中国海事仲裁委员会或
中国海事仲裁委员会青岛仲裁中心"。
Judicial practice perspective: foreign arbitration institution
Zublin case
2004: a designated arbitration commission (institution) is necessary 指定的仲裁委员会（机构）
是必要的
Observation:
Longlide case
2013:agreement for arbitration by a foreign institution deemed as valid 外国机构的仲裁协议被
视为有效
Daesung case
2020:foreign arbitral institution are not prohibited from administering arbitration mainland china
不禁止外国仲裁机构在中国大陆进行仲裁
Brentwood case
2020: an arbitration case administered by a foreign institution in china shall be enforced as a
foreign-related 外国机构在中国管理的仲裁案件应作为涉外仲裁案件执行。
Latest case: Sandvik case

2023: the first time for a prc court to rule on an application to set aside arbitration rendered by a
foreign arbitration institution in mainland 中国法院首次就申请撤销外国仲裁机构在大陆作出
的仲裁作出裁定
Cfhi v. aktiebolaget Sandvik
Arbitration agreement: dispute
Development: foreign
Chaolai xinsheng case

2014: one party being a WOFE cannot constitute as a foreign-related element WOFE 不被认为有
涉外因素
“Foreign-related” case is one that involves a foreign -related element

cargo located foreign coutry
siemens case
2015: dispute of wofes with ftz
their cargo
observations
arbitration in china continues to develop to keep abreast with international arbitration
practice
-three nos have been gradually lifted or relaced through judicial interpretations or judicial
practice 通过司法解释或司法实践，"三不 "规定被逐步取消或重置
Prc courts play an important role in the development of arbitration
Model law1985—party autonomy

为了统一各国仲裁法律
Arbitration agreement and arbitration awards
New York convention 纽约公约 1908----→finality 终局性 enforceability
As long as agreement is in writing， it should be enforced by any signatory to the convention 只
要协议是书面的，就应由公约的任何签署方执行。签署了公约就要执行其他签署国做出的
裁决
公约要求所有签署国拒绝法院审理
Kompetene-k
Seat law ：决定如何分配仲裁员； seat is a place that has the supervisory jurisdiction of an
award to arbitrate and process 仲裁地是对仲裁裁决和程序具有监督管辖权的地方.seat of
arbitration 仲裁地【ICC,CTAC，SAIC】
ICC arbitration
sic
1987 年，《纽约公约》对中国生效，对《纽约公约》成员国的仲裁裁决，中国法院将适用
《纽约公约》的规定予以承认和执行。时至今日，中国当事人对于选择境外仲裁也并不陌
生。但在中国法下，存在着一个比较特殊的问题，即一个案件是否具有"涉外因素"。目前，
中国法院的一致性意见是无涉外因素不得约定境外诉讼或仲裁。
而关于"涉外因素"的认定，《最高人民法院关于适用〈中华人民共和国涉外民事关系法律
适用法〉若干问题的解释（一）》第一条规定："民事关系具有下列情形之一的，人民法
院可以认定为涉外民事关系：（一）当事人一方或双方是外国公民、外国法人或者其他组
织、无国籍人；（二）当事人一方或双方的经常居所地在中华人民共和国领域外；（三）
标的物在中华人民共和国领域外；（四）产生、变更或者消灭民事关系的法律事实发生在
中华人民共和国领域外；（五）可以认定为涉外民事关系的其他情形。"
"两个中国主体之间能否约定境外仲裁？""如何使得案件符合具有涉外因素的要件？"为了
回答上述问题，我们试图用司法案例来阐明法院的裁判思路，希望能有所裨益。
Q1：合同主体是在中国境内设立的外商独资企业 WOFE，是否具有涉外因素？
A：国内法院在该问题上观点比较一致，即在中国境内（除自贸区外）设立的外商独资企
业是中国法人，该等主体不具有涉外因素，包括投资性公司。因此，当事人以国内主体属
于外国投资者在中国独资设立的公司而主张具有涉外因素的，法院不予认可。（参见：
(2015)二中民特字第 13516 号 [约定境内仲裁]；(2014)三中民终字第 09403 号 [约定境外仲
裁]；(2015)厦民认字第 155 号 [约定境外仲裁]）
针对注册在自贸区的外商独资企业法律另有例外规定，详见 Q2。
Q2：合同主体是注册在自贸区的外商独资企业，是否具有涉外因素？
A：2016 年 12 月 30 日，在最高人民法院发布的《最高人民法院关于为自由贸易试验区建
设提供司法保障的意见》中第 9 条明确规定："在自贸试验区内注册的外商独资企业相互之
间约定商事争议提交域外仲裁的，不应仅以其争议不具有涉外因素为由认定相关仲裁协议
无效。"这是对于 Q1 讨论的主体身份的例外规定。同时，在上述《意见》出台之前，法院
就已经对自贸区企业有所区别对待。（参见：(2013)沪一中民认(外仲)字第 2 号 [约定境外
仲裁]）
Q3：外国主体作为合同的签署方，但未实际履行合同，是否具有涉外因素？
A：在司法实践中，法院对于这种情况的态度并不一致。
有法院认为，即使境外（或大陆以外）主体作为合同的签署方且合同签订地在境外（或大
陆以外），但在未有证据证明该主体实际参与了合同履行的情况下，不能据此认定具有涉
外因素。（参见：(2016)苏 05 民辖终 305 号 [约定境外仲裁]）
但同时也有法院认为，虽然境外主体最终没有实际履行合同，但其同样作为合同的签约方
因此，该主体签订的合同具有涉外因素。（参见： (2008)沪二中民五(商)初字第 19 号 [约定
境外仲裁]）
Q4：外国主体不作为合同的签署方，但在合同上盖章，是否具有涉外因素？
A：有案例表明，法院会对此进行实质审查，包括但不限于印章的真实性，以及外国主体
是否实际履行合同（与个案相关，甚至包括外国主体是否向我国相关部门登记注册在中国
境内从事经营活动等）。法院认为，若相应证据不足以证明该外国主体是案件的当事人，
则不能认定案件具有涉外因素。（参见：(2018)川 06 民特 27 号 [约定境内仲裁]）
Q5：母公司（外国主体）签订合同，但合同项下的子合同由在国内的子公司与另一国内主
体签订并实际履行，当子合同产生争议时，是否具有涉外因素？
A：在这种情况下，虽然是国内主体双方就子合同发生争议，但法院并不是仅单独就子合
同是否具有涉外因素进行审查。如当事人将子合同与主合同紧密关联且主合同具有涉外因
素；子合同签订时亦与国外主体相关，则有法院认定子合同也具有涉外因素。（参见：
(2018)京 03 民特 54 号 [约定境外仲裁]）
Q6：争议当事方是国内主体，实质争议为境内公司股权对应的权益，但该争议涉及境外的
持股架构，是否具有涉外因素？
A：法院认为，虽然一方主张的代持股权是境外公司的股权，但系争标的物实为注册在中
国领域内的公司股权所对应的权益，因此不具有涉外因素。同时，案件主体均为中国公民
和法人，系争协议书及补充协议的签订地点均在境内，亦不具有涉外因素。（参见：
(2017)沪 0118 民初 19426 号 [仲裁条款约定不明]）
Q7：标的物虽在境外或将出口，但合同履行仅涉及标的物在境内，是否具有涉外因素？
A：总体上，法院倾向于认为该等情况不具有涉外因素。
合同的标的物是在交易前由一方先行进口至境内，然后再提供给另一方，法院认为双方当
事人的交易标的物不具有涉外因素，且双方当事人涉及的法律关系亦无涉外因素。（参见
(2018)沪民申 921 号 [约定境外仲裁]）
合同双方在境内约定的交货地完成交易后，由收货方再将标的物出口至境外的，法院认为
合同标的物为国内主体生产的产品，且合同履行地在我国境内，因此涉案合同并无法律规
定的涉外因素。（参见：(2016)京 01 民终 6260 号 [约定境内仲裁]）
Q8：合同双方均为境内主体，签订有关于境外软件程序平台/网络平台的合同，是否属于具
有涉外因素的情形？
A：依据具体情况分析，但法院似更倾向于从具体提供服务是否在境外来判定涉外因素。
若合同双方签订的是软件程序平台外包合同，有法院认为，软件程序的运行平台本身不是
合同标的物，因此，软件程序运行平台的所在地，并不符合《中华人民共和国民事诉讼
法》所称"标的物所在地"的规定。故即使运行平台在境外，亦不符合标的物具有涉外因素
的情形。（参见：(2014)沪二中民认(仲协)字第 13 号 [约定境外仲裁]）
若双方签订平台推广合同，一方委托另一方在境外网络平台进行广告推广服务。有法院认
为，由于平台运营业务和运营服务器均在境外，且广告的受众主要为境外用户，因此法律
事实发生在境外，具有涉外因素。（参见：(2018)京 04 民特 30 号 [约定境内仲裁]）
Q9：基础合同与该基础合同项下的担保两者之中有其一具有涉外因素，产生纠纷时，案件
是否具有涉外因素？
A：依据具体情况分析，但法院似更倾向于优先审查主合同是否具有涉外因素。
若基础合同本身涉及境外项目，双方就担保产生争议，有法院认为，尽管保函本身没有其
他涉外因素，但保函所担保的基础合同涉及在境外的项目，基础合同的履行事实发生在境
外，具有涉外因素，因此该保函系服务于国际商事交易，案件具有涉外因素。（参见：
(2016)浙民终 922 号 [约定境内仲裁]）
若双方就基础合同产生争议，基础合同本身没有涉外因素，但基础合同项下的担保具有一
定的涉外因素，有法院认为，尽管当事人负有出具境外银行担保证明的义务，但由于纠纷
并非产生于该担保，因此就基础合同本身产生的纠纷而言是不具有涉外因素的。（参见：
(2013)虎民辖初字第 0004 号 [约定境外仲裁]）
注：本文所称之境外及涉外，均指中国大陆（内地）以外之法域，包括中国香港特别行政
区、中国澳门特别行政区，以及中国台湾地区
Hearing takes place. Each arbitration has its own rules and parties can choose what rules apply.I
think parties can often choose their own arbitrators, so instead of having a judge assigned.A public
official.You can choose.Professor, you can choose an ex. Diplomat, you can choose a normal, you
can choose an engineer. Whoever you think is most suited to resolving the dispute.Subjected to
one rule that they have to be.The procedures allowing you to challenge the arbitrators.You have
the freedom to select your arbitrate.The detail is complicated. Often if you have three arbitrators,
each party choose one.And the two collaborators choose the chair.But that ability to participate
and influence your decision makers are is another feature of arbitration.Some say arbitration is
cheaper. I think in the modern era that sort of depends if you have an arbitration about.$1000 is in
dispute.Contractual term of the contract, I think that's possible. Experts are involved in a way that
a litigation can get very complex in it's about.And I think this is where.Last week, but then it is
perhaps the most important.Picture of arbitration.In that.Under the New York Maybe and we can
get into the detail you're goingConvention is an award.And that can be taken to any of the 180
countries that have signed that your convention.And that is not power, that is given for example
the.And that's the power of of an arbitral.And it's particularly important if you're foreign investor
into cross-border transaction, right, like I said, if you're investing in the bond.Spanish company
investing in Vietnam.If you want to get into it, dispute with with petrol, Vietnam, with the
government of Vietnam. You want to make sure that you have the judgment. Public policies.Quote
sometimes.Perfectionistic.Nationals.The case.Right.Assets. And it only gets
transactions.Crosswater context would be resolved by other.The common complaint that
commercial disputes are no longer resolved in court.And the kinds of disputes that you see
making.Landmark case law in England.A lot of those are not being arbitrated and not public and
not resulting in the development of jurisprudence, which is another issue that people debate.I I get
it straight from the main point, which is the five advantages of arbitration.Flexibility. That's the
reason why.Policymakers and governments all over the world have chosen to.Promote arbitration.
I think the overall concept.Is that?By promoting arbitration and the ecosystem that is friendly to
arbitration.That goes to the jurisdiction status as a friendly investment climate.Their own.Nice.But
they. But I think what I tried to describe last week is.It's a bit more complicated in China because
in China the incentive to to draw in foreign investment of course exist.Has had a long history
there, right? So they're competing policy.Regarding the establishment of the system promoting
arbitration.And there's of course a part of of of of of the current policy thinking that once the
modernize Chinese arbitration law. And to do that you need to be give people the confidence that
your laws.But I think what internationally international parties expected to process and so that's all
the things we talked about.Freedom to decide the kind of arbitration.That is pretty much accepted
in all the major commercial centers.Paris.Despite all its problems, has accepted that that notion
right, the basic notion that you can choose. Country like China, It makes sense.Right, because.All
kinds of other considerations.Making sure that the.Practice of arbitration is regularly that that
there's no misconduct.And especially in a domestic context.Some jurisdictions do you like they
want to regulate domestic arbitrations.So going back to the two big things I talked about on
Monday, the Model Law.Applies to foreign awards. The idea is that my country will respect.All
the other countries.Anything that's being agreed to.And has resulted in an award my country will
enforce. That's what I mean when I say the new connection.The model lowest are saying if you
arbitrate in my country.In my country you will have.The kind of legal framework that is accepted
everywhere.The normal test practice legal framework. That's what the model represents.And so
the discussion and the law is because we'll talk about this Chinas departures from the Model
Law.How do they?Affect China standing as a place of business. It's all linked to that that concept
right, that people want to attract.The signal to the world countries on the signal to the world that
there are places that is friendly to arbitration.I'm trying to convince reading in the way that it's as
easy to understand as possible given this is a crash course.And I hope I've talked spoken a bit
about award. So the word is like a judgment.The impossibility of that.Is key to the whole whole
system, and possibility comes with the New York Convention. When countries succeeded to it,
they have to implement that so in their domestic laws. For example, they have provision saying
that will enforce foreign awards. China does. China is no differ. Normal.It's where the regulation
of Chinese arbitrations things that happen in China.It's a bit a bit further from what is normal and
that's a bit more idiosyncratic and those are all the things that we talked about that I will talk about
that.Today we'll talk about.A little bit.And in practice this week.Differences in expectations,
disappointments.And in general, most international parties will be reluctant to arbitrary in China
because of these.And it's partly because of that.China's desire to promote itself as a Detroit
arbitration jurisdiction.That is talking about changing the law, so there is only one.You mentioned
this, but.It's probably of Justice. Ministry of Justice published the draft consultation paper. But I
think no doubt that China is looking at the proving its system and I keep talking about this because
I think the exam will be about this.I've been thinking about what is a fair way to examine
everybody, including those who have the background arbitration and those that don't.I think one is
just sort of the law as it is.Draft proposed amendments to the law.So looking quick. So I think
everything we say now.It becomes very obvious.And I think if you find it useful, I can do another
crash course just before each time we introduce a new concept.Because I think the difficulty is that
every time we're gonna go to some concept in China.Being compared to to what's normal
elsewhere and I want to make sure before that you are familiar with.So one more concept.And
then we talked about last week.Difference between Ad Hoc arbitration?So in arbitration, you can
select your judges, right? You call them arbitrators, or you can select anyone you want.But they
have to be independent.Parties also choose an institution like the SIC, like the ICC.What does that
mean?The institution clients think OSI CSIC will issue a judgment, but that statement is sort of
wrong, right? Because as I see, it's not the judge.So it is.Organization that make sure make sure
that the arbitration runs smoothly.Publishes the rules, the rules that apply to procedure. So by
select as IC means the SAIC rules apply.If I want to know what my deadline is for following a
notice or responsive notices, all as I see rules. If I want to know what the rules are, appointing
arbitrators is all I see rules for choosing As I see choosing its rules set out the procedural
framework for the arbitration.It will also do things like fix the fees at arbitrators, right? So you
don't have to negotiate with the arbitrators and fees. There's a schedule of fees, like everything is
known in advance.Parties disagree. I cannot appoint an arbitrator. Often, let's say if the appoint the
chairperson, both parties have to agree. If they cannot agree, the SAIC will point so the SICK.
Arbitration.As I see is the second or the third most with I think 327 cases last year.The ICC
administer started so IC is by far the oldest and the biggest organization.It has many offices in
Asia.Office.Sort of. Is the headquarters for South Asia, including Southeast Asia.Some parts.Build
upon who you will hear from. Gaps and problems as well.The director of
Chinese.And.And.Flights. To improve the enforceability of an award, because an award comes for
enforcement, annual convention says you have to enforce it unless the arbitrator is not jurisdiction
unless some there's some due process problem.Public policy will lookout for problems that
process, for example.Could be something mundane like described. And that's the the preamble
concern that when they come up forcement, it's argued that there's no natural justice
because.Decide because the ideas are arbitrators. Your point decide. Telling them what the answer
is.And I think that's the line.Ad hoc.Spend some time with institutional but didn't say what animal
this is. Partly because at home is everything that is not.And so.When you have an institution
coming in, it's like the business class experience, right? Everything is smooth.It's expensive.That
problem.When you don't have the business class stuff, it's a bit more like a budget airline, right?
You have to sort of figure out whether you're getting baggage, whether you're getting this.
Everything is so add on.agree on everything right For example, there are rules that you can just go
and agree to right like this.Set up times.Find out the trade.But let's say.We have to .3 arbitrators
and the Chairman, we have to agree on that Me and you can't be in the China.Because there's no
institution in place in an ad hoc system.You may have to go for.Go to an appointing authority
whenever that is.To have to make the appointment so somebody to solve these problems in the
process that they come up.I know there's no automatic solution, so to speak, right, You have
to.The add on.You can't, Kind of green arbitrators.If you cannot agree on a solution, ultimately
have to resort to a court.Some of the body that has the power to compel the.Right, so I hope it's.In
modern practice, very, very rare. One view is that it's for a bit unruly, a bit unregulated.Within the
the Chinese consumption like why it's not it's not desirable to have it, Why should we allow
people to do?Within, within the international and Western conception.Arbitration has a very long
history.Because arbitration predates it. The Middle Ages, right?When the Greek states use
arbitrary that dispute.Right and and and under international law states used arbitrary that his views
right the United States and Europe.When that happens, it's always there's no institution. So another
arbitration has a very long history in international law.The idea that you could just agree like you
don't need all the pills, you don't need this.The backpack that you greet to something has power
and it should be respected.That has value. That freedom has value in some in some legal
systems.So.Almost everywhere else except China, you can do at home if you want.Is this that
commercial parties don't usually do it because they usually want the business class experience?
Freedom. I think it's older.There's a place.But in modern practice is a very small.And I think I had
a question last week about why China bans, whether it's a cultural thing. It may well be. I think it's
sort of this idea that.And I think one of your students, one of your classmates.In India, for
example, ad hoc arbitration is very common.And it's very problematic in many ways that we don't
have to talk about today, right. And so it might just be a desire to avoid these problems, right? The
policy position, let's just not.The cleanliness of not having at home is more important than the
freedom to agree that operate.A lot of Chinese treaties provide for arbitration of invest.And so 11
area where I thought about this being a problem.For example, the UK, China be IT allows any UK
investment China.Through Apple arbitration.Results in the toilet paper award, right? You need to
enforce it.Which doesn't regard that arbitration is valid, right?So do those kinds of issues do exist?
I don't think the ban on that office is.It's totally problem.I can understand some of the policy
considerations that may have led to.And removing.Or removing the bed on ad hoc arbitration is
one of the controversial parts of the proposed new law.Chinese.And a lot of other supported, so
again it's a.I will say one apology.I don't know. We'll start 7:15 to go for about an hour.I suddenly
have an urgent call to take a 745, so I'm going to take that call. Well, she gives that lecture, but I
think after the lecture is done we can break.If that's OK. Application.Then sometimes after that
you might see the seat of the arbitration or the place of the arbitration.Shelby.What means Chinese
party in the in the in the Nigerian party Agreeing to this means that they agreed that the legal hold
for the arbitration is Singapore.Singapore For convenience, they can take place in Hong Kong.
They can take place in Macau, particularly anywhere that the physical location is not received.
The scene is the legal location.And this is by Singapore being the seed.What that means is, for
example, if.Today, right and the parties cannot agree with arbitrate.And they need to appoint an
arbitrator. Singapore courts become the.Resolution.How to supervise?Help the process along.If
you think one of the arbitrators bias not independent, you wanna challenge.You can challenge
them before the institution, institution. You're the challenge before court. Which court is the sea?
Right. And the position that see the toilet paper issue getting is wrong.That's not that's not a reason
to challenge the world. Are you think the process is problematic? You think the arbitrator was
extra? The toilet paper issue in Singapore.Singapore.And what that means is that if you go to
China to enforce it.Gary.This is a Singapore award, so it's a foreign award. If it's a foreign award,
the new convention applies and that means I have to enforce it unless one of the limited grounds in
the New York Convention are satisfied and the issue that Mister Telligent was referring to.Is that
in China?As a Singapore.Sees it.ICC arbitration.Trying to seize it as a French award because the
ICC is equal to the terrace.This is some problems because.For example, if it's ICC arbitration in
China.And the international standards, that is a Chinese passport.Publication of Chinese passport
award.The Chinese regime and the Chinese legal system, it is seen as a French award.Some weird
things. I mean, not necessarily always bad, but it's a bit weird.And that was the issue he was
identifying with the Miss, I think I'll call a misidentification of the seat, right. There's a bit of that
and it's not let me misidentification even unfair because it is correct in the Chinese legal system
that is even.To say that that's how you determine.An internationally accepted way of looking
at.And it could lead to problems because if China treat something as a French award.But some
other jurisdiction, The rest of the world trees as a Chinese award.What happens if we can't agree
on an arbitrator? We need to point an arbitrator. Which could we go to?If you go to the French
court.The toilet paper and I want to challenge it.Do I go to French courts or they go to Chinese
court? So the seed is important because not knowing what the seed is leads to unnecessary,
completely unnecessary uncertainty, because in most places it's obvious what.Right.SAIC
arbitration.In Macau.It is clear that the seat is Macau, Singapore.But we did the Chinese legal
system. It would be a Singapore passport because it's as I.That's the criticism of the.Time. Creates
the legal framework that decides the powers of the arbitration process.Correct.Thank
you.Sometimes that's called the legs. Arbitrary if you want something.Is the arbitrator.That
governs the procedural aspects and that is distinct.From the law that governs the substance of the
dispute, right? Did you breach the contract?Your comment that all that is determined by different
choice of low.But it's complicated.What? What arbitrate? The goes through the thought process to
go through to apply what though? And that's not fun, but that can be quite interesting.
Class 2 China and institutional arbitration
1.landscape of arbitral institutions in china
Goverance of chinese institutions

Ccpit 中国国际贸易促进委员会【government quantity】:CIETAC 1950 设立
LOCAL CCPIT:
Justice bureau：为了节约司法资源
2. milestone cases
 Designated arbitration case

Article 16 -prc 仲裁法
仲裁协议有三个内容：明示仲裁...
 NOVO Nordisk case[1996]
Arbitration clause:... in according with rules with icc
Ruling of court:
Haikou court: invalid
 Xiamen weige Case
Arbitration clause:...
Rule of court: valid
 ZUblin Case
Arbitration clause:arbitration:icc rule shall be shanghai
【你选择 ICC rule 就意味着选择 ICC】
Article 6（2）
B. overseas arbitration with the seat in China
【seat 是一个法律概念，不是实际的地理意义上的仲裁地】
 Longlide case
Arbitration clause：.. the place of jurisdiction shall be shanghai, china
2013 之前只有国内仲裁机构有管辖权？
C. Foreign-related factors
有五个因素判断是否具有“涉外因素”
涉外民事关系法律适用法
 Aerospace WAN yuan case(2012）
Court: arbitration agreement is invalid
因为本案中没有涉外因素？
 Golden landmark case
Arbitration agreement is valid
双方都是在中国境内的上海自贸区设立的 WOFE，因为由外商投资（外国资本）
合同履行：国际货物买卖
D. seat of arbitration
 BNA V. BNB CASES
Clause：shall be finally submitted to the singapore international arbitration centre for arbitration
in shanghai
Court held: arbitration agreement is valid
 Brentwood(2017)
court : arbitration agreement is valid
Chinese or foreign arbitration award?
不同的结果导致执行不同
按照纽约公约执行
按照中国国内法律执行
法院认为这是一个 Chinese award
有不同的程序 ordinary chapter and special chapter？
实际，去同级法院但是需要准备法律文书不同
3. What does draft amendment of PRC arbitration law say?
2021
(1) 给临时仲裁开绿灯
(2) Endorsement of the doctrine of competence-competence【认可权，权限理论。中国仲裁
法 20 条：】
(3) Further expansion of the tribunal’s power to grant interim relief
(4) Make access to 外国仲裁机构
ICC 的裁决是 national award，根据 Brentwood

对于 arbitration agreement 是多一些 requirement 还是少一些好？
每一个司法管辖区都要求仲裁协议中包含这些元素
ICC 62 条：用 ICC 的规则但不在 ICC 仲裁？

miss clause? 有其特色：有的 process 只有 ICC 能进行；如果不可能会给 ward 的执行带来一
定风险
临时仲裁：
Class 3: Arbitral Procedures in China
1.BASIC FRAMEWORK OF ARBITRATION
2.BASIC ARBITRATION CONCEPTS 仲裁基本概念

•Party autonomy：意思自治 agreement of
• Seat of arbitration: legal concept rather than phycial concept, 法律上的仲裁地，seat 是香港，
实际仲裁开庭地可以再新加坡
• Choice of substantive law：选择仲裁实体法
• Arbitrators (arbitral tribunal)
• Arbitration institution：例如 ICC，lci【London】
• Institutional vs ad hoc？？
• Arbitration rules
• Award：
• Setting aside
• Recognition and Enforcement
Further concepts:
• Arbitrability
• Jurisdictional challenges and kompetenz-kompetenz
• Interim relief
• Separability
• Non-signatories
• Investor-state arbitrations
• Many others
FEATURES AND PROCEDURES OF PRC ARBITR ATIO N
【在中国大多数是仲裁委员会仲裁，一开始没有临时仲裁】
Institution-Led
CIETAC
• China International Economic and Trade Arbitration Commission
• China’s pre-eminent arbitral institution
• 60+ year history since 1956
• 2022 caseload: 4,086 cases (642 foreign-related and 3,444 domestic)
• Amount in dispute RMB 126.9 billion (~US$17+billion)
• Foreign-related amount in dispute RMB 37.4 billion(~USD 5+ billion) (~1/3 of total value)
• 115 cases (English / English + Chinese)
Other major institutions
• Beijing Arbitration Commission
• Shenzhen Court of International Arbitration
CIETAC Arbitration Rules 2015【每个仲裁机构有自己的 rule】
Evolution:
• 1956 FTAC (Foreign Trade Arb. Comm.) Rules
• 1988 CIETAC Rules
SAMPLE CIETAC ARBITRATION CLAUSE
FEATURES OF PRC ARBITRATIONS

• Short hearings (1/2 to 1 day typically, sometimes longer)听证时间短（一般为半天至一天，有
时更长）
• Generally inquisitorial approach, but increasingly adversarial 一般采用纠问式方法，但对抗性
越来越强
• Weighted to documentary evidence rather than witnesses
• Arbitrator-led conciliation available
• Procedures differ from e.g. SIAC, ICC arbitrations 程序与 SIAC、ICC 等仲裁不同
-E.g. CMCs / preliminary meetings possible but uncommon 可以举行 CMC/预备会议，但并不
常见
-Closely administered
-Most communications intermediated by the institution (submissions, letters, applications etc.) 大
多数沟通/递交材料由机构作为中介进行（提交材料、信函、申请等）
-No specific provisions re: discovery / disclosure 没有关于披露的具体规定
• Written opinions on evidence 关于证据的书面意见
• Court-handled interim measures (separate class)法院处理的临时措
WHAT TO E X P E CT AT A CIETAC OR ALHE AR ING

• Parties present claims and defences
• Originals of exhibits will be produced and examined
• Examination of witnesses
• Tribunal will raise questions
• Conciliation procedure may be undertaken
• Closing statements
COMME NCE ME NT OF A CIE TA C CAS E

• Claimant files Request for Arbitration (Art 12.1)申请仲裁的文件
• Claimant pays Arbitration Fee (Art 12.3)
• CIETAC issues Notice of Arbitration to the parties (Art 13)
• Nomination or appointment of arbitrators (Art 27)
• CIETAC issues Notice of Formation of Arbitral Tribunal
• Respondent files Statement of Defence (Art 15) [Note: No response to the request for
arbitration needed, unlike many institutions. Counterclaims may be made at this stage (Art
16)]
R E QU E ST FO R AR B ITR ATIO N
【加条款 PPT】
仲裁申请书【加图片】
Note:
• No requirement to file separate detailed Statement of Claim
• Evidence usually attached
• Grounds and evidence may be supplemented in the Reply or a later supplemental statement
• ID / biz license / fading daibiaoren
ID / POAs usually provided
• Arbitration fee (ad valorem) payable
仲裁通知【加 PPT 图片】
Note:
• The is an institutional document, sent by the case manager (c.f. SIAC, where the
NOA is a party document)
• Sets out: case number, confirmation of receipt of arbitration fee, confirmation of
acceptance of the case, procedure for the nomination or appointment of arbitrators,
case manager details, etc.
【关于本案的信息会呈现在该通知上】
组庭通知【加 PPT 图片】

Note:
• See Articles 24-34
• Nomination (xuan ding), by the parties
• Appointment (zhi ding), by the institution
• One or Three Arbitrators
Note:
• Within 45 days from receipt of the NOA (Art 15.1)
• Usually the first substantive
submission by the Respondent
• Extension permissible (from tribunal or from the arbitration
court if the tribunal is not yet
formed)
• Typically “Memorial” style, with
accompanying key documentary support
• Counterclaims may be raised. If
so, Claimant may then submit
Defence to Counterclaim
E VIDE NCE (ART 4 1)--有举证责任、在举证期限内、期限届满前可以申请延长
Each party to provide evidence in support of its case (Art 41.1)
• Documentary evidence emphasised
• No specific provision re: discovery / disclosure
• In practice: 2010 IBA Rules on Evidence / SPC Provisions on
Evidence / 2015 CIETAC Guidelines on Evidence (optional)
• Notarization & authentication of foreign evidence?
• Written opinions on evidence
2015 CIE TA C GU IDE L INE S O N E VIDE NCE 【guideline on evidence article7】
Examination of Evidence (Art 42)审查证据
• Evidence to be produced at the hearing (Art 42.1)听证会上出示的证据
-Documentary evidence: Originals, or notarized copy 书证原件或经公证的复印件
-Physical evidence: Bring / site visit / report
-Testimonial evidence: Witness to attend to answer questions from the
tribunal and the other party
Investigation and Evidence Collection by the Tribunal (Art 43)
• Tribunal has the express authority (Art 43.1)
• Parties may request
Experts and Appraisers (Art 44)
（第 42.1 条）
-
-物证：携带/实地考察/报告
-证词证据：证人出庭回答仲裁庭和另一方当事人的问题
证人出庭回答法庭和另一方的问题
法庭的调查和证据收集（第 43 条）
- 法庭拥有明确的权力（第 43.1 条）
- 当事方可要求
. 专家和鉴定人（第 44 条）
WR IT TE N OP INIONS ON E V IDE NCE 质证意见【问题：质证都是书面的吗？还是可以
当庭？书面质证意见是发生在 hearing 之前的，arbitration 更灵活，简单案件也可以在当庭
质证？书面质证意见是否必须的吗？】
The hearing
Parties’ presentations
Examination of Evidence
• Documentary and physical evidence: Tribunal will review and direct parties to comment
• Direct and cross-examination of witnesses: Permitted but generally limited
Cross-examination (?)【跟英美法系中的 arbitration 不一样，这部分在中国时间很短，但在普
通法系可以很长。Oral part 不是特别受重视？】
“Debate”
• Tribunal will ask questions
CONCILIATION (MEDIATION ) (ART 47)调解

• Combination of conciliation with arbitration
• Special feature built into Chinese arbitration
• Widely employed; about 30% of cases get resolved
• Voluntar y procedure
• Advantages / disadvantages?
• Methods: “face to face”, “back to back”, parties-only first
• Approaches: facilitative, evaluative
POST-HEARING
• Record (Art 40)
• Post-hearing statements【function of arbitration hearing very short，二次听证】
• Second oral hearing?
• Award
- 6 month default time period from date of tribunal formation (Art 48(1)) (non-domestic cases)
- Extendable upon request of the tribunal (Art 48(2))
- 4 months for domestic cases (Art 71.1)
OTHER ISSUES
• Interim Measures (Art 23.1) (another class)
• Emergency Arbitration (Art 23.2; Appendix III)
• Jurisdictional Challenges (Art 6)
• Summary Procedure (Arts 56 to 64) (RMB 5m)
• Multiple Contracts (Art 14)
• Joinder (Art 18)
• Consolidation (Art 19)
CHALLENGES ON PROCEDURAL MATTERS BEFORE PRC COURTS

Notice / service
• Heilongjiang Hongchang
• R had changed its registered address
• Documents sent to original address returned
• No further enquiries to establish R’s new address
• R not notified of arbitration proceedings
• Award made without R ’s participation
• Award set aside【答辩人因此不知道仲裁正在开展，裁决被撤销】
Henan Lianchuang
• Premises were occupied by three companies
• Arbitration documents signed and received not by the R
• Held: R not properly served, award set aside【没收到、没签仲裁文件，裁决被撤销】
Lack of Chinese translation of evidence / notarisation / certification

• SPC Provisions on Evidence
• Documents coming into being outside Mainland China
must be notarized or legalised
• Shandong Machinery v Modern Jordanian Co
• Modern Jordanian had submitted foreign documentary evidence not notarised and certified
• Held: Award upheld; CIETAC Rules did not require notarisation and certification【】
Non-compliance with timelines

• Dalian Aquatic
• Tribunal made its award before timeline for R to submit its
Defence
• Held: Case remitted for re-arbitration【重新仲裁一边】
Lack of opportunity to present case

• Taiwan Huaqing Plastics
• Tribunal considered and decided Huaqing’s counterclaim based on documents alone without the
parties’ consent
• Held: Award set aside 缺乏陈述案情的机会
- 台湾华青塑胶公司
- 法庭在未经双方同意的情况下仅根据文件审议并裁决了华青公司的反诉
- 裁定：撤销裁决
CFHI Case (2023) (ICC arbitration, Mainland seated)

• Procedural irregularities alleged 所称程序违规:
• R had modified the basis of its counterclaim in witness statements
ꟷ Held: Not within scope of judicial review of awards. C did not raise timely objections 【不是反
驳的合适时间点】
• R’s application for further document production rejected
ꟷ Held: Application validly rejected for being late under PO1
• Procedural irregularities alleged (continued):
• Unequal treatment of time extension applications
ꟷ Held: The longer 2-month extension granted to R was
due to Covid circumstances then in Sweden：
- R 在证人证词中修改了反诉依据
ꟷ 裁定：不属于裁决的司法审查范围。C 没有及时提出异议【不是反驳的合适时间点】。
- R 要求进一步提供文件的申请被驳回
ꟷ 判决：根据 PO1，因逾期而驳回申请是有效的。
- 所称程序违规（续）：
- 不平等对待延期申请
Procedural irregularities alleged (continued):
• Personal friendship between R ’s lead counsel and arbitrator
ꟷ Both spoke together at an arbitration event
ꟷ Arbitrator published book review of R’s counsel’s book 6 months after
award
ꟷ Held: Award upheld. Due to the needs of social activities such as work, life
and study, interactions between people are inevitable. Query if the
interactions involve financial interests or emotions that can affect a fair
decision. The book review was done at the invite of a third par ty.
ARBITRATOR NOMINATIONS / AP P OINTME NT
【加 PPT 两个条款】
CIETAC’S PANEL
1,897 arbitrators
• 591 foreign arbitrators, from 144 countries / regions
• 19 from Singapore
• 2022: 87 foreign arbitrators participated in cases
两个中国当事方会倾向于选择在中国仲裁显而易见，如果一方是外国人，则取决于哪一方
谈判能力更强
Class 4 china and international arbitration
National court
Arbitration
Emergency arbitrator
Constitution of tribunal
tribunal
Interim Measures in International Arbitration 国际仲裁中的临时措施

UNCITRAL Model Law 2006 2006 年《贸易法委员会示范法》【不具有强制力的】
Article 9. Arbitration agreement and interim measures by court 第 9 条.仲裁协议与法院的临
时措施
It is not incompatible with an arbitration agreement for a party to request, before or during
arbitral proceedings, from a court an interim measure of protection and for a court to grant such
measure 一方当事人在仲裁程序之前或期间请求法院采取临时保全措施，并由法院准予采取
这种措施，并不违反仲裁协议。
Article 17. Power of arbitral tribunal to order interim measures 仲裁庭下令采取临时措施的权力
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party,
grant interim measures.除非各方当事人另有约定，仲裁庭可应一方当事人的请求准予采取临
时措施
(2) An interim measure is any temporary measure, whether in the form of an award or in another
form, by which, at any time prior to the issuance of the award by which the dispute is finally
decided, the arbitral tribunal orders a party to 临时措施是指任何临时措施，无论是以裁决书的
形式还是以其他形式，仲裁庭据此在下达最终裁决争议的裁决书之前的任何时候，命令一
方当事人:
(a) Maintain or restore the status quo pending determination of the dispute 在裁决争议之前维持
或恢复原状;
(b) Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm or prejudice to the arbitral process itself;采取行动防止或避免采取可
能对仲裁程序本身造成当前或即将发生的伤害或损害的行动
(c) Provide a means of preserving assets out of which a subsequent award may be satisfied 提供保
全资产的手段，以便从这些资产中支付以后的裁决; or
(d) Preserve evidence that may be relevant and material to the resolution of the dispute. 保全对解
决争议可能具有相关性和实质性的证据。
Property Preservation 财产保全
SIAC Rules 2016
30.1 The Tribunal may, at the request of a party, issue an order or an Award granting an
injunction or any other interim relief it deems appropriate. The Tribunal may order the party
requesting interim relief to provide appropriate security in connection with the relief sought.
30.2 A party that wishes to seek emergency interim relief prior to the constitution of the
Tribunal may apply for such relief pursuant to the procedures set forth in Schedule 1 [Emergency
Arbitrator].
30.3 A request for interim relief made by a party to a judicial authority prior to the constitution of
the Tribunal, or in exceptional circumstances thereafter, is not incompatible with these Rules. 法庭
可应某一当事方的请求发布命令或裁决，准予实施强制令或其认为适当的任何其他临时救
济。法庭可命令请求临时救济的一方
法庭可命令请求临时救济的一方为所寻求的救济提供适当的担保。
Emergency Arbitrator
SIAC Rules 2016
（1）Application in Writing to Registrar 向书记官长提交书面申请
（2）Acceptance of EA application by President of SIAC Court of ArbitrationSIAC 仲裁院院长
接受选举代理申请
（3）Appointment of EA (with 1 day)任命仲裁员（为期 1 天）
（4）Consideration of Application 审议申请
Interim order or award shall be made within 14 days from the EA’s appointment.临时命令或裁决
应在指定上诉法院后 14 天内作出。
• EA has no power to act after Tribunal is constituted.在法庭组成后，上诉法院无权采取行动
• In majority of SIAC cases, subsequently constituted Tribunals affirmed orders and awards
issued by EA 在 SIAC 的大多数案件中，随后组成的法庭确认了由 EA 签发的命令和裁决
裁决
Chinese Statutory Laws

This slides use international arbitration and foreign-related arbitration interchangeably, referring to
arbitration seated in Mainland China which involves foreign elements.本幻灯片交替使用国际仲
裁和涉外仲裁，指在中国大陆进行的涉及外国因素的仲裁
Chinese Arbitration Law, Art. 28(2), read with Chinese Civil Procedural Law, Art. 279
If a party applies for property preservation, the arbitration commission shall submit the application
to the People’s court (which should be the intermediate people’s court at the place of domicile of
the respondent or at the place where the respondent's property is located.)当事人申请财产保全的，
仲裁委员会应当向人民法院（应当是被申请人住所地或者被申请人财产所在地的中级人民
法院）提出申请。
Chinese Arbitration Law, Art. 68
If a party applies for preservation of evidence, the arbitration commission shall submit his
application to the intermediate people’s court at the place where the evidence is located.当事人申
请证据保全的，由仲裁委员会向证据所在地的中级人民法院提出。
【是由仲裁庭向中院提交的！】
Chinese Statutory Laws
Chinese Civil Procedure Law, Article 104
Where the lawful rights and interests of an interested party will be subject to irreparable damage if
an application for preservation is not filed immediately under urgent circumstances, the interested
party may, before instituting a lawsuit or applying for arbitration, apply to the people’s court at the
place where the property to be preserved is located or at the place of domicile of the respondent or
a people's court having jurisdiction over the case for preservative measures. The applicant shall
provide security and, if the applicant fails to provide security, the people’s court shall issue a
ruling to dismiss the application.利害关系人的合法权益受到难以弥补的损害的，在紧急情况
下不立即申请保全，利害关系人的合法权益将受到难以弥补的损害的，利害关系人可以在
提起诉讼或者申请仲裁前，向被申请保全财产所在地的人民法院申请保全。在提起诉讼或
者申请仲裁前，利害关系人可以向被保全财产所在地或者被申请人住所地的人民法院或者
有管辖权的人民法院申请保全。保全措施。申请人申请人应当提供担保，申请人未提供担
保的，人民法院应当裁定驳回申请。人民法院应当裁定驳回申请。
After accepting an application, a people’s court must issue a ruling within forty-eight hours; and if
it rules to take a preservative measure, the measure shall be executed immediately. 人民法院受理
申请后，必须在四十八小时内作出裁定；裁定采取保全措施的，应当立即执行。
Where the applicant fails to institute an action or to apply for arbitration in accordance with the
law within thirty days after the people's court takes a preservative measure, the people’s court shall
remove preservation.申请人未依法提起诉讼或者申请仲裁的，人民法院采取保全措施后三十
日内，申请人未依法提起诉讼或者申请仲裁的，人民法院应当解除保全。
Chinese Civil Procedural Law, Article 103(1)
For a case where, for the conduct of a party or for other reasons, it may be difficult to execute a
judgment or any other damages may be caused to a party, a people’s court may, upon application
of the opposing party, issue a ruling on preservation of the party’s property, order certain acts of
the party or prohibit the party from certain acts; and if no party applies, the people’s court may,
when necessary, issue a ruling to take a preservative measure.对于因当事人的行为或者其他原
因，可能导致判决难以执行或者给当事人造成其他损失的案件，人民法院可以根据对方当
事人的申请，作出财产保全裁定，责令当事人采取一定的行为或者禁止当事人采取一定的
行为；没有当事人申请的，人民法院在必要时可以作出采取保全措施的裁定。
Rules of Chinese Arbitration Institutions
China International Economic and Trade Arbitration Commission (CIETAC)
Arbitration Rules (2015)
Article 23 Conservatory and Interim Measures
1. Where a party applies for conservatory measures pursuant to the laws of the People’s Republic
of China, CIETAC shall forward the party’s application to the competent court designated by that
party in accordance with the law.当事人依据中华人民共和国法律申请保全措施的，中国国际
经济贸易仲裁委员会应当将当事人的申请转交当事人依法指定的管辖法院。
2. In accordance with the applicable law or the agreement of the parties, a party may apply to the
Arbitration Court for emergency relief pursuant to the CIETAC Emergency Arbitrator Procedures
(Appendix III). The emergency arbitrator may decide to order or award necessary or appropriate
emergency measures. The decision of the emergency arbitrator shall be binding upon both parties.
根据适用的法律或当事人的协议，一方当事人可依据《中国国际经济贸易仲裁委员会紧急
仲裁员程序》（附录三）向仲裁院申请紧急救济。紧急仲裁员可决定命令或裁决采取必要
或适当的紧急措施。紧急仲裁员的决定对双方当事人均有约束力。
3. At the request of a party, the arbitral tribunal may decide to order or award any interim measure
it deems necessary or proper in accordance with the applicable law or the agreement of the parties
and may require the requesting party to provide appropriate security in connection with the
measure. 应一方当事人的请求，仲裁庭可根据适用的法律或当事人的协议，决定命令或裁
决采取其认为必要或适当的任何临时措施，并可要求请求方当事人提供与该措施有关的适
当担保
Enforcement of interim reliefs
No ruling found where a Chinese court enforced interim reliefs ordered or awarded by an arbitral
tribunal 没有发现中国法院执行仲裁庭命令或裁决的临时救济的裁决
• Possibility of enforcing interim reliefs rendered by emergency arbitrators or arbitral tribunals
seated in Mainland China in other jurisdictions 在其他法域执行中国内地紧急仲裁员或仲裁庭
作出的临时救济的可能性
GKML case 1
o Emergency Arbitrator appointed by Beijing Arbitration Commission (BAC)o 北京仲裁委员会
（BAC）指定的紧急仲裁员
o Hong Kong High Court enforced the emergency interim order 香港高等法院执行紧急临时命
令
Interim Measures in Foreign Arbitration (Seated Outside China) 外国仲裁中的临时措施

（seated 在中国境外）
Interactions with Chinese courts 与中国法院的互动
Seeking interim measures from Chinese courts?向中国法院寻求临时措施
Dongwon F&B v Shanghai Lehan Commercial Co Ltd, Shanghai High People’s Court, (2014) Hu
Gao Shou Zhong Zi No. 21 上海市高级人民法院，（2014）沪高法仲字第 21 号
• Korean Commercial Arbitration Board International (KCAB International) arbitration 韩国商事
仲裁院国际（KCAB International）仲裁
• Claimant applied to the Shanghai First Intermediate People’s Court for interim measures
against the Respondent’s property 申请人向上海市第一中级人民法院申请对被申请人的财产
采取临时措施
• Court: The application has no legal basis as the arbitration is a foreign arbitration. Application 由
于仲裁属于涉外仲裁，该申请没有法律依据
Dismissed.驳回
Exception: Maritime arbitration 例外：海事仲裁
Seeking enforcement of tribunal-ordered interim measure before Chinese courts? 寻求在中
国法院执行仲裁庭下达的临时措施？
Exception: Parties to foreign maritime arbitration may apply to Chinese courts for interim
measures against property located in China 例外：外国海事仲裁当事人可向中国法院申请对
位于中国的财产采取临时措施 Interpretation of the Supreme People’s Court on Several Issues
Regarding the Application
of the Special Maritime Procedure Law of the People’s Republic of China 最高人民法院关于适
用《中华人民共和国海事诉讼特别程序法》若干问题的解释
Article 21(2) If maritime cases have been accepted by foreign courts or related disputes have been
submitted for arbitration, but the property involved is within the territory of the People's Republic
of China, and the parties apply for maritime preservation in the maritime court at the place where
the property is located, the maritime court shall accept such application. 第二十一条第二款外国
法院受理海事案件或者将相关争议提交仲裁，但涉案财产在中华人民共和国境内，当事人
向财产所在地海事法院申请海事保全的，海事法院应当受理。
Chinese Mainland – Hong Kong Arrangement
Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of
Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special
Administrative Region 关于内地与香港特别行政区法院相互协助采取法院指令的临时措施
协助仲裁程序的安排
• A party to a institutional arbitration in Hong Kong may, via the arbitration institution, apply
to a competent mainland court for interim measures in aid of arbitration 在香港进行的机构仲裁
的当事人可以通过仲裁机构向内地有管辖权的法院申请
Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between
the Mainland and the Hong Kong Special Administrative Region 关于内地与香港特别行政
区相互执行仲裁裁决的补充安排
• Supplementing Mainland-Hong Kong Arrangement Concerning Mutual Enforcement of
Arbitral Awards (which governs enforcement of final awards, “Mainland-Hong Kong
Arrangement”)《内地与香港特别行政区关于相互执行仲裁裁决的补充安排》（规范终局裁
决的执行，"《内地与香港关于相互执行仲裁裁决的安排》"）)
Enforcement of Foreign Arbitral Awards: International Framework 外国仲裁裁决的执行：
国际框架
Convention on the Recognition and Enforcement of Foreign Awards (“New York
Convention”)承认及执行外国仲裁裁决公约《纽约公约》
• Recognition and enforcement of foreign arbitral awards, i.e., “arbitral awards made in the
territory of a State other than the State where the recognition and enforcement of such awards are
sought”承认和执行外国仲裁裁决，即 "在请求承认和执行裁决的国家以外的国家领土上作
出的仲裁裁决"。
• “single most important pillar on which the edifice of international arbitration rests” 国际仲裁大
厦所依赖的唯一最重要的支柱
o No double-exequatur required 无需双重时效
o Exhaustive grounds for refusal (Article V, seven grounds)拒绝的理由详尽无遗-七种理由
o No review on merits 不审查是非曲直
New York Convention, Art V
1. Recognition and enforcement of the award may be refused, at the request of the party against
whom it is invoked, only if that party furnishes to the competent authority where the recognition
and enforcement is sought, proof that 应被援用裁决的当事人的请求，只有在该当事人向请求
承认和执行地的主管当局提供以下证据的情况下，方可拒绝承认和执行裁决：
a) The parties to the agreement referred to in article II 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; or 根据对其适用的法律，第二条所述协议的当事人已丧失某些行为能力，或根据当
事人所适用的法律，或在无相关说明的情况下，根据裁决地所在国的法律，上述协议无效
或
b) 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; or 裁决
所针对的当事人未收到关于指定仲裁员或仲裁程序的适当通知，或因其他原因无法陈述其
案情；或
c) The award deals with a difference not contemplated 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; or 裁决所处理的分歧不是提交仲裁的条款所设
想的，也不属于提交仲裁的条款的范围，或者裁决载有关于提交仲裁范围以外事项的决定
但如果关于提交仲裁事项的决定可以与未提交仲裁事项的决定区分开来，则裁决中载有关
于提交仲裁事项决定的部分可以得到承认和执行；或者
d) The composition of the arbitral authority or the arbitral procedure was not 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; or 仲裁机构的组成或仲裁程序不符合当事各方的协
议，或在无协议的情况下不符合仲裁地所在国的法律；或
e) 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. 裁
决尚未对各方当事人产生约束力，或已被裁决地所在国或裁决地所在国法律规定的主管当
局撤销或中止。
2. Recognition and enforcement of an arbitral award may also be refused if the competent
authority in the country where recognition and enforcement is sought finds that 如果申请承认和
执行仲裁裁决的国家的主管当局认定，也可拒绝承认和执行仲裁裁决：
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of
that country; or 根据该国法律，争议事项不能通过仲裁解决；或
(b) The recognition or enforcement of the award would be contrary to the public policy of that
country.承认或执行裁决将违反该国的公共政策。
Enforcement of Foreign Awards in China:
New York Convention
China acceded to the New York Convention in 1987 中国于 1987 年加入《纽约公约》
• Reciprocity and Commercial Reservations 互惠和商业保留
• Article V, “may” to “shall”第五条，"可 "改为 "应
Reporting and Approval System
• Established in 1995
• Construction inside the Chinese court system
• It initially covered foreign arbitral awards, foreign-related awards, etc.
• Since 2017, it has included judicial review of all arbitral awards
【这个制度是想改正各地地方保护主义（各地可能倾向当地的外商投资）】
R&E：recognition and enforcement？
Reporting and Approval System
Mitsui & Co. Corporation v. Hainan Textile Industry General Corporation, Supreme People’s
Court,[2001] Min Si Ta Zi No. 12, 13 July 2005
An SCC award, enforcement sought in China 寻求在中国执行的 SCC 裁决
The Intermediate People’s Court of Haikou was of the view that the application ought to be denied
on the ground of public policy because the parties had violated the Chinese laws and regulations
on the approval and registration of foreign debts and national policies on foreign exchange
control.海口市中级人民法院认为，由于当事人违反了中国关于外债审批和登记的法律法规
以及国家外汇管理政策，应以公共政策为由驳回申请。
The High People’s Court of Hainan affirmed the rejection proposal.海南省高级人民法院维持了
驳回建议。
The Supreme People’s Court held that the violation of mandatory provisions contained in
administrative laws and regulations – here, Chinese laws and regulations on the approval and
registration of foreign debts and foreign exchange control – did not necessarily mean a violation
of the public policy of PR China.最高人民法院认为，违反行政法律法规中的强制性规定--这
里指的是中国关于外债审批和登记以及外汇管制的法律法规 --并不一定意味着违反了中国
的公共政策。
“The arbitral award shall not be denied recognition and enforcement on the ground of violation of
public policy."不得以违反公共政策为由拒绝承认和执行仲裁裁决。
“It is so replied.”"是这样回答的。
Enforcement of Arbitral Awards in China: Legal Framework
外国裁决和有涉外因素的裁决区别？
Characterisation of arbitral awards: foreign or Chinese
o Foreign awards: arbitral awards made by tribunals administered by “foreign arbitration
institutions”
o SIAC award, seat of arbitration in Shanghai – is this a foreign award?
Züblin International GmbH v. Wuxi Woke General Engineering Rubber Co., Ltd., (2004) Xi Min
San Zhong Zi No. 1 (foreign award)
Brentwood v GZüblin Internationaluangdong Faanlong, (2015) Sui Zhong Fa Min Si Chu Zi No
62(Chinese award)
China First Heavy Machinery v. Aktiebolaget Sandvik Materials Technology (2021) Jing 04 Min
Te No. 726 (Chinese award)
尽管是境外仲裁机构做出的裁决，如果 seat 是中国大陆，法院逐渐认定是中国裁决（ seat
的概念逐渐被中国法院接受）
• Ad hoc awards – ad hoc awards rendered outside Chinese Mainland are enforceable
Enforcement of foreign awards in China
Case study: arbitration agreement in writing
Article V
1. Recognition and enforcement of the award shall be refused, at the request of the party against
and enforcement is sought, proof that 应裁决所针对的一方当事人的请求，只有在该当事人向
寻求承认和执行裁决的主管当局提供以下证据的情况下，才可拒绝承认和执行裁决:
a) The parties to the agreement referred to in article II 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; or 根据对其适用的法律，第 II 条所述协议的各方当事人已丧失某种行为能力，
或根据各方当事人所适用的法律，或在没有任何相关说明的情况下，根据裁决地所在国的
法律，上述协议无效；或
Article II
1. Each Contracting State shall recognize an agreement in writing under which the parties
undertake to submit to arbitration all or any differences which have arisen or which may arise
between them in respect of a defined legal relationship, whether contractual or not, concerning a
subject matter capable of settlement by arbitration.
2. The term "agreement in writing" shall include an arbitral clause in a contract or an arbitration
agreement, signed by the parties or contained in an exchange of letters or telegrams.
Case：Ecom Agroindustrial Asia Pte Ltd v. Qingdao Jinchangjiang Group Penglai Textiles
& Garments Co., Ltd.,
(2014) Yan Min She Chu Zi No.15
• International Cotton Association award, seat Liverpool
• Applicant: The contract had been signed via fax and, hence, it could not submit the original
signed by the parties. 合同是通过传真签署的，因此无法提交双方签署的原件。
• Court: A copy of the contract was not sufficient to prove the genuineness of the respondent’s 合
同复印件不足以证明被申请人签名的真实性
signature, and the claimant could not provide other evidence of the contract’s conclusion. 双方签
字，申请人也无法证明被申请人签名的真实性。
Enforcement denied.拒绝执行
Case study: party not given proper notice
Article V
and enforcement is sought, proof that:
(b) 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; or
Enforcement of foreign awards in China
Case study: party not given proper notice
Chinese courts: whether the service has complied with the arbitration rules and lex arbitri
Haimalu v. Daqing Pai Si Si Food Co., Supreme People’s Court, [2005] Min Si Ta Zi No. 46 (3
March 2006)
• Korean Commercial Arbitration Board (KCAB) award
• Respondent: service did not comply with the Treaty on Judicial Assistance in Civil and
Commercial Matters Between Korea and China; language used in the notices was Korean
• Court: enforcement granted.
Case study: tribunal has exceeded the scope of submissions
Article V
(c) The award deals with a difference not contemplated 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
Case study: tribunal has exceeded the scope of submissions
FSG Automobile Holding AG v. Wuhan Fanzhou Machinery Manufacture Co., Supreme People’s
Court,
[2015] Min Si Ta Zi No. 46 (24 December 2015)
The Claimant and Respondent entered into a Joint Venture Agreement to set up an joint venture
(“JV”) in China. The joint venture agreement contained an arbitration clause.申请人和被申请人
签订了在中国成立合资企业（"合资企业"）的合资协议。合资企业协议载有一项仲裁条款。
The Claimant entered into a Technology License Agreement with the JV.申请人与合资企业签订
了技术许可协议。
The Claimant commenced arbitration, claiming, inter alia, that the Respondent breached its
obligations under the Joint Venture Agreement, as:申请人提起仲裁，除其他外，声称被申请人
违反了其在合资协议项下的义务，因为
a) the Respondent hindered the JV’s payment to the Claimant under the Technology License
Agreement; 被申请人阻碍合资公司根据《技术许可协议》向申请人付款
b) the Respondent’s representatives on the board of the Joint Venture did not cooperate in the
dissolution of the JV requested by the Claimant.被申请人在合资企业董事会的代表在申请人要
求解散合资企业时不予合作
The Claimant prevailed.原告胜诉
The Tribunal ordered, inter alia, that 除其他外，法庭命令:
a) The Respondent enable the JV’s payment under the Technology License Agreement through its
representatives in the latter’s board 被申请人通过其在合资企业董事会中的代表，使合资企业
能够根据《技术许可协议》付款;
b) The Respondent vote at the board meeting in favour of the dissolution of the JV.被申请人在董
事会上投票赞成解散合资公司。
The Supreme People’s Court, in its Letter of Reply, held that the Tribunal’s award exceeded the
scope of the arbitration agreement, because 最高人民法院在复函中认为，仲裁庭的裁决超出了
仲裁协议的范围，因为
1) The JV is not a party to the Joint Venture Agreement 合资公司不是《合资协议》的一方;
2) According to the regulations issued by the Ministry of Commerce of PRC, the Claimant could
have unliterally requested the dissolution of the JV to the competent Chinese authority based on
the other party’s breach of the Joint Venture Agreement. This issue fell out of the scope of the
arbitration agreement.根据中华人民共和国商务部颁布的规定，申请人可以根据另一方违反
合资协议的事实，向中国主管机关提出解散合资公司的请求。这个问题不属于仲裁协议的
范围。
Question: Is this a review of the scope of the arbitration agreement or a review on merits? 问题：
这是对仲裁协议范围的审查还是对案情的审查？
Case study: Procedural irregularities
Article V
and enforcement is sought, proof that 应裁决所针对的当事人的请求，只有在该当事人向请求
承认和执行地的主管当局提供以下证据的情况下，才应拒绝承认和执行裁决：
(d) The composition of the arbitral authority or the arbitral procedure was not 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...仲裁机构的组成或仲裁程序不符合当事各方的协议，
或在没有这种协议的情况下，不符合仲裁地所在国的法律...…
Noble Resources International Pte. Ltd. v. Shanghai Xintai International Trade Co., Ltd., Shanghai
First
Intermediate People’s Court, (2016) Hu 01 Xie Wai Ren No.1 (11 August 2017)上海市第一中级
人民法院，（2016）沪 01 解外终字第 1 号（2017 年 8 月 11 日）
Based on Claimant’s application, President of SIAC Court decided that the arbitral proceedings
shall be conducted in accordance with the Expedited Procedure, which, according to the SIAC
Rules then, shall be heard by a sole arbitrator.根据申请人的申请，上海国际仲裁中心法院院长
决定仲裁程序按照快速程序进行，根据当时的《上海国际仲裁中心规则》，应由一名独任
仲裁员审理。
The arbitration agreement, on the other hand, provides three arbitrators. 而仲裁协议规定了三名
仲裁员。
Court: composition of the tribunal was not in accordance with the arbitration agreement.
Enforcement denied.法院：仲裁庭的组成不符合仲裁协议。拒绝执行。
“The composition of the arbitral authority or the arbitral procedure was not 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…”仲裁机构的组成或仲裁程序不符合当事各方的协议，
或如无此种协议，则不符合仲裁地所在国的法律......"
Questions
• Should the institutional arbitration rules selected by the Parties be deemed to be incorporated
into the arbitration agreement by reference 当事人选定的机构仲裁规则是否应被视为以提及方
式纳入仲裁协议?
• Should any deviation from the agreed applicable rules trigger non-enforcement? 是否任何偏离
约定适用规则的行为都应导致不执行？
Non-arbitrability 无可执行力
2. Recognition and enforcement of an arbitral award shall also be refused if the competent
authority inthe country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of
that country; or
No case found where a Chinese court refused the enforcement of a foreign award on this ground
Award not binding
Article V
e) 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
Ground for Refusal: Public Policy
Article V
2. Recognition and enforcement of an arbitral award shall also be refused if the competent
authority in the country where recognition and enforcement is sought finds that:
(b) The recognition or enforcement of the award would be contrary to the public policy of
that country.
• Domestic public policy

• International public policy
• Transitional/truly international public policy
Hemofarm DD, MAG International Trade Co., Sulame Media Co. Ltd and Jinan Hemorfarm Joint
Venture v. Jinan Yongning Pharmaceutical Co., Ltd., Supreme People’s Court, [2008] Min Si Ta Zi
No.
(2 June 2008)
It concerned an ICC arbitration initiated by the three shareholders of a joint venture (JV) against
the
4 th shareholder based on the arbitration clause contained in the Joint Venture Agreement. The JV
was
not a party to the Joint Venture Agreement or the ICC Arbitration.
The 4 th shareholder entered into a lease agreement with the JV. Prior to the commencement of the
arbitration, the 4 th shareholder had filed a lawsuit in a Chinese court against the JV, demanding
payment of rent and return of certain leased property. The 4 th shareholder also filed an
application for
property preservation.
Class 5 Arbitration Agreements in Mainland China
用哪个 law，Singapore--seat，Chinese--
1. What is an arbitration agreement

An agreement to arbitration a dispute
-The parties 【加一张 PPT 】
2. Overview
PRC Arbitration Law
• Judicial interpretations and replies issued by the Supreme People’s Court (SPC)
- Interpretation of the SPC on Certain Issues Concerning the Applicability of the
Arbitration Law of the People's Republic of China (最高院关于适用《仲裁法》的司法解释)
- SPC Provisions on Enforcement of Arbitral Awards （办理仲裁裁决执行案件的司法解释)
- Reply of the SPC on Several Issues Concerning the Confirmation of the Validity of
Arbitration Agreements (关于确认仲裁协议效力问题的批复
- SPC Interpretations on Arbitration-related Judicial Review Cases (审理仲裁司法审查案件)
- Summary of Panel Discussion on Foreign-related Commercial and Maritime Trial Work
of Courts Nationwide 全国法院涉外商事海事
• International treaties: the New York Convention
• Arbitration Law of the People's Republic of China (Revised) (Draft for Comments) （仲裁法
（修订案）征求意见稿）
（1）Separability Doctrine 独立性条款
• An arbitration clause exists independently, and its existence and validity are independent and
severable from other clauses of a contract.
- Luck Treat case (2022) - If the parties negotiate an arbitration clause and reach an
agreement on submission to arbitration when concluding the contract, whether the
contract is established or not does not affect the establishment and validity of the
arbitration clause.
仲裁条款独立存在，其存在和有效性是独立的，可以与合同的其他条款分割。
- 幸运待遇案（2022） - 如果双方协商仲裁条款并达成订立合同时提交仲裁的协议，合同
成立与否不影响合同的成立和效力仲裁条款。
3. Choice of law governing international

arbitration agreements
哪个法律 govern agreement 和 transaction
中国、印度是仲裁协议双方当事人，存在货物买卖合同，约定在新加坡 SIAC 仲裁，哪个
法律 govern？用中国还是印度还是新加坡法律，如果约定用英国法。在中国法下：Govern
仲裁合同的法律首先根据当事人选择，如没有约定默认选择仲裁地法
•Party autonomy – lex loci arbitri - lex fori (SPC Interpretations on AL)
• Party autonomy - validation principle (SPC Interpretations on Arbitration-related Judicial
Review Cases)
- When the people's court determines the law applicable to determine the validity of a
foreign-related arbitration agreement in accordance with the provisions of Article 18 of the
Law of the People's Republic of China on the Law Applicable to Foreign-Related Civil
Relations, the people's court shall apply the law confirming the validity of the arbitration
agreement when the parties have not chosen the applicable law, and where the application of the
law of the seat of the arbitral institution and the law of the place of arbitration would
result in a different determination of the validity of the arbitration agreement.人民法院认定适用
法律效力时涉外仲裁协议依照《对外仲裁协议》第十八条的规定订立中华人民共和国涉外
民事适用法律法关系。人民法院适用确认仲裁效力的法律当事人未选择适用法律时达成协
议，并且仲裁机构所在地的法律和仲裁地的法律的适用将导致对仲裁协议有效性的不同确
定
• Party autonomy - lex loci arbitri - Chinese law (Arbitration Law of the People's Republic of
China
(Revised) (Draft for Comments))
Validation Principle
• China Light Tri-union case (2017)
“any dispute arising out of or in connection with this contract shall be settled through friendly
negotiation. If the negotiation fails, the dispute shall be submitted to Singapore International
Economic and Trade Arbitration Commission for arbitration in accordance with the American
arbitration rules. The arbitral award shall be final and binding on both parties” 因本合同引起的或
与本合同有关的任何争议，应通过友好协商解决。协商不成的，争议应提交新加坡国际经
济贸易仲裁委员会按照美国仲裁规则进行仲裁。仲裁裁决为终局裁决，对双方均有约束力
- Chinese law? Singaporean law? American law?
- Pro-arbitration attitude of the Chinese courts
...这个仲裁协议（没）有效，无论双方...都需要根据新加坡的法律
4. Formal and substantive validity of

arbitration agreements
Formal validity of arbitration agreements
Arbitration agreements must be made in writing......(AL, Art. 16)
• Arbitration agreements in other written forms as stipulated in Article 16 of the Arbitration Law
shall comprise of the agreements on requesting for arbitration by means of contracts, letters or
data
message (including telegraph, telefax, fax, electronic data interchange and e-mail), etc. (SPC
Interpretations on AL, Art.1)• 仲裁法第十六条规定的其他书面形式的仲裁协议应包括通过合
同、信函或数据请求仲裁的协议信息（包括电报、传真、传真、电子数据交换和电子邮
件）等（最高人民法院）对 AL 的解释，第 1 条）
• But note: “If a party asserts the existence of an arbitration agreement in the arbitration and the
other parties do not deny it, an arbitration agreement is deemed to exist between the parties.”
(Revised draft of AL, Art. 22) (green light for no written form?)但请注意：“如果一方当事人在
仲裁中主张存在仲裁协议，而另一方当事人不否认，当事人之间即视为存在仲裁协议。
（修订
AL 草案，第 22 条）（没有书面形式开绿灯？
微信发语音订立的仲裁条款是不是书面形式?--根据中国民法典应该算
Bill of lading disputes 提单争议
Whether the arbitration clause of charter party can be incorporated into the B/L?
• Whether there is an agreement to arbitrate between the carrier and the B/L holder
买方拿提单到 carrier 前，
Holder 是否受仲裁合同约束，
Chinese courts usually applied a much strict approach regarding the issue of validity of arbitration
clause incorporated into the bill of lading.
Grounds for refusing the validity of arbitration clause incorporated into the bill of lading:
• The incorporation clause on the front page of the bill of lading does not specifically mention
arbitration clause and the incorporation clause on the back page is not effective incorporation (e.g.
SPC Replies, (2006) Min Si Ta Zi No.49, (2008) Min Si Ta Zi No.33);
• A bill of lading cannot incorporate the arbitration clause in a time charter which does not regulate
the carriage of goods ((2004) Qing Hai Fa Hai Shang Chu NO.245);
• The date and the parties’ names were not stated, so it was uncertain which charter party was to be
incorporated into the bill of lading. Accordingly, the arbitration clause was not successfully
incorporated (e.g. (2008) Min Si Ta Zi No.50);
• The B/L owner made no manifestation of intent to be bound by the arbitration clause in the
charter
which was incorporated to the B/L under the terms of the B/L – holding a B/L is not sufficient
(Hanjin Shipping vs. Guangdong Fuhong)
“Reverse” separability doctrine
• Sri Trang Agro-Industry Plc. case (2013) - “even if the contract is presumed to have been formed
based on the parties' actual performance of the contract, in accordance with the requirement in
China that an arbitration agreement be in writing and the principle that an arbitration agreement be
independent of a contract, it cannot be determined, based on performance alone, that the parties
reached an arbitration agreement with respect to the means of dispute resolution.”
• Compare: Luck Treat case (2022)
中国当事人 A、日本当事人 B
B signed and issued a purchase order for goods, with a n siac arbitration clause, A did not sign and
return the PO. However, A orally confirmed the PO, and delivered the goods, A paid and later
found that the goods are defective. 乙签署并签发了货物采购订单，附有仲裁条款，甲未签收
并退回采购订单。但甲口头确认了 PO，并交付了货物，甲付款后发现货有瑕疵。
Substantive validity of arbitration agreements
• Arbitration agreements must be made in writing and contain the following elements under PRC
law:
a clear intention to arbitrate;
matters subject to arbitration; and
selected “arbitration commission” (AL, Art.16)
Lack of clear intent to arbitrate
• “either arbitration or litigation”“仲裁或诉讼”
- invalid 无效
- no clear intention to arbitrate 无明确的仲裁意图
• Compare: BY.O case (2020)
• Also see para. 94 of Summary of Panel Discussion on Foreign-related Commercial and
Maritime• 另见关于涉外商业和海事问题的小组讨论摘要第 94 段
Trial Work of Courts Nationwide 全国法院审判工作
[Determination of the Validity of an "Arbitration-before-Litigation" Dispute Resolution Clause]
[“先仲裁后仲裁”争议解决条款效力的认定]
Where the parties agree in an arbitration agreement that "arbitration should precede litigation"
when a dispute arises, this should not be considered as a case in which an arbitration agreement is
invalid as provided in Article 7 of the Judicial Interpretation on the Arbitration Law. 当事人在仲
裁协议中约定发生争议时“仲裁应先于诉”的，不应当认定为《仲裁法司法解释》第七条
规定的仲裁协议无效的情形。
According to the first paragraph of Article 9 of the Arbitration Law that after an arbitral award is
rendered, the parties shall not initiate an action to the people's court in respect of the same dispute,
the part regarding the subsequent litigation in the agreement that "arbitration should precede
litigation" should become void, but the validity of the arbitration agreement should not be
affected.根据《仲裁法》第九条第一款规定，仲裁裁决作出后，当事人不得就同一争议向人
民法院提起诉讼，协议中关于“先仲裁先于诉讼”的后续诉讼部分应作无效，但不影响仲
裁协议的效力。
Lack of a selected arbitration commission
• “Arbitration commissions” are to be set up by municipal governments and to be registered with
the relevant authorities (AL, Art. 11)
• Reform - Where a foreign arbitration institution establishes a business organization in the
territory of the People's Republic of China to handle foreign-related arbitration business, it shall be
registered by the judicial administrative department of the province, autonomous region or
municipality directly under the Central Government and reported to the judicial administrative
department of the State
Council for the record. (Revised Draft of AL, Art. 12)
Lack of a selected arbitration commission - foreign arbitral institution
(Foreign-related) disputes to be submitted to arbitration administered by a foreign arbitral
institution
seated in mainland China
• validity of the clause questionable under the legislative framework
• selected foreign arbitral institution is not an “arbitration commission” under the PRC Arbitration
Law
But note:
• Longlide (March 2013): “ICC arbitration in Shanghai” clause held valid
• Daesung (June 2020): “SIAC arbitration in Shanghai” clause held valid
• Brentwood (Aug 2020): award rendered under “ICC arbitration in Guangzhou” clause
enforceable under PRC Civil Procedure Law
• Disputes arising in foreign-related economic and trade activities may be submitted to “foreign-
related arbitral institution or other arbitral institution” (CPL, Art. 278)
• Domestic disputes to be submitted to arbitration administered by a foreign arbitral institution
• e.g. Chao Lai Xin Sheng v. Suo Wang Zhi Xin case (2013)
- invalid
- only foreign-related disputes may be submitted to offshore arbitration or arbitration
administered by foreign arbitral institution
• But note: Siemens International Trade Co. Ltd. v Shanghai Golden Landmark Co. Ltd. (2013)
• Correctly determining the validity of arbitration agreements and regulating the judicial review of
arbitration cases. Where two wholly foreign-owned enterprises registered in FTZ agree that any
commercial dispute shall be submitted to arbitration out of China, the relevant arbitration
agreement shall not be determined to be null and void for the reason that their dispute has no
foreign-related factors.
• [Estoppel] Where two foreign-funded enterprises, either or both registered in FTZ, has agreed
that any commercial dispute shall be submitted to arbitration out of China, when a dispute takes
place, a party submits the dispute to arbitration out of China, and when the relevant arbitral award
is made, the party refuses to admit, accept or enforce the award, the people's court shall not uphold
it; and where the other party holds no objection to the force of the arbitration agreement in the
arbitration proceedings, but when relevant award is made, claims the nullity of the arbitration
agreement for the reason that relevant dispute has no foreign-related factors, and therefore refuses
to admit, accept or enforce the award, the people's court shall not uphold it.在自贸试验区注册的
两家外资企业约定将商事争议提交中国境外仲裁的，发生争议时，一方当事人将争议提交
中国境外仲裁，作出相关仲裁裁决时，当事人拒绝受理、不予受理或者不予执行。人民法
院不予支持;对方当事人对仲裁协议在仲裁程序中的效力没有异议，但作出相关裁决时，以
相关争议不存在涉外因素为由主张仲裁协议无效，拒绝受理或者不予执行的，人民法院不
予支持，人民法院不予维持。
Lack of a selected arbitration commission
Arbitration rules are agreed upon while the parties fail to agree on an explicit arbitration
institution
• Züblin case (2004) “ ICC Rules, Shanghai shall apply” - clause held void
• Taizhou Haopu case (2012) “The arbitration proceedings shall be made pursuant to the
International Chamber of Commerce Rules of Conciliation and Arbitration.” - clause held void
• Zhongxing automobile (2020) – clause for arbitration under ICC Rules held invalid by the
Chinese court already - foreign award rejected for Art. V.(2).(b). 根据《国际商会规则》进行的
仲裁条款已被中国法院认定为无效——外国裁决因第五条第（2）款而被驳回。
ICC arbitration, shanghai→court invalidation decision→ICC PARIS AWARD 【不能 consistent
】国际商会仲裁、上海→法院无效宣告决定→国际商会巴黎裁决
• Note: see para. 95 of Summary of Panel Discussion on Foreign-related Commercial and

Maritime
Trial Work of Courts Nationwide
[Determination of the Validity of an Arbitration Agreement When Only Arbitration Rules are
Agreed upon] Where the parties fail to agree on an explicit arbitration institution but agree on the
application of arbitration rules of an arbitration institution in the arbitration agreement, the parties
shall be deemed to have agreed on the arbitration institution, unless the arbitration rules provide
otherwise.
Arbitrability
• Anti-trust disputes
• Intellectual property validation disputes
• Investor-state disputes (Note: the reform)
• But note: Dalian Institute of Chemical Physics, Chinese Academy of Sciences case (2021)
• Even if the parties filed a lawsuit on the grounds of infringement, it is still a dispute related to the
contract, and should be subject to the valid arbitration clause in the contract, the dispute should be
resolved through arbitration, and does not fall within the scope of the cases accepted by the
people's
court.
Res judicata 既判力：一事不再理
Arbitrability
• Anti-trust disputes
• Intellectual property validation disputes
• Investor-state disputes (Note: the reform)
• But note: Dalian Institute of Chemical Physics, Chinese Academy of Sciences case (2021)
• Even if the parties filed a lawsuit on the grounds of infringement, it is still a dispute related to the
contract, and should be subject to the valid arbitration clause in the contract, the dispute should be
resolved through arbitration, and does not fall within the scope of the cases accepted by the
people's court.
5. Other issues regarding arbitration

agreements in mainland China
Capacity to conclude arbitration agreements 缔结仲裁协议的能力
New York Convention Article V.1.(a) The parties to the agreement referred to in article II 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.
《纽约公约》第五条第 1 款。（a）第二条所述协议的当事各方根据对其适用的法律处于
某种程度的无行为能力，或所述协议根据当事各方所遵守的法律无效，或如未就此作出任
何说明，则根据作出裁决的国家的法律无效。
• PRC courts have applied the incapacity defence to a case where the representative signing the
contract lacked authority to represent the legal entity entering into the contract
• IM Global (May 2020) – refused recognition
Interpretation of arbitration agreements
Noble Resources International v. Shanghai Good Credit International Trade 合同提及并纳入了

《全球矿石标准铁矿石贸易协定》
• The contract refers to and incorporates Global Ore Standard Iron Ore Trading Agreement《全球
矿石标准铁矿石贸易协定》第 16 条载有 SIAC 仲裁条款，第 16.1.1 条规定了三名仲裁员.
• Article 16 of the Global Ore Standard Iron Ore Trading Agreement contains an SIAC arbitration
clause, and Article 16.1.1 provides for three arbitrators.
• Article 5 of the SIAC 2013 Rules provides that a sole arbitrator shall be referred to in an
expedited proceeding.《SIAC 2013 规则》第 5 条规定，独任仲裁员应在快速程序中提交。
• Shanghai No.1 Intermediate People's Court refused to recognize and enforce the award.
Compare: AQZ v. ARA [2015] SGHC 上海市第一中级人民法院拒绝承认和执行该裁决。【胡
科认为应该 enforce 这个 Singapore award】
6. The reform regarding arbitration agreements

Interpretation of arbitration agreements
Decision of Shanghai No.1 Intermediate People's Court:
• When deciding the number of arbitrators under Article 5.2(b) of the SIAC Rules, the president
must give full consideration to the parties' agreement with respect to the composition of the
tribunal in order to preserve party autonomy.
• The Court considered that use of the expedited procedure should not prevent the parties from
exercising their fundamental rights to an arbitration comprised of three arbitrators as stipulated in
the arbitration agreement. In this case, the Court considered appointment of a sole arbitrator in
accordance with Article 5.2 of the SIAC Rules was a violation of the arbitration agreement when
the arbitration agreement had provided for three arbitrators.
Question: which law governs the interpretation of the arbitration agreement?
7. The reform regarding arbitration agreements

Notable changes
• Expansion of the scope of arbitrable matters
• Overseas arbitration institutions are allowed to set up branch offices
• Failure to agree on an arbitration institution or unclear agreement does not invalidate the
arbitration agreement
• Endorsement of the doctrine of competence-competence
• Green light for ad hoc arbitration in foreign-related disputes
[jonny lecture]
International treaty
Class 6 ： Evolution of Chinese Investment
Treaty Practice
1.Three generations of Chinese investment

treaties
 China maintains an extensive network of over 140 BITs.
 The first generation Chinese BITs was concluded in 1982-1989. These BITs contain very
limited investment protections. This is largely because the first generation of Chinese BITs’
dispute resolution provisions are limited to determining the amount of compensation for
expropriation, thus preventing (in most cases) the Chinese investors from bringing their
disputes to investment arbitration.
The second generation of China’s BITs emerged after China acceded to the ICSID（国际投资争
端解决中心） Convention (1990-1997). These treaties refer to ICSID as a venue to arbitrate
investor-state disputes concerning the amount of compensation for expropriation. They also offer a
somewhat limited protection to Chinese investors, for the same reason.
 The third generation of China’s BITs (1998 – present) has removed “the amount of
compensation for expropriation” wording from Chinese treaties, allowing for much stronger
protections to Chinese investors. Unfortunately, the number of the third generation BITs is
somewhat limited compared to China’s previous treaty generations. Most third generation
BITs are with African States.
 The emerging “fourth” generation: The China–EU Comprehensive Agreement on
Investment and the China–US BIT
1.1Historical context - First generation of Chinese
investment treaties (82-89)
Socio-economic underpinnings
Setbacks along the way of the Economic Miracle
-Socialism with Chinese characteristics: socialist market economy: the Deng era
-The Chinese Economic Miracle of 1980s
-De-collectivization of agriculture and allowing of the entrepreneurship
-Opening up to the foreign investment
-Privatization of State economy
-Large industries remained state-owned
-4 June 1989
The first generation Chinese BITs were signed from 1982 to 1999
Ø Both with capital-exporting and capital-importing States
Ø These BITs provide either no ISDS provisions at all or a narrowly constructed ISDS clause that
only admits ‘the amount of compensation for expropriation’ to arbitration”
1.2Key features - First generation of Chinese investment
treaties (82-89)
- Requirement of amicable settlement 友好解决的要求

- Six months cooling off period 六个月冷却期【？？】
- “Amount of compensation for expropriation”"征用补偿金额"
- Ad hoc arbitration 临时仲裁：与机构仲裁相并列的一种仲裁形式,意指专门为解决某一特定
案件而进行的仲裁
- Limited number of BITs requiring exhaustion of local remedies (see, China-
Poland BIT of 1988, China-Malaysia BIT of 1988, China-Pakistan BIT 1989) 要求用尽当地救济
的双边投资协定数量有限（见，1988 年中国-波兰双边投资协定、1988 年中国-马来西亚双
边投资协定、1989 年中国-巴基斯坦双边投资协定）
-41 BITs include a fork-in-the-road provision 41 个双边投资条约包含 "在途 "条款
- Applicable law: 46 BITs BIT themselves, domestic laws, other agreements, generally recognized
principles of international law 适用法律： 46 双边投资协定双边投资协定本身、国内法、其
他协定、公认的国际法原则
- Little incentive to protect its overseas investment at the time, being largely a capital importing
State 当时保护海外投资的积极性不高，主要是作为一个资本输入国
1.3Case law - First generation of Chinese investment treaties
(82-89)
Tza
the ‘ordinary meaning’ to examine the scope of the term ‘involving’ in Article 8(3) of the
China–Peru BIT (1994).《.中国-秘鲁双边投资协定》（1994 年）第 8(3)条中 "涉及 "一词的
范围。
- A broad view that the amount of compensation for expropriation includes ‘not only the mere
determination of the amount but also any other issues normally inherent to an expropriation,
including whether the property was actually expropriated in accordance with the BIT provisions
and requirements, as well as the determination of the amount of compensation due, if any’ 一种宽
泛的观点认为，征用补偿金额'不仅包括金额的确定，还包括征用通常固有的任何其他问题，
包括财产是否按照双边投资协定的规定和要求被实际征用，以及确定应得的补偿金额（如
有）'。
- A broad interpretation of the phrase ‘disputes involving the amount of compensation for
expropriation’ is appropriate 对 "涉及征用补偿数额的争端 "一语作广义解释是恰当的。
-The narrow view: the investors to resort to arbitration on the quantification of compensation only
after a domestic court of the host state has first officially proclaimed the existence of the act of
expropriation.狭义观点：投资者只有在东道国国内法院首先正式宣布存在征用补偿的情况
下，才能就补偿的量化问题诉诸仲裁
-In light of the fork-in-the-road, the investor would lose its eligibility to resort to international
arbitration. Therefore, a narrow interpretation results in the non-applicability of such an arbitration
clause ipso jure.-鉴于 "先入为主 "原则，投资者将失去诉诸国际仲裁的资格。因此，狭义的
解释导致这种仲裁条款在法律上不适用。
-The Tribunal’s broad ‘effectively activates the practical utility’ of the arbitration clause in
first generation BITs, ‘even though the Award does not have a precedential effect” 仲裁庭的宽泛
解释'有效地激活了'第一代双边投资条约中仲裁条款的'实际效用'，'甚至可以说是'第一代双
边投资条约中仲裁条款的'实际效用'，'即使裁决不具有先例效力'。
Irony
“as a Communist country, China believes that domestic courts instead of international arbitral
tribunals should be the sole judge that retains the authority to determine the ownership of property
within China”"作为共产主义国家，中国认为国内法院而非国际仲裁庭应是唯一有权决定中
国境内财产所有权的法官"。
China’s original intention in negotiating first generation BITs was to adopt a narrow interpretation
thereof, and the issue of the amount of compensation to be paid was only admissible to arbitration
after a Chinese court had recognized the fact that there had been an act of expropriation, either
lawful or unlawful, in the first place 中国在谈判第一代双边投资协定时的初衷是对其进行狭
义解释，只有在中国法院首先承认存在合法或非法征用行为的情况下，才可受理赔偿金额
问题的仲裁。
Sanum
In Sanum v. Laos, Laos challenged the jurisdiction of the Tribunal by relying on Article 8(3)
of the China–Laos BIT (1993)
The Tribunal looked at the ‘ordinary meaning’ of the term ‘involving’, relied on Tza, and
decided that it had jurisdiction because ‘involving’ should be interpreted as an inclusive
term (and equal to ‘including’) rather than an exclusive one.
Laos challenged the Award for the Tribunal’s lack of jurisdiction before the High Court in
Singapore, which then supported Laos and annulled the Award.
The SGHC finds that Macau-incorporated Sanum does not qualify as an investor under
the China–Laos BIT. SGHC also narrowly interpreted Article 8(3) of the China–Laos BIT.
The Judge placed strong emphasis on the context of the treaty and its historical
background of negotiation, and relied on an assumption that two Communist states at the
time of negotiation were more likely to intend for a restrictive arbitration clause in the China–
Laos BIT in order to prioritize national judicial power in resolving investment disputes.
This line of interpretation by the SGHC has been criticized as problematic, unnecessary and
superfluous, because the Judge placed strong emphasis on the context of the treaty and
its negotiating background in coming to his decision, but was neglectful of the object and
purpose of the treaty in promoting foreign investment and protecting foreign investors.
Sanum appealed to SGCA, which reversed the High Court’s judgment and upheld
the Tribunal’s jurisdiction, in support of a broad interpretation of Article 8(3).
Ø The SGCA adopted the ‘context, object and purpose’ technique, as well as the
principle of effet utile, to interpret Article 8(3), and argued that the fork-in-the-
road provision in the China–Laos BIT, if under the narrow interpretation of the
‘amount of compensation for expropriation’, would bar investors from bringing a
dispute to arbitration.
Ø The SGCA’s reliance on the fork-in-the-road provision to support a broad
interpretation of the ‘amount of compensation for expropriation’ has been appraised
as a ‘meticulous examination’ of the issue, and an ‘influential and prominent’
decision to ‘avoid an illusory right to arbitration’ to investors.
Ø The limitation: cannot apply to first generation Chinese BITs with no fork-in-the-
road provisions.
Ø After the confirmation of the Tribunal’s jurisdiction, the Tribunal decided in favour
of Laos on the grounds of Sanum’s bribery and bad faith in the operation of its
investment and unfounded expropriation claims
BUCG
In Beijing Urban Construction Group(BUCG) v. Yemen, the Tribunal finds that the ‘ordinary
meaning’ and scope of the text‘amount of compensation for expropriation’ were not conclusive to
reach either a narrow or broad reading thereof, and that
the Tribunal had to move to the ‘context, object and purpose’ of the treaty.
Ø The Tribunal adopted a broad interpretation, by taking the view that ‘the Contracting Parties
intended to confer a real choice, not an illusory choice, on investors from their respective
countries, and that the words “relating to the amount of compensation for expropriation” must, in
context, be read to include disputes relating to whether or not an expropriation has occurred
Mongolia
In China Heilongjiang et al. v. Mongolia, the Tribunal viewed the plain meaning of ‘involving’ in
Article 8(3) of the China–Mongolia BIT (1991) as a neutral one and could neither support a
broad or a narrow interpretation.
Ø The Tribunal took the view that ‘a dispute involving the amount of compensation for
expropriation’ only ‘describes a particular category of disputes’, namely ‘whether the
compensation which is due […] is equivalent to the value of the expropriated investments’ after an
expropriation act has formally been proclaimed by the host state, ‘the occurrence of which is not
contested’.
Ø Therefore, the claimants’ request to the Tribunal to first adjudicate whether Mongolia had
expropriated the Claimants’ investment fell outside of the Tribunal’s jurisdiction.
Ø Challenge before the New York Southern District Court: “the Chinese companies, by initiating
this arbitration, affirmatively arguing for the tribunal’s jurisdiction, and vigorously participating in
the seven-year-long arbitration proceedings, have waived their opportunity to object now to the
arbitrators’ ability to decide the arbitrability of the case. The Court therefore finds that the parties
clearly and unmistakably agreed to place the question of arbitrability before the tribunal.’
Ø The Court refrained from expressing any opinions on the accuracy of the Tribunal’s analysis of
the dispute.
1.4Historical context - Second generation of Chinese
investment treaties
Ø 1990-1997: a generational shift from peasant revolutionaries to well-educated, professional

technocrats.1990-1997 年：从农民革命者到受过良好教育的专业技术官僚的代际更替。
Ø Setbacks following on from the 4 June Incident; sanctions; inward looking;
Ø Collapse of the communist regimes in Eastern Europe during 1989–1990 (the fall of Romanian
leader Nicolae Ceaușescu)1989-1990 年间东欧共产主义政权的崩溃
Ø Deng’s Economic Miracle continued to reap benefits, further opening up 邓小平的经济奇迹继
续带来好处，进一步开放
Ø Handover of Hong Kong 香港回归
Ø End of Sino-Soviet rift 中苏裂痕结束
Ø Collapse of the USSR 苏联解体
Ø Worthening of relationship with the US 改善与美国的关系
1.5 Features - Second generation of Chinese investment
treaties
Ø 46 Chinese BITs belong to the second generation

Ø 7 signatory states are developing countries located in Africa, South East Asia
and Latin America, which are commonly considered as capital-importing
countries
Ø Favourable jurisdictional wording in many
Ø ICSID added as a forum
Ø “Any legal dispute” arising out of an investment (Congo)
Ø Cooling off of 6 months
Ø Exhaustion of local remedies (South Africa) – optional at the discretion of the
investor
Ø 29 provide for fork-in-the-road
Ø Governing law is the domestic law of the host state, including its rules on the
conflict of laws, in addition to the provisions of the BIT at issue and the
applicable principles of international law.
1.6 case law- Second generation of Chinese investment
treaties
Ping An
Two BITs: the China–BLEU BIT (1984), which came into force in 1986,
featuring a first generation ISDS clause, and the China–BLEU BIT (2005),
which came into force in 2009, replacing the 1984 BIT and featuring a second
generation ISDS clause.
Ø The Claimants filed a claim with the ICSID against Belgium in 2012,
according to the arbitration clause of the 2005 BIT, but all substantive claims
were made based on the obligations under the 1984 BIT.
Ø The Tribunal observed that it was ‘unequivocal’ that the dispute arose before
2009, when the 2005 BIT came into force. The Tribunal then interpreted
Article 8(1) of the 2005 BIT according to its ‘plain meaning’, and found that
it was only applicable to disputes which only ‘arise’ after 2009, the time of
the entry into force of the 2005 BIT, because the wording ‘arises’ cannot be
interpreted as having the same meaning as ‘arises or has arisen’
Asiaphos
Another important finding is with respect to the BIT's fork-in-the-road
provision. There, the Tribunal finds that the fork-in-the-road provision will
only bar the claims for the "amount of compensation for expropriation"
if such claims are submitted to the local courts. The BIT's fork-in-the-road
provision does not operate to bar any other claims, or as an exhaustion of
domestic remedy requirement.
Ø Aside: Soviet treaties
Ø A large section of the award is dedicated to the "legal framework on
expropriatory measures under Chinese law", set out largely by the PRC to
argue that the PRC law provides for various avenues for the investors to have
expropriation "confirmed" so as to then submit a dispute over the amount of
compensation to a treaty tribunal (See, paras 141 et seq).
Ø Finally, the Tribunal finds that MFN clause cannot be used to expand the
Tribunal's jurisdiction where there is none (See, paras 188 et seq), and that for
the MFN clause to apply to the jurisdictional provisions in the treaty, the
treaty parties must have expressly drafted the treaty in that way.
1.7 Historical context - Third generation of Chinese
investment treaties
Unprecedented economic growth

Belt & Road Initiative
Capital-exporting State
Further opening up of economy
South China Sea Dispute
Hong Kong 2019
Covid era
Emergence of the Fourth generation
1.8 Features - Third generation of Chinese investment
treaties
Expansion of provisions on dispute settlement: designated dispute settlement chapters that

contain elaborated articles.
Ø The China–Mexico BIT (2008) contains 17 articles addressing ISDS, and the China–Canada
BIT(2012) establishes a part
Ø that includes 13 ISDS articles
Ø Indicate China is willing to negotiate detailed and highly prescriptive dispute resolution
provisions
Ø 6 months cooling off
Ø “Negative lists” of what categories of disputes are not arbitrable (China-Canada BIT):
Ø Non-arbitrable: “prudential measures in the financial sector, which may eventually be resolved
by state-to-state arbitration”
Ø Taxation carve-outs
Ø MFN only applies to substantive protections
Ø road and no-U-turn
Ø Governing law: exclusion
Ø of the domestic law of the contracting states
“Fourth” generation
Ø The China–EU CAI was officially launched in November 2013
Ø Once concluded, the CAI will replace the current 25 fragmented BITs that China has
concluded with individual EU Member States.
Ø December 2020: Agreement in principle on investment:
“ China has committed to a greater level of market access for EU investors than ever before,
including some new important market openings. China is also making commitments to ensure fair
treatment for EU companies so they can compete on a better level playing field in China,
including in terms of disciplines for state owned enterprises, transparency of subsidies and rules
against the forced transfer of technologies. For the first time, China has also agreed to ambitious
provisions on sustainable development, including commitments on forced labour and the
ratification of the relevant ILO fundamental Conventions. ”
https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2541
EU
Ø The China-EU IA and the China– US BIT demonstrate fundamental disparities.
Ø The EU is a determined proponent for the reform of ISDS by proposing a bilateral Investment
Court System (ICS),to be eventually replaced by a Multilateral Investment Court
(MIC), which have been integrated into the EU Canada
Comprehensive Economic and Trade Agreement (CETA), the EU-Vietnam Investment Protection
Agreement (IPA) and the EU-Singapore IPA.
US
Ø The US is traditionally an ‘incrementalist’ in ISDS reform; it favours the retention of the current
ad hoc investor-state arbitration while proposing modest reforms that address specific concerns
with regard to the current system.
Ø China has a tradition of adopting a negotiation strategy for BITs that is in deference to the other
contracting party.
Ø For that reason, the China–EU CAI may
Ø incorporate a standing mechanism that is explicitly advocated by the EU.
Ø The China–US BIT, provided that a BIT is still a desired option at all, would most likely retain
the conventional ad hoc investment arbitration with restrictive characteristics as adopted in the
United States-Mexico-Canada Agreement (USMCA).
2. Hong Kong Treaties

Hong Kong enjoys a high degree of autonomy as China’s Special Administrative Region.
Ø Article 13 of the Basic Law entitles Hong Kong is to conduct its own relevant foreign affairs.
Ø Hong Kong maintains twenty bilateral investment treaties (BITs).
Ø These BITs offer international law investment protection to Hong Kong-based investors who
invest in Hong Kong’s investment treaty partners.
Ø Hong Kong BIT partners: Australia, Austria, BLEU, Canada, Chile, Denmark, Finland,
France, Germany, Italy, Japan, Korea, Kuwait, Netherlands, Mexico, New Zealand, Sweden,
Switzerland, Thailand,UK, and now UAE.
FEATURES
Ø FET, FPS, NT, MFN, prohibition of investment impairment through unreasonable
or discriminatory measures, prohibition of unlawful expropriation, and often an
umbrella clause.
Ø Some pre-2016 BITs contain tax carve-outs.
Ø The standard of compensation for lawful expropriation in the pre-2016 BITs is
based on the “real value” of investment immediately before the deprivation or
before the impending deprivation became public knowledge, whereas the
compensation standard under the UK Model BIT is based on the “genuine value”
of the investment.
Ø Hong Kong BITs tend to have more elaborate repatriation guarantees than the UK
Model BIT, typically including a non-exhaustive list of what transfer payments
include.
Ø Most pre-2016 Hong Kong treaties contain subrogation and investment insurance
provisions.
Ø Some require transparency and accessibility of applicable laws.
Hong Kong Treaties Evolution
1992 - 2010: UK Model BIT as basis for 17 BITs
Netherlands, Kuwait, Finland; Thailand; the UK; the Republic of Korea; Japan; Austria;
Benelux; Germany; France; Italy; New Zealand; Switzerland; Sweden; Denmark; Australia
2016 – present: Hong Kong Model BIT
Chile, Canada, UAE and ASEAN
Do Chinese Treaties apply to Hong Kong?
Ø Sanum v Laos: Laos argued that the China-Laos BIT does not extend to Macau, and for
that reason, a Macanese investor is not entitled to engage the treaty’s investment protection
mechanisms.
Ø The Singapore Court of Appeal found that the treaty applies to Macao.
Ø “Moving Frontier” principle: If a State's territory expands, for instance, the moving treaty-
frontiers rule provides that the treaties then in force for that State normally will be deemed
to apply to the newly expanded territory
Ø In October 2016, China’s Foreign Ministry Spokesperson openly disagreed with the
decision of the Singapore Court of Appeal. She said:
As a principle, the investment agreements between the central government and foreign
countries do not apply to SARs, unless otherwise decided by the central government after
seeking the views of the SAR governments and consulting with the other contracting parties
of the agreement.
【为什么中国缔结的条约不对香港有约束力。因为 Responsibility 问题，】
STATE SUCCESSION: THE BASICS
The public international law rules on State succession regulate the continuity of legal
obligations of States following political changes in the structure of statehood, where one
State effectively replaces another State in the responsibility for the international relations of
the territory.
Scholars recognize six types of succession scenarios:
Ø Unification, where the extinction of a predecessor State results in the creation of another State
(the case of the unification of Zanzibar and Tanganyika into modern-day Tanzania in 1964);
Ø Dissolution, where the extinction of a predecessor state creates multiple independent States (the
dissolution of the USSR in 1991);解体，即一个前身国家消亡后产生多个独立国家（1991 年
苏联解体）；
Ø Incorporation, where the extinction of a predecessor State does not create a new State but rather
enlarges the territory of the successor State (the case of the German Democratic Republic and the
Federal Republic of Germany, former East and West Germany, in 1990);
Ø Secession, where a new State emerges as a result of breaking up from the existing State, leaving
the existing State alive despite the loss of a part of its territory (South Sudan in 2011);
Ø Newly independent states that emerge as a result of decolonization 因非殖民化而出现的新
独立国家, with the difference from secession being that the territories should not be considered as
a part of the colonial powers (India and Pakistan in 1947);
Ø Cession or transfer of territory, where a part of the territory under the control of one State
reverts to the sovereign rule of another State (Macao and Hong Kong).
2.1Hong Kong pre 2016 BITs
2.2Hong Kong Model BIT
3. China’s participation in multilateral

treaty-making
China's Rising Trade Multilateralism v Trump’s Bilateralism 中国崛起的贸易多边主义与特
朗普的双边主义
Election campaign 2017:“We must protect our borders from the ravages of other countries
making our products, stealing our companies, and destroying our jobs.”2017 年竞选活动："我们
必须保护我们的边境不受其他国家的蹂躏，制造我们的产品、窃取我们的公司、破坏我们
的工作。
“No one will emerge as the winner in a trade war.”- President Xi Jinping
Impact of trade bilateralism
Based on the list of the US$34 billion worth of Chinese products, the Hong Kong government said
about 17 per cent – or HK$60 billion (US$7.6 billion) worth – of Chinese exports in question
passed through the city to the US, and about 9 percent – HK$6 billion – of US exports came via
the city on the way to mainland China. The exports in question accounted for 1.4 per cent of Hong
Kong’s overall trade. The Hong Kong traders would be “the first to bear the brunt” of the trade
war, and the latest round of tariffs that the US imposed on US$200 billion worth of Chinese goods
would “hit Hong Kong harder”.--Hong Kong Secretary for Commerce and Economic
Development
China and the US contribute 25 per cent of Malaysia’s total trade. Export-driven Asian economies
such as Malaysia could be affected if a full-blown trade war between the US and
China were to take place.-- UOB Malaysia
Rising trade tensions between the United States and the rest of the world could cost the global
economy US$430 billion-- International Monetary Fund
IMF reports that the trade threats made by the US and its trading partners risk
lowering global growth by as much as 0.5 per cent by 2020, or about US$430 billion in lost GDP
worldwide.--South China Morning Post
China’s and US’s positions on multilateralism
On 23 January 2017, President Trump signed Presidential Memorandum Regarding Withdrawal of
the United States from the Trans-Pacific Partnership
Negotiations and Agreement, stating:
[i] t is the intention of my Administration to deal directly with individual countries on a one-on-
one (or bilateral) basis in negotiating future trade deals.
RCEP & TPP
We, the Heads of State/Government of the Member States of the Association of Southeast Asian
Nations (ASEAN) – Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, the
Philippines, Singapore, Thailand and Viet Nam – Australia, China, Japan, Korea and New
Zealand, met virtually on 15 November 2020, on the occasion of the 4th RCEP Summit.东南亚国
家联盟（东盟）成员国--文莱达鲁萨兰国、柬埔寨、印度尼西亚、老挝人民民主共和国、
马来西亚、缅甸、菲律宾、新加坡、泰国和越南 --以及澳大利亚、中国、日本、韩国和新
西兰的国家元首/政府首脑，在第四届 RCEP 峰会之际，于 2020 年 11 月 15 日举行了虚拟会
晤。
We note that the RCEP Agreement is an unprecedented mega regional trading arrangement that
comprises a diverse mix of developed, developing and least developed economies of the region.
As an agreement that would cover a market of 2.2 billion people, or almost 30% of the world's
population, with a combined GDP of US$ 26.2 trillion or about 30% of global GDP, and accounts
for nearly 28% of global trade (based on 2019 figures), we believe that RCEP, being the world's
largest free trade arrangement, represents an important step forward towards an ideal framework
of global trade and investment rules.我们注意到，《RCEP 协定》是一项前所未有的超大型区
域贸易安排，由该地区的发达经济体、发展中经济体和最不发达经济体组成。作为一个将
覆盖 22 亿人口（占世界人口的近 30%）的市场、26.2 万亿美元（约占全球 GDP 的 30%）
的合并 GDP 以及占全球贸易近 28%（基于 2019 年的数字）的协定，我们认为，作为世界
上最大的自由贸易安排，RCEP 代表着向全球贸易和投资规则的理想框架迈出的重要一步。
https://www.fmprc.gov.cn/eng/wjdt_665385/2649_665393/202011/t20201116_679647.html
China’s annotated RCEP drafts

China's annotated version of the RCEP investment chapter goes beyond a simple reference to the
customary international law. It clarifies, in detail, what the FET standard in the RCEP is intended
to mean (2018):
3. The concept of "fair and equitable treatment" and "full protection and security" do not require
treatment in addition to or beyond that which is required by that standard [customary international
law], and do not create additional substantive rights. The obligation in paragraph 1 to provide:
Fair and equitable treatment refers to the obligation not to deny justice in criminal, civil, or
administrative adjudicatory proceedings in accordance with the principle of due process of law
and;
Full protection and security refers to the requirements one each/a Party to
provide the level of police protection required under customary internation
Devil in the details | RCEP footnoted carve-outs
“investment means every kind of asset that an investor owns or controls, directly or indirectly, and
that has the characteristics of an investment, including such characteristics as the commitment of
capital or other resources, the expectation of gains or profits, or the assumption of risk”
Ø A loan issued by a Party to another Party is not an investment
Ø Some forms of debt, such as bonds, debentures, and long-term notes, are more likely to have the
characteristics of an investment, while other forms of debt, such as claims to payment that are
immediately due and result from the sale of goods or services, are less likely to have such
characteristics
Ø For greater certainty, investment does not mean claims to money that arise solely from: (a)
commercial contracts for the sale of goods or services; or (b) the extension of credit in connection
with such commercial contracts.
Ø For greater certainty, market share, market access, expected gains, and opportunities for profit-
making are not, by themselves, investments
Green multilateralism and environmental carve-outs
Item 3 of the TPP Expropriation Annex [drafts]:
[n]on-discriminatory regulatory actions that are designed to protect legitimate public welfare
objectives
[...] do not constitute indirect expropriations, except in rare circumstances.
Expropriation Annex of RCEP’s Investment Chapter [October 2015] traces that wording and
excludes regulatory measures from the scope of its expropriation provisions:
non-discriminatory regulatory measures by a Party or measures or awards by judicial bodies of a
Party that are designed and applied interest or public welfare objectives, such as public health,
safety, and the environment, shall not constitute expropriation/s under this Article.
The Chinese annotated version of the RCEP [October 2015]draft goes beyond that simple carve-
out and provides that:
[expropriation] is intended to reflect customary international law concerning the obligation of
States with respect to expropriation.
Chapter 10 RCEP| Expropriation
Non-discriminatory regulatory actions by a Party that are designed and applied to achieve
legitimate public welfare objectives, such as the protection of public health, safety, public morals,
the environment, and real estate price stabilisation, do not constitute expropriation of the type
referred to in subparagraph 2(b).
Chinese treaty practice (including Hong Kong)

2022 – Huawei v Sweden
2022 - Junefield v Ecuador (BRI “backlash”)
2022 – PCCW v Saudi Arabia
(Jurisdictional issues)
2022 – PowerChina and China Railway v Viet Nam
2021 –Alpene v Malta
2021 - Everyway v Ghana
2021 – Qiong Ye and Jianping v Cambodia
2021 – Wang v Finland
2020 - Fengzhen Min v Korea
2020 – Shift Energy v Japan (HK-Japan
BIT)
Ø Chinese investors
Ø China as a respondent State
Ø MofCom and Hong Kong DoJ

MofCom, Hong Kong DoJ, and treaty-related activities
Ministry of Commerce | Role、
9. To formulate multilateral and bilateral (including regional and free trade area) trade and
economic cooperation strategies and policies, be responsible for multilateral and bilateral
negotiations on trade and economic issues, coordinate domestic positions in negotiating with
foreign parties, and to sign the relevant documents and monitor their implementation.
To establish multilateral and bilateral intergovernmental liaison mechanisms for economic
and trade affairs and organize the related work.
To handle major issues in country (region)-specific economic and trade relationships, regulate
trade and economic activities with countries without diplomatic
relationship with China.
In line with the mandate, to handle the relationship with the World Trade Organization on behalf
of the Chinese government, undertake such responsibilities under the framework of the WTO as
multilateral and bilateral negotiations, trade policy reviews, dispute settlement, and notifications
and inquires and to coordinate trade and economic activities with foreign
parties.
UNCITRAL WG III position papers
Ø WTO White Paper
Ø Tenders for representing China in treaty disputes
Ø Panel of Chinese and international law firms
Hong Kong Department of Justice
Article 13 of the Basic Law:
1. The Central People's Government shall be responsible for the foreign affairs relating to the
Hong Kong Special Administrative Region.
2. The Ministry of Foreign Affairs of the People's Republic of China shall establish an office in
Hong Kong to deal with foreign affairs.
3. The Central People's Government authorizes the Hong Kong Special
Administrative Region to conduct relevant external affairs on its own in accordance with this Law.
UNCITRAL WG III as part of the Chinese delegation
Ø Negotiating Hong Kong Treaties
Ø AALCO
Ø Investment Academy in Hong Kong
Ø Publications and think tank activity
Ø Pilot zones, GBA, and other initiatives

The Rise of China’s Special Economic Zones
Ø China’s first SEZs were established in 1979-1980 at Hong Kong’s doorstep – in what were then
sleepy provincial towns of Shenzhen, Zhuhai, and Shantou. That was followed by a SEZ in
Xiamen in Fujian Province, and a SEZ on the Hainan island.
Ø The hallmark of these first SEZs was that in these areas, the local governments were allowed to
offer tax incentives to foreign investors without Beijing’s authorisation.
Ø As a result, these four cities have become an epicentre of economic growth for China in the
decades to come. Shenzhen’s population alone grew from 30,000 in 1979 to over 12,000,000 in
2018. By mid-80s, only a few years into their existence, the first SEZs accounted for more than 59
percent of China’s FDI.
Ø In 2014, there were six SEZs in China, 14 open coastal cities, four pilot free trade areas, five
financial reform pilot areas, 31 bonded areas, 114 national high-tech development parks, 164
national agriculture technology parks, 85 national eco-industrial parks, 55 national ecological
civilisation demonstration areas, and 283 national modern agriculture demonstration areas.
Investment protection in SEZ
Ø Fortunately, there has been no indication that the treaties might not apply to SEZs.
Ø Indeed, China’s SARs enjoy a high degree of autonomy, including the autonomy to conclude
their own investment treaties. SEZ’s autonomy, on the other hand, is limited to adopting local
targeted legislation that allows for investment incentives.
Ø SEZs do not have the autonomy or the authorisation of the Central Government to enter into
investment treaties with foreign states. There appears to be no doubt that SEZs are the “territory of
China” within the meaning of China’s investment treaties.
Ø These preliminary threshold issues aside, China’s SEZs pose an interesting question of
international investment law.
Ø By nature, SEZs are known for publicising investment incentives. To attract foreign investment,
the SEZs governments offer various investment incentives to foreign investors, and often go as far
as to solicit foreign investment. Against this background, it would seem that in China’s SEZs,
foreign investors would have better chances at claiming breach of fair and equitable treatment
standards by the local governments, as well as breaches of investors’ legitimate expectations in
cases of expropriation, nationalisation, and other adverse measures by the SEZs’ governments. In
theory, that level of public solicitation of investment will make claiming
compensation for breaches of these treaty standards a less laborious task for foreign investors in
Chinese SEZs than elsewhere in China.
Ø Another important question that might affect the price of FDI in China’s SEZ is whether adverse
government measures such adverse legislation, revocation of licences and concessions, and other
undue government interference, may constitute compensable taking under China’s treaties, and
whether such unlawful acts of the SEZ administration might engage the international law liability
of China as a State.
Greater Bay Area
Ø The total population of the Greater Bay Area cities is nearly 67 million. This area is
more densely populated than the Tokyo Metropolitan Area - the world’s largest city
cluster with a population of 44 million. The Greater Bay Area has a combined GDP of
US$1.34 trillion, which is only a bit behind the US$1.61 trillion of the Greater New
York and US$1.78 trillion of the Greater Tokyo.
Ø Shenzhen – an important city of the Greater Bay Area - is a strong scientific and
technological innovation hub. The Greater Bay Area is at the heart of a network of
supply chains that link Guangdong to the rest of the world and is able to draw on a
strong manufacturing base. Hong Kong provides a sophisticated judicial system along
with a major legal and financial services hub.
Ø On this basis, in January 2009, the National Development and Reform Commission
issued an “Outline of the Plan for the Reform and Development of the Pearl River
Delta Region (2008-2020)”. The outline suggested a plan to create a major
megalopolis in the Pearl River Estuary by uniting China’s Special Administrative
Regions Hong Kong and Macau, and nine South Chinese manufacturing hubs
Guangzhou, Shenzhen, Zhuhai, Foshan, Huizhou, Dongguan, Zhongshan, Jiangmen,
and Zhaoqing.
Class 7 Territorial Scope of PRC
Investment Treaties 中国投资条约的地域范
1. China’s “One Country, Two Systems”

Policy
（1）In Hong Kong Context
•What does it mean?

-A holistic concept
-“One country”: within the PRC, Hong Kong is an inseparable part and a local administrative
region directly under PRC government
-“Two systems”: the main body of the country practices socialism, while Hong Kong and some
other regions practice capitalism
•What is the purpose?
-Realize the peaceful reunification of the country
-Diplomatic negotiations with the British government
-Resumed the exercise of sovereignty over Hong Kong
on 1 July 1997
•How does it work?
-The PRC government strictly adheres to the Basic Law of Hong Kong 中国政府严格遵守香港
基本法
-Hong Kong exercises a high degree of autonomy in accordance with the law 香港依法行使高度
自治权
-Hong Kong is vested with executive, legislative and independent judicial power 香港拥有行政、
立法和独立的司法权
-The previous capitalist system and way of life remain unchanged, and most laws continue to
apply 以前的资本主义制度和生活方式保持不变，大多数法律继续适用
-Hong Kong retains the status of a free port and a separate customs territory 香港保留自由港和独
立关税区的地位
-Hong Kong may on its own 香港可以自行:
• Maintain and develop economic and cultural relations 维持和发展经济和文化关系
• Conclude relevant agreements with states, regions and relevant international organizations
-Remains unchanged for 50 years
2.PRC Investment Treaties apply to Hong Kong

Residents
Tza Yap Shum v. The Republic of Peru 秘鲁, Decision on Jurisdiction and Competence
• Facts
Ø Tza Yap Shum, a Hong Kong resident of Chinese descent and born in China, invested in
US$400,000 in TSG, a Peruvian Company in the business of producing fish-based food products
and exporting to Asian markets
Ø This dispute arose from alleged violations of the PRC-Peru BIT (1994) that affected the
investment made by Tza Yap Shum in TSG
Ø Peru denied Tza Yap Shum’s allegations and objected to the jurisdiction of the ICSID and the
competence of the Tribunal
Ø One of Peru’s jurisdictional objections: Tza Yap Shum is not an investor under the PRC-Peru
BIT
• Whether Tza Yap Shum is a Chinese national in accordance with the PRC law
• If Tza Yap Shum is a Chinese national, whether he is eligible for protection under the PRC-Peru
BIT
• Tribunal’s Decision
Ø Article 1(2)(a) of the PRC-Peru BIT
• “Investor” means, in respect of PRC, natural persons who have PRC nationality in accordance
with PRC law
Ø Evidence produced by Tza Yap Shum is sufficient to prove that he is a Chinese national - born
in the Chinese province of Fujian from Chinese parents and a Hong Kong resident since 1972
ØTza Yap Shum is protected by the PRC-Peru BIT
• Neither the ICSID Convention nor the PRC-Peru BIT provides that Chinese nationals with
residence in Hong Kong are not protected by the provisions thereof
• Tza Yap Shum is a Chinese national under Article 1(2)(a) of the PRC-Peru BIT
• Contrary to Peru’s suggestion, the signing of PRC-Peru BIT on a date so close to transfer of
Hong Kong to Chinese sovereignty would have made it more important to mention such an
exception explicitly
• Hong Kong's power to conclude its own investment promotion and protection treaties with
countries with which China also has entered into a BIT is not necessarily redundant
• Hong Kong government has developed a policy that seeks to promote and protect investments in
other countries for the benefit of all of its residents, whatever their nationality might be
• Comments
ØThe first investor-state arbitration filed by a PRC investor
ØThe first ICSID claim brought about under PRC investment treaties
ØClaimant was not a legal entity but a natural person
ØDoes not directly concerned with the territorial application of PRC investment treaties
（2）In Macao Context
-Diplomatic negotiations with the Portuguese government

-Resumed the exercise of sovereignty over Macao on 20
December 1999
-Largely similar to Hong Kong
• What is the impact of this policy on territorial scope of PRC investment treaties?
• Would investment treaties entered into by PRC
government before handover of Hong Kong in 1997 /
Macao in 1999 apply to Hong Kong / Macao investors?
ØControversial issues
ØCase-by-case analysis
ØPrecedents
3.“Moving Treaty Frontier” (“MTF”) Rule

Article 29 (Territorial scope of treaties) of the Vienna Convention on the Law of Treaties (1969)
(“VCLT”)《维也纳条约法公约》(1969 年)第 29 条(条约的领土范围):
Ø Unless a different intention appears from the treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire territory. 除非条约显示或另经确定有不同
之意思，否则条约对每一当事国之全部领土均有拘束力。
Article 15 (Succession in respect of part of territory) of the Vienna Convention on Succession of
States in respect of Treaties (1978) (“VCST”)《关于国家在条约方面的继承的维也纳公约》
(1978 年)第 15 条(对部分领土的继承) :
ØWhen part of the territory of a State, or when any territory for the international relations of
which a State is responsible, not being part of the territory of that State, becomes part of the
territory of another State 当一国的部分领土或一国对其国际关系负责的任何领土，虽非该国
领土的一部分，成为另一国领土的一部分时:
(a) treaties of the predecessor State cease to be in force in respect of the territory to which
the succession of States relates from the date of the succession of States; and 被继承国的条约自
国家继承之日起对国家继承所涉领土停止生效；而且
(b) treaties of the successor State are in force in respect of the territory to which the succession of
States relates from the date of the succession of States, unless it appears from the treaty or is
otherwise established that the application of the treaty to that territory would be
incompatible with the object and purpose of the treaty or would radically change the
conditions for its operation 继承国的条约自国家继承之日起对国家继承所涉领土生效，除
非从条约可以看出或以其他方式确定，对该领土适用该条约不符合条约的目的和宗旨，或
会彻底改变施行条约的条件。
Sanum Investments Limited v. Government of the Lao People’s Democratic Republic,
Award on Jurisdiction
-Article 15 explains and regulates what happens at the moment of transition from one sovereign to
another whereas Article 29 prescribes what the general situation is outside of a transitional period,
whether a territory has undergone a transition or not. In other words, the rule of Article 15 can
correctly be described as the MTF rule. The rule of Article 29 does not deal with a situation of
change, but only states the general principle of international law related to the territorial extension
of a State’s sovereignty, which can be described as the principle of the territorial application of a
State’s legal order
-Of course, this does not mean that the two rules do not have an extremely close relationship,
which explains why they were not always clearly distinguished by the Parties. The situation
described in Article 29 can be the result of the application of Article 15, or, it can also be seen the
other way around, i.e., that Article 15 regulates the transition in the way it does, because this is the
normal result of the territorial application of the law
-There is common ground between the parties that these two provisions reflect the
customary international law rule known as the MTF rule
-Although Article 29 does not directly concern state succession, where state succession
leads to territorial changes, such as in the present case, it is thought that the MTF Rule
is implicitly embedded in Article 29 and would apply
-Simply put, because a treaty is binding in respect of the entire territory of a State, the
MTF Rule presumptively provides for the automatic extension of a treaty to a new territory as and
when it becomes a part of that State. The MTF Rule further provides that as a territory undergoes a
change in sovereignty, it passes automatically out of the treaty regime of the predecessor
sovereign into the treaty regime of the successor sovereign. At the same time, it is evident from
the language of both Article 15 of the VCST and Article 29 of the VCLT that the MTF Rule is a
presumptive rule that may be displaced by proof of certain specified matters
4.PRC Investment Treaties apply to Macao

Companies
• Facts
-Sanum, a company incorporated in Macau, made certain investments in the gaming and
hospitality industry in Laos
- Disputes arose from alleged violations of the China-Laos BIT (1993) that affected the investment
made by Sanum
- Laos denied Sanum’s allegations and objected to the jurisdiction of the Tribunal
Sanum Investments Limited v. Government of the Lao People’s Democratic

Republic, Award on Jurisdiction
One of the key jurisdictional disputes: whether PRC-Laos BIT applies
to Macao?
• Tribunal’s Decision
- Both Article 29 of the VCLT and Article 15 of the VCST are rules of customary international
law, and they are not incompatible, but merely deal with different moments in the evolution of a
situation《维也纳条约法公约》第 29 条和《关于国家在条约方面的继承的维也纳公约》第
15 条都是习惯国际法的规则，它们并不相互抵触，而只是涉及情况演变的不同时刻。
- The exceptions to Article 15 of the VCST are encompassed in the exceptions to Article 29 of the
VCLT VCST 第 15 条的例外情况包含在《维也纳条约法公约》第 29 条的例外情况中
-The application of the PRC-Laos BIT to the Macao is not incompatible with its object and
purpose《中国-老挝双边投资协定》在澳门的适用与其目标和宗旨并无抵触:
• Encourage, protect and create favourable conditions for investment by investors of one
Contracting State in the territory of the other 鼓励、保护缔约国一方的投资者在缔约国另一方
的领土上进行投资并为其创造有利条件
Contracting State 缔约国
• Develop economic cooperation between both States 发展两国之间的经济合作
The application of the PRC-Laos BIT to the Macao would not radically change the conditions for
its operation《中国-老挝双边投资协定》在澳门的适用不会从根本上改变其运作条件:
• Under “One Country, Two Systems” policy, the current social and economic systems in Macao
will remain unchanged, and so will the lifestyle 在 "一国两制 "政策下，澳门现行的社会和经济
制度将保持不变，生活方式也将保持不变
• The Joint Declaration between China and Portugal is a devolution treaty and cannot bind Laos,
which was never informed of such an internal procedure or whether such procedure was ever
enforced 中国和葡萄牙之间的《联合声明》是一项权力下放条约，对老挝不具约束力，老
挝从未被告知有这样一个内部程序，也未被告知是否曾执行过这一程序
It does not appear from PRC-Laos BIT that it is not applicable to Macao 从《中华人民共和国和
老挝人民民主共和国双边投资协定》中看不出该协定不适用于澳门
• No definite conclusion can be drawn either from the silence of PRC-Laos BIT on its extension to
the Macao, or its silence on the non-extension of PRC-Laos BIT 无论是从《中华人民共和国和
老挝人民民主共和国双边投资协定》对其延伸至澳门的沉默，还是从其对不延伸《中华人
民共和国和老挝人民民主共和国双边投资协定》的沉默，都无法得出明确的结论。
It is not otherwise established that PRC-Laos BIT is not applicable
to Macao
• The possibility of co-existence of a PRC BIT and a Macao BIT with
the same third State is not such “otherwise establishes” evidence
• The existence of two treaties facilitates rather than hinders the
fulfilment of the goals of the BITs, which are the protection of the
foreign investors and the economic development of the host State
Government of the Lao People’s Democratic Republic v Sanum Investments Ltd [2015] 2
SLR 322
• Facts
Ø The plaintiff, Laos, brought the application to refer the issue of
jurisdiction to the High Court under s 10 of the International Arbitration
Act
Ø On 19 February 2014, the plaintiff prayed for the admission of two
diplomatic letters:
• The first letter dated 7 January 2014 was sent from the Laotian Ministry of Foreign Affairs to the
PRC Embassy in Vientiane, Laos, stating Laos’ view that the PRC-Laos BIT did not extend to
Macau and sought the views of the PRC Government on the same
• The second letter dated 9 January 2014 was the reply from the PRC
Embassy in Vientiane, Laos, stating its view that the PRC-Laos BIT did
not apply to Macau “unless both China and Laos make separate arrangements in the future”
• Court’s Decision
Ø Two 2014 diplomatic letters should be admitted 两份 2014 年外交信函应予以采纳
Ø It does not appear from PRC-Laos BIT that it is not applicable to Macao 从《中华人民共和国
与老挝关于建立更紧密经贸关系的协定》看来，该协定并不适用于澳门
Ø It is otherwise established that PRC-Laos BIT is not applicable to Macao《中华人民共和国和
老挝人民民主共和国双边投资协定》不适用于澳门
• The two diplomatic letters signify an subsequent agreement under Article 31(3)(a) of the VCLT
between the PRC and Laos that the PRC-Laos BIT does not apply to Macau.这两封外交信函表
明，根据《维也纳条约法公约》第 31(3)(a)条，中国和老挝随后达成了《中老双边投资协
定》不适用于澳门的协议。
• The Joint Declaration between China and Portugal shows PRC’s intention that the PRC-Laos
BIT does not apply to Macau 中国和葡萄牙之间的联合声明表明中华人民共和国有意使《中
华人民共和国和老挝双边投资条约》不适用于澳门。
Sanum Investments Ltd v. Government of the Lao People’s Democratic Republic [2016] 5
SLR 536
• Facts
Ø Sanum appealed the High Court’s decision
Ø Laos sought to admit two further diplomatic letters:
• A letter sent from the Lao Ministry of Foreign Affairs to the PRC
Embassy in Vientiane, Laos on 18 November 2015 requesting that the PRC Ministry of Foreign
Affairs confirm that the 9 January 2014 letter is authentic
• A letter sent from the PRC Ministry of Foreign Affairs in reply confirming that the 9 January
2014 letter had been sent with the authorisation of the PRC Ministry of Foreign Affairs
Court’s Decision
Ø Two 2015 diplomatic letters should be admitted 2015 年的两封外交信函应予以接受
Ø The application of the PRC-Laos BIT to the Macao is not incompatible with its object and
purpose - to protect investments for the purpose of the development of economic cooperation
between both States 《中老双边投资协定》适用于澳门并不违背其目标和宗旨 --保护投资以
发展两国间的经济合作
Ø The application of the PRC-Laos BIT to the Macao would not radically change the conditions
for its operation《中老双边投资协定》适用于澳门不会从根本上改变其运作条件
Ø An intention does not appear from PRC-Laos BIT that it is not applicable to Macao 《中华人民
共和国和老挝人民民主共和国双边投资协定》并没有显示出不适用于澳门的意图
§ There was nothing in the text, the objects and the purposes of PRC-Laos BIT, or in the
circumstances of its conclusion, that pointed to an intention to displace the MTF rule such that it
would lead to the conclusion that the BIT did not apply to Macau 《中华人民共和国和老挝人民
民主共和国双边投资协定》的文本、目标和宗旨，或其缔结的情况，都没有表明有取代
MTF 规则的意图，从而导致《双边投资协定》不适用于澳门的结论。
§ It has not been “otherwise established” that PRC-Laos BIT does not apply to Macau after the
PRC had resumed sovereignty 中华人民共和国恢复主权后，《中华人民共和国和老挝人民民
主共和国双边投资协定》不适用于澳门，这一点并未 "以其他方式确定"。
• The Joint Declaration was a treaty concluded between the PRC and Portugal alone and binding
only upon those States, and would not ordinarily create rights or duties for other States, including
Laos《联合声明》仅是中华人民共和国与葡萄牙之间缔结的条约，仅对两国具有约束力，
通常不会对包括老挝在内的其他国家产生权利或义务
Sanum Investments Ltd v. Government of the Lao People’s Democratic Republic [2016] 5
SLR 536
• Court’s Decision
Ø It has not been “otherwise established” that PRC-Laos BIT does not apply to Macau after the
PRC had resumed sovereignty
• The two 2014 diplomatic letters formed evidence that post-dated the critical date of the dispute,
namely the date on which the dispute had crystallised
• The critical date doctrine rendered the evidence which came into being after the critical date and
was self-serving and intended by the party putting it forward to improve its position in the
arbitration, as being of little, if any, weight
Court’s Decision
• The two 2014 diplomatic letters did not in fact confirm the preexisting position
• The two 2014 diplomatic letters involve the PRC’s internal legislation in relation to Macau,
which cannot be invoked to justify the non-performance of a treaty or Laos’ position that it was
not bound to arbitrate the claim brought by Sanum
• The two 2014 diplomatic letters did not evidence a “subsequent agreement” or “subsequent
practice” which should be taken into account when interpreting a treaty pursuant to Articles 31(3)
(a) and 31(3)(b) of the VLCT, which would amount to effecting a retroactive amendment of the
BIT and was not permissible
Further Queries
• Would other investment treaties entered into by the PRC government before handover of
Macao in 1999 apply to Macao investors 中国政府在 1999 年澳门回归前签订的其他投资条
约是否适用于澳门投资者？
ØLikely yes, but subject to specific circumstances 可能适用，但须视乎具体情况而定
• Would investment treaties entered into by the PRC government before handover of Hong
Kong in 1997 apply to Hong Kong investors?中国政府在 1997 年香港回归前签订的投资条约
是否适用于香港投资者？
ØMight be yes, but subject to specific circumstances
Would investment treaties entered into by the PRC government after handover of Hong
Kong in 1997 / Macao in 1999 apply to Hong Kong /Macao investors?中国政府在 1997 年香
港回归后/1999 年澳门回归后签订的投资协定是否适用于香港/澳门投资者？
ØHard to answer, and subject to specific circumstances 难以回答，需视具体情况而定
ØASEAN - China Investment Agreement (2009)东盟-中国投资协定（2009 年）
• Article 3(1)(b)(i): “in respect of China, the entire customs territory according to the WTO
definition at the time of her accession to the WTO on the 11th day of December 2001. For this
purpose, for China, “territory” in this Agreement refers to the customs territory of China.” 第 3(1)
(b)(i)条："就中国而言，指中国于 2001 年 12 月 11 日加入世贸组织时根据世贸组织的定义
所确定的全部关税领土。就此而言，就中国而言，本协定中的 "领土 "是指中国的关税领
土"。
• Hong Kong and Macao are separate members from China under the WTO regime 在 WTO 体制
下，香港和澳门是独立于中国的成员
ØASEAN - Hong Kong, China SAR Investment Agreement (2017)东盟-中国香港特别行政区投
资协议 (2017)
Conclusion：中国是二元主义-BIT
Class 8 CHINA AND INVESTOR-STATE
DISPUTE RESOLUTION
1.Review of Current Investor-StateArbitration

Cases Involving China
（1） Three generations of Chinese BITs
◦ First (1982-1998): No ISDS or limited to “amount of compensation for expropriation”
◦ Second (1998-2011): Broad scope allowing “any dispute” to be arbitrated
◦ Third (2012-present): Greater selectivity on issues to be arbitrated
（2）Cases involving China as respondent state and Chinese investors as claimants
（3）Key issues addressed in cases
2. “Amount of compensation” clauses

（ 1 ） The broad and narrow views to “disputes involving the amount of compensation for
expropriation”
(2)Role of fork-in-the-road clause”岔路口条款”【岔路口条款要求投资者在东道国国内救济
和国际投资仲裁中二者择其一，而且一旦选定则为终局。此条款的设计有利于防止投资者
滥用权利，确保投资争端解决的终局性和有效性，同时也有助于防止救济资源的浪费。】
Two diverging lines of jurisdictional awards from first generation treaties
Jurisdiction limited to amount of compensation
• Beijing Urban Construction Group v. Yemen(May 2017)
• Sanum v. Laos (December 2013 / September（2016)
• Tza Yap Shum v. Peru (May 2009)
Jurisdiction includes amount of compensation
• AsiaPhos v. China (February 2023)
1. Facts
2. Scope of Respondent’s consent to arbitration
◦ Ordinary meaning (and drafting history)

◦ Context, object and purpose
◦ Fork in the road
“In the Tribunal’s view, the expression “the amount of compensation” is more informative to
determine the scope of the arbitration clause. The Tribunal first notes that the Contracting Parties
chose to use the wording “a dispute involving the amount of compensation resulting from
expropriation […]” instead of “a dispute involving expropriation […]”.” [84]法庭认为，“赔偿
数额”一语更能说明问题。确定仲裁条款的范围。仲裁庭首先注意到，缔约方选择使用
“涉及征用所产生的赔偿数额的争端[......]”的措词，而不是“涉及征用的争端”。
“However, the Tribunal does not see any basis for the assumption that an investor could opt for
international arbitration instead for a domestic court when it comes to the review of the occurrence
and/or legality of an expropriatory measure. Such an assumption cannot be made lightly as a
State’s consent to arbitrate disputes with an investor must be expressed in clear and unambiguous
terms .然而，仲裁庭认为，在审查征用措施的发生和/或合法性时，投资者可以选择国际仲
裁而不是国内法院的假设没有任何依据。这种假设不能轻易做出，因为一国同意仲裁与投
资者的争端必须以明确和毫不含糊的措辞表示。
There is no indication in Article 6 or Article 13 of the Treaty that would support the existence of
such an option for an investor to commence international arbitration proceedings in respect of the
occurrence and/or legality of an expropriatory measure.” [109]《条约》第 6 条或第 13 条中没有
迹象表明存在投资者就征用措施的发生和/或合法性启动国际仲裁程序的选择。
PRC-Singapore BIT (1985)
第 13 条投资争议
第 6 条征收
Vienna Convention on the Law of Treaties

Beijing Everyway v. Ghana (January 2023)
“In the view of the Tribunal, the terms in the heading of Article 10 further
suggest that the ordinary meaning of the wording “[a]ny dispute …
concerning the amount of compensation for expropriation” in Article 10(1) of
the Treaty cannot support a broad interpretation” [171]“法庭认为，第 10 条标题中的用语进一
步建议“任何争议......关于征收补偿金额“，见《征收法》第 10 条第（1）款条约不能支持
广义的解释”
“Overall, the Tribunal considers that there is nothing in the Treaty to suggest
that an investor would be precluded from referring the question of quantum to
arbitration under Article 10(1) of the Treaty, once it had referred the question
of lawfulness of expropriation to ligation under Article 4(3) of the Treaty. In
the view of the Tribunal, the Treaty contains neither an explicit nor an
“invisible” fork-in-the-road clause.” [203]总的来说，法庭认为，《条约》中没有任何建议。
投资者将被排除在外，不得将量子问题提交给
根据条约第 10 条第（1）款进行的仲裁，一旦提交该问题
根据条约第 4 条第（3）款征用结扎的合法性。在法庭认为，《条约》既没有明文规定，也
没有明确规定“隐形”岔路条款。
PRC-Ghana BIT (1989)
BUCG v. Yemen (May 2017)
“The result of the Respondent’s argument would be that the “choice” granted to
an investor by paragraph 2 would be reversed by the proviso into a “choice”
granted to the Respondent. The Tribunal agrees with the Tza Yap Shum tribunal
that the interpretation urged by the Respondent “would lead to an untenable
conclusion, namely, that the investor would never actually have access to
arbitration” unless the Respondent agreed.”
“Accordingly, the consideration of the disputed text in the context of the whole
structure of Article 10 of the BIT leads this Tribunal to conclude that the
Contracting Parties intended to confer a real choice, not an illusory choice, on
investors from their respective countries, and that the words “relating to the
amount of compensation for expropriation” must, in context, be read to include
disputes relating to whether or not an expropriation has occurred.” [87]
PRC-Yemen BIT (1998), Article 10
Sanum v. Laos [2016] SGCA 57 (September 2016)
“In support of the Broad Interpretation, Sanum argues that the word “involving” is an inclusive
term, rather than an exclusive one. In this regard, it relies on the conclusion of the Tribunal that
“[t]o involve” means “to wrap”, “to include”. On the other hand, the Lao Government embraces
the Judge’s view that the term “involve” connotes a more restrictive interpretation, namely,
“imply, entail or make necessary” (see the Judgment at [121]). With great respect to the parties, we
think the word “involve” is certainly capable of supporting either of the Broad or Narrow
Interpretations and to cavil over the possible dictionary definitions of the word “involve” will not
help us interpret Art 8(3) of the PRC-Laos BIT. Rather, the words in Art 8(3) can only be
accurately, and more meaningfully, understood by considering the context of the provision and it
is to this which we now turn.” [126]“为了支持广义解释，Sanum 认为”涉及“一词是一个包
容性的术语，而不是一个排他性的术语。在这方面，它依据的是法庭的结论，即“涉及”
是指“包装”、“包括”。另一方面，老挝政府接受法官的观点，即“涉及”一词意味着
更狭隘的解释，即“暗示、引起或使必要”（见判决书[121]）。出于对当事人的极大尊重，
我们认为“涉及”一词肯定能够支持广义或狭义解释，并且对“涉及”一词的可能字典定
义表示不满，无助于我们解释中老双边投资条约第 8（3）条。相反，第 8 条第（3）款中
的词语只有通过考虑条款的上下文才能准确、更有意义地理解，我们现在转向这一点。
“…In our judgment, the words “[t]he provisions of this paragraph shall not apply if the investor
concerned has resorted to the procedure specified in paragraph 2” means that if any dispute is
brought to the national court, the claimant will no longer be entitled to refer any aspect of that
dispute to arbitration. Hence once an expropriation claim is referred to the national court, no
aspect of that claim can then be brought to arbitration. It should be noted that this does not mean
that any and every dispute relating to expropriation may be referred to arbitration. As provided in
Art 8(3), this only avails if the dispute does involve a question as to the amount of compensation.”
[130]在我们的判决中，“如果有关投资者诉诸第 2 款规定的程序，本款的规定不适用”这
句话意味着，如果任何争议被提交国家法院，索赔人将不再有权将该争议的任何方面提交
仲裁。因此，一旦征用要求提交国家法院，就不能将该要求的任何方面提交仲裁。应当指
出，这并不意味着与征用有关的任何和每一项争议都可以提交仲裁。根据第 8 条第（3）款
的规定，只有在争议确实涉及赔偿金额问题的情况下，才适用。
“…First, if the only issue in the case is one of quantum, it is not clear what issue the State would
have referred to the national court. And if the State has referred the issue of quantum to the
national court, it is unclear how a subsequent reference to arbitration of the same issue would be
resolved. … In such cases, the investor would then be compelled to bring a claim to a national
court for a ruling that the host State had committed an expropriatory act but in so doing, it may be
barred from bringing a dispute on compensation to arbitration.” [133] 首先，如果本案中唯一的
问题是数量问题，则不清楚国家会向国家法院提交什么问题。如果国家已将仲裁问题提交
国家法院，则不清楚随后如何解决同一问题的仲裁。......在这种情况下，投资者将被迫向国
家法院提出索赔，要求裁定东道国实施了征用行为，但这样做，投资者可能被禁止将赔偿
争端提交仲裁。
Themes
1. Clear and unambiguous State consent to arbitrate
2. Principle of effet utile (effective interpretation)
3. Considerations around fork in the road clause
Application of most-favoured nation clauses to ISDS 最惠国条款对投资者与国家争端解决机
制的适用
（1） MFN clauses
◦ When one state agrees to treat another state or its nationals in a manner that is at least as
favourable as the treatment it accords to other states or their nationals◦ 当一国同意以至少与给予
其他国家或其国民的待遇一样优惠的方式对待另一国或其国民时
◦ Can MFN clauses be applied to ISDS provisions?最惠国条款能否适用于 ISDS 条款？
（2） The wide and narrow approaches in Maffezini v. Spain vs. Plama v. Bulgaria
◦ Maffezini v. Spain: Argentina-Spain BIT had cooling off period of 18 months while Chile-Spain
BIT had cooling off period of 6 months. Maffezini, an Argentinian national, took the benefit of the
Chile-Spain BIT and was not required to resort to Spanish courts before invoking jurisdiction of
the arbitral tribunal.阿根廷-西班牙双边投资条约的冷静期为 18 个月，而智利-西班牙双边投
资条约的冷静期为 6 个月。阿根廷国民 Maffezini 利用了智利-西班牙双边投资条约，在援
引仲裁庭管辖权之前不需要诉诸西班牙法院
◦ Plama v. Bulgaria: Rejected application of more generous ISDS provisions where Bulgaria-
Cyprus BIT contained “amount of compensation” limitation 拒绝适用更慷慨的投资者与国家争
端解决条款，其中保加利亚-塞浦路斯双边投资条约包含“赔偿金额”限制
（3）UP and CD v. Hungary: Expansion of jurisdiction beyond expropriation using MFN 利用最
惠国待遇将管辖权扩大到征用之外
AsiaPhos v. China (February 2023)
“…an arbitral tribunal has jurisdiction only if, and to the extent that, the Parties have
consented thereto in a clear and unequivocal manner. … Therefore, the Tribunal rather
concurs with the view expressed by the tribunals cited above that the expansion of an
arbitration clause by virtue of an MFN clause requires the clear and unambiguous intention
of both parties for the MFN clause to have this effect.” [207, 211]"...仲裁庭只有在缔约双方有以
下条件时才具有管辖权：
以明确和毫不含糊的方式同意了。...因此，法庭宁愿同意上文引述的两法庭所表达的意见，
即扩大法庭的面积，根据最惠国条款的仲裁条款要求明确和毫不含糊的意图，双方最惠国
条款才具有这种效力。
1. Doubt expressed about UP and CD Holding v. Hungary 对 UP 和 CD 控股诉匈牙利案的怀疑
2. Exchange of letters between Singapore and PRC confirms that any expansion of the scope of
the arbitration clause would require explicit and separate agreement 新加坡和中国之间的换文确
认，仲裁条款范围的任何扩大都需要明确和单独的协议
3. Dissenting opinion 不同意见
◦ Policy considerations against UP and CD v Hungary only 仅针对 UP 和 CD v Hungary 的政策
考虑
◦ Ordinary meaning of “treatment” and exceptions 待遇”的普通含义和例外
BUCG v. Yemen (May 2017)
Ordinary meaning of “treatment”
◦ “the accompanying reference in Article 3.1 to “treatment accorded to investors…. in its territory”
plainly invokes territorial limits that are directed to substantive provisions in relation to local
treatment of the investment, and are not apt to describe international arbitration.” [116]
◦ “These words, in the Tribunal’s view, tie the MFN to activities that take place “in the territory”
associated geographically with the investment. This limitation is not consistent with the Parties
giving their consent to the use of the MFN to expand the scope of international arbitration beyond
the provisions of Article 10.” [120]
Ansung Housing Co v. PRC (March 2017)
“ A plain reading of this Article does not extend to MFN treatment for a State’s consent to arbitrate
with
investors and, in particular, not to the temporal limitation period for investor-State arbitration in
Article
9(7) of the China-Korea BIT.”
Express Exclusion in Third Generation
Chinese BITs China-New Zealand FTA (2009)
3. Approaches
◦ Majority Award
◦ Dissenting Opinion
4. How did majority distinguish prior cases?
• Beijing Everyway v. Ghana (January 2023)

• China Heilongjiang v. Mongolia (June 2017)
3. Application of most-favoured nation clauses
to ISDS
4. Issues involving SOEs

（1） Definition of SOEs
1）OECD: “any corporate entity recognised by law as an enterprise…in which the state exercises
ownership”经合组织：“任何被法律承认为企业的公司实体......国家行使所有权”
2）World Bank: “government owned or government controlled economic entities that generate the
bulk of their revenues from selling goods and services”世界银行：“政府拥有或政府控制的经
济实体，产生大部分他们销售商品和服务的收入”
3 ） “ An independent legal entity subject to control by governmental units that engages in
commercial activity for profit-making or strategic purposes.”“受政府单位控制、为营利或战略
目的从事商业活动的独立法律实体。
【Ownership， personality，entity】
（2）Broches test
• Are SOEs protected under ISCID Convention as “investors”?
 Aaron Broches: “a mixed economy company or government-owned corporation should not be
disqualified as a national of another Contracting State unless it is acting as an agent for the
government or is discharging an essentially governmental function.” (1962)混合经济公司或政府
拥有的公司不应被取消作为另一缔约国国民的资格，除非它作为政府的代理人或正在履行
本质上的政府职能
 Beijing Urban Construction Group Co. Ltd. v. Republic of Yemen (2017)
“ It would seem, therefore, that for purposes of the Convention a mixed economy company or
government owned corporation should not be disqualified as a ‘national of another Contracting
State’ unless it is acting as an agent for the government or is discharging an essentially
governmental function.”因此，就本公约而言，混合经济公司或政府拥有的公司似乎不应被
取消作为“另一缔约国国民”的资格，除非它是作为政府的代理人或正在履行本质上的政
府职能。
 Ceskoslovenska Obchodni Banka, A.S. v. The Slovak Republic, ICSID Case No. ARB/97/4
“‘National…was to embrace also wholly or partially government-owned companies.”
“But in determining whether CSOB, in discharging these functions, exercised governmental
functions, the focus must be on the nature of these activities and not their purpose. While it cannot
be doubted that in performing the above-mentioned activities, CSOB was promoting the
governmental policies or purposes of the State, the activities themselves were essentially
commercial rather than governmental in nature.”全国性...也包括全部或部分政府拥有的公司。
“但是，在确定 CSOB 在履行这些职能时是否行使了政府职能时，重点必须放在这些活动的
性质上，而不是它们的目的上。毫无疑问，CSOB 在开展上述活动时是在促进政府的政府
政策或国家的宗旨，但这些活动本身基本上是商业性的，而不是政府性质的。
Corporate framework of Chinese SOEs
 Beijing Urban Construction Group Co. Ltd
• “Representative of the state interests”“国家利益的代表”
• “Expected to advance China’s national interest”“有望促进中国的国家利益”
• “Under supervision and inspection of Beijing State-Owned Assets Supervision and
Administrative Bureau and Beijing Finance Bureau”《北京市国资委监督管理局、北京市财政
局监督检查》
• “Responsible for monitoring the implementation of scientific concepts of development and
national policies, to promote enterprises to play leading role in carrying out political and social
responsibilities.”“负责监督落实科学发展观和国家政策，推动企业在履行政治和社会责任方
面发挥主导作用。
1. “Agent of the government”
“ These corporate controls and mechanisms are not surprising in the context of PRC State owned
corporations. However, […] the issue is not the corporate framework of the State-owned
enterprise, but whether it functions as an agent of the State in the fact specific context. ”" 就中国
国有企业而言，这些公司控制和机制不足为奇。然而，[......]问题不在于国有企业的公司框
架，而在于它是否在特定的事实背景下作为国家的代理人发挥作用。"
“ BUCG participated in the airport project as a general contractor following an open tender in
competition with other contractors. Its bid was selected on its commercial merits. Its contract was
terminated, Yemen contends, not for any reason associated with the PRC’s decisions or policies
but because of BUCG’s failure to perform its commercial services on the airport site to a
commercially acceptable standard. ” " BUCG 在与其他承包商公开招标后，作为总承包商参与
了机场项目。该公司的投标书因其商业价值而被选中。也门认为，其合同被终止的原因与
中华人民共和国的决定或政策无关，而是因为 BUCG 在机场工地上未能按照商业上可接受
的标准提供商业服务。"
2. “Discharging an essentially governmental function”
“There is no evidence that in that capacity BUCG was discharging a PRC governmental function
rather than a commercial function.”没有证据表明 BUCG 以这种身份履行的是中国政府的职能
而不是商业职能"。
“ [T]he assertion that ‘the Chinese State is the ultimate decision maker’ for BUCG is too remote
from the facts of the Sana’a International Airport project to be relevant. BUCG was clearly not
exercising a Chinese governmental function on the airport site in Yemen. The alleged military
aggression was not by Yemen against the People’s Republic of China (or the consequences might
have been more severe) but in relation to BUCG as an airport contractor that, CAMA alleges, fell
down on the job. ”"关于'中国政府是北京建工集团的最终决策者'的说法与萨那国际机场项目
的事实相去甚远，不具相关性。北京建工集团显然没有在也门机场工地上行使中国政府的
职能。所称的军事侵略不是也门对中华人民共和国的军事侵略（否则后果可能会更严重）
而是与 BUCG 作为机场承包商有关的军事侵略，CAMA 声称，BUCG 在工作中失职。
Broches test
 Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v. Republic of
Kazakhstan,
ICSID Case No.ARB/05/16
 Issue: whether the forcible taking-over of the claimants, two Turkish telecom companies, by the
Turkish Savings Deposit Insurance Fund (TSDIF), a Turkish government agency, triggered the
application of the Broches test. 土耳其储蓄存款保险基金(TSDIF)是土耳其的一个政府机构，
该基金强行接管索赔人--两家土耳其电信公司--是否导致适用 "布罗代斯检验标准"。
◦ “Claimants are companies incorporated and existing under the laws of Turkey…they appear
therefore prima facie as nationals of a Contracting State.”"索赔人是根据土耳其法律成立和存在
的公司......因此，从表面上看，它们是一个缔约国的国民"。
◦ “The TSDIF is not however Claimant in this arbitral procedure…the role of the TSDIF may be
compared to some extent to the role of a receiver or liquidator or judicial manager.”" 然而，
TSDIF 在此仲裁程序中并非申请人......TSDIF 的作用在某种程度上可与接管人、清算人或
司法管理人的作用相比较。
Issues involving SOEs
 Reference to SOEs under investment treaties 投资条约中对国有企业的提及
◦ Japan-Vietnam BIT: “The term ‘investor’ means with respect to a Contracting Party whether
private or government owned or controlled.”日本-越南双边投资协定："'投资者'一词是指对缔
约方而言，无论是私人还是政府拥有或控制的投资者。
◦ US Model BIT: “investor of a party means a Party or state enterprise thereof…that attempts
tomake, is making, or has made an investment in the territory of the other Party.”《美国双边投资
条约范本》："一方的投资者是指......试图、正在或已经在另一方境内进行投资的一方或其
国有企业"。
 Exclusion of SOEs under investment treatise 投资条约排除国有企业
5. China’s practice on transparency under the

UNCITRAL Rules and the Mauritius Convention
Transparency under in treaty-based investor-state arbitration 基于条约的投资人-国家仲裁
下的透明度【例如美国制裁机制根本不透明，和公开审理的法庭完全不同】
• Promoting the legitimacy of the investment treaty regime 促进投资条约制度的合法性
• Promoting accountable state governance 促进负责任的国家治理
• Enhancing legal certainty 提高法律确定性
 Publication of information 信息发布
• Publication with respect to the existence of an investor-state dispute 关于存在投资者与国家争
端的出版物
• Publication concerning the disposition of the investor-state dispute 关于投资者与国家争端处理
的出版物
• Public access to hearings 公众参加听证会
• Public participation in the dispute settlement process 公众参与争端解决进程
1. The UNCITRAL Rules on Transparency《贸易法委员会透明度规则》

◦ Arbitration under UNCITRAL Rules pursuant to a treaty concluded on or after 1 April 2014
(Article 1)根据 2014 年 4 月 1 日或之后缔结的条约根据《贸易法委员会规则》进行的仲裁
（第 1 条）
◦ Public access to documents and hearings (Article 2)公众获取文件和听证会（第 2 条）
◦ Participation by third persons (Article 4)第三方参与（第 4 条）
2. The Mauritius Convention《毛里求斯公约》
◦ All investor-state arbitration under a State Party’s investment treaties entered into before 1 April
2014 2014 年 4 月 1 日前根据缔约国投资条约订立的所有投资者与国家之间的仲裁
◦ Three permissible reservations: treatise, arbitrations under the rules other than UNCITRAL
Rules, and Respondent 三种允许的保留：条约、根据《贸易法委员会规则》以外的规则进行
的仲裁和被申请人
1. China’s practice: General objections (confidentiality and pressure)中国实践：一般性反对（保

密和压力）
2. Development of China’s BIT practice on transparency 中国双边投资条约透明度实践的发展
• China’s Model BIT: no transparency provisions 中国的双边投资条约范本：没有透明度规定
• Canada-China FIPA (2012): public access to hearings an documents; participation by the non-
disputing party; submissions by a non-disputing party 加中 FIPA（2012 年）：公众获取听证会
和文件;无争议方的参与;非争端方提交的材料
• Other BITs: silent on ISDS transparency besides China-Mexico BIT 2008 (award to be publicly
accessible) and China-New Zealand BIT 2008 (publication of information and document) 其他双
边投资条约：除《2008 年中国-墨西哥双边投资条约》（授予可公开查阅）外，对投资者与
国家争端解决机制的透明度保持沉默，以及中国-新西兰双边投资条约 2008（信息和文件公
布）
3.Future directions – China’s BIT negotiations with US and EU 未来方向——中国与美国和欧
盟的双边投资条约谈判
6. China’s positions on ISDS reform on

UNCITRAL Working Group III
 China’s proposals on the reform 中方关于改革的建议
 Lacking an institutionalised and reasonable error-correcting mechanism 缺乏制度化、合理的
纠错机制
 Award lacks stability and predictability 裁决缺乏稳定性和可预测性
 Professionalism and independence of arbitrators in question 相关仲裁员的专业性和独立性
 Risks of third-party funding 第三方资金的风险
 Long and costly investment arbitration proceedings 漫长而昂贵的投资仲裁程序
 China’s recommendation 中国的建议
Permanent appellate mechanism 常设上诉机制
The right of the parties to appoint an arbitrator 当事人指定仲裁员的权利
Rules governing the qualification, conflicts of interest, and selection and removal procedures 资
格、利益冲突以及遴选和罢免程序的规则
Alternative dispute resolution 替代性争议解决
Procedures for pre-arbitration consultation 仲裁前咨询程序
Transparency for third-party funding 第三方资金的透明度
7. China–EU Comprehensive Agreement on
Investment
1. State to State Dispute Settlement (Section V)国与国之间的争端解决（第五节）
2. Mechanisms to Address Differences (Section IV) (investment and sustainable
development)解决差异的机制（第四节）（投资和可持续发展）
3. ISDS?
1. Is China’s position on ISDS reform consistent with ICS 中国在 ISDS 改革问题上的立场是
否与 ICS 一致?
2. Features of effective ISDS and the future 有效的投资者与国家争端解决机制的特点与未
来
Class 9 belt and road initiative
Belt and Road Initiative – What Is?什么是 "一带一路 "倡议？

Projects, Transactions, Disputes 项目、交易、争议
Commercial Arbitration 商事仲裁
Treaty Arbitration 条约仲裁
China International Commercial Court（CICC）中国国际商事仲裁院
SPC
Singapore International Commercial Court (SICC)
5:39 开始讲题【 citation 引用别人观点要标明，脚注；主要根据 slide 来答题，一些
argument】
24:53 开始举例试题
Operation and maintenance (O&M) contracts
EPC contract：Engineering, procurement, and construction (EPC) contracts
Concession agreement：特许（优惠）协议
About investment with that glorious moment history. The the money from Bril projects
doesn't have those explicit strings, but I guess that the criticism.Is that?For
example.Zombie allows.That's.As a result of the Bri and that is consuming, I think
they've been reports that is consuming a very large proportion of GDP every year,
just a matter that that have been incurred.Zambia and leading to confiscation of
resources. Some people say the results right away to get sports resources.I'm just
laying out some of the criticisms right Completely.Value neutral but this was some
people have said.Political or commercial?It's great for me because at least the
arbitration, but also great for the people.And often if you see a lot of these
jurisdictions Lanka.
So.Any questions?Actually have something to say about the CIC. I don't know
whether Jonny had mentioned it, but I think the difference between as I see and see I
see is that I think the Singapore government has treated as I see as an alternative
method of arbitration, like if you don't want to.Go to option institution to settle dispute
and you prefer to arguing the court or you prefer to have?Judges, to resolve your
dispute and as I see is a very good alternative option, but I think I see, I see in China
is more like a specialised court or specialised branch of the Supreme Court, and this
is also indicated by the provincial courts of cities.Of different problems in China
because in China each province actually have his own come international
Commercial Code. I think Beijing have it somehow. I also have it so. So for example
in Beijing is like called Beijing International Commercial Code.International
commercial courts, so for example, Beijing International Commercial Court is actually
a branch of the Beijing mid level code. So I think the conception of international
Commercial Code in China is more like a specialised branch of the code that they
designed to solve.The case is with international commercial nature.Which is not
they're not going to treat it as a alternative of arbitration.Yeah.Yeah, I think that I I
agree and I I I think I said.International services.
So I think it's.Like not unusual for creditors of the award to you, so the credits of the
award to like other people and then is also unusual. Is not also not unusual for states
to which a post award settlements with the word creditors like.Pain. The pain. They
work by instruments.40% of the awards. So I think in this aspect is quite similar with
like commercial arbitration or litigation.I agree. I mean the dimension is a bit different
as the state bias immunity from attachment, and I don't again. Who is the party is
complicated.A company is usually represented by a
bullet.Representatives.Please.Right. Texas, right? Let's say the US.The Texas that
the local government.Government.When you sue the United States, the respondent
is State Department right? Who represents the interests of the United States of
international fame?Party. In some countries actually have the concrete.
so i think in the article For countries to determine their own.And then she goes on to
write that does not limit the ability of a country to define its own policy. It simply aims
to bring harmony to the application of the exception. But I think I'm struggling to see
how this isn't the kind of limitation in the sense that if there is an establishment of
the.You know, kind of public policy here. Then if it conflicts with the public policy
exception of another country within that region, there would be a limitation of the
exception within that country.In the context of.A public policy as a ground to
challenge or IS is enforcement of an award.The New York Convention recognises
that at enforcement.And then the grass is clearly had in mind that local public policy,
right? So if I'm in Djibouti code.In recent years, has developed amongst very
developed arbitration jurisdictions.This notion that you can only have regard to
international public policy.So just because something is contrary.

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Class 1 Introduction to Arbitration in China

1.Before the Enactment of PRC Arbitration Law

2.Current Legal Framework

 Bifurcated regime 分叉制度

4.Difference with UNCITRAL model law

Article 16 of the PRC Arbitration Law

1. An agreement by the parties to submit to arbitration all or certain disputes

Article 28 of the PRC Arbitration Law

Article 46 of the PRC Arbitration Law

Article 17J of the UNCITRAL Model Law

No clear definition on set of arbitration

5.Reporting mechanism 报告机制

Intermediate People’s Court High People’s Court Supreme People’s Court

7.Three nos: development

8.Development: ad hoc arbitration

CMAC as the appointing authority designated by parties

Judicial practice perspective: foreign arbitration institution

Latest case: Sandvik case

Chaolai xinsheng case

“Foreign-related” case is one that involves a foreign -related element

Model law1985—party autonomy

1.landscape of arbitral institutions in china

Goverance of chinese institutions

 Designated arbitration case

ICC 的裁决是 national award，根据 Brentwood

ICC 62 条：用 ICC 的规则但不在 ICC 仲裁？

Class 3: Arbitral Procedures in China

1.BASIC FRAMEWORK OF ARBITRATION

2.BASIC ARBITRATION CONCEPTS 仲裁基本概念

FEATURES OF PRC ARBITRATIONS

WHAT TO E X P E CT AT A CIETAC OR ALHE AR ING

COMME NCE ME NT OF A CIE TA C CAS E

组庭通知【加 PPT 图片】

CONCILIATION (MEDIATION ) (ART 47)调解

CHALLENGES ON PROCEDURAL MATTERS BEFORE PRC COURTS

Lack of Chinese translation of evidence / notarisation / certification

Non-compliance with timelines

Lack of opportunity to present case

CFHI Case (2023) (ICC arbitration, Mainland seated)

Class 4 china and international arbitration

Interim Measures in International Arbitration 国际仲裁中的临时措施

Chinese Statutory Laws

Interim Measures in Foreign Arbitration (Seated Outside China) 外 国 仲 裁 中 的 临 时 措 施

• Domestic public policy

Class 5 Arbitration Agreements in Mainland China

1. What is an arbitration agreement

（1）Separability Doctrine 独立性条款

3. Choice of law governing international

4. Formal and substantive validity of

• Note: see para. 95 of Summary of Panel Discussion on Foreign-related Commercial and

5. Other issues regarding arbitration

Noble Resources International v. Shanghai Good Credit International Trade 合同提及并纳入了

6. The reform regarding arbitration agreements

7. The reform regarding arbitration agreements

1.Three generations of Chinese investment

1.1Historical context - First generation of Chinese

investment treaties (82-89)

1.2Key features - First generation of Chinese investment

- Requirement of amicable settlement 友好解决的要求

1.3Case law - First generation of Chinese investment treaties

1.4Historical context - Second generation of Chinese

Ø 1990-1997: a generational shift from peasant revolutionaries to well-educated, professional

1.5 Features - Second generation of Chinese investment

Interim Measures in Foreign Arbitration (Seated Outside China) 外国仲裁中的临时措施