In China, the current Arbitration Law does not recognise the concept of ad hoc arbitration. The current Arbitration Law expressly provides that an arbitration agreement must designate an arbitral institution, failing which it is invalid. However, on 30 July 2021, the Ministry of Justice of the People's Republic of China published the Arbitration Law of the People's Republic of China (Amended Version) (Draft for Comments) ("Draft Arbitration Law") for public consultation. The Draft Arbitration Law introduces for the first time the rules of ad hoc arbitration into the Chinese arbitration regime. Nonetheless, this is not the final version and is subject to further amendments.
In the Draft Arbitration Law, there are three new articles which set out the rules of ad hoc arbitration in Chinese arbitration regime, namely, Articles 91, 92 and 93. According to these articles, the application of ad hoc arbitration in China is limited to disputes that have a foreign element and are commercial in nature. The original arbitral award issued by an ad hoc arbitration tribunal must be submitted to an intermediate people's court for recording purpose. Given that the new rules are very brief and lack details, the parties who wish to refer their disputes to ad hoc arbitration in China should specify as many details as possible in the arbitration agreement, so as to avoid any uncertainty.
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