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As announced recently on this blog Chinese Court Decision Summaries on Arbitration, edited by Wunsch ARB, were recently published by Kluwer Arbitration. As illustrated by a brief analysis of the summaries of Chinese Court decisions published by Kluwer, the enforcement landscape in China appears to be decidedly positive.

The case summaries are a welcome addition to the Kluwer Arbitration database, particularly given the paucity of caselaw analysis currently available in this area, and the editors’ efforts for benefit of the wider arbitration community are much appreciated. The most striking trend to remark is that, in the large majority of enforcement cases published by Kluwer, the Chinese courts ordered recognition and enforcement of foreign-related arbitral awards, notwithstanding objections to enforcement raised by parties against whom enforcement was sought. Some older cases have revealed what practitioners view as “local protectionism” of the lower courts, seeking to invoke public policy as grounds for refusing to enforce foreign-related awards [see, for example, Dongfeng Garments v. (1992)] – although this issue has sought to be addressed by the reporting system described by Judge Lu. SFAIC (1996)], the Shanghai IPC refused to register an enforcement case, a phenomenon which, according to some practitioners, is still not uncommon and may lead to the expiration of the time limit for filing an enforcement application, thereby depriving the parties of an efficient remedy against the court’s behaviour since no court is officially in charge of the case [see Wunsch ARB’s commentary to the case of Revpower v. In some cases, lower courts refuse to report cases to higher courts, leaving parties remediless as they are unable to be heard before higher level courts in relation to what is essentially an internal court process [see The Problem is Enforcement by Ava Chisling].

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Wunsch ARB comment on some of the trends – both positive and negative – which are discernible from the cases on enforcement, notwithstanding that there is no system of binding precedent in PRC. Again, in some of the older cases reported, the Courts have confused the criteria for enforcement of domestic and foreign-related arbitral awards [see, for example, Wahhing Development v. Local protectionism by the Courts may also be evident in relation to execution against assets, which in any event is a challenge in PRC – but which merits its own discussion.

In this blog, we explore further some of the trends apparent from our own analysis of the cases on enforcement. By contrast, where the Courts determined that there was no valid arbitration agreement – whether due to lack of capacity or otherwise – this was a ground warranting non-enforcement under Article V(1)(a) of the New York Convention [see Concordia v. Xiaolong Lu, The Recognitions and Enforcement of Foreign Arbitral Awards in China in Albert Jan van den Berg (ed), New Horizons in International Commercial Arbitration and Beyond, i CCA Congress Series, 2004 Beijing Volume 12 (Kluwer Law International 2005) pp.

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