1. Chapter 3 Arbitration Agreement

2. Definition and Forms
Agreement between the parties to submit their dispute for the settlement by arbitration
Categories of arbitration agreements
Arbitration clause in a contract
Submission to arbitration agreement

3. ICC Model Arb. Clause
All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.

4. ICC recommends the following clause for arbitrations seated in Mainland China
All disputes arising out of or in connection with the present contract shall be finally settled by ICC Court of International Arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.

5. AAA Model Arb. Clause
Any controversy or claim arising out of or relating to this contract shall be determined by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association.

6. Arbitration Commission (CIETAC) Model Arbitration Clause
    "Any dispute arising from or in connection with this Contract shall be submitted to China International Economic and Trade Arbitration Commission for arbitration which shall be conducted in accordance with the Commission's arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties."

7. Formal conditions---- Written Form
Article 16.1 of Arbitration Law of PRC
An agreement for arbitration shall include the arbitration clauses stipulated in the contracts or other written agreements for arbitration reached before or after a dispute occurs.
CAL Judicial interpretation（Art.1):
Apart from the contract, it could be expressed in the form of telegraph, telex, EDI, , etc.

8. 1958 New York Convention Art II
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 ..

9. 2006 Model Law Article 7. Definition and form of arbitration agreement
(2) The arbitration agreement shall be in writing.
(3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.
(4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; “electronic communication” means any communication that the parties make by means of data messages; “data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.

10. (5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.
(6) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.

11. CIETAC Rule 2015
Art5(2). The arbitration agreement shall be in writing. An arbitration agreement is in writing if it is contained in the tangible form of a document such as a contract, letter, telegram, telex, fax, electronic data interchange, or . An arbitration agreement shall be deemed to exist where its existence is asserted by one party and not denied by the other during the exchange of the Request for Arbitration and the Statement of Defense.

12. Essential conditions of Arbitration Agreements
1. legal capacity
2. the genuine intention of arbitration
3. the content
4. arbitrable disputes

13. Content of Arb. Agreement（CAL,Art.16)
Intention of both parties to settlement their dispute by arbitration
Matters to be arbitrated
Definite arbitration institution，excluding ad hoc commercial arbitration
Place of arbitration!
“The seat of the arbitration shall be (city)?”
Ad hoc or Institutional

14. Advisable elements
Arbitrators
“The arbitral tribunal shall be composed of (one) or (three) arbitrator(s)”
Applicable law
“The applicable rules of law are …”
Language
“The arbitration shall be conducted in …”

15. Safe, brief clause:
"Any dispute, difference or claim arising out of or in connection with this agreement, or the subject matter of this agreement, will be referred to and finally resolved by arbitration in accordance with the [particular arbitration rules] ("Rules").
The place of arbitration will be [city].

16. Unusual clauses
Confidentiality
Discovery
Multi-party arbitration
Appeal

17. The tribunal will consist of [a sole arbitrator/three arbitrators] appointed in accordance with the Rules.
The language of the arbitration will be […].
The applicable rules of law are […] "

18. Matters to be arbitrated
CAL Article 2 Disputes over contracts and disputes over property rights and interests between citizens, legal persons and other organizations as equal subjects of law may be submitted to arbitration.

19. Article 3
The following disputes shall not be submitted to arbitration: 1. disputes over marriage, adoption, guardianship, child maintenance and inheritance; and 2. administrative disputes falling within the jurisdiction of the relevant administrative organs according to law.

20. Art. 2 of the Judicial Interpretation:
Contract disputes refers to the formation, validity, amendment, assignment, performance, liabilities for the breach, interpretation, termination of the contract.

21. NY Convention (Arts. II(1) and V(2)(a))
Model Law (Art. 34(2)(b)(i) and 36(2)(b)(i))
‘arbitrability’ = rights one can freely dispose of
Public authority
IP: Patent office vs patent holder vs licensee
Criminal law: Court vs criminal vs victim
Familiy law: Divorce vs private consequences
Other: Nationality request, social security matters, …

22. 1958 NY Convention
Art 2(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.

23. Art V(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:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or

24. Model law Article 36. Grounds for refusing recognition or enforcement
(1) Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only:
(b) if the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State;

25. Article 34. Application for setting aside as exclusive recourse against arbitral award
(2) An arbitral award may be set aside by the court specified in article 6 only if:
the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or

26. Definite arbitration institution
What is the meaning of “definite”?

27. 2006 CAL Judicial Interpretation
Article 3
Where the name of the arbitration institution which is stipulated in an arbitration agreement is inaccurate, but the specific arbitration institution can nevertheless be determined therefrom, the arbitration institution shall be deemed to have been selected.

28. Article 4
Any arbitration agreement which only stipulates the arbitration rules applicable to disputes shall not be re-garded as containing any stipulation on an arbitration institution, except for any circumstances in which the parties reach a supplemental agreement, or in which the arbitration institution can be ascertained pursuant to the arbitration rules which have been agreed to be applicable.

29. Article 5
Where an arbitration agreement expressly stipulates two or more arbitration institutions, the parties may reach an agreement and, by their own selection, refer their dispute to one of the arbitration institutions for arbitration. Where the parties are unable to reach any consensus on the selection of an arbitration institution, the arbitration agreement shall be considered to be invalid.

30. Article 6
Where an arbitration agreement stipulates that arbitration shall be conducted by an arbitration institution located in a certain locality and there is only one arbitration institution in that locality, such arbitration institution shall be the arbitration institution which is stipulated.
Where there are two or more institutions, the parties may select an arbitration institution by reaching an agreement between themselves and refer their case to the arbitration institution so selected.
Where the parties are unable to reach any consensus on the selection of an arbitration institution, the arbitration agreement shall be considered to be invalid.

31. Article 7
Where the parties agree that if a dispute arises, either the dispute may be referred to an arbitration institution for arbitration or an action may be brought in the People’s Court instead, the arbitration agreement shall be invalid, except for circumstances in which one party refers the case to an arbitration institution for arbitration but the other party does not make any op-position in accordance with section 2 of Article 20 of the Arbitration Law of the People’s Republic of China.

32. Case Analysis
Case 1
Arbitration clause in the contract agreed: "Where the implementation of this contract or all disputes relating to this contract, the two parties resolve them through friendly consultation. If consultation can not settle it, the dispute should be submitted to Beijing or Wuhan Arbitration Commission. "

33. Case 2
2、Company A is an American Shipping Co., Company B is a Chinese Import and Export Corporation.
May 10, 1999, Company A and B signed a shipping contract which agreed : under the requirements of Company B, transport a shipment of goods from Canada to China, Dalian.
Shipping contract had an arbitration clause as follows:
All disputes arising from or in connection with performance of the contract or relating to the contract, should be submitted to ad hoc arbitration in the New York.
And specified in the arbitration clause about the selected arbitrators, the establishment of arbitral tribunal and the arbitration rules.

34. October 10, 1999, the goods purchased by Company B were delivered to Dalian. After company B's inspection, they found that the goods were damaged, so Company B asked for compensation from Company A.
Company A commenced ad hoc arbitration in the United States based on the arbitration clause .

35. Company B challenged the arbitration jurisdiction in the people's court, argued that the arbitration clause does not involved the arbitration organization, the arbitration agreement is invalid.
Is the arbitration agreement which agrees ad hoc arbitration in foreign country valid?

36. Void Arbitration Agreement
CAL:　Article 17
if an agreed arbitrable matter exceeds the scope of arbitrable matters（Art.2,3 CAL) as specified by law;
if a party that concluded the arbitration agreement has no capacity for civil acts or has limited capacity for civil acts; or
if one party coerced the other party into concluding the arbitration agreement.

37. Clause Analysis
“All disputes are to be settled by arbitration according to the Rules of Arbitration of the International Chamber of Commerce in Zürich”
“In case of a dispute the parties undertake to submit to arbitration but in case of litigation the Tribunal de la Seine shall have exclusive jurisdiction.”

38. “All disputes arising in connection with the present agreement should be resolved by negotiation and friendly settlement. If this method of resolution should be impracticable, the disputed questions shall be decided in accordance with the Rules of Arbitration of the ICC in Paris. In the event the proceedings were not able to decide the questions for any reason whatsoever, the judicial courts of the injured party shall decide the dispute on a legal basis.”

39. “Arbitration in New York if necessary”
“The parties may refer any dispute under this agreement to arbitration, in accordance with the arbitration act of Ontario”

40. “Disputes arising out of this contract should be resolved by the International Commercial Court of Arbitration of the Russian Chamber of Commerce or a specified international court.”

41. Art. 7 of the Judicial Interpretation on Invalid arbitration agreement
The parties agreed either arbitration or litigation. Unless one party applied for arbitration, the other party failed to challenge of the validity of the arbitration agreement prior to the first hearing of the arbitration tribunal.
The parties failed to reach agreement on a definite arbitration institution.

42. Effectiveness of Arbitration Agreement
To the parties
To the arbitration tribunal
To the court

43. The Doctrine of Separability of the Arbitration Clause
An arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure (L. 依法律）the invalidity of the arbitration clause.

44. Art. 19 of CAL
Arbitration agreements shall exist independently. The amendment, rescission, termination or invalidity of a contract shall not affect the effectiveness of the arbitration agreement.

45. CIETAC Rule 2015
Art 5(4)
An arbitration clause contained in a contract shall be treated as a clause independent and separate from all other clauses of the contract, and an arbitration agreement attached to a contract shall also be treated as independent and separate from all other clauses of the contract. The validity of an arbitration clause or an arbitration agreement shall not be affected by any modification, cancellation, termination, transfer, expiry, invalidity, ineffectiveness, rescission or non-existence of the contract.

46. Assignment of Arb. Clause
Whether the assignee is bound by the arbitration clause in the assigned contract?

47. Chinese Practices No provision in CAL;
Art.8 、9 of the Judicial Interpretation:
The arb. Agreement is binding on assignee while the parties merged or separated.
Successor’s responsibility
Assignment of credits and liabilities

48. Article 8
Where a party merges or divides after entering into an arbitration agreement, the arbitration agreement shall be valid in respect of the successors and assignees of its rights and obligations.
Where a party passes away after entering into an arbitration agreement, the arbitration agreement shall be valid in respect of the successors to the rights and obligations involved in the matters of arbitration.
The provisions in the preceding two paragraphs shall not be applied if the parties agree otherwise when they enter into the arbitration agreement.

49. Article 9
Where rights and obligations are transferred, in part or in whole, after an arbitration agreement is entered into, the arbitration agreement shall be binding on the transferee, except for any circumstances in which the parties agree otherwise or the transferee expressly makes an opposition, or in which the transferee is not aware of the existence of a separate arbitration agree-ment at the time of the transfer.

50. Third Parties to the Arb.Agreement
Group Companies Doctrine
Assignment/Agency/Succession Doctrine
Dow Chemical France v Isover Saint Gobain

51. Authority to decide
Arbitration Tribunal?
Court?

52. The doctrine of “competence and competence”

53. 2015 CIETAC Rule
Article 6 Objection to Arbitration Agreement and/or Jurisdiction
1. CIETAC has the power to determine the existence and validity of an arbitration agreement and its jurisdiction over an arbitration case. CIETAC may, where necessary, delegate such power to the arbitral tribunal.

54. 2. Where CIETAC is satisfied by prima facie evidence that a valid arbitration agreement exists, it may make a decision based on such evidence that it has jurisdiction over the arbitration case, and the arbitration shall proceed.
Such a decision shall not prevent CIETAC from making a new decision on jurisdiction based on facts and/or evidence found by the arbitral tribunal during the arbitral proceedings that are inconsistent with the prima facie evidence.

55. 3. Where CIETAC has delegated the power to determine jurisdiction to the arbitral tribunal, the arbitral tribunal may either make a separate decision on jurisdiction during the arbitral proceedings or incorporate the decision in the final arbitral award.

56. 4. Any objection to an arbitration agreement and/or the jurisdiction over an arbitration case shall be raised in writing before the first oral hearing held by the arbitral tribunal.
Where a case is to be decided on the basis of documents only, such an objection shall be raised before the submission of the first substantive defense.

57. 5. The arbitration shall proceed notwithstanding an objection to the arbitration agreement and/or jurisdiction over the arbitration case.

58. 6. The aforesaid objections to and/or decisions on jurisdiction by CIETAC shall include objections to and/or decisions on a party’s standing to participate in the arbitration.

59. 7. CIETAC or its authorized arbitral tribunal shall decide to dismiss the case upon finding that CIETAC has no jurisdiction over an arbitration case. Where a case is to be dismissed before the formation of the arbitral tribunal, the decision shall be made by the President of the Arbitration Court. Where the case is to be dismissed after the formation of the arbitral tribunal, the decision shall be made by the arbitral tribunal.

60. Art. 16 UNCITRAL Model Law
The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

61. CAL Art.20
If a party challenges the validity of the arbitration agreement, he may request an arbitration commission to make a decision or a People's Court to give a ruling.
If one party requests an arbitration commission to make a decision and the other party requests a People's Court to give a ruling, the People's Court shall give a ruling.
A party's challenge of the validity of the arbitration agreement shall be raised prior to the first hearing of the arbitration tribunal.

62. Judicial Interpretation
Article 13
Pursuant to the stipulation of section 2 of Article 20 of the Arbitration Law, where a party does not raise any opposition to the validity of an arbitration agreement before the arbitration tribunal commences the first hearing session but instead applies to the People’s Court for a decision on the invalidity of the arbitration agreement, the People’s Court shall not accept the application.

63. After an arbitration institution has made its final decision on the validity of an arbitration agreement, any application made by a party to the People’s Court for confirming the validity of the arbitration agreement or setting-aside the decision of the arbitration institution shall not be entertained by the People’s Court.

64. Competent Court to decide validity of the arbitration Agreement
Intermediate people’s court
where the agreed arbitration Commission located;
in case of no agreed definite arbitration commission, where the agreement was signed or the parties’ domicile located

65. Article 12
Cases whereby a party applies to the People’s Court for confirmation of the validity of an arbitration agreement shall be under the jurisdiction of the Intermediate People’s Court of the locality of the arbitration institution stipulated in the arbitration agreement, and, where the stipulation on the arbitration institution is unclear, the case shall be under the jurisdiction of the Intermediate People’s Court of the signing place of the arbitration agreement or the place of domicile of the respondent.

66. Case whereby a party applies for confirmation of the validity of an arbitration agreement involving foreign interests shall be under the jurisdiction of the Intermediate People’s Court of the locality of the arbitration institution stipulated in the arbitration agreement, the signing place of the arbitration agree-ment, or the place of domicile of the applicant or of the respondent.

67. Cases on the validity of arbitration agreements in-volved in marine or maritime disputes shall be under the jurisdiction of the maritime court of the locality of the arbitration institution stipulated in the arbitration agreement, the signing place of the arbitration agree-ment, the place of domicile of the applicant or of the respondent and, in the event that there is no maritime court in the abovementioned locations, the case shall be under the jurisdiction of the maritime court in the neighbourhood area.

68. A, B in the contract agreed all the disputes arising out of the contract should be submitted to arbitration committee C. After the dispute, A commenced an arbitration proceeding to committee C, but B challenged the validity of arbitration agreement. In this regard, which has the jurisdiction to decide the validity of the arbitration agreement?
A. The district Court of the seat of Arbitration Commission
B. The intermediate court which located in the place of Arbitration Commission
C. The Arbitration Commission
D. The district Court which A has his residence

69. Applicable Law for arbitration agreement
The Law governing the capacity of the parties to arbitrate
---personal law
The Law governing arbitrability
---The law selected by the parties
---Lex arbitri
---National law of a court

70. The Law governing arbitration agreement itself
Judicial interpretation (Art. 16):
Agreed by the parties
Seat of arbitration
Law of the national court

71. CAL Judicial Interpretation
Article 16
Regarding the examination of the validity of any arbitration agreement involving foreign interests, the law agreed by the parties shall be applied.
Where the parties have not reached an agreement on the applicable law but have agreed on the place of arbitration, the laws of the place of arbitration shall be applied.
Where neither the applicable law nor the place of arbitration has been agreed upon, or the agreement on the place of arbitration is unclear, the law of the place where the court is located shall be applied.

72. Law of the Application of Law for Foreign-related Civil Relations of the PRC 2011
Article 18 The parties concerned may choose the laws applicable to arbitral agreement by agreement. If the parties do not choose, the laws at the locality of the arbitral authority or of the arbitration shall apply.