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Arbitration in China: Modern Dispute Resolution in Cultural Clothing

Ehn, Alicia (2017) JURM02 20172
Department of Law
Faculty of Law
Abstract
Arbitration has for a long time been the common dispute resolution method
used in commercial disputes relating to China. The Chinese arbitration
system has developed from vastly different origins than its Western
counterparts, and thus certain Chinese characteristics are prevalent in the
system. This paper aims at identifying the cultural and historical roots for
these characteristics and examine how they affect the modern arbitration
practice in China today, specifically in regard to the recognition and
enforcement of arbitral awards, as many legal practitioners allege that this is
one of the greatest obstacles related to arbitration in China.
The most prominent unique features of the Chinese arbitration system are
the... (More)
Arbitration has for a long time been the common dispute resolution method
used in commercial disputes relating to China. The Chinese arbitration
system has developed from vastly different origins than its Western
counterparts, and thus certain Chinese characteristics are prevalent in the
system. This paper aims at identifying the cultural and historical roots for
these characteristics and examine how they affect the modern arbitration
practice in China today, specifically in regard to the recognition and
enforcement of arbitral awards, as many legal practitioners allege that this is
one of the greatest obstacles related to arbitration in China.
The most prominent unique features of the Chinese arbitration system are
the separation of domestic and foreign-related disputes into dual tracks in
the legislation and arbitration practice, the substantial administrative
intervention and governmental influence, the non-recognition of ad hoc
arbitration and the fondness and promotion of amicable dispute resolution.
There are also some peculiar legislation features such as vagueness and
ambiguity as well as inconsistency in the implementation.
The author identifies three main factors shaping the Chinese arbitration
system: the Confucian heritage, influences from a communist era with
planned economy, and a young modern arbitration system which is still in
development. These factors explain virtually all the Chinese characteristics
identified and addressed in this thesis. The author concludes that the
Chinese characteristics in many ways limit several of the internationally
recognised principles of arbitration, such as party autonomy and the
independence of the proceedings. Due to the fondness of amicable dispute
resolution, the practice of conciliation and mediation is much more
widespread in China than in the West. As regards the recognition and
enforcement of arbitral awards, the issue is not as severe as perceived by
practitioners. The recognition and enforceability is, however, affected by the
unique Chinese features in the arbitration system. The dual-track system
comprises different regulations of and thus different conditions for the
enforceability of an award, and the governmental intervention makes the
possibility of recognition and enforcement vary depending on the attitude
toward arbitration of the local government where the recognition or
enforcement is sought. (Less)
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author
Ehn, Alicia
supervisor
organization
course
JURM02 20172
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Private law, Arbitration
language
English
id
8929716
date added to LUP
2018-01-22 13:24:48
date last changed
2018-01-22 13:24:48
@misc{8929716,
  abstract     = {Arbitration has for a long time been the common dispute resolution method
used in commercial disputes relating to China. The Chinese arbitration
system has developed from vastly different origins than its Western
counterparts, and thus certain Chinese characteristics are prevalent in the
system. This paper aims at identifying the cultural and historical roots for
these characteristics and examine how they affect the modern arbitration
practice in China today, specifically in regard to the recognition and
enforcement of arbitral awards, as many legal practitioners allege that this is
one of the greatest obstacles related to arbitration in China.
The most prominent unique features of the Chinese arbitration system are
the separation of domestic and foreign-related disputes into dual tracks in
the legislation and arbitration practice, the substantial administrative
intervention and governmental influence, the non-recognition of ad hoc
arbitration and the fondness and promotion of amicable dispute resolution.
There are also some peculiar legislation features such as vagueness and
ambiguity as well as inconsistency in the implementation.
The author identifies three main factors shaping the Chinese arbitration
system: the Confucian heritage, influences from a communist era with
planned economy, and a young modern arbitration system which is still in
development. These factors explain virtually all the Chinese characteristics
identified and addressed in this thesis. The author concludes that the
Chinese characteristics in many ways limit several of the internationally
recognised principles of arbitration, such as party autonomy and the
independence of the proceedings. Due to the fondness of amicable dispute
resolution, the practice of conciliation and mediation is much more
widespread in China than in the West. As regards the recognition and
enforcement of arbitral awards, the issue is not as severe as perceived by
practitioners. The recognition and enforceability is, however, affected by the
unique Chinese features in the arbitration system. The dual-track system
comprises different regulations of and thus different conditions for the
enforceability of an award, and the governmental intervention makes the
possibility of recognition and enforcement vary depending on the attitude
toward arbitration of the local government where the recognition or
enforcement is sought.},
  author       = {Ehn, Alicia},
  keyword      = {Private law,Arbitration},
  language     = {eng},
  note         = {Student Paper},
  title        = {Arbitration in China: Modern Dispute Resolution in Cultural Clothing},
  year         = {2017},
}