This Country Answer reflects the state of the law as of 18 July 2008. Please refer to the explanations in the chapter entitled Disclaimer and Preliminary Note.

A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Signatory country: People's Republic of China ('PRC').

Implementing jurisdictions: Mainland China.

Explanatory note: Unless expressly mentioned otherwise, the present questionnaire applies to neither the Special Administrative Region of Hong Kong nor the Special Administrative Region of Macau.

Although China resumed in 1997 its exercise of sovereignty over Hong Kong, the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (the 'Basic Law'), as an instrument for the implementation of the 'one country-two systems' policy, and Article 31 of the Chinese Constitution prescribe that the capitalist system and way of life in Hong Kong shall remain unchanged for fifty years. It is also stipulated that the laws in Hong Kong, including the common law, law of equity, ordinances, subordinate legislations and customary law, shall be maintained. The prescription on arbitration is obviously part of the laws in Hong Kong and should remain unchanged after the changeover of sovereignty. As concerns the New York Convention, it is still applicable in Hong Kong, although based now on the PRC's ratification of the Convention.

(Source: Basic Law of the Hong Kong Special Administrative Region of the PRC, 4 Apr. 1990 (in effect as of 1 July 1997); Constitution of the PRC, 4 Dec. 1982.)

As concerns Macau, the PRC resumed sovereignty with effect from 20 December 1999. The same principle of 'one country-two systems' applies according to the Basic Law of Macau, and the enforcement of foreign awards in Macau will be subject to the New York Convention on the basis of the PRC's ratification of the Convention.

(Source: Basic Law of Macau, 31 Mar. 1993, in effect as of 20 Dec. 1999.)

2. Date of entry into force of the New York Convention

PRC: 22 April 1987.

(Source: Supreme People's Court's Notice on the Implementation of China's Accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 Apr. 1987.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity

Yes. The PRC has made a reciprocity reservation under the New York Convention. According to the reciprocity reservation, the PRC will only apply the New York Convention to the recognition and enforcement of awards made in the territory of another Contracting State. Arbitral awards made in a non-Contracting State will be recognized and enforced according to the relevant provisions of the Civil Procedure Law.

(Source: Supreme People's Court's Notice on the Implementation of China's Accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 Apr. 1987.)

(b) commercial relationships

Yes. The PRC has made a 'commercial relationship' reservation under the New York Convention. According to the commercial relationship reservation, the PRC will apply the New York Convention only to disputes arising out of legal relationships, whether contractual or not, which are considered as 'commercial' under Chinese law.

The term 'contractual and non-contractual commercial legal relations' used in the reservation statement China made to the New York Convention refers to 'economic rights and obligations arising from contracts, torts or in accordance with provisions of laws', e.g. technology transfer and others. The law does not provide a more specific definition of what is considered 'commercial' and what is not, and this is therefore left to the interpretation of the courts.

(Source: Supreme People's Court's Notice on the Implementation of China's Accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 Apr. 1987.)

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

None. Under PRC arbitration law, domestic awards are split between 'foreign-related awards' (??), which involve a foreign element, and 'purely domestic awards' (??). However, both types are considered domestic awards in the PRC, so their enforcement is subject to the Arbitration Law and the Civil Procedure Law, but not to the New York Convention.

The enforcement of awards rendered in SAR Hong Kong, Taiwan and Macau are subject to the following bilateral agreements: (i) Arrangement Concerning Mutual Enforcement of Arbitral Awards Between the Mainland and the Hong Kong Special Administrative Region, signed in June 1999 and effective as per 1 February 2000; (ii) Supreme People's Court's Provisions on the People's Courts' Recognition of Civil Judgments Made by Courts in Taiwan Region, promulgated on 15 Jan. 1998 and effective from 26 May 1998 (which is also applicable to arbitral awards according to Art. 19 of the Provisions); (iii) Arrangement concerning Mutual Recognition and Enforcement of Arbitral Awards between the Special Administrative Region of Macau and the Mainland, signed on 30 October 2007.

(Sources: Arbitration Law of the PRC of 1994; Arrangement Concerning Mutual Enforcement of Arbitral Awards Between the Mainland and the Hong Kong Special Administrative Region of 1999; Supreme People's Court's Provisions on the People's Courts' Recognition of Civil Judgments Made by Courts in Taiwan Region of 1998 and the Arrangement concerning Mutual Recognition and Enforcement of Arbitral Awards between the Special Administrative Region of Macau and the Mainland of 2007.)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

PRC: (i) Arbitration Law of the PRC, adopted at the Ninth Meeting of the Standing Committee of the Eighth National People's Congress on 31 Aug. 1994, promulgated by Order No. 31 of the President of the People's Republic of China on 31 Aug. 1994 and effective as of 1 Sept. 1995; (ii) Civil Procedure Law of the PRC, adopted on 9 Apr. 1991 at the Fourth Session of the 7th National People's Congress, revised by the 30th Session of the Standing Committee of the 10th National People's Congress on 28 Oct. 2007 and effective as of 1 Apr. 2008; (iii) Contract Law of the PRC adopted at the 2nd Session of the 9th National People's Congress on 15 Mar. 1999 and effective from 1 Oct. 1999; (iv) Other laws of the National People's Congress or its Standing Committee, which include specific provisions on arbitration; and (v) Judicial Interpretations, Regulations, Opinions and Notices issued by the Supreme People's Court ('SPC').

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

PRC: Yes.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

PRC: Until recently, the limitation period to file a request for recognition and enforcement of an arbitral award was 1 year as concerns individual persons or 6 months as concerns companies or other legal entities. This time limit runs from the last day of the period specified in the award/judgment for its performance, or if no such date was specified, from the date of the award. With the latest amendment of the Civil Procedure Law which will enter into force on 1 Apr. 2008, this time limit will be extended to 2 years for both individual persons and legal entities. Again, this time limit runs from the last day of the period specified in the award/judgment for its performance. If no period of performance is specified, the time limit shall be calculated from the day when the award takes effects.

(Source: Civil Procedure Law, former Art. 219 and revised Art. 215.)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

PRC: The competent court is the Intermediate People's Court at the domicile of the party against whom the enforcement is requested or at the place where the property to be enforced against is located.

(Source: Civil Procedure Law, Art. 267; see also SPC Judicial Interpretations, 8 Sept. 2006, Art. 12.)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

PRC: For a court to accept its jurisdiction, either the domicile (as concerns natural persons) or the principal place of business (as concerns legal persons), or the property (to be enforced against) of the respondent must be located within that court's jurisdiction.

(Source: Civil Procedure Law, Art. 206.)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

PRC: The first decision is obtained through inter partes proceedings.

(Source: Civil Procedure Law, Art. 213.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

PRC: No appeal is possible against the Intermediate People's Court's decision to grant enforcement.

As concerns decisions refusing the enforcement of a foreign award, the situation is slightly more complex. Although there is no formal appeal possibility, before refusing to enforce such foreign award, the Intermediate People's Court has to consult the Higher People's Court. If the Higher People's Court is also of the opinion that enforcement should be refused, the Higher People's Court needs to consult with the Supreme People's Court. Only where the Supreme People's Court is also of the opinion that enforcement should be refused may the Intermediate People's Court issue a decision refusing the enforcement of the arbitral award. This is the so-called 'Prior-Reporting System'.

(Source: SPC Notice on Prior Reporting System of 28 Aug. 1995.)

(b) How many levels of appeal or recourse are available against this decision?

PRC: Not applicable. See answer to Q.10(a).

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

PRC: After receiving the application for enforcement, the execution officer sends a notification on execution to the person subject to execution, instructing him to perform the execution within the specified time limit. This notice is sent after the inter partes hearing mentioned above at Q.9 and the People's Court's decision to grant enforcement. If the person fails to perform the execution within the time limit, compulsory execution shall be enforced. Thus, execution against assets may be obtained only after the expiry of such fixed time limit.

(Source: Civil Procedure Law, Art. 216.)

However, in a case involving urgent circumstances, the People's Court may, at the request of a party, order preliminary execution. Whether or not the urgency is such as to justify preliminary execution is left to the People's Court's interpretation.

(Source: Civil Procedure Law, Art. 97(3).)

Besides urgent circumstances, a preliminary execution may further be granted only in cases which do not apply to arbitration (such as claims for alimony, support for children or elderly dependants, pensions for the disabled or a decedent's family, expenses for medical care, wages).

(Source: Civil Procedure Law , Art. 97.)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

PRC: When filing a request for recognition or enforcement of an arbitral award, the party should submit the following evidence: (i) application for enforcement, which should state the names of the parties and the legal basis for enforcement; it is further necessary to indicate the name and quantity of the subject of enforcement and the place where it is located and the financial situation of the party against whom enforcement is requested; (ii) identification documents sufficient to identify the applicant (for natural persons, certified copy of passport should be sufficient; for legal persons, certified copy of incorporation documents are required); (iii) original or notarized and certified copy of the arbitral award; (iv) original or notarized and certified copy of the arbitration agreement; and (v) certified Chinese translation of the award and the arbitration agreement.

(Source: Regulations of the Supreme People's Court for Certain Issues Concerning Enforcement by the People's Court (for Trial Implementation) issued on 8 July 1998.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

PRC: It is necessary to supply: (i) the award in its entirety and (ii) the relevant pages of the document containing the arbitration clause.

(Source: Regulations of the Supreme People's Court for Certain Issues Concerning Enforcement by the People's Court (for Trial Implementation), issued on 8 July 1998, Art. 76.)

(c) Are originals or duly certified copies required?

PRC: The following are required: (i) an original or a certified and notarized copy of the award must be filed; and (ii) an original or a certified and notarized copy of the arbitration clause.

(Source: Regulations of the Supreme People's Court for Certain Issues Concerning Enforcement by the People's Court (for Trial Implementation), issued on 8 July 1998, Art. 76.)

(d) How many originals or duly certified copies are required?

PRC: The following are required: (i) one original or one certified and notarized copy of the award; however, where a certified and notarized copy of the award is submitted, the court may request to see (but not keep) the original; (ii) one original or one certified and notarized copy of the arbitration agreement; however, where a certified and notarized copy of the arbitration agreement is submitted, the court may request to see (but not keep) the original.

(Source: Regulations of the Supreme People's Court for Certain Issues Concerning Enforcement by the People's Court (for Trial Implementation), issued on 8 July 1998, Art. 76.)

(e) Does the authority or court keep the originals that are filed?

PRC: The court will keep certified and notarized copies, but not the originals.

(Source: no specific legal provision.)

13.

(a) Is it necessary to provide a translation of the documents supplied?

PRC: Yes.

(Source: Regulations of the Supreme People's Court for Certain Issues Concerning Enforcement by the People's Court (for Trial Implementation), issued on 8 July 1998, Arts. 20 and 21. Although, these two articles expressly mention only the award and the application for enforcement, in practice all documents submitted to the court with the application need to be translated into Chinese.)

(b) If yes, into what language?

PRC: Chinese.

(Source: Regulations of the Supreme People's Court for Certain Issues Concerning Enforcement by the People's Court (for Trial Implementation), issued on 8 July 1998, Arts. 20 and 21. Although, these two articles expressly mention only the award and the application for enforcement, in practice all documents submitted to the court with the application need to be translated into Chinese.)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

PRC: Yes. As concerns awards rendered abroad, the translation must be certified by an official or sworn translator or by a diplomatic or consular agent, and authenticated by a Chinese Consulate or Embassy in the country in which the award was rendered or notarized by a Chinese notarial agency.

(Source: no specific legal provision.)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

PRC: The applicant must in principle provide translations of the relevant parts of the documents submitted. Thus, a full translation of the award is necessary, but the translation of the arbitration agreement may be sufficient without having to translate the full contract.

(Source: no specific legal provision.)

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

PRC: Yes.

(Source: SPC Judicial Interpretations, 8 Sept. 2006, Art. 25; New York Convention, Art. V(I)(e).)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

PRC: In the course of enforcement, if the person subject to execution provides surety, the People's Court may, with the consent of the person who has applied for execution, suspend the execution and defer the time limit for execution. Further, under any of the following circumstances, the People's Court shall order suspension of an execution: (i) the applicant indicates that the execution may be postponed; (ii) a person not involved in the case raises a justified objection to the object of the execution; (iii) a citizen as one of the parties dies and it is necessary to wait for an heir to inherit the rights of the deceased or to succeed to his obligations; (iv) a legal person or any other organization as one of the parties terminates, and the person succeeding to its rights and obligations has not been determined; or (v) other circumstances occur under which the People's Court deems the execution should be suspended (e.g. if the applicant withdraws his application for enforcement, upon the revocation of the judgment which is to be enforced, where the defendant to the enforcement procedure dies and there is no person to succeed to his obligations). Execution shall be resumed when the circumstances which caused the suspension of execution have disappeared. (However, the above provisions regarding suspension of execution apply only after a procedure of execution has been initiated. The People's Court cannot stay recognition/enforcement at an earlier stage, since there is no legal basis for this.)

(Source: Civil Procedure Law and Provisions of the Supreme People's Court on Some Issues concerning the Correct Application of the Measures for Suspension of Execution, 28 Sept. 2002, Arts. 212, 232 and 234.)

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

PRC: Not necessarily. If one of the circumstances of Art. 232 of the Civil Procedure Law (see Q.14(b) above) occurs, the procedure for recognition and enforcement will be suspended without need to provide security. However, if none of these circumstances occurs, the court will only consent to a suspension of the proceedings if the person subject to enforcement provides sufficient security.

(Source: Civil Procedure Law, Art. 208.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

PRC: No. They only form part of the court record, which is not accessible by the public.

(Source: no specific legal provision.)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

PRC: Hearings in China are usually public, unless involving State secrets, commercial secrets or other private affairs of individuals. Thus, if the judge convenes a hearing on the enforcement of an award, it is recommended to expressly ask for hearings in camera.

(Source: Civil Procedure Law, Art. 66.)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

PRC: Judgments of the People's Court are not published automatically. However, the most important decisions are usually published either on the internet or in legal reviews, or in collections of court cases. Judgments on recognition and enforcement are usually not published.

In theory, the court may, if it deems it appropriate, remove the names of the parties before publishing a judgment. However, no specific procedure is in place in this respect.

(Source: no specific legal provision.)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

PRC: Only final awards are subject to recognition and enforcement. Partial awards, as long as they are final, may thus be recognized and enforced.

(Source: New York Convention, Art. V(1)(e).)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

PRC: As a general rule, it is possible to obtain recognition and enforcement in China of foreign awards granting non-monetary relief.

(Source: Regulations of the Supreme People's Court for Certain Issues Concerning Enforcement by the People's Court (for Trial Implementation), issued on 8 July 1998, Arts. 57-60.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

PRC: Chinese legislation does not specify whether a party may obtain recognition and enforcement of only part of the relief granted in a foreign award, and jurisprudence has not addressed this question directly. However, where part of the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or if the award contains decisions on matters beyond the scope of the agreement, and such irregular provisions can be severed from the remainder of the award, then the court may recognize and enforce only the remainder of the award.

(Source: Supreme People's Court Judicial Interpretations, 8 Sept. 2006, Art. 19 (per analogy).)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

PRC: Chinese legislation does not specify whether a foreign award which has been set aside by a competent authority may nonetheless be recognized and enforced in China, and there is no case law addressing the issue directly. However, given the courts' attitude when applying the New York Convention, it is to be expected that they will interpret the 'may' of Art. V as a 'shall' and refuse enforcement every time any of the grounds listed in Art. V(I) are given, including where a foreign award has been set aside in its country of origin.

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

PRC: It is unclear how the courts will treat an award rendered by a Chinese arbitration institution, where the place of arbitration is abroad. It is not clear whether such award will be considered 'foreign-related' and thus subject to the Arbitration Law and the Civil Procedure Law, or 'foreign' and therefore subject to the New York Convention. There is however hope that the courts will consider the place of arbitration as the relevant criteria for determining the nationality of the award.

It is also unclear how the courts will treat an award rendered by a foreign arbitration institution, where the place of arbitration is in China. It is to be expected that such award will not be recognized on grounds of a violation of Chinese law, which implicitly only allows Chinese arbitration institutions to conduct arbitration in China.

A further issue in enforcement proceedings is the location of assets. Before proceeding with enforcement, the court will require the applicant to provide information on the location of the assets to be enforced against and the general financial situation of the defendant. Locating assets in China, including identifying relevant bank accounts, is difficult and time-consuming. Given the short period for initiating enforcement procedures, it is recommended that measures to locate the defendant's assets be taken at a very early stage.

Country Rapporteur: Jingzhou Tao.