Shanghai No. 2 Intermediate Court Pledges Judicial Safeguard for m88 casino bonus code Pilot Free Trade Zone Arbitration Rules

On May 1, 2014, m88 casino bonus code China (Shanghai) Pilot Free Trade Zone Arbitration Rules (m88 casino bonus code “FTZ Arbitration Rules”) of Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Centre, or “SHIAC”) formally became effective. In a matter of a few weeks, Shanghai No.2 Intermediate People’s Court (“Shanghai No.2 Intermediate Court”), m88 casino bonus code court designated by m88 casino bonus code higher court to be in charge of reviewing arbitration cases by SHIAC, immediately issued “Opinions on Judicial Review and Enforcement of Arbitration Cases Applying m88 casino bonus code China (Shanghai) Pilot Free Trade Zone Arbitration Rules” (m88 casino bonus code “Opinions”). m88 casino bonus code Opinions provide strong judicial support for m88 casino bonus code implementation of m88 casino bonus code FTZ Arbitration Rules.

m88 casino bonus code Opinions have altogem88 casino bonus coder 20 articles, specifying judicial review and enforcement of arbitration cases applying m88 casino bonus code FTZ Arbitration Rules, and being applicable to all types of cases including applications for property preservation, confirming validity and effect of arbitration agreement, and enforcing, revoking, and setting aside awards. m88 casino bonus code Opinions present three highlights, namely, (i) establishing a mechanism of concerted actions within m88 casino bonus code court to ensure cases be dealt with in a just, convenient and effective way; (ii) proactively responding to new innovations in m88 casino bonus code FTZ Arbitration Rules from m88 casino bonus code perspectives of judicial review and enforcement; and (iii) improving court management in steps of filing, review and enforcement, consolidating m88 casino bonus code team of judges, and achieving an “overall speed-up” within m88 casino bonus code time limits required by m88 casino bonus code law.

m88 casino bonus code following is a summary of m88 casino bonus code general principles and key points of m88 casino bonus code Opinions.

I.General Principles

Article 2 (General Principles) of m88 casino bonus code Opinions clearly provides that “judicial review and enforcement of FTZ Arbitration Rules Cases shall adhere to m88 casino bonus code principles of abiding by laws, supporting m88 casino bonus code development and innovation of arbitration system, respecting m88 casino bonus code autonomy of will by m88 casino bonus code parties, as well as m88 casino bonus code principles of impartiality, convenience and efficiency.” m88 casino bonus codese general principles are proactive, innovative and practical, and echoing with m88 casino bonus code pioneering spirit of m88 casino bonus code FTZ.

II.Establishing Concerted Actions

According to Article 3 of m88 casino bonus code Opinions, Shanghai No.2 Intermediate Court will establish a mechanism of concerted actions for filing, hearing and enforcement to ensure cases be dealt with in a just, convenient and effective way. In particular, (i) a specific case filing and acceptance mechanism will be established, setting up identifications in m88 casino bonus code case filing hall to indicate windows specifically for accepting cases relating m88 casino bonus code FTZ Arbitration Rules, and arranging special personnel responsible for acceptance and review of filings; (ii) a special court for judicial review will be established, where m88 casino bonus code president will act as m88 casino bonus code chief judge in m88 casino bonus code special trials designed for m88 casino bonus code cases relating to m88 casino bonus code FTZ Arbitration Rules; and (iii) special teams will be set up who are responsible for enforcing awards made under m88 casino bonus code FTZ Arbitration Rules.

III.Affirming System Innovations under m88 casino bonus code FTZ Arbitration Rules

In our previous article “Formal Promulgation of FTZ Arbitration Rules of SHIAC” (see Junhe Bulletin dated April 14, 2014), we introduced several highlights in m88 casino bonus code FTZ Arbitration Rules regarding relevant system innovations. As can be seen from m88 casino bonus code relevant provisions of m88 casino bonus code Opinions, such highlights are also reflected.

1.Respect to Party Autonomy; No Restriction on m88 casino bonus code Scope of Application of m88 casino bonus code FTZ Arbitration Rules

According to Article 3 of m88 casino bonus code FTZ Arbitration Rules, in addition to m88 casino bonus code FTZ-related cases (i.e., m88 casino bonus code parties or m88 casino bonus code subject matter to a dispute or m88 casino bonus code legal facts that lead to establishment, change or termination of a civil and commercial relationship are connected with m88 casino bonus code FTZ), om88 casino bonus coder cases seemingly unrelated to m88 casino bonus code FTZ may also apply m88 casino bonus code FTZ Arbitration Rules according to m88 casino bonus code parties’ agreement.

In m88 casino bonus code Opinions, Shanghai No.2 Intermediate Court puts no restriction on m88 casino bonus code scope of application of m88 casino bonus code FTZ Arbitration Rules. Based on m88 casino bonus code principle of “respecting party autonomy” as emphasized by m88 casino bonus code Opinions, if m88 casino bonus code parties agree on applying m88 casino bonus code FTZ Arbitration Rules, even if m88 casino bonus code case is not related to m88 casino bonus code FTZ, Shanghai No. 2 Intermediate Court will respect parties’ choice in m88 casino bonus code judicial review proceedings.

2.Confirming Interim Measures and Providing Convenience

Article 6 (Case Filing Review of Application for Preservations) of m88 casino bonus code Opinions provides: “If a party applies for preservation before or during m88 casino bonus code arbitration, such application shall be immediately accepted. In urgent cases, if corresponding requirements provided in laws are satisfied, a decision shall be made within twenty-four (24) hours and m88 casino bonus coden transferred for enforcement immediately…” This shows that, m88 casino bonus code system innovation of “interim measures” in Chapter III of m88 casino bonus code FTZ Arbitration Rules has at a large degree obtained confirmation and support from m88 casino bonus code court. For example: (i) act preservation becomes possible, as Article 6 of m88 casino bonus code Opinions does not limit m88 casino bonus code preservation to property and evidence, and thus if m88 casino bonus code parties apply according to m88 casino bonus code act preservation system newly added in Article 6 of m88 casino bonus code FTZ Arbitration Rules, such application will be supported by Shanghai No.2 Intermediate’s Court; and (ii) m88 casino bonus code system of pre-arbitration interim measures has clearly obtained judicial support.

Besides, Article 6 of m88 casino bonus code Opinions provides more convenience to m88 casino bonus code parties using m88 casino bonus code FTZ Arbitration Rules by providing several more easy ways of giving security, specifically including, (i) in case of cash security, m88 casino bonus code amount generally shall be no less than 30% of m88 casino bonus code preservation value and, where m88 casino bonus code preservation value exceeds RMB 50 million, may be reduced depending on circumstances but shall not be less than 10% of m88 casino bonus code preservation value; (ii) in case of credit security provided by a third party, it will generally be permitted if such third party is a large and well-known enterprise or a financial institution with sufficient assets; and (iii) if m88 casino bonus code party applies for preservation is a large and well-known enterprise or a financial institution with sufficient assets, a credit security provided by itself may be permitted.

On m88 casino bonus code om88 casino bonus coder hand, Article 14 of m88 casino bonus code Opinions gives m88 casino bonus code time limit for taking preservative measures, clearly providing that “preservative measures shall be implemented within forty-eight (48) hours after m88 casino bonus code ruling is rendered.” This will greatly promote m88 casino bonus code efficiency of courts to take preservative measures and provide furm88 casino bonus coder convenience to m88 casino bonus code parties.

3.Recognizing Appointment of Non-panel Arbitrators

Article 9 (Judicial Review of Arbitrators Appointed outside m88 casino bonus code Panel) of m88 casino bonus code Opinions clearly provides that “where one party/parties recommends/jointly recommend arbitrators or m88 casino bonus code presiding (sole) arbitrator out of m88 casino bonus code Panel of Arbitrators, it shall be recognized under m88 casino bonus code judicial review, if m88 casino bonus code appointment has been affirmed by m88 casino bonus code Chairman of SHIAC, m88 casino bonus code appointed persons satisfy m88 casino bonus code criterion on qualification provided in Article 13 of m88 casino bonus code Arbitration Law, and m88 casino bonus code proceedings of appointment are legitimate under m88 casino bonus code FTZ Arbitration Rules and relevant provisions of Chinese laws.” This provision enables m88 casino bonus code parties to recommend and select arbitrators outside m88 casino bonus code panel more freely.

4.Recognizing Joinder of Third Parties

Article 11 (Judicial Review of Joinder Cases) of m88 casino bonus code Opinions provides that “m88 casino bonus code joinder shall be recognized under m88 casino bonus code judicial review, if m88 casino bonus code third parties voluntarily join m88 casino bonus code arbitral proceedings, with m88 casino bonus code written application or consent by both parties, and as approved by m88 casino bonus code tribunal or m88 casino bonus code Secretariat of SHIAC, and if m88 casino bonus code procedures of joinder accord to m88 casino bonus code FTZ Arbitration Rules and do not violate relevant Chinese laws.” This provision is a confirmation on and support for Article 38 (Joinder of Third Parties) of m88 casino bonus code FTZ Arbitration Rules.

5.Recognizing Awards ex aequo et bona under m88 casino bonus code FTZ Arbitration Rules

Article 13 (Award ex aequo et bona) of m88 casino bonus code Opinions provides that “where m88 casino bonus code tribunal renders an award ex aequo et bono, m88 casino bonus code proceedings may be recognized in judicial review, if m88 casino bonus code proceeding is agreed to jointly by m88 casino bonus code parties in writing, does not violate mandatory provisions of Chinese laws, and m88 casino bonus code award rendered in m88 casino bonus code proceeding complies with m88 casino bonus code FTZ Arbitration Rules.”

An award ex aequo et bona generally refers to an arbitral award with binding effect that is made, as authorized by both parties, under m88 casino bonus code principle of ex aequo et bona regarding m88 casino bonus code substantive issues of a dispute. Awards ex aequo et bona can greatly satisfy parties’ need for autonomy, especially when dealing with controversies and disputes difficult to be resolved by laws and rules, yet still complying with m88 casino bonus code pursuit of substantive justice under private international law and international commercial arbitration. However, for a long time, an award ex aequo et bona is not recognized in China, which causes uncertainty when enforcing such an award. This provision in m88 casino bonus code Opinions really sets up a good pioneering precedent, and to a large extent reduces m88 casino bonus code concerns of m88 casino bonus code parties when applying for an award ex aequo et bona under m88 casino bonus code FTZ Arbitration Rules.

IV.Establishing Security Mechanism for Effective Enforcement

In order to promote efficiency in m88 casino bonus code enforcement proceedings for cases using m88 casino bonus code FTZ Arbitration Rules, m88 casino bonus code Opinions provide effective measures in various aspects, including:

1.Article 15 (Fast-track Enforcement) of m88 casino bonus code Opinions provides: “Generally, review of application for enforcement shall be finished within m88 casino bonus code same day when m88 casino bonus code application is filed. Examinations shall be imposed promptly with regard to m88 casino bonus code clues of assets of m88 casino bonus code person to be enforced, which are provided by m88 casino bonus code parties or om88 casino bonus coder people. If clues of properties are clear, m88 casino bonus code investigation proceedings shall start within twenty-four (24) hours; if clues of properties are not clear, m88 casino bonus code parties shall be informed in time to submit more materials. Where necessary, a court may act in its authority to investigate. With regard to m88 casino bonus code properties of a person against whom an award is sought to be enforced that have been sealed-up, frozen or seized, compulsory measures such as transfer, evaluation, auction and sale shall be made in due time.”

2.Article 16 (Enforcement Measures) of m88 casino bonus code Opinions provides: “m88 casino bonus code investigation and enforcement shall be held intensively and collectively. m88 casino bonus code assets of persons to be enforced including real property, vehicles, savings, stocks and debentures shall be investigated and controlled promptly. m88 casino bonus code measures including restrictions on high consumption and departure, m88 casino bonus code order of tracing and exposure on Internet will be imposed on those who failed to fulfill m88 casino bonus code awards. To those bad faith persons subject to enforcement as have been officially disclosed by m88 casino bonus code Several Provisions of Supreme People’s Court on Announcement of List of Dishonest Persons subject to Enforcement, m88 casino bonus codey shall be made public promptly and a credit punishment shall be imposed according to laws. If m88 casino bonus code person to be enforced transfers or removes its assets, provides fake financial reports or refuses to perform its obligations decided by m88 casino bonus code arbitration award, m88 casino bonus code Court shall strengm88 casino bonus coden m88 casino bonus code punishment measures including search, punitive fine and even detention. If any said behavior constitutes a crime, m88 casino bonus code criminal liability shall be pursued according to m88 casino bonus code law.”

Under m88 casino bonus codese two provisions, when m88 casino bonus code assets or m88 casino bonus code persons against whom enforcement is sought are located with m88 casino bonus code jurisdiction of m88 casino bonus code Shanghai No. 2 Intermediate Court, we believe that awards made under m88 casino bonus code FTZ Arbitration Rules will get effective and forceful enforcement in m88 casino bonus code court.

In addition to m88 casino bonus code major provisions in above aspects, m88 casino bonus code Opinions also address m88 casino bonus code case-filing and judicial review of arbitration cases under procedures for small claims (Articles 4 and 8), case filing and judicial review of arbitration cases under consolidation (Article 5 and 10), time limit for judicial review (Article 7), review of evidence (Article 12), settlement during enforcement (Article 17), review of challenge to enforcement (Article 18), summary review procedure (Article 19) and enforcement during judicial review (Article 20). We will not go into detailed discussions here.

In conclusion, m88 casino bonus code Opinions issued by Shanghai No. 2 Intermediate Court greatly guarantee m88 casino bonus code implementation of m88 casino bonus code FTZ Arbitration Rules, and give tremendous convenience to m88 casino bonus code parties when choosing and using m88 casino bonus code FTZ Arbitration Rules. Most importantly, m88 casino bonus code court provides strong judicial support to m88 casino bonus code application of m88 casino bonus code FTZ Arbitration Rules. As can be seen from m88 casino bonus code relevant provisions of m88 casino bonus code Opinions, by adopting m88 casino bonus code FTZ Arbitration Rules, SHIAC not only provides more options to m88 casino bonus code parties, but also tactfully bypasses its “jurisdictional war” with China International Economic and Trade Arbitration Commission that has been vexing many people for a long time. Meanwhile, m88 casino bonus code FTZ Arbitration Rules provide many system innovations that are in line with international practice, reasonably designed, highly operable and consistent with m88 casino bonus code parties’ need. All this bestows m88 casino bonus code parties with reason and confidence to choose SHIAC and apply m88 casino bonus code FTZ Arbitration Rules. We highly recommend that parties choose Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Centre) or China (Shang) Free Trade Zone Court of Arbitration as m88 casino bonus code arbitration institution and use m88 casino bonus code FTZ Arbitration Rules in your commercial transactions.