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Predictability of ‘Public Policy’ in Article V of the New York Convention under Mainland China’s Judicial Practice

Predictability of ‘Public Policy’ in Article V of the New York Convention under Mainland China’s Judicial Practice

作者： Helena Hsi-Chia Chen
出版商： Kluwer Law International
ISBN: 9789041167439
出版时间 May 2017
规格： Hardback , 256 pages
适应领域： China ? 免责申明：
Countri(es) stated herein are used as reference only

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Predictability of ‘Public Policy’ in Article V of the New York Convention under Mainland China’s Judicial Practice, as the name suggests, focuses on the Chinese courts’ application of the ‘public policy’ exception stipulated in Article V of the New York Convention. Whether a foreign arbitral award can be recognised and enforced by the Chinese courts has always been on the top of foreign parties’ list of concerns. As the ‘public policy’ exception is more uncertain than most other legal concepts, it tends to be argued when other points fail. This book – a major contribution to understanding theory and practice related to the public policy exception – provides a comprehensive understanding on how the term ‘public policy’ specified in Article V of the New York Convention has been interpreted and applied by the Chinese courts.

What’s in this book:

Including detailed commentary and analysis of cases where the Chinese courts refused to recognise and enforce a foreign arbitral award on the grounds of violation of public policy, this book investigates issues and topics such as the following:
- the meaning of ‘domestic arbitration’ and of ‘foreign-related arbitration’ under Chinese law;
- the functions of China’s ‘Reporting System’;
- ways in which Chinese courts depart from international consensus on the public policy exception;
- distinction under Chinese arbitration law between ‘public policy’ and ‘social and public interest’; and
- situations that do not necessarily constitute violation of Chinese public policy, including situations causing negative impacts on mere department or local interests, violation of Chinese mandatory administrative regulations etc.
The author’s method of analysis and interpretation of laws and regulations while observing the circumstances of their application in specific cases greatly clarifies the predictability of how the public policy exception will continue to be interpreted and applied by the Chinese courts.

How this will help you:

As a guide to the ‘dual-track’ system under the Chinese arbitration law, this book helps practitioners handle applications confidently with Chinese courts for recognition and enforcement of foreign arbitral awards with full awareness of the limited ‘gaps’ between Chinese judicial practice and international consensus. Thus, this book serves as a handbook to corporate counsel, lawyers, international arbitrators and other parties to respond to the public policy exception with legally sound arguments in compliance with applicable law.

Features
- Comprehensive description of the application and interpretation of public policy in Article V of the New York Convention by Chinese courts.
- In-depth comparisons between the judicial practice of Chinese Courts and international consensus about public policy in Article V of the New York Convention.
- Thorough guidance on the "dual-track" arbitration system under Chinese legal framework.
Benefits
- Be able to confidently argue in front of a Chinese court that an application for recognition and enforcement of a foreign arbitral award should (or should not) be rejected on the grounds of public policy in Article V of the New York Convention by reference to precedents.
- Handle applications with Chinese courts for recognition and enforcement of foreign arbitral awards with full awareness of the limited "gaps" between Chinese judicial practice and international consensus about public policy in Article V of the New York Convention.
- Obtain extensive and intensive understanding of the "dual-track" system under the PRC arbitration law.
List of Abbreviations

Acknowledgements

CHAPTER 1 Introduction

CHAPTER 2 The Meaning of Public Policy

CHAPTER 3 ‘Public Policy’ and the Even More Unpredictable ‘Social and Public Interest’ in PRC Arbitration Law and Their Interrelationship

CHAPTER 4 PRC’s Convergence with International Consensus

CHAPTER 5 Mainland China’s Departure from International Consensus

CHAPTER 6 Conclusion

Bibliography

Table of Cases

Index
Helena Hsi-Chia Chen is a partner at Pinsent Masons LLP and the Chief Representative of its Beijing Office. She holds two doctorate degrees in Law, respectively from National Taiwan University and Peking University. She has extensive experience in acting as counsel or arbitrator in international arbitration, particularly in arbitration involving infrastructure projects, PPP projects and cross-border investment. She has been named to the Who's Who Legal of Leading Construction Lawyers for many years since 2011. She writes and lectures widely on arbitration, mediation, construction law and PPP topics.

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