The Disputes and Amendment Approaches on Judicial Review of China regarding the Parties’ Mutual Consent for Arbitration

The mutual consent of the parties to submit the disputes to arbitration for resolution is the basis for the jurisdiction of an arbitral tribunal. Due to the limitations of China's arbitration legislation, there are disputes in determining the effectiveness of the parties' mutual consent in judicial practice regarding the following three issues: firstly, the effectiveness of the arbitration agreement where parties involved in a foreign-related dispute have not specified the arbitral institution; secondly, the effectiveness of the arbitration agreement between parties involved in a foreign-related dispute who choose to have the arbitration managed by an overseas arbitral institution but with the seat in China; thirdly, the effectiveness of the arbitration agreement where the parties involved in a domestic dispute choose an overseas arbitral institution. The presentation, based on an empirical analysis of 53 judicial documents, summarizes the positions and characteristics of China's judicial authorities on the aforementioned issues, points out the problems, and proposes a two-dimension approach for improvement: to establish a judicial review principle to “fulfill the parties' commercial purpose, supplemented by exceptional applications in specific circumstances, ” and “to distinguish the primary principles when reviewing the agreement of the parties in different stages”.

After the presentation, Dr Wang will also share with the audience her experience of researching and teaching foreign-related rule of law in China as an early-career academic.

Dr Yiran Wang is an Assistant Professor at Shanghai University of Political Science and Law. She specialises in private international law and international commercial arbitration, in addition to research and teaching interests in international law (with a subdivision on global governance of Antarctica) and comparative law. In addition to her research, Yiran serves as a researcher at “Belt and Road” Judicial Research Center in the PRC Supreme Court. She holds PRC Legal Professional Qualification and New York Bar Registration. Yiran completed her MJur at Oxford Law School and PhD at Fudan Law School.