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Non-arbitrable Disputes as Specified by China Law

Time:2014-03-13 Hit:943

Non-arbitrable Disputes as Specified by China Law

According to China Arbitration Law article 2 and article 3 , which is as follows:

Article 2:

Disputes over contracts and disputes over property rights and interests between citizens, legal persons and other organizations as equal subjects of law may be submitted to arbitration.

Article 3:

The following disputes shall not be submitted to arbitration:

1. Disputes over marriage, adoption, guardianship, child maintenance and inheritance; and

2. Administrative disputes falling within the jurisdiction of the relevant administrative organs according to law.

  Arbitrable disputes must be of a contractual or must relate to property rights and interests, and interests between equal civil subjects. Disputes between parties not on an equal footing may not be referred to arbitration. The Arbitration Law permits the arbitral resolution of all disputes of a commercial nature, including disputes relating to intellectual property rights and disputes relating to securities.

However. The Arbitration Law states that may not be submitted for arbitration:

the following types of dispute Administrative Disputes: These refer to disputes arising from administrative management by the government, between governmental organs interest, or between governmental organs and other social organizations or individuals.

- Disputes of Personal Rights: Disputes pertaining to marriage, adoption guardianship, child maintenance and inheritance.

- Labour Disputes and Agricultural Projects: Labour disputes and disputes over contracts for the undertaking of agricultural projects within agricultural collective economic organizations.

Administrative Disputes:

It is important to distinguish two categories of dispute: (i) disputes arising from contract, and (ii) disputes between persons or organizations and the administrative authorities of the State. Whilst disputes under the first category may be resolved by arbitration, those arising under the second category may not.

 The Administrative Procedure Law of the PRC' gives the People's Courts exclusive jurisdiction over the following disputes: disputes concerning administrative sanction, such as detention, fine, rescission of a license or permit, order to suspend production or business or confiscation of property; disputes concerning compulsory administrative measures, such as restricting freedom of the person or the sealing up, seizing or freezing of property; disputes concerning the infringement by an administrative organ of one's managerial decision-making powers; disputes concerning the refusal by an administrative organ to issue a permit or license, or the latter's failure to respond to the application; disputes concerning the refusal by an administrative organ to perform its statutory duty of protecting the rights of the person and of property, or the latter's failure to respond to an application; disputes where an administrative organ is considered to have failed to issue a pension according to law; disputes where an administrative organ is considered to have illegally demanded the performance of duties; and disputes where an administrative organ is considered to have infringed upon other rights of the person and of property.

Regarding the scope of arbitrable matters in today's world, there are trends and characteristics:

1. Widening the scope of arbitrary issues, the court no longer easily support an argument of arbitration jurisdiction. On the one hand, many of the traditional non-arbitration matters are evolving in the direction of being arbitrated, the emergence of new commercial and trade and investment activities, the arbitration commission is expanding the scope of arbitrable matters.

2. The arbitrary of the dispute on the issue, States often differentiate between domestic arbitration and international arbitration in both categories and give special consideration to international commercial disputes, give it a better treatment than domestic, commercial disputes. In other words, an international commercial dispute as opposed to domestic commercial disputes, States adopt a more tolerant attitude, remove limits to less restrictive. the State of international cases would be easier to adopt a relatively liberal policy.

3. Liberal interpretation of arbitrary issues in order to safeguard national and social and public interests., after an arbitral award the arbitral tribunal, at the phrase of recognition and enforcement of judgements of the court as well as the undo phase, for those matters involving the interests of the State and social public interests, also strengthened judicial review of decisions.

Consult an arbitration lawyer for more information.

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