Droit international général

On various occasions in the past we have warned the readers of this blog of fraudulent e-mails sent to EAPIL members by persons impersonating Gilles Cuniberti, the President of the Association. As customary with this kind of scams, the scammers ask for money, and insist to have it urgently. Just don’t let them fool you. […]

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2026. The course will be opened by Maria Chiara Malaguti (Università Cattolica del Sacro Cuore) with a lecture on Unification of Law: Overcoming Geography without Overcoming Diversity. The general course, titled Unity and Diversity in […]

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 25 September 2025 at 14:30 (Mexico City time – CST), 22:30 (CEST time). The topic of the webinar is: A radical change in German Private International Law, the example of the naming law, which will be presented by Prof. Dr. Karl August von Sachsen Gessaphe (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/85043670569?pwd=jJJBWFanSEfm5RpHKwS61bXI6yoSQy.1

Meeting ID: 850 4367 0569

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

 

Can private actors utilize choice-of-law clauses selecting the laws of a foreign country to avoid laws enacted by the United States? In this post, I argue that the answer is a qualified yes. I first examine situations where the U.S. laws in question are not mandatory. I then consider scenarios where these laws are mandatory. Finally, the post looks at whether private parties may rely on foreign forum selection clauses and foreign choice-of-law clauses—operating in tandem—to avoid U.S. law altogether.

Non-Mandatory Federal Laws

There are a handful of non-mandatory federal laws in the United States that may be avoided by selecting foreign law to govern a contract. Contracting parties may, for example, opt out of the CISG by choosing the law of a nation that has not ratified it. (The list of non-ratifying nations includes the United Kingdom, India, Ireland, South Africa, and—maybe—Taiwan.) Contracting parties may also avoid some parts of the Federal Arbitration Act via a choice-of-law clause selecting the law of a foreign country.

Mandatory Federal Laws

Foreign choice-of-law clauses are sometimes deployed in an attempt to evade mandatory state laws. In these cases, the courts will generally apply Section 187 of the Restatement (Second) of Conflict of Laws to determine whether the choice-of-law clause should be given effect.

When a foreign choice-of-law clause is deployed in an attempt to avoid mandatory federal laws, the courts have taken a very different approach. In such cases, the courts will not apply Section 187 because state choice-of-law rules do not apply to federal statutes. Instead, the courts will typically look at the foreign choice-of-law clause, shrug, and apply the federal statute. A foreign choice-of-law clause—standing alone—cannot be used to avoid a mandatory rule contained in a federal statute. In such cases, the only question is whether the statute applies extraterritorially.

There is, however, an important exception. When the federal courts are applying federal common law—rather than a federal statute or a federal treaty—they will sometimes engage in a traditional choice-of-law analysis. They may look to Restatement (Second) of Conflict of Laws, for example, to determine whether it is appropriate to apply foreign law to the exclusion of federal common law in cases involving international transportation contracts or airplane crashes occurring outside the United States. When the case arises under federal maritime law—a species of federal common law—the courts will apply the test for determining whether a choice-of-law clause is enforceable articulated the Supreme Court in Great Lakes Insurance SE v. Raiders Retreat Realty Company, LLC. Even in maritime cases, however, a foreign choice-of-law clause will not be enforced when applying the chosen law would “contravene a controlling federal statute” or “conflict with an established federal maritime policy.” This restriction means that, in practice, foreign choice-of-law clauses will rarely prove effective at avoiding mandatory federal laws even in the maritime context.

Finally, it is worth noting that U.S. courts generally will not apply the public laws of other countries due to the public law taboo. Even if a U.S. court were to conclude that a foreign choice-of-law clause was enforceable, that court is unlikely to apply the criminal, tax, antitrust, anti-discrimination, or securities laws of another nation.

Choice-of-Law Clauses + Forum Selection Clauses

Although mandatory federal laws cannot be evaded by foreign choice-of-law clauses in isolation, they may be avoided—at least sometimes—by adding a foreign forum selection clause to the agreement. If the defendant can persuade a U.S. court to enforce the forum selection clause, the question of whether the choice-of-law clause is enforceable will be decided by a court in a foreign country. In cases where the choice-of-law clause selects the law of that country, the chosen court is likely to enforce the clause regardless of whether enforcement will lead to the non-application of mandatory federal laws.

The U.S. Supreme Court, to its credit, has long been aware of the possibility that foreign forum selection clauses might be used as a backdoor way of enforcing foreign choice-of-law clauses. As early as 1985, it noted that “in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue [federal] statutory remedies . . . we would have little hesitation in condemning the agreement as against public policy.” The Court has never, however, held that a foreign forum selection clause was unenforceable for this reason.

The lower federal courts have been similarly chary of invalidating foreign forum selection clauses on this basis. In a series of cases involving Lloyd’s of London in the 1990s, several circuit courts of appeal enforced English forum selection clauses notwithstanding the argument that this would lead to the enforcement of English choice-of-law clauses and, consequently, to the waiver of non-waivable rights conferred by federal securities laws. In each instance, the court held that no waiver of rights would occur because the securities laws of England offered protections that were equivalent to their U.S. counterparts.

In a similar line of cases involving cruise ship contracts, the Eleventh Circuit has enforced forum selection clauses choosing the courts of Italy even when it seems clear that this will lead to the enforcement of Italian choice-of-law clauses and, ultimately, to the waiver of mandatory federal laws constraining the ability of cruise ships to limit their liability for their passengers’ personal injury or death. The Second Circuit has also enforced an English forum selection clause over the plaintiff’s objection, first, that the anti-discrimination laws of England were less protective than those in the United States, and, second, that the English court would apply English laws because the agreement contained an English choice-of-law clause.

Conclusion

If the goal is to evade mandatory federal laws in the United States, a foreign choice-of-law clause is not enough to get the job done. A foreign choice-of-law clause and a foreign forum selection clause operating in tandem, by contrast, stand a fair chance of realizing this goal. While the U.S. Supreme Court has stated that foreign forum selection clauses should not be enforced when this will lead to the waiver of non-waivable federal rights, the lower federal courts have been reluctant to find a waiver even in the face of compelling evidence that the foreign laws are less protective than federal laws enacted by Congress. The foreign forum selection clause, as it turns out, may the most powerful choice-of-law tool in the toolbox.

The United Kingdom signed the Singapore Convention on Mediation (United Nations Convention on International Settlement Agreements Resulting from Mediation, New York, 7 August 2019) on 3 May 2023. Ahead of the UK’s ratification of the Convention, the Ministry of Justice is seeking views on certain proposals and options for how the Convention might be implemented […]

The first issue of 2025 of Giustizia consensuale (published by Editoriale Scientifica) has been released, and it features:

Cesare Cavallini (Professor at Bocconi University, Milan), L’arbitrato come processo e giustizia consensuale (Arbitration as a Process and Consensual Justice; in Italian).

The essay aims to analyze the phenomenon of private autonomy and consensual justice in arbitration as it has evolved through various reforms. The goal is to highlight arbitration as a process and a form of consensual justice that is alternative yet distinct from ordinary judicial proceedings and fully aligned with constitutional principles. This objective becomes even more significant when compared to the very different and controversial issues discussed in American legal doctrine, which instead point to an unceasing erosion of rights through a blending of public interferences in arbitration and private ones in ordinary justice, raising concerns about the legitimacy of private autonomy within the framework of civil protections under constitutional scrutiny.

Orsola Razzolini (Professor at the University of Milan) and Ivana Sechi (Head of the Institutional Affairs Service of the Guarantee Commission on the Implementation of the Law on Strikes in Essential Public Services), Sciopero nei servizi pubblici essenziali e giustizia consensuale. ruolo della commissione di garanzia e ricerca del consenso nel governo del conflitto (Strikes in Essential Public Services and Consensual Justice: The Role of the Guarantee Commission and the Pursuit of Consensus in Conflict Governance; in Italian).

This paper examines the Italian law regulating strike in essential services from a consensual justice perspective. In particular, the law is mainly focused on the agreement between the social parties about the rules of the conflict while the strike independent authority — a technical and impartial body — is tasked with supplementary duties, particularly following the 2000 reform. The paper focuses on the independent authority’s provisional regulation and considers recent case law, referendums, and the authority’s rulings on interpretive or enforcement issues. The increase in the number of provisional regulations adopted in recent years raises several research questions. Is the social parties’ consensus still the core of the regulation? There has been a shift in the last years from social parties to the independent authority mainly due to transformations of the productive organizations as well as to the crisis of collective bargaining and the increasing fragmentation of both unions and employers’ associations.

Observatory on Legislation and Regulations

Charlotte Teuwens (Ph.D. Researcher at KU Leuven), Stien Dethier (Ph.D. Researcher and FWO fellow at KU Leuven) and Stefaan Voet (Professor at KU Leuven and UHasselt), The Venice Principles: Strengthening the Independence of Ombudsmen, and Beyond.

This article critically analyses the 25 ‘Principles on the Protection and Promotion of the Ombudsman Institution’, or in short, the ‘Venice Principles’. It gives a comprehensive overview of the different Principles, organised along four essential themes: legal basis, appointment and selection, competences and powers, and immunity, independence and the relationship with other authorities. In addition, it takes a more holistic view on the framework created by the Venice Commission. While the implementation of the Venice Principle does not come without its challenges, not unlike other instances where international instruments have to be implemented, the Principles primarily present Ombudsman institutions withimmense opportunities. With the Principles in hand, Ombudsmen are well-equipped to reflect on and reimagine their core value of independence.

Luca Dal Pubel (Faculty Lecturer at San Diego State University), ADR and ODR in North America: Evolution, Regulation, and Future Prospects.

This article provides a comparative analysis of Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) in the United States (U.S.), Canada, and Mexico, three countries that share geographic proximity and strong economic ties but differ in legal traditions and cultural approaches to dispute resolution. While the U.S. has fostered a decentralized, business-driven ADR and ODR landscape, Canada has nstitutionalized ADR within its judicial system and embraced ODR as a means to enhance access to justice. In contrast, Mexico has pursued a more state-led approach, constitutionally recognizing ADR as a fundamental right while expanding consumer-focused ODR initiatives. By examining the legal frameworks, regulatory developments, and real-world applications of ADR and ODR in these three nations, this article applies the functional method of comparative law to explore how each legal system addresses common dispute resolution challenges, emphasizing the practical effects and societal outcomes of different approaches.

Observatory on Jurisprudence

Silvana Dalla Bontà (Professor at the University of Trento), La giustizia consensuale ‘presa sul serio’. la disciplina dei costi della mediazione al vaglio del giudice amministrativo (Consensual Justice ‘Taken Seriously’: Mediation Costs Under Review by the Administrative Judge; in Italian).

This paper draws on Judgment No. 5489, issued by the Administrative Tribunal of Lazio on 17 March 2025, which upheld the reasonableness and constitutionality of mediation costs introduced by Italy’s recent civil justice reform through Legislative Decree No. 149/2022. The judgment affirms that the increased fees provide fair and adequate compensation to both the mediation provider and the mediator. At the same time, they encourage parties and their counsel to engage in mediation with seriousness, as mandated by Article 8 of the reformed Italian Mediation Act. This provision requires parties and their lawyers to cooperate in good faith, discuss the core issues, and work toward a mutually acceptable resolution. Recognising the rationale behind the judgment, the paper argues that the revised fee scale enhances the effectiveness of mediation—both by elevating the professionalism of mediators and by increasing parties’ awareness of the value of the mediation process.

Observatory on Practices

Francesca Locatelli (Associate Professor at the University of Bergamo), Il procedimento negoziale nel sistema giuridico (Negotiated Procedure within the Legal System; in Italian).

The paper offers a critical reflection on the role of negotiated ADR within today’s civil justice system, framing the discussion around the need to move beyond a purely deflationary logic toward a perspective that recognizes their systemic dignity. The analysis begins by examining the cultural barriers and cognitive dissonances that continue to hinder the reception of these mechanisms, both in legal practice and in legal education. Within this framework, the paper advocates for a procedural – rather than merely processual – approach to the study and teaching of negotiated ADR, one that acknowledges their nature as structured proceedings governed by distinct phases and principles. The contribution further argues in favour of a technical-procedural model for negotiation, highlighting the importance of its structured and methodological dimension, and calling for a more active role of legal scholars in legitimizing it both theoretically and pedagogically. Finally, it stresses how the integration of negotiation into legal training is not only a practical necessity, but also a clear sign of a paradigm shift in the very conception of the legal profession.

Filippo Noceto (Ph.D. at the University of Genova), Consulenza tecnica in mediazione. Profili sistematici e criticità applicative (Expert Evidence in Mediation: Systematic Framework and Application Challenges; in Italian).

This paper aims to provide a critical analysis of the recent developments concerning the expert witness testimony in mediation, highlighting its potential practical implications and outlining possible directions for reform of the current regulatory framework.

Conference Proceedings

Marina Caporale (Associate Professor at the University of Modena and Reggio Emilia), Risoluzione alternativa delle controversie: (ri)conciliarsi con la Pubblica Amministrazione (Alternative Dispute Resolution: (Re)Conciliation with the Public Administration; in Italian).

Considering the many facets of ADR, ‘public’ ADRs, here intended in the broadest sense, meaning those involving a public administration in any capacity, are increasingly gaining ground. Identifying the characteristics of these ADRs and the hallmarks of alternatives – today interpreted more as diversity, consensuality, and integration with the jurisdiction that ADRs embody – challenges the categories of administrative law and administrative justice. However, before delving into the now numerous public ADRs, it is necessary to first examine those institutions that, while involving a public administration, do not, as in the case of ombudsman.

Marina Evangelisti (Associate Professor at the University of Modena and Reggio Emilia), Per un breve profilo dell’arbitrato in diritto romano (An Outline of Arbitration in Roman Law).

This article describes the main features of arbitration in Roman law. It is a legal institution that offers an alternative method to prevent and resolve disputes without going to trial, and it was widely used by the Roman people over the centuries. This legal figure demonstrates the possibility of a useful dialogue between our history and the needs of the present.

Chiara Spaccapelo (Researcher at the University of Modena and Reggio Emilia), L’arbitrato e la giustizia civile. Un modello per la Pubblica Amministrazione? (Arbitration and Civil Justice: A Model for the Public Administration?; in Italian).

The paper examines the relationship between arbitration and public administration, questioning whether arbitration may also serve as an effective model for resolving administrative disputes. After reconstructing the systematic framework of ADR and the role of arbitration within civil jurisdiction, the author focuses on the specific features that characterize arbitration involving public entities, addressing key theoretical and practical issues such as the arbitrability of legitimate interests, the relationship between subjective rights and administrative powers, and the admissibility of ‘arbitrato irrituale’. Particular attention is devoted to arbitration in public procurement, whose use is currently severely restricted due to an overly cautious regulatory framework. The concluding remarks call for overcoming judicial and legislative mistrust and for a broader enhancement of arbitration within the administrative domain, in line with the principles of efficiency, subsidiarity, and reasonable duration of proceedings.

Chronicles

Cristina M. Mariottini (European Institute of Public Administration, Luxembourg), Bridging Borders Through Dialogue: The Establishment of the International Organization for Mediation (IOMed).

The Convention on the Establishment of the International Organization for Mediation (IOMed), adopted in Hong Kong on 30 May 2025, marks a significant step in the institutionalisation of mediation as a means of settling international disputes. The Convention applies to three categories of disputes: inter-State disputes; disputes between States and nationals of other States, including investor-State matters; and international commercial disputes between private parties. It affirms mediation as a voluntary, non-adjudicative process grounded in consent, neutrality, and procedural fairness, while also establishing a rule-based framework for the conduct of proceedings, the legal status of mediated settlements, and their potential enforcement through domestic legal systems. This article examines the normative foundations, institutional design, and procedural architecture of the IOMed Convention. It situates the Organisation within the wider system of international dispute resolution, noting its conceptual links to the Singapore Convention on Mediation, the ICSID Convention, and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Particular attention is given to issues of legitimacy, enforceability, and inclusivity, as well as to the Convention’s capacity-building mandate and its potential to expand access to mediation across diverse legal and geopolitical contexts. The analysis highlights IOMed’s role in advancing a more coherent, structured, and institutionally anchored model of international mediation.

Finally, this issue features the following Book Reviews:

A book review by Mauro Grondona (Professor at the University of Genoa): Tommaso DALLA MASSARA, Gaetano RAMETTA (a cura di), Il volere che si fa norma – Quaderno primo. Dialoghi tra giuristi e filosofi, Bologna, il Mulino, 2024, 5-158.

A book review by Davide Castagno (Researcher at the University of Turin): Loïc CADIET, Thomas CLAY, Les modes alternatifs de règlement des conflits, 4a ed., Lefebvre Dalloz, Paris, 2025, 1-201.

A book review by Francesco Ciccolo (Ph.D. candidate at the University of Messina) and Claudio Orlando (Ph.D. candidate at the University of Messina): Antonio CAPPUCCIO, Stefano RUGGERI (a cura di), Antichi e nuovi modelli di giustizia partecipata e cultura della giurisdizione. Verso una tutela penale più umana ed egualitaria, Wolters Kluwer/CEDAM, Milano, 2024, I-XII, 1-645.

Antonio Leandro has recently published a book titled Jurisdiction in EU Cross-Border Insolvency Law (Edward Elgar Publishing 2025). The blurb reads as follows: This book provides an in-depth analysis of the jurisdiction in cross-border corporate insolvency proceedings within EU member states, investigating the rationale, structure and functioning of the grounds to initiate and supervise the […]

A conference will take place in Barcelona on 11 and 12 November 2025, on the review of Regulation No 650/2012 on matters of succession, after ten years of application. The event is organised by the University Rovira I Virgili of Tarragona and the University of Lleida (UdL) in cooperation with the Notarial Association of Catalonia, […]

A call for papers has been issued in view of a virtual conference titled Global Harm, Local Justice: The Future of Cross-Border Torts, which will take place on 6 February 2026 at the University of Groningen, designed specifically for early-career scholars working in the field of private international law. This event aims to create a dynamic […]

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

In Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028 the Federal Court of Australia has confirmed the enforceability of 4 ETC awards against Spain viz its long-suffering renewable energy support schemes. The judgment has already been leaned upon in support in proceedings before the US Supreme Court and approaches the issues with similar lucidity as Fraser J in Infrastructure Services. 

Current post is by Claudia Wortmann, for which many thanks!! Geert.

 

*****

Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028

In a single-judge decision in the Federal Court of Australia delivered on 29 August, Justice Stewart held four ICSID awards issued against Spain under the Energy Charter Treaty to be recognisable and enforceable. Each of the awards in 9REN, NextEra, RREEF and Watkins, brought by 9REN and NextEra, and by the assignee to the RREEF and Watkins matters were found to be enforceable pursuant to section 35(4) of the International Arbitration Act 1974 (Cth), federal legislation in Australia which provides for the enforcement of foreign arbitral awards.

Spain objected to the proceedings on a number of grounds, being:

1. Non-waiver of immunity: Spain argued that the Federal Court lacked jurisdiction as Spain did not waive its foreign State immunity under section 9 of the Foreign States Immunities Act 1985 (Cth). Readers may recall the Spain HCA case in which the High Court of Australia discussed the ICSID award in Spain v Infrastructure Services This time round, Spain argued that that the High Court’s findings in that matter – that Articles 53-55 of the ICSID Convention amounted to a waiver of foreign state immunity – were incorrect, to allow for the High Court to consider the matter of the ICSID Convention again.
2. The awards were said to be not ‘binding’ under Art 53 ICSID Convention, either: a. due to the intra-EU nature of the disputes and the primacy of EU law which means Spain owes no public international law obligation to comply with the awards, and if it did that would be an act of prohibited State aid under EU law; or b. because the ICSID dispute settlement provisions have been replaced by the EU court system by virtue of its accession to the Treaty of Lisbon, as either a modification under customary international law (VCLT Art 41) or Art 30 of the VCLT. As the awards are not ‘binding’ under Art 53 of the ICSID Convention, the court lacks jurisdiction to enforce them.
3. Assignment: Spain argued that it had no binding obligation to pay the assignee, Blasket, under Art 53 ICSID Convention, that Blasket has no standing under Art 54 ICSID Convention to seek recognition or enforcement because it is not a ‘party’, and that in the absence of a binding obligation of Spain to pay Blasket, s 35(4) of the IAA cannot apply, as there is no obligation to enforce an award brought by an assignee.
4. The Constitutional argument: Spain claimed that even if certification of the awards by the Secretary-General of ICSID were sufficient to prove their ‘binding’ nature, or to prevent the Court from investigating whether it is binding, then section 35(4) of the International Arbitration Act is invalid because it infringes CH III of the Australian Constitution.

 

The Court found that Spain did in fact waive its rights to immunity, the Court had jurisdiction to recognise and enforce the awards pursuant to s 35(4) of the IAA, and dismissed the EC’s application to intervene.

Non-waiver of immunity

As may be recalled, the High Court of Australia in Spain HCA had already found ([150] citing Spain HCA at [29]) that Spain had implicitly waived its foreign State immunity rights. The closed nature of the ICSID system was confirmed in Spain HCA and in Micula v Romania [2020] 1 WLR 1033 at [68]-[69] by the UK domestic courts. There was no reason to find that the award was not binding, as the ICSID system was a closed system, and that apparent conflicts with EU law were not relevant for the enforcement proceedings, as the awards were [174] ‘genuine, certified and authenticated awards’.

Spain’s argument, that ‘waiver of immunity in enforcement proceedings is limited to proceedings to enforce awards that are valid and binding’, had not been raised specifically in Spain HCA, however, the Court found [180] that

On the premise that the awards are binding on Spain, the proceedings are not outside the territory of what the parties accept was decided by the High Court. It follows that Spain’s contention of non-waiver of immunity to jurisdiction must be rejected.

Primacy of EU law

Spain argued that where there is a conflict between Spain’s obligations owed to other EU Member States under the EU foundational treaties, the primacy of EU law must prevail, and therefore, under public international law Spain owed no obligation to comply with the ICSID awards, and Australia owed no obligation to recognise or enforce them. Spain relied on the CJEU’s findings in Achmea and Komstroy in arguing that EU law prevents the application of the ECT between Member States, and it also argued that the public international law obligations would constitute illegal State aid between EU Member States. The Court found [118] that:

European law has undeniable domestic effect including through lower-level instruments of European law sourced in the authority of the foundational treaties… It suffices to say that while international treaties and subordinate EU instruments could be regarded as a form of international law, for the purposes of proof it would not be a form of international law incorporated into or picked up by Australian law in the sense contemplated in the authorities.

On this point, the Court [210] accepted expert evidence supplied by Professor Eeckhout on behalf of the Applicants, in the event of a conflict between international law and EU law,

the Member States must take the appropriate steps under international law to remove the conflicting international law obligation. In the meantime the conflicting clause remains valid and operative’.

Therefore, international law is applicable until withdrawal of the relevant treaty takes effect, which includes the ECT and the ICSID Convention, and [213]

it is no answer for Spain to say that it has some or other defence available to it under EU law, for it is not Australia which is under any supervening requirement of essentially foreign domestic public law to not comply

Spain was allowed to reopen the case for the purpose of submitting the Agreement on the Interpretation and Application of the Energy Charter Treaty between the European Union, the European Atomic Energy Community and their Member States (COM(2024) 257 final) (26 June 2024) (‘EU Inter Se Agreement’); and Declaration on the Legal Consequences of the Judgment of the Court of Justice in Komstroy and Common Understanding on the Non-Applicability of Article 26 of the Energy Charter Treaty as a Basis for Intra-EU Arbitration Proceedings [2024] OJ L 2024/2121 (26 June 2024) (‘EU Inter Se Declaration’).

The Court found that neither document materially added to Spain’s case, as

a) both came into existence long after the matters in dispute arose;

b) that removal of intra-EU disputes would be subject to future amendment of the ECT in accordance with the VCLT (in line with a separate declaration from Hungary, both an EU and ECT member);

c) neither the Agreement nor Declaration sought to amend the ICSID Convention; and

d) the substance of the Agreement and Declaration were not relevant to the enforcement proceedings as they both went to the interpretation and application of the ECT which is a question for ICSID tribunals, and not the enforcing Court.

The Court acknowledged that although there was a conflict between international law and EU law, it had no bearing on Spain’s public international law obligations or that it meant the ICSID awards were not binding.

Modification argument

Spain argued that the Treaty of Lisbon modified Art 43 ICSID Convention between EU Member States, meaning that tribunals have no jurisdiction over intra-EU disputes, and the Court lacked the power to enforce them, relying on customary international law to support its claim, because the ICSID Convention preceded the VCLT so the VCLT rules on successive treaties would not apply.

Spain argued that there are three requirements for custom to modify a treaty:

a) modification is not expressly prohibited by the treaty;

b) that modification does not affect the enjoyment of, and rights and obligations under the treaty by other parties;

c) the modification does not relate to a derogation provision which is incompatible with the object and purpose of the treaty.

The Court held:

• • the argument could only stand if Art 53 could be modified, and if Art 54 cannot give rise to enforceable obligations without a valid and binding award under Art 53, which was dismissed, given that the ICSID regime is a closed one. Further, there was no sufficient express or implied to modify the ICSID Convention between EU Member States or to render Art 53 inapplicable.
  • The modification also failed for lack of notice required under Art 41(2) to inform other parties to the treaty of the intention to modify it.
  • The type of rights that Spain sought to modify are erga omnes partes, owed to all parties to the treaty and not capable of modification under Art 41(1)(b)(i) VCLT. It would be an ‘inexplicable result’ if the enforcing State had an obligation to enforce an award, but the State subject to the award did not owe an obligation to all other State parties to comply with it.
  • The ICSID system and the structure of the Convention support construction of rights as erga omnes partes, supported by authorities including the UK Supreme Court in Micula. The Court also dismissed Spain’s reliance on the US enforcement proceedings for NextEra Energy Global Holdings BV v Kingdom of Spain 112 F4th 1088 (DC Cir 2024) that under Art 53 the obligation to comply was bilateral, and capable of being modified in a way which is not incompatible with the object and purpose of the ICSID Convention.
  • Modification by way of Art 30 VCLT on subsequent treaties, that the Treaty of Lisbon displaced the ICSID Convention also failed. Even if such displacement occurred, it was limited to the EU Member States and could not apply to Australia. Further, the principles relied on by Spain per the decision in Achmea and Komstroy were actually based on the EU foundational Treaty of Rome 1957, nearly a decade before the ICSID Convention came into force in 1965, making the ICSID Convention the subsequent treaty for Spain.
  • The EU treaties imposed no obligations which the CJEU had found to be in conflict with those of States under the ICSID Convention, which itself does not require parties to refer disputes to arbitration, hence the incompatibility was not [284] ‘at the level of obligations per se between the EU treaties and the ICSID Convention’.

Assignment

The Court made quick work dismissing Spain’s objection that the assignment of rights from RREEF and Watkins to Blasket was invalid. The Applicant argued successfully that the duty arose under s 35(4) IAA as Australia’s dualist system requires domestic enshrinement of international law obligations to make them enforceable. Under domestic law, in Australia the rights of enforcement for an arbitral award are also capable of being assigned. So in either case, Spain’s argued failed. Justice Stewart was not convinced by Spain’s argument that allowing enforcement by an assignee would allow for double recovery.

EU status of Jersey and Constitutional argument

This argument relating to only the RREEF enforcement proceedings, as an alternative argument by the Applicant in respect of the EU nationality of the investors. Blasket argued that, in the event that Spain’s intra-EU objections were upheld, that the investor in RREEF, being domiciled in the Bailiwick of Jersey, a British Crown Dependency and one of the Channel Islands, should not be prevented from enforcing that award. Justice Stewart agreed, finding the investor in RREEF was not a national of an EU Member State.

Constitutional argument

The Court held that although Art 54 ICSID Convention as implemented by s 35(4) IAA, requires the Court to recognise and enforce any ICSID award as binding within Australia as judgment of that court, this does not ‘impermissibly vest constitutional powers in either the ICSID tribunal or the Secretary-General, nor does it substantially impair the institutional integrity of the Court as a constitutional court by requiring it to find a waiver of foreign state immunity or by recognising or enforcing an award.  

EC application to intervene

The European Commission sought leave to intervene in the proceedings, supported by Spain, which was denied by the Court. The EC application sought to make two submissions: a) Spain’s submissions are an accurate description of EU law, and EU law prevents any payment under the awards as illegal State aid; and b) any payment made by Spain under the ECT awards would being subject to significant ongoing fines until such payment were recovered. The Court accepted that Spain’s submission on EU law may indeed be accurate, but as the ‘crux’ of the proceedings were on (at [361]) ’ the effect of EU law on public international law binding Australia’, such accuracy had no impact on the Court’s findings. On the second point Stewart J stated at [362]:

while the questions raised are no doubt interesting, as explained above, they are irrelevant on an application for recognition and enforcement of an arbitral award in circumstances where I have concluded, notwithstanding the identified consequences extant in and arising from EU public law, the Court is bound to give effect to the award in accordance with public international law and Australian domestic law.

 

In sum, Stewart J dismissed Spain’s arguments from the outset, finding that most of them were similar enough to those put forward in Spain HCA to warrant the application of precedence. Even so, His Honour considered and dismissed each of Spain’s alternative arguments in succession, reaffirming that ICSID awards can and will be enforced in Australia, and that the influence of EU law principles remains minimal in this context.

Claudia.

 

On 17 September 2025, the French Supreme Court for private and criminal matters (Cour de cassation) delivered four judgments ruling on the validity of jurisdiction clauses, including in the Società Italiana Lastre SpA (SIL) v. Agora SARL case which the court had referred to the CJEU. The four judgments gave the opportunity to the Cour de cassation […]

 

I. Introduction

It is not uncommon for scholars to debate whether private international law is needed as a distinct discipline, and whether it is truly indispensable. After all, could one not save the effort and complexity of applying foreign law by simply treating all cases as purely domestic? From a theoretical standpoint, the answer is yes, since no State is under an inherent obligation to apply foreign law. Yet, such an approach entails serious shortcomings, particularly when it comes to respecting vested or acquired rights, meeting the legitimate expectations of the parties, and fostering cross-border commerce. It follows that the costs of refusing to recognize and apply foreign law are far greater than the difficulties associated with maintaining a system of private international law. It is therefore unsurprising that private international law has established itself as a common language for managing the legal diversity inherent in transnational relations.

However, private international law is not uniform across jurisdictions. In some States, its operation may be severely constrained by the temptation to treat cases involving foreign elements as purely domestic. The situation becomes even more delicate when such an approach is not merely a matter of judicial practice but is elevated to explicit State policy. This is precisely the issue raised by the UAE’s civil personal status legislations and related court practice, where the very raison d’être of the new system appears to be the avoidance of the applying foreign law. Indeed, since the application of foreign law “in practice … could be costly, time consuming and complex”, the lawmakers chose to (quasi) substitute it with a new system of civil personal status, described as “a better cultural fit for the expatriate community, particularly those who are non-Muslim.” (Abu Dhabi Judicial Department, Civil Marriage Law and Its Effect in the Emirate of Abu Dhabi (Q & A), 1st ed. 2023, p. 4).

This raises important questions about the balance between the “lofty ideals” that inspired the introduction of the civil personal status legislations and the “sour realities” of legitimate expectations being overlooked, or, at times, entirely disregarded.

 

II. Lofty Ideals …

In what can surely be considered an iconoclastic initiative in the region, the Emirate of Abu Dhabi introduced in 2021 a new system regulating civil marriage and its effects (“2021 ADCML”) in parallel to the existing system of personal status based on and influenced by Islamic rules and principles (the 2024 Federal Decree Law No 41 on Personal Status (“2024 PSL”), which replaced the 2005 Federal Act on Personal Status as subsequently amended). The latter constitutes the droit commun (lex generalis), codifying various aspects of Islamic family law, whereas the former operated as a special law (lex specialis) entirely grounded in secular, non-religious values, most notably equality and non-discrimination between the parties regardless of gender, nationality, or religion; at least insofar as parties are non-Muslims, or if foreign Muslims, are nationals of countries that do not primarily apply Islamic sharia in matters of personal status (Article 5 of the 2022 Procedural regulation concerning the Marriage and Civil Divorce Procedures in the Emirate of Abu Dhabi). The system was later extended to the entire federation through the adoption in 2022 of Federal Decree-Law No. 41 on Civil Personal Status) (“2022 CPSL”), with the notable difference that the 2022 CPSL is strictly limited to non-Muslims, whether UEA citizens or foreigners (Article 1 of the 2022 CPSL; for a comparison between the two legislations, see my comments here).

The newly introduced system has been praised as one that “acknowledges the complexities of [the UAE’s] global population”, provides “ a comprehensive legal framework addressing family law matters through a lens of inclusivity and equality”, and “[w]hile maintaining respect for cultural sensitivities”, “embrace[s] principles long associated with international human rights and progressive family law: gender and parental equality, the imposition of greater financial consequence and obligation in divorce and the prioritisation of children’s welfare” (Byron James, United Arab Emirates: Family Law).

Indeed, as explicitly stated in Article 2 of the 2021 ADCML, the system aims to “provide a flexible and elaborate judicial mechanism for resolving family disputes” that is “in line with international best practices,” and which guarantees litigants “to be subject to an internationally recognised law that is close to them in terms of culture, customs and language.” The law also seeks to “consolidate the Emirate’s position and global competitiveness as one of the most attractive destinations for human talent and skills.” These ideals are reflected, inter alia, in article 16 of the 2021 ADCML, echoed by Article 4 of the 2022 CPSL, concerning “equality between men and women as to rights and duties” in matters of testimony evidence, inheritance, right to request (unilateral) no-fault divorce and joint custody.

In a nutshell, the newly adopted legislations, which are “specifically designed to assist the expatriate community”, strive to provide “tourists and residents” a “simple”, “effective” “modern and flexible judicial mechanism” regulating their family relationships in the UAE “in accordance with civil principles as opposed to religious principles” and “protect the rights of all individuals by providing family law principles that are in line with best international practices as well as an accessible and straightforward judicial process” (Abu Dhabi Judicial Department, Civil Marriage Law and Its Effect in the Emirate of Abu Dhabi (Q & A), 1st ed. 2023, pp. 3, 5).

 

III. … Sour Realities

1) Regarding the avoidance of applying foreign law

As I noted in earlier posts (see here and here), doubts remain as to whether relying almost entirely on a substantive law approach that is based on the direct application of the civil personal status legislations in disputes involving foreign elements can truly achieve the objectives of the newly introduced family law system.

In practice, this approach risks being disruptive, undermining the ideals of private international law, namely decisional harmony and respect for the parties’ legitimate expectations, regardless of how well-crafted the applicable substantive law may be. Under the new framework, it is often enough for judges to assume jurisdiction on tenuous grounds (see my comments here) for the civil personal status legislations to be applied almost automatically. It makes no difference whether, under the parties’ lex patriae or the law normally applicable according to UAE choice of law rules (the lex loci celebrationis according to article 13 of the 1985 Federal Act on Civil Transactions), divorce is not permitted (as in the Philippines or certain Christian communities in the Middle East), or whether divorce would not be recognized unless the parties’ personal law were applied (as in India).

It is true that under the federal law (though not in Abu Dhabi, as the wording of the law suggests), either party may request the application of their own law (Article 1 of the 2022 CPSL, on this provision see my comments here). In practice, however, this mechanism has rarely proved effective, as courts not only treat foreign law as a matter of fact whose content must be established by the party invoking it, but also impose onerous requirements, rendering the application of foreign law almost illusory (see my comments here).

 

2) Regarding the subsidiary application of the general law based on Islamic Sharia

The lofty ideals of the newly introduced civil personal status legislations also fade when the legal issue to be addressed is not covered by them. In such cases, the matter has  to be governed by “the laws and legislation in force in the State” (Article 15 of the 2022 CPSL). In other words, the legal issue falls back on the general law of personal status (the 2024 PSL), which is based – as explained above – on Islamic rules and principles. This creates an extremely intricate situation: while the very purpose of the civil personal status law is to prevent non-Muslims from being subjected to the local Sharia-based legislation, and instead to provide them with a “an internationally recognised law that is close to them in terms of culture, customs and language” (Article 2 of the 2021 ADCML), certain matters nonetheless remain governed by the local legislation in its subsidiary application.

The question of is guardianship (wilaya) provides a quintessential example. The civil personal status legislation regulates only custody (hadhana) but says nothing about guardianship (wilaya). In the absence of relevant rules, UAE judges turn to the general personal status law (the 2024 PSL) to fill the gap. The problem, however, is that under this law – which reflects Islamic law principles – guardianship (wilaya) is mainly the father’s prerogative. As a result, the combined application of the civil personal status law and the general personal status law often leads UAE judges to grant joint custody (hadhana mushtarika) to both parents under the civil personal status laws, while conferring sole guardianship (wilaya) over the person and property of the child to the father in application of the general personal status law.

Again, these provisions apply automatically, irrespective of the parties’ lex patriae or the law normally applicable according to UAE choice-of-law rules.

 

III. Reactions Abroad

The experience of many litigants, mainly wives, with civil personal status litigation in the UAE has left them with bitter memories, as the lofty ideals of the newly adopted legislations did not meet their legitimate expectations. This is particularly true when their efforts to invoke and apply their national law, permitted in principle under Article 1 of the 2022 CPSL, proved futile for the reasons mentioned above (III(1)). Many have shared their stories on social media, including dedicated Facebook accounts. Recently, local media such as newspaper articles or radio podcasts have begun to shed light on the practice of civil personal status litigation in the UAE, drawing attention to the negative aspects of litigating personal status disputes in the UAE. For instance, a recent article published in the French newspaper Le Parisien, titled “ Dubaï, nouvel eldorado des divorces express (Dubai, the new haven for first-track divorces)” describes the experiences and hardships of several women who went through such proceedings. Similar reports have also been broadcasted on radio programs in France and Switzerland. More importantly, the phenomenon risks taking a political turn, as the question of the application of civil personal status law and the protection of the rights of French citizens in the UAE has been formally brought to the attention of the French authorities through a parliamentary question addressed to the Government by a member of the Senate, concerning international divorce proceedings in the UAE involving French couples.

Last but not least, reactions from some European courts were not long in coming: they have refused to recognize divorces issued in the UAE under the civil personal status legislation on the grounds of procedural irregularities (see Alejandra Esmoris, Recognition of Abu Dhabi divorce ruling in Switzerland: Case Law Analysis). Similar reactions are likely to multiply as more parties voice dissatisfaction with the system, particularly when its operation fails to meet the procedural guarantees and substantive safeguards expected under the standards of their personal (European) law. For instance, the Le Parisien article mentioned above, refers to petition filed in France by a French lawyer to bar the recognition of a Dubai court’s divorce decision rendered in application of the 2022 CPSL. This trend may signal the beginning of broader scrutiny, and perhaps resistance, to the recognition of judgments rendered under the UAE’s civil personal status framework.

 

IV. Way forward

Several measures are needed to improve the current situation, the most important of which are a reconsideration of the role that private international law can play and the facilitation of the application of foreign law.

In addition, other procedural aspects require attention. These include the overly broad grounds for taking international jurisdiction, the complete disregard of parallel proceedings (see example, Abu Dhabi Civil Family Court, Judgment No. 86/2024 of 17 May 2024), the refusal to recognize foreign judgments and decrees unless they are first declared enforceable (see my comment here), and the practice of indiscriminately serving notifications via SMS in Arabic without English translation. The way cases are conducted online as reported in the abovementioned Le Parisien article (which described a party being represented by her lawyer while seated in her car with her seatbelt on, during a trial conducted by a judge who had not turned on his camera) also raises concerns. Unless such issues are addressed, judgments rendered under the civil personal status legislations will continue to face denial of recognition and enforcement abroad (see Esmoris, op. cit.).

 

(This post is written by Dr. Chen Zhi who is an Attorney at Zhiheng Law Firm Guangzhou Office, PRC).

I. Introduction

On September 12, 2025, the newly revised Arbitration Law (hereinafter New Arbitration Law) of the People’s Republic of China (hereinafter “PRC”) was adopted by the Standing Committee of the National People’s Congress (hereinafter as “SCNPC”) with the subsequent promulgation by the President of PRC, and will take effect on March 1, 2026. The New Arbitration Law features novelties such as the introduction of “arbitration seat”, limited liberalization of ad hoc arbitration, enshrining online arbitration, a higher threshold for eligibility of arbitrator, and a shorter duration for applying for annulment of arbitral award from six months to three months. Nonetheless, some articles of the New Law leave room for further discussion. This article combs through the history of revision, delves into the highlights and remaining gaps of the New Arbitration Law, and provides insights into its significance for the development of commercial arbitration in Mainland China from the perspective of an arbitration practitioner in Mainland China.

II. A Snapshot of The Revision History

Since the enactment of the Arbitration Law in 1995, commercial arbitration in Mainland China has undergone overwhelming development from a blank slate to a non-ignorable hub in the arena of international arbitration. Nonetheless, for nearly three decades, the PRC Arbitration Law itself was left largely untouched, receiving only minor revisions to keep pace with other legislation in 2009 and 2017 (hereinafter collectively as the Old Arbitration Law).

On 30 July, 2021, a Draft Amendment to the Arbitration Law (hereinafter as 2021 Draft) released by the Ministry of Justice sparks the overhaul of arbitration legal framework, making it more in line with the common practice in international commercial arbitration such as the UNCITRAL Model Law by embedding competence-competence principle, tribunal’s power over interim relief, extension of arbitration agreements, etc., while a long-term silence emerged in the subsequent three years with no further official documents.

However, the first amendment draft issued on 4 November 2024 (hereinafter as 1st Draft) by SCNPC had given rise to controversies and generated criticism, as many of the novelties and reformative features aligning Chinese arbitration with the international standards as set out in the 2021 version were removed, including the abovementioned two articles concerning the non-signatory issues. The 1st Draft gave rise to strong criticisms from the circles of research and practice[i]. Nonetheless, some articles concerning foreign-related arbitration, inter alia, auxiliary proceedings for ad hoc arbitration by the court of the seat were retained.

On 1st May, 2025, the Second Draft Amendment (hereinafter as 2nd Draft) was issued, even though one of the most controversial proposed clauses was removed, inter alia, Art. 23 (3) in the 1st Draft, endowing the administrative bureau with the power to fine arbitration institutions, the conservative stance remained unchanged. After that, the New Arbitration Law was enacted in mid-September of 2025 with minor revisions compared to the 2nd Draft.

As there have been plenty of comments making comparisons between the New Arbitration Law and the former version of the Arbitration Law, with a myriad of appreciations[ii], this article brings into focus the substantial differences between the adopted version and the working drafts to offer a more neutral and objective comment.

III. Revisions Concerning Arbitration Agreement: Breakthroughs and Limits

1. Revisions on the Formality and Substance of the Arbitration Agreement

Generally, the New Law retains the written-form requirement and the parties shall fix an arbitral institution. In case of any ambiguity about the arbitration institution, the parties shall reach a supplementary agreement subsequently, failing which the arbitration agreement will be rendered null and void as stipulated in Article 27 (1) and Article 29 of the New Arbitration Law. This promulgation is identical to that in the Old Arbitration Law[iii].

However, there are two novelties as to the arbitration agreement:

First, there is the implied consent to arbitrate by conduct as per Article 27 (2) of the New Arbitration Law, where the implied consent can be deemed to be reached if: (1) one party pleads the existence of an arbitration agreement when filing the Request of Arbitration; (2) the other party fails to object the existence of arbitration agreement before the first hearing on merits; (3) the silence is recorded in writing after express notice by the tribunal. The provision is in line with arbitral practice that tribunals routinely inquire parties’ opinions on the jurisdiction and record via the minutes of hearing, while it is nuanced with the conduct-based estoppel as set out in Article 7 Section (5) (option I) of the 2006 UNCITRAL Model Law on International Commercial Arbitration[iv](hereinafter as UNCITRAL Model Law) where the implied consent is reached through exchange of statements of claim and defence, in other words, there will be no implied consent to arbitrate under Article 27 (2) in document-only hearing. The New Arbitration Law also sets up a higher threshold for implied consent by adding to the tribunal’s obligation to notice and record, which is not found in the corresponding part of the 1st Draft.

Second, the recognition of ad hoc arbitration to a limited extent. Under the new law, ad hoc arbitration is permitted only for:(i) foreign-related maritime disputes; or(ii) foreign-related commercial disputes between enterprises registered in the Pilot Free Trade Zone permitted by the PRC State Council, Hainan Free Trade Port or other districts permitted by relevant regulations. This scope is therefore drastically narrower than the promulgation in the 2021 Draft and the 1st Draft, which allowed for ad hoc arbitration in “foreign-related cases”[v]. Moreover, arbitrators of ad hoc proceedings must satisfy the statutory qualification requirements applicable to institutional arbitrators, superseding the looser requirement for “arbitrators engaging in foreign-related arbitration” as set out in the 1st Draft[vi].

Crucially, the New Law deletes the seat court’s power to assist arbitration through the appointment of an arbitrator when the parties to ad hoc arbitration fail to agree upon the constitution of the tribunal (Art. 92 of the 1st Draft), and the deposit of the award by ad hoc tribunal (Art. 93 of the 1st Draft). Instead, the New Arbitration Law only stipulates that the tribunal must file a notice with the China Arbitration Association (which is yet to be established) within three working days upon its constitution. With the auxiliary role of the judiciary being vastly weakened, without the icebreaking function of the judiciary, the ad hoc proceedings will confront a grave challenge while deadlock arises, in particular where the parties are uncooperative as to the designation of arbitrators.

2. Introduction of the Arbitral Seat

For the first time, the New Arbitration Law defines the “seat” (???) to ascertain the “legal gravity” of the award, where the law governs the arbitration proceedings and the court possesses the power of supervision over the arbitration. A three-stage test is advanced in the ascertainment of the seat of arbitration: (i) party agreement; (ii) failing which, the arbitration rules; (iii) in the absence of such rules, the tribunal’s determination. This sequencing aligns with international common practice as well as the courts’ repeated judicial practice in Mainland China[vii].

Because courts’ powers to assist with ad hoc arbitration have been repealed, the seat court’s functions are largely confined to post-award judicial review. Also, the conflict-of-law rule that would have subjected the validity of the arbitration agreement to the law of the seat Art. 21) was also eliminated. Given that Art. 18 of the Law on the Application of Laws to Foreign-Related Civil Relations 2011 already provides an identical choice-of-law formula, the deletion avoids redundancy and potential inconsistency.

3. Determination of Jurisdiction and the Chinese Style Competence-competence

The New Arbitration Law reinstates the separability doctrine of arbitration agreement from the matrix contract, adding up that the non-conclusion, ineffectiveness or rescind of main contract are not detrimental to the effectiveness of arbitration clause incorporated therein.

Art. 31 of the New Arbitration Law empowers the tribunal or the arbitration institution to rule on its own jurisdiction “upon the request of a party”. This is considered the incorporation of competence-competence in statute by some commentators[viii]. However, Art. 31 is materially different from the competence-competence as set out in Art. 16 (3) of the Model Law, which only allows for the parties to resort to the court after the decision rendered by the tribunal, also promulgation of the New Arbitration Law fails to ensure“negative effect” of competence-competence which requires a prima facie review over the arbitration agreement by state court in pre-award stage, which is well established in jurisdictions like Singapore[ix],  France[x], the UK[xi], and Hong Kong SAR[xii]. Under the New Arbitration Law, the court’s priority regarding the decision on arbitral jurisdiction in most circumstances remains unchanged[xiii]. As per some commentators, this may give rise to problems such as the violation of the “minimal intervention principle”[xiv]. Therefore, Art. 31 of the New Arbitration Law is at best a Chinese-style competence-competence.

Overall, unlike the liberal approach in the 2021 Draft and the 1st Draft, the New Arbitration Law takes a more conservative stance, leaving room for further perfection. Nonetheless, there are some laudable novelties concerning arbitration agreements in integrating the well-settled arbitration practice (including the common practice by the judiciary) during the past 30 years.

IV. Revisions Concerning Arbitration Proceedings and Judicial Review

The New Arbitration Law makes minor revisions as to the conduct of arbitration proceedings and judicial review over the arbitral award, compared with the parts of the arbitration agreement. There are several aspects to be delved into below:

1. Novelties Concerning Arbitration Proceedings and Judicial Review

1.1. The Recognition of Online Arbitration

Art. 11 of the New Arbitration Law explicitly states that arbitration can be handled through electronic means, hence the virtual hearings , electronic delivery of files, and other relevant conduct online are put on the same footing as their physical equivalents, unless the parties have otherwise agreed. The opt-out model for online arbitration aligns the statute with the technical development in internet-era, ensuring the efficiency of commercial arbitration.

1.2. Separated Standard for Proper Notice in Arbitration

Article 41 of the New Arbitration Law clarifies that the proper notice issue in arbitration is subject to the parties’ agreement or the applicable arbitration rules, rather than rules for service in civil litigation, this article has integrated Article 14 of the 2018 Provisions of the Supreme People’s Court on Several Issues Concerning the Handling of Cases Regarding Enforcement of Arbitral Awards by the People’s Courts and can be extended to proceedings of setting aside. This ensures the confidentiality, efficiency and flexibility of proper notice in arbitration.

1.3 Stringent Rules for Qualification and Disclosure of Arbitrator

Articles 14 and 43 of the New Arbitration Law refine the appointment of the presiding or sole arbitrator: the parties may agree that the two co-arbitrators nominate the presiding arbitrator, failing which the presiding arbitrator or sole arbitrator must be appointed by the director of the arbitration institution “in accordance with the procedure laid down in the arbitration rules” instead of the mere discretion of the director, this provides more transparency in appointment of arbitrators.

Moreover, the New Arbitration Law also introduces a continuing obligation of disclosure by arbitrators where there is any circumstance that is likely to give rise to justifiable doubts, which builds up arbitrators’ ongoing statutory duty of disclosure in the ascertainment of the arbitrator’s impartiality and neutrality to ensure the integrity of arbitration proceedings[xv]. While the legislature cannot exhaust all circumstances, detailed guidance from institutions and practitioners—such as the three color lists provided by the IBA Guidelines on Conflicts of Interest in International Arbitrations—is required for more legal certainty.

Art. 22 of the New Arbitration Law succeeded the high condition for a qualified arbitrator to be listed in the roster of an institution, which is traditionally summarized as “three eight-year working experiences, two senior titles” (????)[xvi]. The New Arbitration Law provides more draconian requirements, i.e., the limits and prohibitions on civil servants being qualified as part-time arbitrators[xvii], and the mandatory removal of arbitrators from the roster while they are disqualified from certain certificates (i.e., disqualified from being a lawyer due to a criminal offence)[xviii]. This high threshold is applicable to ad hoc arbitration with foreign-related factors. The high threshold is set up for fairness and integrity of arbitration, while whether the state’s deep involvement in a gatekeeping role is more appropriate than the choice by the market-reputation is open to debate.

1.4. Shortening Time Limit for Application Setting Aside

For post-award judicial review, the time limit to apply for annulment is cut from six months upon the receipt of the award to three, bringing the law in line with international common practice like Article 34 (3) of the UNCITRAL Model Law. This warrants the finality of awards.

2. Regulations That Remain Unchanged

Many comments stress that the New Law adds pre-arbitral preservation and conduct preservation[xix], but from the author’s perspective, these merely fill the loophole by aligning the statute with the Civil Procedural Law revised in 2012, which is not so notable. Article 43 of the 2021 Draft, which empowered both the court and tribunal to order interim relief in arbitration (two-tier system), is removed, leaving Mainland China among the few jurisdictions where arbitrators cannot issue interim measures (one-tier system). while this is to some extent compatible with the arbitration practice in Mainland China, which shall not be criticized heavily for the following reasons:

First, Chinese courts are likely to employ relatively lower threshold for granting asset preservation, which is always confined to a preliminary review on the formalities (i.e., whether there is a letter by the arbitration institution, or guarantee letter issued by competent insurance companies), instead of a review on merits concerning the risk of irreparable harm, proportionality, and urgency rate like the tribunal in international commercial arbitration seated outside Mainland China[xx]. Hence, the lower standard for issuance of interim relief by courts in Mainland China ensures the efficiency and enforceability of interim relief and may overall meet the requirements of parties.

Second, the two-tier system for issuance of interim relief may give rise to problems concerning the conflict of powers, as per the decision of the Gerald Metals case[xxi] by the High Court of England and Wales, courts can only grant interim relief while the power of the tribunal is inadequate. Hence, the one-tier system may be more suitable for common practice in Mainland China, as courts are more preferable for their efficiency and enforcement in granting asset preservation.

Last but not least, some commentators disagree with the author’s opinion for the reason that the lower standard is only applicable to asset preservation, while not applicable to other types of judicial preservation where the thresholds are relatively higher, and the tribunal shall be empowered to issue interim relief for recognition of the interim order outside Mailand China[xxii]. Nonetheless, the author disagrees with this position, as per the author’s experience, in most arbitration cases, asset preservation is the only concern of parties; preservation of evidence and preservation of conduct are rarely seen. Also, the enforcement of interim relief outside Mainland China is insufficient to justify the tribunal’s power over interim relief, for whether such relief is enforceable depends heavily on the law where the enforcement is sought, instead of the law where the order is rendered, see Art. 17 H (1) of the UNCITRAL Model Law: “An interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued, subject to the provisions of article”.

Other unchanged parts concerning arbitration proceedings and judicial review are not preferred, i.e., the high threshold for document-only hearing that only by the parties explicit agreement, the tribunal is not liable to conduct a hearing on evidence (unlike the UNCITRAL Arbitration Rule, which provides that a hearing shall be conducted at the request of one party). The evidence adduced shall be presented in the hearing for the comment by other parties ????, while the comment on evidence by exchange of written submissions, which has been widely used in arbitration practice, has been omitted, producing uncertainty for the efficiency and flexibility of arbitration. Also, the statutory limbs for annulment of arbitral award remain untouched, that the concealment of evidence or forgoing evidence may lead to the annulment of the award, which opens the door for review on the merits of the arbitral award, incompatible with the minimal intervention.

V. Other Changes in the New Arbitration Law

The New Arbitration Law makes notable adjustments to the terminology of arbitral institutions. It replaces the former term “arbitration commission” with “arbitral institution” across the board, clarifies that no hierarchy exists among different institutions, and expressly defines their legal nature as “non-profit legal persons” as per Art. 13 (2) of the New Arbitration Law, which keeps the arbitration institution’s independence from governmental institutions and avoids administrative intervention. In Art. 86, it also encourages domestic institutions to expand overseas and allows foreign institutions to operate within China on a limited basis. This reflects the ruling party’s enthusiasm for improving the arbitration system and establishing world-class arbitration institutions, as revealed in the Resolution by the 20th Central Committee of the Communist Party of China in its third plenary session dated 18 July 2024.[xxiii]

As for the long-delayed and yet to be founded China Arbitration Association, the New Law once again underscores its role in supervision of arbitration institutions across the country, however, whether this will accelerate its establishment remains to be seen.

VI. Conclusion

In short, while the New Law runs substantially longer than the Old Arbitration Law, its substantive changes fall short of the 2021 Draft and even the 1st Draft, taking “two steps forward and one step back.” Yet many of its revisions merit praise: they consolidate three decades of innovation in Chinese arbitration practice and should help advance both the arbitration sector and the broader rule-of-law business environment. Through a skyrocket development in the past 30 years, Mainland China has been a non-negligible hub for commercial arbitration, with collectively 285 institutions, 60,000 listed arbitrators by 31 July 2025, and 4,373 foreign-related arbitrations being handled by Chinese institutions in 2024[xxiv], the revision of Arbitration Law worthy more in-depth discussion.

 

[i] Zhong, Li , Dissecting the 2024 Draft Amendment to the PRC Arbitration Law: A Stride Forward or a Step Back?, available at https://arbitrationblog.kluwerarbitration.com/2024/12/03/dissecting-the-2024-draft-amendment-to-the-prc-arbitration-law-a-stride-forward-or-a-step-back/, last visited on 19 September, 2025.

[ii] See i.e., Mingchao Fan, An Unexclusive Comparative Analysis of the New Chinese Arbitration Law and the English Arbitration Act 2025, available at Shanghai Arbitration Commission, https://mp.weixin.qq.com/s/l-Q0HUEoAdJ09H8AkkjgnQ, See also Juanming He, A Quick Comment on 2025 Arbitration Law with 10 Thousand Words: Walking Steadily with Promising Future (?????????2025???——??????????), available at https://mp.weixin.qq.com/s/lUPUysV1bAfUHjGhP4DS0Q , last visited on 19 September, 2025.

[iii]That includes:”(a) an expression of the parties’ intention to submit their dispute to arbitration; (b) the matters to be submitted for arbitration; and (c) the parties’ chosen ‘arbitration commission’ which is generally recognized as the equivalent of an ‘arbitral institution’.” See Art. 16 of the Old Arbitration Law, see also Art. 27 (1) of the New Arbitration with only one minor revision (replacing arbitration commission with arbitration institution)

[iv](5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

[v] Art. 91 of the 1st Draft: “Parties to commercial disputes with foreign-related factors may either refer the dispute to agreed arbitration, or submit to an ad hoc arbitral tribunal agreed upon by the parties. Ad Hoc arbitration commences upon the date when the respondent receives the request for arbitration by the claimant. In the event the seat is absent or ambiguous, the tribunal may decide on the place of arbitration base on circumstances of specific case.”(Original text: “?????????????????????????????????????????????????????????????????????????????????????????????????????????”)

[vi] Article 88 of the 1st Draft: “Professionals who are specialized in law, arbitration, economy and trade, scientific technology can be designated to be arbitrators in foreign-related arbitrations.” (Original text: “????????????????????????????????????????????????”)

[vii] Gao Xiaoli: positive practice of Chinese courts in recognizing and enforcing foreign arbitral awards, available at https://cicc.court.gov.cn/html/1/219/199/203/805.html, last visited on 19 September, 2025

[viii] See i.e. Author Dong, Chen, Yuwai, Comments on the Highlights, Expectation and Outlook ??????????<???>?????????????, available at https://mp.weixin.qq.com/s/nl4R_V77AS0c_P88hXIoAw, last visited on 19 September, 2025.

[ix] Tomolugen Holdings Ltd and Another v. Silica Investors Ltd and other appeals [2015] SGCA 57.

[x] See Société Coprodag et autre c Dame Bohin, Cour de Cassation, 10 May 1995 (1995?, cf. Nadja Erk-Kubat, Parallel Proceedings in International Arbitration: A Comparative European Perspective, (Netherlands: Kluwer Law International, 2014), p.39.

[xi] Joint Stock Company ‘Aeroflot-Russian Airlines v. Berezovsky & Ors [2013] EWCA Civ 784.

[xii] Private Company “Triple V” Inc v. Star (Universal) Co Ltd & Another [1995] 2 HKLR 62.

[xiii] See i.e. Article 3 of Reply of the SPC on the Confirmation of the Validity of Arbitration Agreements, which states that: “1. If one party requests the arbitration institution to confirm the validity of the arbitration agreement while the other party requests the people’s court to declare the arbitration agreement invalid, the people’s court shall reject the party’s request provided that the arbitration institution has already ruled on the validity of the arbitration agreement. 2. If the arbitration institution has not yet made a ruling, the people’s court shall accept the request and order the arbitration institution to terminate the arbitration.” Cf. Fu, Panfeng, The Doctrine of Kompetenz-Kompetenz A Sino-French Comparative Perspective: Hong Kong Law Journal, Vol. 52 Part 1 (2022), p. 276.

[xiv] See Xie, Xiaosong, Reform of Arbitration System from The Len of New Arbitration Law: Highlights and  Shortcomings? ????????????????????????? available at https://mp.weixin.qq.com/s/1PWooLr9unRoBfs7nfys9Q, last visited on 19 September 2025

[xv] Art. 45 of the New Arbitration Law: ”Where any circumstance exists that may give rise to justifiable doubts as to an arbitrator’s impartiality or independence, the arbitrator shall, without delay, disclose such circumstance in writing to the arbitral institution.” (Original text:?????????????????????????????????????????????????”)

[xvi]These conditions are:“(1) engaged in arbitration work for (at least) eight years;(2) practiced as a lawyer for (at least) eight years;(3) served as a judge for (at least) eight years;(4) been involved in legal research or law teaching as well as holding a senior academic title; or(5) been professionally involved in economic and trade matters, and also possess an understanding of the law as well as having a senior academic title or its specialized equivalent.” Lu, Song, National Report for China (2020 through 2024), in Lise Bosman (ed), ICCA International Handbook on Commercial, Kluwer Law International 2023, p. 14. It is also notable that “three eight-year working experiences, two senior titles” applies only to nationals domiciled in Mainland China, persons with identities of foreign country or Hong Kong, Macao, Taiwan are generally not subject to it.

[xvii] Art. 22 (2) of the New Arbitration Law: ”Where laws like the Supervisory Officials Law, the Judges Law or the Public Prosecutors Law of the People’s Republic of China provide that the relevant public officials may not concurrently serve as arbitrators, those provisions shall prevail; any other public official who wishes to serve simultaneously as an arbitrator shall comply with the applicable regulations” (Original text: “????????????????????????????????????????????????????????????????????????????????????????”)

[xviii] Art. 23 (2) of the New Arbitration Law : “Arbitrators who are disqualified from civil servant, lawyer’s license or senior titles, or the occurrences of other circumstances that deprive him of condition for arbitrator, shall be removed from the roster of institution ” (Original text:“??????????????????????????????????????????????????????”)

[xix] See i.e. Author Dong, Chen, Yuwai, Comments on the Highlights, Expectation and Outlook ??????????<???>?????????????, available at https://mp.weixin.qq.com/s/nl4R_V77AS0c_P88hXIoAw, last visited on 19 September, 2025.

[xx] Stephen Benz, Strengthening Interim Measures in International Arbitration, Georgetown Journal of International Law, Vol. 50, 2018, p. 147.

[xxi] Gerald Metals v. Timis and ors, [2016] EWHC 2327(Ch), para. 8 (Accordingly, it is only in cases where those powers, as well as the powers of a tribunal constituted in the ordinary way, are inadequate, or where the practical ability is lacking to exercise those powers, that the court may act under section 44.)

[xxii] See Xie, Xiaosong, Reform of Arbitration System from The Len of New Arbitration Law: Highlights and Shortcomings (????????????????????????), available at https://mp.weixin.qq.com/s/1PWooLr9unRoBfs7nfys9Q, last visited on 19 September, 2025.

[xxiii] Resolution of the Central Committee of the Communist Party of China on Further Deepening Reform Comprehensively to Advance Chinese Modernization, available at https://www.chinadaily.com.cn/a/202407/22/WS669db327a31095c51c50f2f8.html, last visited on 20 September, 2025.

[xxiv] The statistic is drawn from the conference concerning foreign-related arbitration hosted by Ministry of Justice on 31 July, 2025, available at https://www.moj.gov.cn/pub/sfbgw/fzgz/fzgzggflfwx/fzgzggflfw/202409/t20240910_505751.html, last visited on 20 September, 2025.

A call for papers has been issued by the editors of the Italian-Spanish Journal of Procedure Law (RIEDP) in view of a special issue devoted to Civil Justice in the Digital Era. The rapid incorporation of technology – particularly artificial intelligence (AI) – into legal systems is reshaping the administration of civil justice globally. Judges, […]

The private international law experts from the University Rovira i Virgili (URV-Tarragona) and the University of Lleida (UdL) together with the Notarial Association of Catalonia, are organizing I INTERNATIONAL CONFERENCE ON THE REVIEW OF REGULATION (EU) 650/2012 AFTER TEN YEARS OF APPLICATION.

– The deadline for receiving abstracts has been extended until 29 September 29 2025.
– The scientific committee will decide on the acceptance on 14 October 2025.
– The conference will take place in Barcelona, on 11 and 12 of November 2025.

The call is open for any of the main thematic areas: scope, definitions, jurisdiction, applicable law, recognition, enforceability and enforcement of decisions and documents, the European Certificate of Succession and other complementary provisions. Communications accepted will be presented in person during the seminar for approximately five or seven minutes each. Applications to present a communication proposal must meet the following requirements: identification of the author and his/her academic category, the subject to which the paper belongs, the title of the communication, an abstract of the communication, which should be between 300 and 500 words in length.

The application should be sent to: reglamentosucesiones@urv.cat

Communications will be selected according to their relevance in terms of the chosen thematic area; quality in the treatment of the topic and originality.
This Conference is part of the research project: “The review of Regulation 650/2012, in matters of succession: application assessment and proposals for amendments”, which is funded by the Spanish Ministry of Science, Innovation and Universities (reference PID2023-149454NB-I00). The duration of the project is four years (2024-2028) and this Conference is the first international scientific meeting planned among the project activities.

More information i available at the official web page.

The Faculty of Law at the University of Rijeka will be hosting its 2025 Doctoral Conference RIDOC on 12 December 2025. The event is designed for doctoral candidates who want to present and evaluate their preliminary research findings in front of academics, practicing lawyers, and engage in discussions with peers on an international scale. Eligible […]

This guest post is written by Jie Zheng, Assistant Professor & Research Fellow, Shanghai University of Finance and Economics

 

On 12th September 2025, the 17th session of the Standing Committee of the 14th National People’s Congress passed the Amendment to the Arbitration Law of the People’s Republic of China (hereinafter “Chinese Arbitration Act”) to be effective from 1st March 2026[1], which was first adopted in 1994. Since its adoption, China has undergone enormous economic reforms and a more urgent need to align the legislation with international arbitration practices. There were only two minor revisions in 2009 and 2017 to fix technical inconsistencies with other procedural laws. In July 2021, the Ministry of Justice of China released a Draft Revision of the Arbitration Law for public consultation. [2] This was the first comprehensive reform since 1994. The draft was reviewed by the Sanding Committee of the National People’s Congress three times.

 

The first draft was reviewed by the Standing Committee of the NPC in November 2024, covering legal aspects of foreign-related arbitration reforms, improvement of the international reputation of Chinese arbitration, streamlining of procedure rules, and arbitration institutional reforms.[3] The second draft was reviewed in April 2025, focusing on the internal governance of arbitration institutions and the judicial support and review of arbitration.[4] The third draft review was completed on 12th September 2025 (the latest Amendment), adding rules on online arbitration and interim measures in the pre-arbitration stage, ensuring the investigation powers of the arbitral tribunal, and expanding the scope of ad hoc arbitration as outlined in the previous draft.[5]

 

I.              The urgent necessity of the amendment to the Chinese Arbitration Act

The current Chinese Arbitration Act has been effective since 1995. Back then, there were a few arbitration institutions, among which, CIETAC, CMAC are the most famous ones. According to the statistics, by August 2025, there are currently 285 arbitration institutions in China, taking over cases of parties from more than 100 nations or regions, involving financial disputes, e-commerce disputes, construction disputes, maritime disputes, intellectual property disputes, etc. [6]

 

Facing the global economic recession and anti-globalization trend, China has furthered its opening-up policies, including the initiation of its Belt and Road projects for foreign investment, establishing free trade zones and free trade ports to test advanced trade policies to be in alignment with the global trade practices. The amendment of the Chinese Arbitration Act is one of the necessary legislative reforms to promote the use of arbitration in international commercial disputes and enhance the attractiveness of foreign investment in China. The latest Amendment intends to serve for a high-quality and advanced level of opening-up, and create a business attractive environment to settle economic disputes. It includes Chinese characteristic features, together with foreign-related arbitration rules compatible with international practices.

 

II.           Major aspects of the latest Amendment to the Chinese Arbitration Act

• Arbitration institutional reforms

Legal nature of the arbitration institution in China

The term “arbitration institution” is applied to replace the old term “arbitration commission”. This shows the understanding of Chinese legislators towards the nature of arbitration institutions. The wording “arbitration commission” represented an administrative and bureaucratic feature, as they were established by the local government and business associations. Now, it is clearly stipulated in Article 13 of the amendment that arbitration institutions are charitable not-for-profit legal persons, stressing the independence of arbitration institutions.

 

The Amendment no longer distinguishes between domestic arbitration institutions and foreign-related arbitration institutions, as most arbitration institutions in China accept foreign-related arbitration disputes nowadays. Nevertheless, unlike in other jurisdictions where arbitration institutions are self-regulated under their statutes and supervised by judicial powers[7], in China, the arbitration institutions are still registered and supervised by the administrative department of justice pursuant to Article 14 and Article 26 of the Amendment.

 

Internal governance of arbitration institutions

The arbitration institution shall comprise one chairman, two vice chairmen, and seven to eleven members. There is an additional requirement on the qualifications of the members in Article 18 of the Amendment. Firstly, at least two-thirds of the members shall have expertise in law, trade and economics, and scientific technology. Secondly, the composition of the members should be adjusted every five years, and at least one-third of the members should be replaced to avoid conflict of interest.

 

• Support for online arbitration

Online arbitration has become a common practice in recent years in China.[8] Article 11 of the Amendment has confirmed the legality of online arbitration and the effectiveness of online arbitration. The parties may opt out of online arbitration if they do not agree.

 

• Arbitrators

Article 22 of the Amendment has excluded the double-heading of arbitrators who are prosecutors, judges, or any civil servants, who are restricted by law to act as arbitrators. It also welcomes foreign experts in law, trade and economics, maritime, and scientific technology to act as arbitrators.

 

Article 45 further requires the arbitrators to disclose any potential situations to the arbitration institutions in which a reasonable doubt could be cast on the independence or impartiality of the arbitrator.

 

Regarding the appointment of the third arbitrator in case of a three-member arbitral tribunal, Article 43 allows the parties can agree on different options: 1) the chief of the arbitration institution to appoint; 2) the parties to appoint themselves; 3) the already appointed two arbitrators to appoint.

 

• Interim measures in pre-arbitration proceedings

Article 39 of the Amendment has confirmed the possibility of the parties to apply for interim measures or injunctions before the initiation of the arbitration proceedings. The people’s court has the responsibility to proceed with the parties’ application.

 

• Arbitral tribunal’s extended powers

Article 55 empowers the arbitral tribunal’s power to collect evidence and request that relevant authorities assist. In the past, the arbitral tribunal had limited resources to collect evidence, except for requesting the parties to provide relevant evidence. With this latest amendment, the relevant authority has the duty to assist the arbitral tribunal if the evidence is hard to obtain by the arbitral tribunal.

 

• Setting aside and non-enforcement of arbitral awards

According to Article 72 of the latest Amendment to Chinese Arbitration Act, the time limit for applying for setting aside an arbitral award has been changed from 6 months to 3 months only. This is to enhance the efficiency of arbitration and avoid the party abusing the right of objection to delay the enforcement of arbitral awards.

 

During the enforcement stage, the respondent can invoke the same legal grounds of setting-aside the arbitral awards in Article 71 first paragraph to resist the enforcement of the arbitral awards. The Amendment has unified the legal grounds for setting-aside and non-enforcement applications of arbitral awards.

 

• Foreign-related Arbitration

Foreign-related arbitration refers to the two-track regime of arbitration in China, where domestic arbitration falls within a stricter judicial review over arbitral awards.[9] China traditionally uses a three-tiered approach to determine whether a dispute involves foreign-related elements: it looks at (1) who the parties are to the disputes, it assesses the (2) subject matter of the disputes, and looks at the (3) legal natures of the disputes.

Seat of arbitration

Before, Chinese Arbitration Act used the word “location of the arbitration commission” to determine the nationality of the arbitral awards. This point of view has been shifted by the judiciary towards the “seat theory” together with the development of case law.[10] In Article 81 of the Amendment, it is emphasized that the seat of arbitration should be chosen by the parties. In the absence of such choice in the arbitration agreement, the arbitration institutional rules should be used to determine the seat of arbitration. If there are no stipulations in the arbitration institutional rules regarding the seat of arbitration, the arbitral tribunal has the power to determine the seat of arbitration in accordance with the convenience principle. In the absence of the parties’ agreement, the applicable law to the arbitration proceedings and to the judicial review of arbitral awards should be the law of the seat of arbitration. The legislative bodies have confirmed the judicial practices supporting the seat theory and explored ways to ascertain the seat of arbitration.

 

Ad hoc arbitration

Article 82 of the Amendment allows parties in foreign-related maritime disputes, and parties from Free Trade Pilot Zones[11], Hainan Free Trade Port, and other regions approved by the Chinese government to choose ad hoc arbitration. The parties should nevertheless inform the Association of Chinese Arbitration about the parties’ names, seat of arbitration, the composition of the arbitral tribunal, and the arbitration rules, within three days after the establishment of the arbitral tribunal. The people’s courts should provide judicial support for the interim measures applied by the parties.

 

Foreign arbitration institutions welcomed in China’s FTZs

Article 86 of the Amendment supports foreign arbitrations to establish business entities in the free trade pilot zones, Hainan Free Trade Port, or other regions that are approved by the government in China. No further stipulations are made regarding the types of activities that such entities can engage in.

 

III.         Future alignment with international commercial arbitration practices: the way ahead

Compared with the 1994 Chinese Arbitration Act, the latest Amendment is an applaudable endeavor showing the determination of the Chinese government to modernize its arbitration laws and align with international practices. Nevertheless, in contrast to the draft amendment by the Ministry of Justice in 2021, the latest Amendment was a step backward.

 

First of all, the validity requirement of the arbitration agreement has not been amended. Considering that ad hoc arbitration is currently only allowed in a limited scope of practices, the requirement of a named arbitration institution has been kept. However, as perceived from the Longlide case[12], the validity requirement of a named arbitration institution also includes foreign ones.

 

Secondly, the Amendment did not change the competence-competence rules in the Chinese Arbitration Act. The court still has the primary role in determining the jurisdiction of the arbitral tribunal, but it is worth mentioning that Article 31 of the Amendment has added the arbitral tribunal, together with the arbitration institution and the court, to be able to determine the jurisdiction of the tribunal in case the parties have objections against the validity of the arbitration agreement.

 

Thirdly, the tribunal still has no power to rule on parties’ applications for interim measures, which is left to the people’s court. Such an application must be passed from the arbitral tribunals to the courts.

 

Lastly, it’s a pity that ad hoc arbitration has a limited scope of application. It is restricted to maritime disputes and parties from FTZ-related areas, without further expansion to foreign-related arbitration.

 

As a conclusion, the Amendment demonstrates major advancement of the arbitration rules, but much can be done in the future with the economic development and international commercial practices proceeding in China.

[1] Amendment to the Arbitration Law of the People’s Republic of China, President’s Order No. 54, <https://www.moj.gov.cn/pub/sfbgw/gwxw/xwyw/202509/t20250913_525029.html> accessed 15 September 2025.

[2] Ministry of Commerce, Draft Amendment to the Arbitration Law of the PRC for public consultation, < https://www.moj.gov.cn/pub/sfbgw/lfyjzj/lflfyjzj/202107/t20210730_432967.html> accessed 15 September 2025.

[3] He Rong, Minister of Ministry of Justice, Explanations on the Draft Amendment to the Arbitration Law of the PRC, < http://www.npc.gov.cn/npc/c2/c30834/202509/t20250912_447719.html> accessed 15 September 2025.

[4] NPC, the Second Draft Amendment of the Arbitration Law of the PRC intends to further implement the foreign-related arbitration regime, < http://www.npc.gov.cn/npc/c2/c30834/202504/t20250425_444888.html> accessed 15 September 2025.

[5] Xinhua Net, Amendment to Arbitration Law of the PRC, effective from 1st March 2026, < http://www.npc.gov.cn/npc/c2/c30834/202509/t20250912_447759.html>. The full text of the Amendment can be accessed via < https://www.moj.gov.cn/pub/sfbgw/gwxw/xwyw/202509/t20250913_525029.html > accessed 15 September 2025.

[6] People’s Court Daily?Chief of the National People’s Congress Legislative Committee Civil Law Branch Answering Questions regarding the amendment of Chinese Arbitration Act,<https://www.zcia.cn/info/10990.html> accessed 15 September 2025.

[7] Such as ICC, SIAC, ICSID.

[8] See Online Arbitration Rules of various arbitration institutions, including CIETAC, Guangzhou Arbitration Commission, Shenzhen Court of International Arbitration, etc.

[9] See Article 71 and Article 83 of the Amendment to Chinese Arbitration Act.

[10] Brentwood Industries v. Guangdong Fa Anlong Machinery Equipment Co., Ltd. (2015) Sui Zhong Fa Min Si Chu Zi No. 62. In this case, Guangzhou Intermediate People’s Court rendered a judgment considering an arbitral award made by an ICC tribunal in Guangzhou as a foreign-related Chinese award that is subject to the enforcement regime under the Chinese Civil Procedure Law.

[11] China has approved 22 Free Trade Zones and 1 Free Trade Port (Hainan) across the country to experiment with new regulations and explore ways to improve business environment. See < https://investinchina.chinaservicesinfo.com/investspecials/chinapilotfreetrade/> accessed 17 September 2025.

[12]  Longlide Packaging Co Ltd v BP Agnati SRL [2013] Min Si Ta Zu Di 13 Hao.

An advanced article on conflict of laws for issue three of 2025 for Uniform Law Review was recently published.

Cayetana Santaolalla Montoya, “The challenges of blockchain arbitration from a private international law perspective”

This article aims to explore the emergence of blockchain arbitration and the legal challenges it poses from a private international law perspective. It examines the legal implications of this new type of arbitration and its feasibility under international regulatory frameworks (including the European Union, the USA, and the 1958 New York Convention), and it assesses leading decentralized justice platforms such as Kleros, Aragon, and Jur. The study highlights the fundamental differences between blockchain arbitration and traditional arbitration, identifying challenges such as the absence of a seat, the anonymity of parties and arbitrators, and the tension between decentralization and legal oversight. Finally, it explores future trends and proposes recommendations to adapt existing regulatory frameworks, concluding that, while blockchain arbitration will not replace classical arbitration in the short term, it could establish itself as a valuable complement to resolve disputes in the global digital economy.

Intersentia has recently published a new book by Michael Stürner (University of Konstanz), titled European Contract Law. This volume provides a comprehensive presentation of European contract law. It analyses the growing body of private law rules on an EU level and their interplay with domestic law and legal methodology. This includes new features in contract […]

As alluded to by Erik Sinander in his post on the judgment of the Grand Chamber of the CJEU in C‑600/23, Royal Football Club Seraing SA v. FIFA, et al. (“RFC Seraing”), the Court not only confirmed that the courts of EU Member States should have the possibility to review whether arbitral awards comport with EU public […]