A Brief Commentary on the Proposed Amendments to the PRC Arbitration Law: Adapting to International Arbitration Practices with the PRC Characteristics

• Author: Xiaofei Mao
• Position: Associate Professor
• Pages: 180-183

A Brief Commentary on the Proposed Amendments to the

PRC Arbitration Law: Adapting to International

Arbitration Practices with Chinese Characteristics

Xiaofei Mao1

Abstract: On July 30, 2021, the Ministry of Justice of the People’s Republic of

China issued the first version of the Arbitration Law of the People’s Republic of

China (Revised) (Draft for public comments) (hereinafter referred to as the Draft for

Comments), together with its explanatory notes.2The Draft for Comments makes

major strides toward eliminating anachronisms of the existing Arbitration Law of the

People’s Republic of China (1995) and bringing the Chinese arbitration regime more

in line with international norms and standards.3It significantly expands the scope of

arbitration by removing the “equal status” requirement and replacing “citizens” with

“natural persons” in Article 2 so that contractual disputes and other disputes arising

from the property rights and interests between all parties may be arbitrated in Chinese

Mainland, including those involving governmental bodies. Further, the Draft for

Comments incorporates some key arbitration norms and principles, such as the

concept of the seat of arbitration, the competence-competence doctrine, the legality of

ad hoc arbitration for foreign-related arbitration, interim measures, and preliminary

orders by arbitral tribunals, among others. It appears to send out a signal that the

Arbitration Law of the People’s Republic of China is moving toward the Model Law

on International Commercial Arbitration issued by the United Nations Commission on

International Trade Law (UNCITRAL) (hereinafter referred to as UNCITRAL Model

Law). Nevertheless, it is hard to predict at this stage whether China will become a so-

called “Model Law country”, since the Draft for Comments still maintains the basic

framework of the existing Arbitration Law of the People’s Republic of China which

distinguishes domestic and foreign-related arbitration and contains detailed provisions

on the establishment and operation of arbitration institutions with unique Chinese

characteristics. Of the changes made, this commentary will highlight some

noteworthy modifications which show the integration of the Arbitration Law of the

People’s Republic of China into the international arbitration regime on the one hand,

and the maintenance of Chinese characteristics on the other hand.

Keywords: Arbitration Law of the People’s Republic of China; Draft for public

comments; Seat of Arbitration; Double-Track System of ad hoc Arbitration;

Competence-Competence Doctrine; Interim Measures

1Xiaofei Mao, Asso ciate Professor, Arbitrator, Head of Research Department for Laws of Nations of

the Institute of International Law at the Chinese Academy of Social Scie nces. She is also the Standing

member of Chi na Academy of Arbitration Law (CAAL).

2See Ministry of Justice, Notice on the Public Commen ts for the Arbitration Law of the People’s Repu-

blic of China (Re vised) (Draft for public comme nts), official website of MOJ , http://www.moj.gov.cn/

pub/sfbgw/zlk/202107/t20210730_432965.html (accessed on July 3 0, 2021).

3The revision of the Arbitration Law was once put on the agenda of the legislation work of the

National People’s Congress in 2006, which, however, led to no result. See Legal Affairs Committee of

the Standing Committee of the National People’s Congress, A Brief Statement of the F ive-Year

Legislation Work of the Tenth National People's Congress and its Standing Committee, Website of the

NPC, http://www.npc.gov.cn/npc/c238/200803/d7ca5b4634fb4db98d5f8186dc827912.shtml. In 2009

and 2017 minor changes were made to the Arbitration Law (accessed on July 30, 2021).

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