City Research Online

Abstract

The scope of an arbitration agreement is a crucial issue in the theories and practice of international commercial arbitration, because it directly decides an arbitrator’s jurisdiction. Courts in pro-arbitration countries have adopted a presumptive rule, under which an arbitration agreement’s scope is interpreted broadly to cover all disputes related to the contract between the parties. This enables the courts to respect parties’ intention to arbitrate their disputes and refrain from conducting excessive merit review. Over the past few decades, the Supreme People’s Court of China has made many efforts to maintain an overall pro-arbitration stance. Surprisingly, however, it has consistently interpreted scope issues narrowly. This runs against the international trend and the court’s otherwise arbitration friendly position. Even more shockingly, this issue has remained unnoticed in both legal practice and academia. This creates potential pitfalls for business entities across the world and damages China’s reputation in the field of international arbitration. This article identifies the hidden anomaly under Chinese law and calls on the Chinese supreme court to adopt the presumptive rule. Doing so will enable Chinese courts to interpret scope issues broadly and avoid conducting excessive merit review. This will bring Chinese law in line with the international practice and consolidate its pro-arbitration status. It will further safeguard the smooth operation of the international arbitration system and facilitate continued economic growth of the world.

Publication Type:	Article
Additional Information:	This article has been accepted for publication by Sweet and Maxwell in Hong Kong Law Journal.
Subjects:	K Law > K Law (General)
Departments:	The City Law School > Academic Programmes

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