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Abstract

The scope of an arbitration agreement is a key issue in international arbitration theory and practice, because it directly decides an arbitrator’s jurisdiction. Courts in pro-arbitration jurisdictions usually interpret scope broadly to cover all disputes related to the contract between the parties. This ensures that arbitration can function as an effective and efficient “one-stop” forum for business entities. The Supreme People’s Court of China (SPC), however, misconceptualizes the scope of an arbitration agreement by mistakenly equating it with the boundaries of the contract between the parties. This further causes the SPC to adopt two problematic legal doctrines. First, it develops a literal interpretation approach that focuses on an arbitration agreement’s exact wording. Second, it is confused between the existence and the scope of an arbitration agreement. As a result, the SPC frequently interprets scope narrowly, and wrongly applies the New York Convention and the relevant Chinese law. This paper identifies the SPC’s misconception for the first time among all literature, and argues that it should correct the misconception and the problematic doctrines. Only by doing so can the SPC bring its jurisprudence in line with international practice and facilitate economic activities between China and the rest of the world.

Publication Type:	Article
Additional Information:	This article is to be published in a revised form in Asian Journal of Comparative Law https://www.cambridge.org/core/journals/asian-journal-of-comparative-law. This version is free to view and download for private research and study only. Not for re-distribution or re-use. © copyright holder.
Publisher Keywords:	international commercial arbitration, New York Convention, Chinese law, the Supreme People’s Court of China, arbitration agreement, scope of an arbitration agreement, interpretation of scope, existence of an arbitration agreement
Subjects:	D History General and Old World > DS Asia K Law
Departments:	The City Law School The City Law School > Academic Programmes
SWORD Depositor:	Symplectic Administrator

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