International Commercial Arbitration and Choice of Law in China
Keywords:
China, CIETAC, commercial arbitration, choice of law, party autonomyAbstract
After China’s open door policy and the introduction of the socialist market economy business relations between Chinese and foreign parties have steadily increased and CIETAC, the oldest arbitration commission in China, has become one of the busiest arbitration institutions in the world. This article provides the reader an overview of the specific features of Chinese arbitration and with a special focus on choice of law issues that have to be taken into account when negotiating a contract with a Chinese party including an arbitration and choice of law clause.
The central question is if party autonomy is respected in China, and if so, to what extent. The new CIETAC rules of 2012 express the priority of the choice of the parties but also establish also limitations. If the parties fail to communicate their choice, the arbitrators conduct the choice of law according to Chinese choice of law rules. Since the choice of law is mandatory, there is only a limited possibility to use secondary sources such as lex mercatoria.
