Challenging the jurisdiction of a Chinese arbitral institution to hear a matter always requires challenging the binding force of an arbitration agreement. Article 5 of the Arbitration Law of the People’s Republic of China (‘Arbitration Law’) gives arbitral tribunals exclusive authority to hear cases when the parties ‘have concluded an arbitration agreement’. At the same time, Article 5 prevents the people’s court from accepting a case, ‘unless the arbitration agreement is null and void’.
Chinese law envisages two types of challenges to the jurisdictions of arbitral tribunals. Namely, total challenges and partial challenges to jurisdiction. A total challenge, as the name implies, is to dispute the existence or validity of the jurisdiction granting arbitration clause. Partial challenges admit the existence of an arbitration clause, but refute that the dispute is within the scope of the arbitration clause being relied upon.
First pulbised by LexisNexis