ICC arbitration clause for China

Under the 1994 Arbitration Law of the People’s Republic of China, one of the conditions for the validity of an arbitration agreement is a reference to the zhongcai weiyuanhui or arbitration commission selected by the parties to conduct their arbitration. Although there is some uncertainty as to whether foreign arbitration institutions qualify as arbitration commissions within the meaning of the law, it would in any case be prudent for parties wishing to have an ICC arbitration in Mainland China to include in their arbitration clause an explicit reference to the ICC International Court of Arbitration, so as to avoid the risk of having the standard ICC clause declared null and void for lack of a sufficiently explicit reference to the arbitration institution of their choice.

It is therefore suggested that such parties adapt the wording of the standard ICC arbitration clause as follows:

‘All disputes arising out of or in connection with the present contract shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.’

You can download the text of the clause in Chinese language, by clicking here.

The above rewording of the standard ICC arbitration clause applies only for arbitrations seated in Mainland China. No similar modification is necessary for the purpose of enforcing awards made in arbitrations held elsewhere (including the Hong Kong Special Administrative Region), as China is required to recognize and enforce foreign arbitral awards in accordance with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, which it ratified in 1987.