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Can You Refer to Arbitration in the Absence of an Arbitration Agreement?
The answer is definitely negative.
A valid arbitration agreement (or an arbitration clause contained in a contract) between the disputing parties is a prerequisite for arbitration, except in labor dispute arbitration. Therefore, the disputing parties must have signed an arbitration agreement in written form (fax, paper, telex, e-mail, etc.), before refer their dispute to arbitration, and their request for arbitration must be accompanied with the arbitration agreement.
The disputes to be arbitrated must also be arbitrable. In other words, they shouldn’t fall within the categories of excluded disputes listed in the Arbitration Law of the People’s Republic of China. Such excluded disputes include the following types:
- disputes relating to personal relationship, such as those involving marriage, divorce, adoption, support, custody, inheritance, etc.; and
- disputes that fall under the jurisdiction of government authorities. One of the disputing parties of such a dispute is a government authority or its branch, and the dispute arises from the act or omission (rather than a civil act) of such government authority or branch based on their functions and powers.
In order to have their dispute arbitrated, the disputing parties must enter into a valid arbitration agreement before their case is admitted by the arbitration commission. Otherwise, they have to refer the case to a court of competent jurisdiction.
Practising lawyers
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Robert Zhang
An international lawyer registered in Shanghai, China. Master's degreePublish…
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Steve Li
An international lawyer registered in Shanghai, China. Master's degreePublish…
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