Introduction
In recent years, the prospect of enforcing in the Peoples' Republic of China ("PRC") a foreign arbitral award1 has become more viable. The PRC's participation in relevant international treaties and conventions, and its recent promulgation of domestic laws designed to facilitate the enforcement of foreign arbitral awards, mark great strides toward easing the task of enforcing foreign arbitral awards in the PRC. See
The PRC's participation in relevant international treaties and conventions, and its recent promulgation of domestic laws designed to facilitate the enforcement of foreign arbitral awards, mark great strides toward easing the task of enforcing foreign arbitral awards in the PRC.
Henry J. Uscinski and Timothy A. Steinert, Enforcement of Arbitral Awards and Foreign Judgments in the PRC, The Hong Kong Director's Law Yearbook, at 41 (1993). However, one question still remains unresolved: What are the time limitations within which a successful party must seek to enforce a foreign arbitral award in the PRC?
New York Convention
Notably, the New York Convention on the Recognition of Foreign Arbitral Awards ("New York Convention"), of which the PRC is a signatory, is silent regarding statutes of limitations governing enforcement. This issue is thus left to the enforcing jurisdiction to resolve. Unfortunately, when enacting its laws governing the enforcement of foreign arbitral awards, the PRC did not establish a pertinent statute of limitations. As a consequence, the only guidance available to successful parties of foreign arbitrations is the PRC Civil Procedure Law, Article 219, which governs the enforcement of domestic arbitral awards.
Article 219 provides, inter alia, that when one or both parties is a natural person of Chinese nationality, an application for enforcement must be made to the competent Chinese court within one year. When both parties are legal persons or other organizations, an application for enforcement must be brought within six months. These limitations periods begin to run from the last day of the periods specified in the award for voluntary service.
PRC Law
The applicability of Article 219 to enforcement of foreign arbitral awards remains uncertain. PRC law governing foreign related arbitrations includes a general catch-all provision referring parties, when there is no provision specifically relating to foreign related arbitrations, to other PRC laws governing domestic litigation and arbitration. However, no such PRC domestic law affirmatively indicates that Article 219 prescribes the appropriate limitations period.
Conclusion
Nevertheless, in the absence of any specific provision governing enforcement of foreign arbitral awards, the best advice for successful arbitral parties is that they would do well to comply with the applicable limitations periods prescribed by Article 219. In so doing, application should be made to the Intermediate People's Court, which is the court designated to review actions for enforcement of foreign arbitral awards. In the absence of any published law, it would be awkward for
failure to comply with the limitations periods governing enforcement of PRC domestic arbitral awards might allow an Intermediate People's Court to deny enforcement of that award as against PRC public policy . . .
the Intermediate People's Court to insist on a more rigorous limitations period for enforcement of foreign awards than is required for domestic awards. Conversely, however, failure to comply with the limitations periods governing enforcement of PRC domestic arbitral awards might allow an Intermediate People's Court to deny enforcement of that award as against PRC public policy, one of the grounds upon which a court can refuse to enforce an arbitral award under the New York Convention.
1. In this essay, the term "foreign arbitral award" refers to an award rendered by an arbitral center located outside the PRC, "domestic arbitral award" refers to an award rendered by an arbitral center within the PRC, and foreign-related arbitral award" refers to an award rendered pursuant to PRC provisions governing arbitrations in which one party is a foreign entity or person.