TITLE:
On the Subjective Arbitrability of Civil and Commercial Disputes in China
AUTHORS:
Du Wen
KEYWORDS:
Chinese Civil and Commercial Arbitration, Subjective Arbitrability, Classification upon Analyses
JOURNAL NAME:
Open Journal of Social Sciences,
Vol.14 No.6,
June
30,
2026
ABSTRACT: This paper provides a systematic analysis against the subjective arbitrability. The basic inferences drawn by the author are: (1) Theoretically, the subjective arbitrability refers to the eligibility of the parties to the arbitration to both sign and perform the arbitral agreement. (2) The subjective arbitrability has three limbs: (i) the general capacity of being arbitral parties; (ii) the competency of personally-conducting arbitration; (iii) the proper parties to an arbitration. This paper mainly focuses on the studies of the latter two limbs. (3) There is a logical progression among these three limbs, that is, the general capacity of being arbitral parties shall be possessed initially, and then the very existence of the competency of personally-conducting arbitration shall be secured. After that, the examination against the issue of the proper parties to an arbitration can be carried out. (4) In China, arbitration agreements entered into by persons without or with limited capacity for civil conduct are invalid. In addition, there is no possibility of the relevant custodian granting prior authorization or retroactive recognition based on Articles 19 and 22 of the Civil Code of China. (5) According to the principle of citizen treatment for foreigners, all types of foreign entities, foreign citizens and stateless persons shall have subjective eligibility to sign arbitration agreements pursuant to the laws of China. (6) Where the lawful agency, the retroactively recognized unauthorized agency, or the ostensible agency is involved, the related arbitral agreement may bind the principal. (7) As for the arbitration agreement involving subrogation litigation, firstly, the exercise of subrogation rights generally shall not be hindered by that arbitration agreement. Secondly, in some cases, disputes involving the arbitration agreement may lead the court either to temporarily stay the trials of subrogation lawsuit, or even to render a judgment to dismiss the subrogation lawsuit. (8) When different arbitral clauses are set for the main contract and the ancillary contract, the arbitration clauses in the main contract and ancillary contract are mutually independent and cannot be applied by cross referring each other. (9) Others’ arbitral clause generally binds statutory successors of relevant substantive rights and obligations, but with exceptions. (10) For the agreed successors of the related substantive rights and obligations, the arbitration agreement generally shall be valid for the assignee. However, there are exceptions. (11) When an arbitration clause is being incorporated, Chinese courts usually do not consider that this arbitration clause will bind non arbitration agreement signatories holding relevant bills of lading or other cargo delivery documents. (12) In civil and commercial arbitration, there are only systems such as “renewal of arbitration agreement” and “consolidation of arbitrations”, and there are no two types of third parties in the sense of Article 59 of the Civil Procedure Law of China.