The old Arbitration Law of China came into effect on September 1, 1995. “As of the end of August 2025, 285 arbitration committees have been established lawfully nationwide, handling over 5 million arbitral cases with a total amount of over 9000 billion yuan in involved subject matters. The applicants for arbitration involve more than 100 countries and regions around the globe, and the handling of disputes touches upon multiple fields such as finance, e-commerce, construction engineering and so on, playing a significant role in serving China’s economic development and opening up to the outside world”¹. As its updated and upgraded version, the new Arbitration Law of China was enacted by the 17^th meeting of the Standing Committee of the 14^th National People’s Congress on September 12, 2025, and has already come into effect since March 1 of this year.

The newly effective Arbitration Lawof China will definitely usher in a new epoch, in which China’s domestic and foreign-related civil and commercial arbitration will achieve the in-depth and lasting development. To support and facilitate this positive trend, it is necessary to define the meaning and scope of arbitrability. Two jurists point out in their works that “arbitrability refers to the scope of controversies that can be resolved through arbitration pursuant to the law. Arbitrability can be further broken down as the subjective arbitrability and the objective arbitrability. The issues of arbitrability belong to the domestic laws of a country. Violation of arbitrability can lead to the invalidity of the arbitration agreement”². Furthermore, it may also result in the revocation or non-enforcement of effective arbitration awards by court rulings³.

From the literature quoted in the preceding paragraph, the arbitrability of civil and commercial cases can be divided into two sub-groups: the subjective arbitrability and the objective arbitrability. This paper will focus on the analyses of issues related to the subjective arbitrability. The issues of the objective arbitrability have already been discussed in a published treatise of the author ([2]). If interested, readers are advised to refer to the contents of this newly-published paper.

1)Definition and meaning analyses

Paragraph 1 of Article 3 of China’s New Arbitration Law stipulates that “contractual disputes and other disputes over rights and interests in property between citizens, legal persons and other organizations that are equal subjects may be arbitrated”. This is an abstract statutory definition of subjective arbitrability. From a theoretical perspective, the so-called subjective arbitrability refers to the eligibility of the parties to the arbitration to both sign and perform the arbitral agreement. This concept actually has three limbs: First and foremost, “the general capacity of being arbitral parties refers to the eligibility or qualification to act as a party to arbitration. It is only an abstract eligibility or qualification, and a person with this eligibility or qualification may not necessarily be a party to an arbitration case. In fact, becoming a competent party to arbitration requires a subject either to apply for or be applied for arbitration in accordance with legal rules and the related arbitration agreement in resolving specific disputes ... Any subject with the general capacity of being litigants (Parteifahigkeit) must have the general capacity of being competent arbitral parties”⁴. In pursuance of Article 3 of the Civil Procedure Law of China, the subjects with the general capacity of being arbitral parties are principally limited to natural persons, legal persons, and unincorporated organizations that can engage in civil and commercial transactions. Secondly, the competency of personally-conducting arbitration refers to the qualification to exercise arbitration rights and fulfill arbitration obligations through one’s own actions. Arbitration actions carried out by civil subjects lacking the competency of personally-conducting arbitration do not have legal effect ... The competency of personally-conducting arbitration and the competency of personally-conducting litigation also are overlapping against each other⁵. In another word, any subject with the competency of personally-conducting litigation will possess the competency of personally-conducting arbitration simultaneously. Thirdly, “the proper parties to an arbitration refers to the parties who are qualified to become either the applicant or respondent in his own name for a specific case, and are therefore bound by the arbitral award of that case. This ability to act as a party in his own name and be bound by the award of the case at hand is called the standing to participate in an arbitrated case. The parties who have the standing to participate in an arbitrated case are called qualified arbitral parties, including qualified applicants (the competency in the active sense) and qualified respondents (the competency in the passive sense)”⁶.

As for the three limbs of the aforesaid subjective arbitrability, the first one (the general capacity of being arbitral parties) has the strongest abstraction. In the sense of the abstraction, the second one (the competency of personally-conducting arbitration) is the runner-up. By comparison, the third one (the proper parties to an arbitration) is most specific and closely linked to individual disputes. 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. Only after that, the examination against the issue of the proper parties to an arbitration can be carried out.

Based on the above two paragraphs, in line with Article 4 of China’s New Arbitration Law (Article 4 of the old law), principally, only the signatories of the relevant arbitration agreement can apply to the selected arbitral institution for corresponding civil and commercial arbitration. Due to the fact that the signing of a specific arbitral agreement has nothing to do with the determination of the general capacity of being arbitral parties, abovementioned Article 4 mainly concerns the issues of the competency of personally-conducting arbitration and the proper parties to an arbitration. However, it shall be noted that there are indeed some exceptions to this end, such as the subjective expansions of the binding force of an arbitral agreement. The 4th sub-section of this article will devote its full attention to a systematic analysis against this intriguing sub-topic.

2)Classificationof theissues concerningsubjective arbitrability

In terms of the subjective arbitrability, the related issues can be divided into the following three categories: firstly, whether the subject who signs the arbitration clause has the general capacity of being arbitral parties or not. Since that issue has been resolved in the previous text, it will not be further explored in the following discussion. The second is whether the party signing the arbitration clause has the competency of personally-conducting arbitration. The third issue concerning identifying the proper parties to an arbitration. On some extents, the third issue is directly linked to the query of which parties who have not signed the arbitral clause but shall still be bound by it.

The second type of issue mentioned above can be further broken down as two sub-questions: (1) Who are these Chinese civil and commercial subjects with the competency of personally-conducting arbitration? (2) Who are these foreign civil and commercial subjects with the competency of personally-conducting arbitration? Meanwhile, the third type of issue mentioned above can be at least further divided as the following seven sub-questions: (1) Does the arbitration clause in the contract signed based on the agency relationship bind the principal? (2) Who are the parties to be bound by the relevant arbitration agreement in the subrogation litigation? And how they will be bound by the related arbitration agreement? (3) When the main contract and the ancillary contract contain their different arbitral clauses, how shall this situation be handled rightfully? (4) Does the arbitration agreement between others bind the legal successors of the related substantive rights and obligations? (5) Does the arbitration agreement between others bind the agreed successors of the related substantive rights and obligations? (6) Will the arbitration clause bind the holder of the relevant bill of lading when it is incorporated? (7) For two types of third parties provided by the Civil Procedure Law of China, will they show up in the ongoing civil and commercial arbitral proceedings?

After completing the theoretical dissection in the above paragraph, the next two sub-sections will switch their focal point to the comprehensive analyses against these two major issues and their respective nine components (sub-issues).

3)Analyses of the arbitral clause signatories’ competencyto attend the arbitration

(1) Chinese civil and commercial subjects with the competency to attend arbitration

As for this issue, the author believes that signing an arbitration agreement is a highly abstract and complex civil proceeding law act, which is related to whether disputes between the parties can be resolved through arbitration, thus safeguarding the legitimate rights and interests of the parties and also maintaining the stability of market transactions. From this perspective, the understanding of the content of an arbitration agreement and the recognition of its legal consequences have apparently exceeded the level that can be judged by the intellectual and mental state of persons without capacity for civil conducts and these with limited capacity for civil conducts. Consequently, the law requires that the parties who sign an arbitration agreement shall have full capacity for civil conducts, otherwise the arbitration agreement they sign will be invalid from the very beginning. Specifically, qualified signatories of arbitration agreements are either legal persons or lawfully-established unincorporated organizations in their respective existence (Articles 58 and 102 of the Civil Code of China), or natural persons over 18 years old with normal mental state and the sound mind (paragraph 1 of Article 18 ofthe Civil Code of China).

Article 28 of China’s New Arbitration Law (Article 17 of the old law) clearly states that “an arbitration agreement shall be null and void under one of the following circumstances: ... (2) One party that concluded the arbitration agreement has no capacity for civil conducts or has limited capacity for civil conducts”. In the light of Articles 17, 19, and 20 of the Civil Code of China, natural persons under the age of 8 and minors between the ages of 8 and 18 do not have the competency of personally-conducting arbitration. This assessment can be vindicated by judicially decided cases of China. In this regard, the following two cases are typical: The case of Li Mouping and Beijing Huayi Sisters Cultural Development Co., Ltd. applied to confirm the validity of an arbitration agreement((2021) Jing 04 Min Te No. 865); Li Mou applied to confirm the validity of an arbitration agreement against Donghai Yuantuo Cultural Media Co., Ltd.((2020) Su 07 Min Te No. 55)⁷.

From the analysis in the above paragraph, it can be inferred that an arbitration agreement signed by a person without or with limited capacity for civil conduct is definitely invalid from the initial moment. For such fatally-flawed arbitration agreements, there is no room of prior authorization or subsequent recognition by the relevant guardian based on Articles 19 and 22 of the Civil Code of China. There are three main reasons to back this assessment up: first, “arbitration agreements entered into by persons with limited capacity for civil conduct are invalid. … Signing an arbitral agreement is not compatible with the age, intelligence, and mental state of the person with limited capacity for civil conduct. The understanding of the contents of the arbitral agreement and the awareness of its legal consequences have already exceeded the degree that the limited intelligence and mental state of the person with limited capacity for civil conduct can handle. It will be difficult for them to make correct decisions and deal with this matter. In order to protect the legitimate rights and interests of minors and patients with mental disorder, and to effectively resolve disputes through arbitral agreements and thus maintain social and economic order, the signing of arbitral agreements shall be represented by the statutory agents. Otherwise, it is an invalid arbitral agreement, and disputes involving persons with limited capacity for civil conduct cannot be resolved through the arbitration. … The arbitral agreement entered into by a person without civil capacity is invalid”⁸. Second, although often included as a clause in relevant contracts, arbitral arrangement actually has an independent legal status, which is often referred to as the severability of arbitration agreement. For example, paragraph 1 of Article 30 of China’s New Arbitration Law (Article 19 (1) of the old law) provides that “an arbitration agreement shall exist independently. The amendment, rescission, termination or invalidity of a contract shall not affect the validity of the arbitration agreement”. In this regard, the arbitration agreement has the legal effect similar to that of a consensual jurisdiction reached by two sides in the sense of the Civil Procedure Law of China (Article 35 and Article 277). Third, Two Chinese jurists have specially pointed out that “the parties to an arbitration agreement can only be natural persons and legal persons with full capacity for civil conduct. Persons without civil capacity and persons with limited civil capacity cannot enter into an arbitration agreement with others. Otherwise, the arbitration agreement is invalid. However, persons with limited civil capacity and persons without civil capacity can reach a valid arbitration agreement via their statutory agents (guardians) with full civil capacity” ([5]).

In terms of this sub-topic, the following detail shall also be noted: Article 18 of the Civil Code of China points out: “a minor attaining the age of sixteen and primarily relying on his or her own labor income in living is deemed as a person with full capacity for civil conduct”. Based on this premise, such a laboring young adult should also have full competency for civil trials in the sense of procedural laws. In other words, when such a young adult laborer has civil or commercial disputes with others, he or she has the right to personally bring or participate in the corresponding civil litigation in court, as well as the right to reach a written consensual jurisdiction with others before or after the occurrence of the dispute. From this deduction, it can be seen that such a laboring young adult should also have the competency of personally-conducting arbitration to sign civil and commercial arbitration agreements with others.

(2) Foreign civil and commercial subjects with the competency to attend arbitration

As for this issue, according to paragraph 1 of Article 5 of China’s Civil Procedure Law, foreigners, stateless persons, foreign enterprises and other organizations enjoy the citizen treatment under Chinese laws. At the same time, regarding the issue of whether these foreign subjects should also enjoy similar citizen treatment in civil and commercial arbitration in China, although China’s New Arbitration Law does not directly provide for it, from the perspective of civil proceeding laws, foreigners, stateless persons, foreign enterprises and organizations should also enjoy citizen treatment in civil and commercial arbitration.

Paragraph 1 of Article 3 of China’s New Arbitration Law stipulates that “contractual disputes and other disputes over rights and interests in property between citizens, legal persons and other organizations that are equal subjects may be arbitrated”. In this rule, the lawmakers did not make different provisions regarding the eligibility of Chinese and foreign subjects in this field. Meanwhile, Article 78 of China’s New Arbitration Law provides: “the provisions of this Chapter shall apply to the arbitration of disputes arising from economic, trade, transportation and maritime activities involving foreign elements. For matters not covered in this Chapter, the other relevant provisions of this Law shall apply”. Combining these two articles, we can infer that the three types of equal subjects mentioned in paragraph 1 of Article 3 of China’s New Arbitration Law apply to both subjects with Chinese nationality and subjects with foreign nationality as well as stateless persons.

Specifically, the corresponding identification mechanisms are as follows: firstly, in principle, this issue shall be solved by observing the doctrine of lex personalis (i.e. the procedural laws of the relevant foreign subject—such as the arbitration law or similar dispute resolution proceeding laws of his, her or its nationality or legally registered country of his, her or its business)⁹. In line with these proceeding laws, if he, she or it has the eligibility to sign an arbitration agreement, he, she or it should also enjoy the equal treatment within the territory of China. Secondly, as an exception and substitute, if by observing the abovementioned doctrine of lex personalis, such foreign subjects lack the eligibility to sign arbitration agreements, but the civil and commercial disputes they are involved in have reasonable connections with China, then the new Arbitration Law of Chinashould be used as the yardstick to grant them the same eligibility to sign arbitration agreements.

Specifically, when lex personalis cannot be applied or its usage may lead to unreasonable results, for the bases that relevant Chinese law shall be used as the fallback adjudging rules, readers are advised to refer to paragraph 2 under Article 12 of the Law of China on Application of Laws to Foreign-Related Civil Relations (Effective date: April 1^st, 2011), as well as Article 12 of SPC Interpretations on Issues Concerning the Application of the Law of China on Application of Laws to Foreign-Related Civil Relations(Part 1) (Fa Shi [2012] No. 24, as revised by Fa Shi [2020] No. 18).

As a natural extension of the conclusion in the preceding paragraph, foreign political refugees and other foreign refugees residing on the soil of China should also enjoy citizen treatment in terms of their eligibility to sign arbitration agreements. Furthermore, on the premise of respecting their autonomy of will, foreign sovereign states, intergovernmental international organizations (such as the United Nations, World Trade Organization, ASEAN, European Union, etc.), and non-governmental international organizations (such as the Red Cross, International Olympic Committee, FIFA, etc.) also have the eligibility to sign arbitration agreements in the sense of China’s New Arbitration Law.

Specifically, there are two main legal grounds for sovereign states to accept arbitration jurisdiction: One is the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (thereafter known as the Washington Convention), which came into effect in 1966. Article 1 of the Washington Conventionstipulates: “The purpose of the Centre shall be to provide facilities for conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States in accordance with the provisions of this Convention”¹⁰. The fourth chapter of the Washington Convention specifically provides for the related arbitration scheme. China signed the Washington Convention on February 9, 1990, and it came into effect for China on February 6, 1993. When joining the Washington Convention, the Chinese government explicitly declared that only disputes over expropriation and nationalization compensation shall be submitted to the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID for short). The second is Article 12 of the Law of the People’s Republic of China on Foreign State Immunity (enacted at the fifth meeting of the Standing Committee of the 14th National People’s Congress on September 1, 2023)¹¹.

As for the sovereign states can be subjected to civil and commercial arbitration, the following two cases are typical: (i) In terms of the lease dispute of the Darwin port, Landbridge Group filed an arbitration application against the Australian government with the ICSID¹². (ii) As for the disputes concerning Mexican government violated the China Mexico BIT, Bacanora Lithium Limited (a subsidiary company of Ganfeng Lithium) filed an arbitration application to ICSID¹³.

There is no clear provision in the Law of the People’s Republic of China on Foreign State Immunity regarding whether intergovernmental international organizations are eligible participants in foreign-related civil and commercial arbitration. Under this circumstance, theoretical reasoning can be used to ‘patch’ this loophole. In this respect, a Chinese scholar has pointed out that “it is generally believed that international organizations can explicitly waive privileges and immunities, but there is considerable controversy over whether it can be presumed that international organizations implicitly waive their jurisdictional immunity”¹⁴. Since the intergovernmental international organization can explicitly waive its privileges and immunities. This also means that, on this premise, the international organization may be subject to the jurisdiction of the specific national courts regarding relevant disputes, or may apply for arbitration based on the relevant arbitration agreement.

Unlike the situation described by the preceding paragraph: “most non-governmental international organizations are legal entities or associations established under relevant domestic laws. Therefore, non-governmental international organizations have the same legal status as other domestic non-governmental organizations in the country where they are established”¹⁵. In another word, “due to the fact that non-governmental international organizations are not products of national sovereignty activities, but international institutions established by private individuals or civil organizations, they usually apply to become legal persons of their host countries pursuant to the laws of their respective host countries. When they participate in international civil activities, their legal status is not significantly different from that of general legal persons”¹⁶. From this perspective, the participation of non-governmental international organizations in civil and commercial arbitration is feasible and possible, and there is no major legal obstacle for this from occurring.

4)Whether non-signatories of the arbitral clausearebound by that clause

(1) Whether the arbitral clause in a contract signed based on the agency relationship bind the principal

If the agent signs a contract in the name of the principal and includes an arbitration clause, the principal may be bound by this arbitration clause within the scope of the agent’s authority. Based on the provisions of the Civil Code of Chinaregarding the agency system, this mainly involves the following three sub-situations:

(i) Where the lawful agency relation involved

If the agency relationship is legitimately formed, the arbitration clause contained in the contract signed by the agent in the name of the principal shall naturally bind the principal. The reason is that the principal had a clear and foreseeable expectation of this consequence, and had authorized the agent to do so in advance, so he shall be bound by that arbitration clause.

(ii) Retroactively recognized unauthorized agency

“Unauthorized agency refers to the act of expressing intentions to a third party in the name of another person without the authorization of agency. In civil law, unauthorized agency, by its nature, is not a true agency and should not fall within the scope of agency. However, because the act has certain legal characteristics of agency, it is easy to be perceived as an agency act in appearance”¹⁷.

As the arbitration clause is an integral part of the contract signed by the agent, according to paragraph 2 under Article 171 of the Civil Code of China, it is possible for the principal to grant his belated recognition against the signed contract by the unauthorized agent. Once ratified, not only will the substantive contents of the contract have a binding effect on the principal, but the arbitration clause in this contract will also have a binding effect on the principal. It shall be noted that, for the principal, the way of doing the retroactive recognition is not limited to verbal or written means, and specific acts will also suffice. For instance, Article 503 of the Civil Code of Chinaprovides that, “where an agent without authority enters into a contract in the name of the principal, and the principal commences to perform contractual obligations or accepts the performance from the other party, the principal shall be treated as having ratified the contract”. The author believes that in this situation, the arbitration clause in the contract should have a binding effect on the principal, too.

However, paragraph 2 under Article 171 ofthe Civil Code of China also explicitly states that, “before the ratification of the act, the bona fide opposite party shall be entitled to rescind the act. The revocation shall be made by a notice”. Therefore, once abona fide opposing party exercises his right of revocation before the contract is being retroactively recognized by the principal, the substantive contents and the arbitration clause in the related contract shall be deemed invalid. Under this situation, the arbitration clause will not have a binding effect upon the principal. In addition, paragraph 3 under Article 171 of the Civil Code of China further stipulates that, “Where ratification of the act is denied, the bona fide opposite party shall be entitled to request that the actor perform obligations or compensate him for any injury suffered by him”. In other words, in the absence of the belated recognition by the principal, the dispute between the actor (the unauthorized agent) and the opposing party has nothing to do with the principal. Secondly, in that situation, the arbitration clause in the contract shall not bind the principal, too.

(iii) Where the ostensible agency involved

“Ostensible agency refers to the acts of an agent without authorization, where there are reasons sufficient to convince a third party that the agent has the authority to act, and therefore the law makes the principal responsible as an authorizer to the said third party. … Ostensible agency is essentially a type of unauthorized agencies”¹⁸. Article 172 of the Civil Code of China sets the system of ostensible agency, which stipulates that “where an actor still performs acts of agency without an authorization, beyond his authorization, or after his authorization terminates, the acts shall be valid if the opposite party has reason to believe that the actor has the authorization”.

The legal effects of ostensible agency mainly are: first, the binding force of an authorized agency. Second, the agent shall be liable for compensation for the losses suffered by the principal therefrom. Third, when a bona fide opposing party timely exercises his right of revocation, the principal is barred from claiming the validity of the ostensible agency. The legal basis for this assessment is Article 147 of the Civil Codeof China, which provides that, “the actor shall be entitled to request a people’s court or an arbitral institution to revoke a civil act performed based on gross misunderstanding”.

In summary, regarding the effectiveness of the arbitration clause in a contract created by ostensible agency, it can be divided into two scenarios: first, in the case where a bona fide opposing party exercises his right of revocation pursuant to the law, the relevant contract (including its arbitration clause) is deemed invalid. Under that situation, the arbitration clause does not have binding effect on the principal and the bona fide opposing party. Second, in the event that the bona fide opposing party fails to exercise his right of revocation timely pursuant to the law, the relevant contract (including its arbitration clause) is valid, and the arbitration clause shall bind the principal and the bona fide opposing party.

(2) In subrogation litigation, parties bound by the arbitral clause

In author’s judgment, this issue can be further broken down as the following two sub-questions:

(i) In the light of the Civil Code of China, when the main creditor brings a subrogation lawsuit against a secondary debtor, if the secondary debtor or the main debtor raises a procedural defense that two of them have signed an arbitration clause, how should this issue be handled lawfully?

In this regard, Article 36 of SPC Interpretations on Issues Concerning the Application of the General Principles of the Contract Section in the Civil Code of China (Fa Shi [2023] No. 13) shall be applied, which states that, “If the main creditor files a subrogation lawsuit, and the main debtor or the secondary debtor raises a procedural objection against the court’s handling of this case on the grounds that there is a valid arbitration agreement between them regarding their creditor-debtor relationship, the people’s court shall not uphold it. However, if the main debtor or the secondary debtor applies for arbitration regarding the creditor-debtor relationship between them before the first court hearing of the relevant subrogation litigation, the people’s court may temporarily stay the trial against the subrogation lawsuit in accordance with the law”.

As for whether the very existence of an arbitral agreement between the main debtor and the secondary debtor affects the main creditor’s ability to initiate a subrogation litigation, this is one of the hotly contested complex issues among Chinese scholars and practitioners. In order to unify the standard of judicial determinations, Article 36 of the above-quoted judicial interpretation adopts a compromise scheme after taking a spectrum of diversified opinions into consideration, that is, on the one hand, the main debtor or the secondary debtor shall not raise procedural objections against the court’s handling of the relevant subrogation litigation on the grounds of the existence of an arbitration agreement between them, but on the other hand, if the arbitration is applied for before the commencement of the first hearing of that subrogation lawsuit, the people’s court may temporarily suspend the trial by observing the law. The triple aims this mechanism tries to attain are: In the first place, to prevent the main debtor from knowingly abusing this arbitration agreement to obstruct the main creditor’s lawful exercise of his subrogation right and even lead to the failure of the legislative goal of the subrogation system in the Civil Code of China; in the second place, to try to maintain and respect the effectiveness of the arbitration agreement between the main debtor and the secondary debtor as much as possible; and thirdly, try to strike a subtle yet fair balance for the interests of all parties involved.

(ii) In pursuance of the Civil Code of China, when the main creditor brings a subrogation lawsuit against the secondary debtor, what should be done if the main debtor raises a procedural defense that there is an effective arbitration agreement between him and the main creditor?

Although laws and judicial interpretations of China say nothing about this issue, Chinese scholars have already put forward theories for the solution of this conundrum. Specifically, this situation still does not affect the main creditor from filing a subrogation lawsuit. Usually, the main creditor will initially try to apply for arbitration against the main debtor over their disputes, and when the main creditor’s rights cannot be realized through this initiated arbitral proceeding (such as the main debtor having no property to be enforced ultimately), he will then file a subrogation lawsuit against the secondary debtor instead. Undoubtedly, as a feasible alternative, the main creditor may also directly file a subrogation lawsuit against the secondary debtor instead of applying for arbitration against the main debtor in the first place. Under that situation, if the main debtor has no objection against his credit-debt relationship with the main creditor, the main creditor’s exercising of the subrogation right will not be hindered. However, if there is an objection raised by the main debtor but only concerning a dispute over a part of the related debt amount, the relevant subrogation right can still be exercised against the undisputed portion of the main debt. For the disputed debt portion, the main creditor may apply for arbitration. If he refuses to apply for arbitration, the people’s court may render a judgment for the undisputed part of the main debt in the related subrogation litigation. If the main debtor’s objection is a dispute concerning the existence of the main debt between him and the main creditor, then the existence of the main debt can only be determined through arbitration. However, the existence of this arbitration agreement only affects the determination of the main debt between the main creditor and the main debtor, that is, whether the main creditor enjoys the alleged creditor’s right against the main debtor, and does not affect the main creditor’s entitlement to file a subrogation lawsuit with the competent people’s court. The reasons for this are similar to the situation where there is an arbitration agreement between the main debtor and the secondary debtor mentioned above. If the main creditor or the main debtor applies for arbitration on this occasion, the subrogation lawsuit needs to be stopped for the arbitral result, so its trial session should be temporarily suspended. However, if the main creditor refuses to apply for arbitration, which unavoidably will cast a legitimate doubt on whether the main creditor enjoys his asserted creditor’s right against the main debtor or not, and therefore the preconditions for exercising the related subrogation right are not met, the people’s court shall reject the main creditor’s litigation requests by announcing a judgment. It thus can be adduced that whether to apply for arbitration for the very existence of the main debt will affect the determining the conditions for the establishment of the related subrogation rights, but the very existence of an arbitration agreement itself cannot be misused to deny the creditor’s right to bring a subrogation lawsuit to the people’s court with jurisdiction¹⁹.

(3) Different arbitral clauses are set for the main contract and the ancillary contract

In Chinese judicial practice, the typical example of this situation is that the main contract and the guarantee contract each have different arbitral clauses. The solution to this problem is the same for domestic civil and commercial cases and foreign-related civil and commercial ones—that is, the arbitration clauses in the main contract and guarantee contract are independent of each other and cannot be applied by cross referring each other.

(i) For domestic civil and commercial cases, the legal basis supporting the above viewpoint is paragraph 1 under Article 21 of SPC Interpretation on the Implementation of the Surety System in the Civil Code of China (Fa Shi [2020] No. 28), which provides that, “if the main contract or guarantee contract stipulates an arbitration clause, The people’s court has no jurisdiction over disputes between parties to a contract that has reached an arbitration clause”. On the one hand, this rule faithfully implements the basic tenet of “either arbitration or litigation”, thus embodying the spirit of judicial power respectfully yields to the arbitration agreement reached by the parties. On the other hand, it also demonstrates the notion that controversies related to the main contract and disputes concerning the guarantee contract can be judicially handled separately and independently of each other.

The above assessment can be supported by the following judicial decision: As for the requests to revoke the Arbitral Award ((2011) Shen Zhong Cai Zi No. 601) rendered by ShenZhen Arbitration Commission, after reviewing the case, the SPC announced the following Reply:

The guarantee contract involved in the case did not have an arbitration clause. The arbitral tribunal’s opinion that the main contract has an arbitration clause and the guarantee contract, as an ancillary contract, should be bound by the arbitration clause in the main contract lacks legal basis. The arbitral tribunal then conducted a hearing and rendered an award against the guarantee contract without an arbitration clause. Under this situation, Wang Guojian’s application to revoke this arbitration award regarding his part as a guarantor was justified ([4]).

(ii) In foreign-related civil and commercial cases, the dispute resolution agreements in the ancillary contract and the main contract are mutually independent and cannot be applied by cross referring each other, too. This is the same as the situation of the aforesaid domestic civil and commercial cases. In this regard, there are judicial determinations to uphold the rationality of this assessment. In this regard, the following example is typical:

As for the enforcement of the CIETAC arbitral award ([2005] Jing Cai Zi No. 0246), the SPC, after reviewing the case, replied that:

From the relevant facts of the case at hand, it can be seen that the cooperation contract clearly points out that its two partners are Hengtong Company and Chengwei Company. The Yulin Municipal Government, as the overlooker of Hengtong Company, and the Lujin Company, as the overlooker of Chengwei Company, although also signed the cooperation contract, Chapter 2 of the cooperation contract clearly states that the two partners are Hengtong Company and Chengwei Company. Therefore, neither the Yulin Municipal Government nor the Lujin Company are parties to the cooperation contract, and the arbitration clause in the cooperation contract shall not bind the Yulin Municipal Government. In addition, the guarantee letter provided by the Yulin Municipal Government did not include an arbitration clause, and there was no reached arbitration agreement between the Yulin Municipal Government and Chengwei Company regarding the resolution of their guarantee dispute. In this situation, the arbitration tribunal accepted this case based on the arbitration clause in the cooperation contract. As for the guarantee dispute involving the Yulin Municipal Government, the arbitral award has exceeded the scope of the arbitration agreement. … In summary, in line with item 4 of paragraph 1 under Article 260 (now item 4 of paragraph 1 under Article 291) of the Civil Procedure Law of China and Article 277 of SPC Opinions on the Application of Civil Procedure Law of China (now, Article 539 of SPC Interpretations on the Civil Procedure Law), the people’s court shall rule not to enforce the parts of the arbitral award involving the Yulin Municipal Government and Yuchai Group, and the remaining part shall be enforced ([4]).

(4) Whether others’ arbitral clause binds statutory successors of relevant substantive rights and obligations

Statutory succession refers to a legal phenomenon in which, based on legal reasons such as the death of a natural person, the merger or division of a legal person or an unincorporated organization, the rights and interests previously enjoyed by these no longer existed subjects are transferred to other subjects as stipulated by law. After the occurrence of a statutory succession, the relevant substantive rights certainly shall be transferred to the subject provided by law, but whether the relevant procedural arrangements (e.g. the arbitral agreement signed by the original party) are also to be assumed by the subject provided by law requires further examination.

There are rules in China to solve the abovementioned puzzle. For example, paragraph 1 under Article 8 of SPC Interpretations on the Application of the Arbitration Law of China (Fa Shi [2006] No. 7) provides that, if the party merge or divide after entering into an arbitral agreement, the arbitral agreement shall be valid for the successor of his rights and obligations. paragraph 2 of this article further stipulates that if a party dies after entering into an arbitral agreement, the arbitral agreement shall be valid for the successor who inherits his rights and obligations in the arbitration matter. At the same time, paragraph 3 of this article also clearly sets the relevant exception: When entering into the arbitral agreement, if the parties agreed otherwise, the situations stipulated in the above two paragraphs shall not be applied. That is to say, the party agreement clearly takes precedence over the related legal provision. From the perspective of civil evidence law, the exception mentioned by paragraph 3 is a defense in the sense of the procedural law, and its objective onus of persuasion shall be borne by the party claiming the truthfulness of this situation, supported by the related proving evidence (Hauptbeweis).

(5) Whether others’ arbitral clause binds agreed successors of relevant substantive rights and obligations

After the formation of civil and commercial legal relationships, relevant rights can be transferred not only through statutory succession, but also through reached consensus. The so-called agreed succession refers to a legal arrangement in which the rights previously enjoyed by the original party (the transferor) are handed over to another party (the transferee) as expressed in the newly reached contract between the parties concerned. Similar to the situation of statutory succession, after the occurrence of an agreed succession, the relevant substantive rights certainly shall be transferred to the subject stipulated by the related consensus, but whether the relevant procedural arrangements (e.g. the arbitral agreement signed by the original party) are also to be assumed by the subject provided by the related consensus requires further probing.

There are Chinese rules to solve the above-mentioned problem. For instance, Article 9 of SPC Interpretations on the Application of the Arbitration Law of China(Fa Shi [2006] No. 7) provides that, If all or part of the creditor’s rights are transferred, the arbitration agreement shall also be valid for the assignee, except as otherwise agreed by the parties, or as the assignee expressly opposes to be bound by others’ arbitral agreement or as is unaware of the existence of a separate arbitral agreement at the time of the transfer of the creditor’s rights. From the perspective of civil evidence law, the exception mentioned by paragraph 3 is also a defense in the sense of the procedural law, and its objective onus of persuasion shall be borne by the party claiming the credibility of this proviso, supported by the related proving evidence (Hauptbeweis).

It shall be noted that the agreed transfer of relevant substantive rights and obligations stipulated in the Civil Code of China is further divided into three sub-types: the transfer of substantive rights, the assumption of substantive obligations, and the general transfer of substantive rights and obligations. As a result, the issue of whether the relevant arbitral agreement extends its binding force to new parties should also be analyzed based on these three different sub-types of transfers.

(i) Transfer of substantive rights

If the holder of the substantive rights and the opposing party (the obligor) sign an arbitral agreement and subsequently transfer his substantive rights to a third party (the transferee) in accordance with the law, as long as the transferor or transferee notifies the obligor of the transfer of the substantive rights, regardless of whether the obligor is willing or not, the transferee can apply for arbitration based on the arbitral agreement. If the holder of the substantive rights conceals the arbitral agreement when transferring his substantive rights and the transferee suffers losses due to the very existence of this arbitral agreement, the transferee is entitled to request damages from the transferor, but cannot use this situation as a defense against the obligor and allege that the arbitral agreement is invalid.

(ii) Assumption of substantive obligations

If the obligor transfers his substantive obligations to a third party after signing an arbitral agreement with the opposing party (the creditor), according to the rules governing the assumption of substantive obligations, not only does the transfer of his substantive obligations require the consent of the creditor, but the transfer of the arbitral agreement also requires the permission of the creditor. But what should be done if the creditor only agrees to the transfer of the substantive obligations but fails to make a statement on whether the relevant arbitral agreement should also be transferred? The author believes that, by observing the principle of good faith in civil law, the arbitral agreement is essentially an ancillary procedural tool for the service of the relevant substantive legal relationships. Therefore, if the creditor agrees to the obligor’s transfer of his substantive obligations, it should be presumed that they also reach a consensus to transfer the arbitral agreement to the third party, too.

(iii) General transfer of substantive rights and obligations

The general transfer of substantive rights and obligations refers to the situation where both parties enjoy their rights and assume their obligations simultaneously, and one or both parties transfer his substantive rights and obligations as a whole to a third party, ultimately resulting in his withdrawal from this civil or commercial legal relationship, and the third party thus inherits the substantive rights and obligations of the exiting party. The author believes that in this situation, the issue of whether the relevant arbitral agreement binds the newcomer should be handled by referring to the above situation of “transfer of substantive rights”.

(6) When an arbitration clause is incorporated, whether it bind holders of related bills of lading

As for this issue, it is encountered in judicial practice from time to time, but Chinese laws and judicial interpretations are vague about it. From a legal perspective, the so-called “incorporation of the arbitration clause refers to the integration of the arbitration clause of the first contract into the content of the second contract through an express clause of the second contract, thereby binding the parties to the second contract”²⁰. As for the incorporation of arbitration clauses, the typical representative is the incorporation clause in the GENCON contracts ([1])²¹.

The specific meaning of this incorporation mechanism is: “In maritime and maritime commercial arbitration cases, it is common to encounter the issue of incorporating the arbitration clauses of the lease agreement into the related bill of lading. Generally, this occurs in the case of voyage chartering. In order to transport bulk cargo, the cargo owner leases the entire ship and signs a charter party with the ship owner, agreeing on the rights and obligations of both sides in the transportation process, including the arbitration clause. When the shipper delivers the goods to the ship owner for transportation, at the request of the shipper, the ship owner will issue a set of lease bills of lading, often including an incorporation clause that explicitly absorbs the back page terms of the lease agreement and the arbitration clause into the bills of lading to bind the holders of these bills of lading in the ensuing process of these bills of lading’s buying and selling”²².

In terms of the legal effect determination of this kind of incorporating arbitration clauses, courts in different countries rendered diversified decisions in practice. Overall, related judicial opinions can be divided into two sub-categories: affirmative attitudes and negative attitudes:

“One viewpoint holds that the effectiveness of the incorporating clause should be denied. The holder of the bill of lading does not have the opportunity to negotiate with the shipowner on an equal footing or with equal strength. And (under that situation,) demanding the assignee of the bill of lading accept an incorporated arbitration clause that they do not have the chance to express their will shall violate the basic spirit of arbitration. Another viewpoint believes that resolving international business disputes through arbitration is a trend in the world, and the judiciary should not excessively meddle with it. If the holder of the bill of lading finds that there is an incorporation clause pointing towards the arbitration clause, they can completely refuse to accept the handed-over bill of lading. If they accept the bill of lading, they should be bound by the terms of the bill of lading”²³.

According to the data collected by the author, China’s judicial practice is apparently in favor of the former viewpoint (i.e. the negative attitude). This assessment can be supported by the following judicially decided cases: (1) Reply of the Supreme People’s Court to the Request on the Jurisdictional Objection Concerning the Maritime Freight Transport Contract Dispute between Lianyungang Xiangshun Mineral Resources Co., Ltd. and Young Ocean Shipping Limited ([2013] Min Si Ta Zi No. 1) ([3]). (2) Request for Deciding the Validity of the Arbitration Clause in the Dispute over Salvage Losses Compensation Concerning the Maritime Freight Transport Contract Involving Tianjin Iron and Steel Group Co., Ltd., Tianjin Branch of PICC P&C andCMA CGM Nicaragua‌. (3) Request for Deciding the Validity of Arbitration Clause in the Disputes of Xingpeng Co., Ltd. v. Korea Marine Transport Co., Ltd. over the Contract for the Transportation of Goods by Sea. (4) Request for Deciding the Effectiveness of the Arbitration Clause in the Maritime Cargo Transportation Contract Between the Plaintiff(China National Light Industrial Products Import & Export Group Co. Ltd.) and the Defendants(Sinolink Shipping Limited and Mindong Congmao Shipbuilding Industry Co., Ltd.). (5) Request for Guidance Regarding the Maritime Cargo Transportation Contract Disputes Among Yiwu Kingtop Import and Export Co., Ltd., CMA CGM S.A. and ANL Singapore Pre Ltd²⁴.

Based on the above 5 judicially decided cases, we can draw the following conclusions: First, Chinese courts tend to consider the agreement on jurisdiction or an arbitration clause in the bill of lading in question to be valid, but it only binds the carrier and shipper who are the two sides of the bill of lading’s initial issuing, and generally does not extend its binding force to the third party. Second, the main reasons for supporting the assessment that the bill of lading “generally does not extend its binding force to the third party” are: (1) the third party is not one of the parties directly linked to the bill of lading (including its arbitration clause or its consensual jurisdiction arrangement); (2) The third party objectively does not have any opportunity or possibility to participate in the negotiation of either the arbitration clause or the consensual jurisdiction between others to this shipping contract; (3) When the dispute-resolution clause is incorporated, the contracting parties of the original arbitration agreement or the consensual jurisdiction often fail to fulfill their obligation to fully and timely divulge this development to the third party. Third, according to the above “Second”, it should be considered that the standardized arbitration clause (or the standardized jurisdiction clause) in the bill of lading generally does not extend its binding force on the third party. In addition, the arbitration clause (or the agreement on jurisdiction) in the bill of lading does not have the legal effect of absolutely excluding the jurisdiction of the reasonably related foreign courts over the related case. Fourth, after determining the invalidity of the arbitration clause or the consensual jurisdiction, Chinese courts will then apply the statutory jurisdiction system to the relevant maritime and shipping disputes at hand.

(7) Whether third parties in the sense of the Civil Procedure Lawof China show up in civil and commercial arbitrations

(i) Theoretical analyses

As for this issue, it involves a loophole in the laws of China. In other words, “there is no formal legal document in China that provides clear rules for the third parties in arbitration. Currently, only certain arbitration institutions have some vague rules on this. For example, the Arbitration Rules (2004 edition) of the China Maritime Arbitration Commission partially recognize the existence of third parties in arbitration. Its Article 50 states: ‘For the arbitration requests (put forward by the applicant) or the counterclaims of the respondent, if an interested outsider believes that the outcome of the case has an interested relation with him in the sense of the law, he, she or it may participate in the ongoing arbitration as a party after applying and reaching an agreement with the two sides, and with the approval of the arbitral tribunal’”²⁵.

Based on the comprehensive understanding of Article 4 of the New Arbitration Law of China (Article 4 of the old law) and Article 50 of the Arbitration Rules of the China Maritime Arbitration Commission (2004 edition) mentioned above, only the signatories of the relevant arbitration agreement are eligible parties in the relevant arbitration proceedings. Therefore, if a third party fails to sign the relevant arbitration agreement, he, she or it is certainly not entitled to act as the third party in the ongoing arbitration proceedings between others. If the third party has already signed the arbitration agreement between others, he, she or it will deservedly acquire the legal status as the eligible party in the ongoing arbitration proceedings between others (i.e. either becoming one of the competent co-applicants or one of the competent co-respondents in the arbitration).

A jurist has pointed out that “whether ‘the third party’ can be introduced in the ongoing arbitration procedure to resolve disputes together, the key is whether the arbitration parties can form a commonly applicable arbitration agreement or not”²⁶. The author totally agree with this opinion. From a theoretical perspective, the situation where the third party participates in forming a commonly applicable arbitration agreement is referred to as “the renewal of the arbitration agreement”. From the timing perspective, “only outsiders who join the arbitration procedure after the start of the arbitration procedure are considered as the third parties in the ongoing arbitration process, and the situation where a third party joins the arbitration procedure before the start of the arbitration procedure is usually included in the research scope of multi-party arbitration. The beginning of the arbitral procedure starts with the arbitration application. Before the parties apply for arbitration, if both sides agree to the intervention of a third party in the subsequent arbitration procedure, it actually constitutes an update of the related arbitration agreement, that is, a new arbitration agreement reached by multiple parties virtually replaces the original bilateral arbitration agreement. From the moment of the arbitration application to the formation of the arbitral tribunal, if both sides jointly request or one side requests or a third party petitions for the use of the arbitration third party system, it should be handled and then decided by the selected arbitration institution. Where a third party is applied to be introduced in the arbitration activity after the formation of the arbitral tribunal, that decision is commonly made by this arbitral tribunal, but it is not ruled out that the selected arbitration institution may make such a decision instead”²⁷.

In the author’s opinion, regarding the last two situations mentioned in the above paragraph (i.e. applying for the intervention of a third party in arbitration activities after the arbitration application is filed and before or after the formation of the arbitral tribunal), it must also meet the requirement of “renewing the arbitration agreement”. Otherwise, the relevant effective arbitral awards will inevitably lack legality and face the realistic risk of being subsequently revoked or not enforced by the people’s courts in accordance with the laws of China.

(ii) Classification and resolution of related sub-issues

Based on the relevant discussions of scholars, there are four main sub-issues related to the so-called third parties in arbitration: (1) Is there an intervenor to curb arbitration frauds? (2) Is there an intervenor with independent claims in arbitration? (3) Is there an assisting intervenor in arbitration? (4) In the absence of any application from the arbitral parties, can the arbitral tribunal or sole arbitrator add a third party to the ongoing arbitration on their own initiative? The solutions to these four sub-issues will be analyzed one by one in the following text.

First, “the so-called intervenor to curb arbitration frauds refers to the participation of a third party in the ongoing arbitration proceedings, with the applicant and the respondent as co-respondents, claiming that his, her or its substantive rights and interests will be harmed by the arbitration outcome. Unlike the intervenors with independent claims in arbitration, the intervenors to curb arbitration frauds usually do not enjoy independent substantive rights and interests against the disputed subject matters in arbitration, but his, her or its legitimate substantive rights and interests may be harmed by the arbitration results between others. Lawmakers grant procedural rights of formation to this type of intervenors who may be adversely affected by the arbitral results, enabling them to enjoy the corresponding standing to attending in a specific arbitration. … For instance, Party A applies for arbitration against Party B as the respondent to the selected arbitration commission, requesting Party B to pay back a certain amount of money. Party C petitions to attend the ongoing arbitration proceedings to prevent fraudulent arbitration between Party A and Party B from damaging his, her or its legitimate rights and interests. Likewise, if Party A applies for arbitration against Party B as the respondent to the selected arbitration commission, requesting Party B to perform the signed house sales contract, the lessee of the disputed house, Party C, intervenes in the arbitration on the grounds that the signed house sales contract infringes upon his, her or its preemptive right”²⁸.

From two examples of the intervenors to curb arbitration frauds mentioned above, it seems reasonable to allow this type of third parties to attend the ongoing arbitration proceedings between others. However, in line with China’s New Arbitration Law, China’s old Arbitration Law, SPC Interpretations on the Application of the Arbitration Law of China (Fa Shi [2006] No. 7), SPC Provisions on Issues Concerning the Trial of Arbitration Judicial Review Cases (Fa Shi [2017] No. 22), SPC Provisions on Issues Concerning the Handling of Arbitration Awards’Enforcement by People’s Courts (Fa Shi [2018] No. 5), the Civil Procedure Law of China, as well as SPC Interpretations on the Civil Procedure Law (Fa Shi [2015] No. 5, revised by Fa Shi [2020] No. 20, and further revised by Fa Shi [2022] No. 11), anyone who wishes to intervene in others’arbitration proceedings shall be one of the signatories of the relevant arbitration agreement. This is clearly stated in legal rules.Therefore, in this situation, for the independent intervenors of these two types of arbitration, the more feasible remedies are:

(a) If the intervenor to curb arbitration frauds can reach a new arbitration agreement with both sides of the disputes, or if both sides of the case agree this type of outsider to intervene and record their consensus in writing, or at least if both sides of the case do not object the intervention of this type of outsider and record their tacit approval in writing, then the said outsider can participate in the arbitration proceedings between others. Essentially, the above three situations are equivalent to forming an “renewal of the arbitration agreement”.

(b) From a legislative perspective, against the context of Chinese laws, a better way of handling this situation is to amend the new Arbitration Law of China and the Civil Procedure Law of China, empowering third parties whose substantive rights and interests are indeed at risk of being harmed by others’ false arbitration, either to apply for the invalidation of the arbitration agreement between others, or to expand the scope of the eligible subjects of the alteration claim filed by the adversely affected third parties in paragraph 3 of Article 59 of the Civil Procedure Law of China, thus authorizing these independent intervenors to file such revocation lawsuits as subsequent judicial reliefs.

(c) When drafting an arbitration award, the title of such arbitration intervenors should be “the applicants” rather than “the third parties”.

(d) The author believes that outsiders should not be authorized to apply for revocation or non-enforcement of the arbitration award of others. The reasons are follows: Similar to civil litigation, arbitration activities should also be subject to the prohibition of repeated filing of the same case (i.e. the public law injunction against filing the same case once again within the same judicial sovereignty) provided in Article 247 of SPC Interpretations on the Civil Procedure Law. Specifically, paragraph 1 of Article 247 states that the public law injunction should only apply when the following three conditions are met simultaneously: First, where the previous lawsuit and the subsequent lawsuit have the same parties concerned; second, where the previous lawsuit and the subsequent lawsuit have the same subject matters in dispute; and third where the previous lawsuit and the subsequent lawsuit share the same litigation requests, or where the litigation requests of the subsequent lawsuit negate the substantive aspects of the judgment/ruling on the previous lawsuit.

As for the puzzle of whether the intervenor to curb arbitration frauds can file a separate lawsuit? Based on the twin facts that “where the previous arbitration and the subsequent arbitration have not the exact same parties concerned” and “where the previous arbitration and the subsequent arbitration may not have the same arbitral requests”, it is quite obvious that the intervenor to curb arbitration frauds indeed have the full opportunity and possibility to file a separate lawsuit to protect his, her or its own rights on a latter occasion. Under a situation like that, there is no need to grant this type of outsiders the right either to apply for revocation or to petition for non-enforcement of the effective arbitration award between others. The reason is obvious, too: for this type of outsiders, the procedural safeguards acquired through filing an ensuing separate lawsuit are much better superior than the mechanism of applying for the revocation or non-enforcement of an effective arbitration award between others.

(e) It should be pointed out that, based on the viewpoints mentioned in the above (a) to (d), for the same procedural issue, there are clearly different and discordant rules in China’s current judicial interpretation. In terms of this judicial interpretation, although it does not empower outsiders (including intervenors to curb arbitration frauds) to apply to the court for a ruling to revoke an effective arbitration award between others, it does confer this type of outsiders with the right and relevant mechanisms to apply to the court for a ruling not to enforce an effective arbitration award between others. In terms of this authorization, please refer to Articles 9, 11, 18, 19, paragraph 3 of 21, and paragraph 3 of 22 of SPC Provisions on Issues Concerning the Enforcement of Arbitral Awards Handled by the People’s Courts (Fa Shi [2018] No.5).

Second, “the so-called intervenor with independent claims in arbitration refers to that, in an ongoing arbitration between others, a third party identifies the applicant and the respondent of the instant case as the co-respondents, claiming that he, she or it has independent and worth protecting substantive rights over all or part of the arbitration subject matters. ⋯ The essence of independent arbitration intervention is to initiate a separate arbitration with the applicant and the respondent in the immediate case as the co-respondents. By observing the basic doctrines of the Arbitration Law of China, the identity of the intervenor with independent claims is the arbitral applicant, and his, her or its commencement of arbitration proceedings requires reaching a written arbitration agreement with the other parties concerned in advance”²⁹.

The author fully concurs with the analyses and conclusion in the above paragraph. If the intervenor with independent claims in arbitration does not reach a legally valid arbitration agreement with the co-respondents (i.e. the applicant and respondent in the ongoing first case) before or after his, her or its arbitral application is filed, his, her or its intervention in the ongoing arbitration proceedings between others lacks a vital legal basis. Under such a circumstance, even if the intervenor with independent claims indeed participates in the ongoing arbitration proceedings between others, and even if the arbitral tribunal renders an effective arbitration award in the end, where the original parties or the intervenor with independent claims later renege, they may use the provisions of the Arbitration Law of China, the Civil Procedure Law of China, and relevant judicial interpretations to apply to the court with jurisdiction to either revoke or not enforce the relevant arbitration award. Therefore, the author holds a negative attitude towards the so-called independent arbitration intervention that is not based on another valid written arbitration agreement between the outsider and the original parties to the immediate case. In other words, since the arbitration agreement is only binding on the signatories or the subjects who has evidence to prove that they are bound by its effectiveness, in civil and commercial arbitration proceedings, there is no similar intervenors just like these third parties with independent claims in the sense of paragraph 1 of Article 59 of the Civil Procedure Law of China.

Third, is there an assisting intervenor in civil and commercial arbitration, which is similar to the third parties without independent claims provided by paragraph 2 of Article 59 of the Civil Procedure Law of China? In this regard, some scholars believe that “the assisting intervenor in arbitration refers to the third party who has a legal interest in the outcome of the arbitral case and assist the applicant or respondent by attending arbitration activities. The assisting intervenor in arbitration has a legal interest in the outcome of the case and is the subject who actually assists the applicant or respondent in safeguarding their legitimate rights and interests”³⁰. “For instance, guarantor C has a legal interest in the arbitration of a main debt dispute between creditor A and debtor B. If the debtor B loses, guarantor C may need to bear the guarantee responsibility, thus indirectly endangering his, her or its legitimate rights and interests. If debtor B wins, guarantor C does not need to bear the guarantee responsibility anymore. Likewise, in an arbitrated case between Mr. A and Mr. B regarding a dispute over a house’s ownership, for the buyer (Mr. C), who has signed a house sales contract with registered owner of the house (Mr. A), if Mr. A win, he will be able to perform that house sales contract. However, if Mr. A loses, Mr. C cannot request Mr. A to fulfill his obligations of both handing the sold house over and do the subsequent house transferring registration”³¹.

The author believes that although there are indeed outsiders whose lawful interests are indirectly affected by arbitration activities between others, they are not the so-called “assisting intervenors in arbitration”. For this type of outsiders, there are mainly two kinds of judicial remedies available for the protection of their rights and interests:

(a) This type of outsiders can play the role of witnesses in ongoing arbitration proceedings between others. (b) Other remedies are actually the same as those for the intervenors to curb arbitration frauds and the intervenors with independent claims in arbitration expounded above, that is, this type of outsiders should be allowed to participate in the “renewal of the arbitration agreement”, or be deemed as the eligible outsider to petition for the non-enforcement of the effective arbitration award between others, or be authorized to use “the alteration claim filed by the adversely affected third parties” to remedy their own rights and interests. Since the relevant mechanisms have already thoroughly discussed in the earlier text, they will not be repeated here.

As for civil and commercial arbitration in China, some jurists believe that there exists a so-called “respondent type arbitration intervenor”. It “refers to an outsider introduced by the applicant or respondent in an ongoing arbitration, including the respondent sub-type outsider introduced by the applicant and the respondent sub-type outsider introduced by the respondent. The civil legal relationship between the respondent type arbitration intervenor and the applicant or respondent of the instant case actually constitutes the subject matters of the arbitration, and forms the disputed objects of the arbitration tribunal’s hearing and ultimate determining. Therefore, the respondent type arbitration intervenor is essentially the respondent of an arbitration, that is, the applicant or respondent of the instant case actually initiates a new arbitration against the outsider and thus consolidates the two arbitrated cases due to the legal implication between them”³².

As for the literature mentioned by the preceding paragraph, the author’s opinion is: firstly, an illustration of the so-called “the respondent sub-type outsider introduced by the applicant” is that Party A applied arbitration against Party B, then merges it with another case where Party A applied for arbitration against Party C. Both cases were filed under respective valid arbitration agreements and are interrelated. Secondly, an illustration of the so-called “the respondent sub-type outsider introduced by the respondent” is that Party A applied arbitration against Party B, then merges it with another case where Party B applied for arbitration against Party C. Both cases were initiated under respective valid arbitration agreements and are interrelated. Thirdly, the author agrees in principle with the analyses of the “respondent type arbitration intervenor” by the quoted academic opinions in the above paragraph. However, if the“respondent type arbitration intervenor”thereof is not based on a valid arbitration agreement between or among the relevant parties, the author finds itdifficult to endorse the opinions in that literature.

In summary, as for the third sub-issue mentioned above, the conclusion here is that there are no assisting intervenors in arbitration, which are similar to those third parties without independent claims provided for in paragraph 2 of Article 59 of the Civil Procedure Law of China.

Finally, in pursuance of the theory of the civil proceeding laws in China, without the application of any arbitration party, the arbitral tribunal or the sole arbitrator shall not add a third party to the arbitration on their own initiative. This is crystal-clear. There are three grounds to boost this viewpoint up:

(a) Such practices clearly violate the free will of the parties in civil and commercial arbitration. The arbitration agreement, which is a necessary prerequisite for commencing and conducting arbitration, is a direct manifestation of the consensus based on the free will of the two sides or among multiple involved parties. This is explicitly stipulated in Article 4 of the New Arbitration Law of China (Article 4 of the old law), which has been mentioned repeatedly in the above text.

(b) This type of behaviors clearly lacks legal basis. For instance, some scholars have specially pointed out that “there has always been controversy over whether there are third parties in arbitration proceedings just like in civil litigation. However, one thing is unequivocal: the parties to arbitration must have an arbitration agreement in writing, and without an arbitration agreement, they are not eligible parties to arbitration; the arbitral tribunal has no power to add an outsider as an arbitral party (on its own initiative), which lacks legal basis”³³.

(c) This type of practice clearly violates the essence of civil and commercial arbitration. “As far as civil and commercial arbitration in China is concerned, the intervention and coercion with the public law nature can only be an auxiliary and external institutional setting. Some suggestions for improving arbitration attempt to introduce certain coercive means from the judicial system into arbitration, such as granting the arbitral tribunal with the authority to implement property preservation, evidence preservation, compel relevant units to produce evidence, and even empowering the arbitral tribunal to add a third party (on its own initiative), which is literally attending to the trivialities yet neglecting the essentials. These suggestions fundamentally violate the nature of arbitration as a civil self-governing mechanism. The increase of coercive power means an increase in the danger of abuse of authority, which either signify the infringement of power on the parties concerned and the society, or the increase of judicial review mechanisms aimed at power control, ultimately implicate an increase in arbitration costs and a decrease in the market competitiveness of the arbitration as a whole. Compared to the judiciary, the strength of arbitration lies in its weak state, not in its mighty state”³⁴.

From the above discussions, it can be deduced that “arbitration is centered on the autonomy and voluntariness of the parties concerned, and the consensus between the parties is reflected through the related arbitration agreement, which is also the guarantee of the legitimacy of the arbitration procedure. If the voluntary basis of arbitration is compromised solely for the dual purposes of implementing the principle of ‘one-time resolution for all related disputes’ and improving the efficiency of dispute resolution in arbitration, it is tantamount to confusing the arbitration procedure with the litigation procedure. The essential feature (of the arbitral system) cannot be abandoned just because there is an objective need for outsiders to intervene in the arbitration procedure”³⁵. Therefore, “neither the Arbitration Law of China nor the judicial interpretations of China’s Arbitration Law have made rules for the third-party system in arbitration. Due to the appearance of the consensual and closed nature of the arbitration procedure, third parties outside the case may not intervene in the arbitration procedure without the explicit or implicit authorization of both sides in controversy, and the parties to the arbitration agreement and the selected arbitration institution may not force third parties outside the case to intervene in the arbitration procedure. As a result of it, the arbitration rules of major domestic arbitral institutions usually do not make rules for the third-party system in arbitration, and the outsiders who have a legal interest in the outcome of the case usually assist one party in attending in arbitration activities as witnesses. Undoubtedly, independent intervenors of arbitration and the respondent type arbitration intervenors objectively have the identity of arbitration parties, and their attendance in arbitration proceedings is usually absorbed by the system of arbitration consolidation”³⁶.

Finally, the academic viewpoint expressed in the preceding paragraph can also be confirmed by the judicially-decided cases of China. “In Chinese judicial practice, there have been parties who have denied arbitration jurisdiction on the grounds that disputes involve a third party. For example, in the appeal case of the Light Industry Textile General Company of Jiangsu Provincial Material Group v. (Hong Kong SAR) Yuyi Group Co., Ltd., (Canada) Taizi Development Co., Ltd., the Light Industry Textile General Company of Jiangsu Provincial Material Group argued in its defense that the case involves a third party, and only a court trial can clarify the facts and ensure the legitimate rights and interests of the three-sided parties involved. However, the Supreme People’s Court rejected this viewpoint, believing that even if a third party is involved in the case, the arbitration agreement is still valid. In the case where the arbitration tribunal cannot hold the third party responsible, the arbitration parties can sue the third party as a defendant to a competent court to protect their own interests separately”³⁷.

This paper provides a systematic explanation and analysis of the meaning of the subjective arbitrability, as well as various aspects of subjective arbitrability in Chinese civil and commercial arbitration. 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 consists of 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 oftheCivil 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 the 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 subrogation lawsuit. (8) When different arbitral clauses are set for the main contract and the dependent contract, the arbitration clauses in the main contract and guarantee 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 paragraphs 1 and 2 of Article 59 of the Civil Procedure Law of China.

When one of the following situations occurs, disputes regarding subjective arbitrability will arise: (1) When one party to the arbitration agreement brings a lawsuit to the court, the legally valid arbitration agreement between the two parties can become a procedural defense for the opposing party to assert that the court has no jurisdiction, except for situations where the arbitration agreement is invalid. (2) When one party applies for arbitration, the other party may raise relevant procedural challenges to the selected arbitration committee. (3) In the light of Articles 71 to 74, as well as Article 83 ofthe New Arbitration Lawof China, when applying to the relevant people’s court to form a collegial bench to revoke an effective arbitration award. (4) In line with Article 248 and Article 291 of the Civil Procedure Lawof China; Article 76 and Article 84 of the New Arbitration Lawof China; Article 475, Article 476, Article 479, and Article 539 of SPC Interpretations on the Civil Procedure Law (Fa Shi [2015] No. 5, revised by Fa Shi [2020] No. 20, and further revised by Fa Shi [2022] No. 11), when applying to the relevant people’s court for a ruling not to enforce an effective arbitration award. (5) When one party applies to the competent people’s court for recognition and enforcement of an overseas effective arbitration award, the opposite party may raise such a procedural challenge.

Last but not least, as for this article, two of its limitations shall be identified here: first, its conclusions can only be applied against the context of Chinese laws. Second, due to the rich meaning of the subjective arbitrability, as well as its research traversing three major departmental laws of China (i.e. theNewArbitration Law of China, the Civil Procedure Law of China, and the civil and commercial laws of China), the conclusions of this paper may inevitably have omissions.

¹285 arbitration commissions in China have handled over 5 million arbitration cases cumulatively, the official website of Central Government of China: https://www.gov.cn/lianbo/bumen/202509/content_7042820.htm, last visited on May 27th, 2026.

²Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (3rd edition), Renmin University Press, 2016, p. 137.

³As for the revocation of effective arbitration awards, its legal bases are: Articles 71 to 74, as well as Article 83 of the New Arbitration Law of China. As for the non-enforcement of effective arbitration awards, its legal bases are: Article 248 and Article 291 of the Civil Procedure Law of China; Article 76 and Article 84 of the New Arbitration Law of China; Article 475, Article 476, Article 479, and Article 539 of SPC Interpretations on the Civil Procedure Law(Fa Shi [2015] No. 5, revised by Fa Shi [2020] No. 20, and further revised by Fa Shi [2022] No. 11).

⁴Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (4th edition), Renmin University Press, 2023, p. 105.

⁵Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (4th edition), Renmin University Press, 2023, pp. 105-106.

⁶Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (4th edition), Renmin University Press, 2023, p. 107.

⁷47 Adjudicating Rules on the Invalidity of Arbitration Agreements (II), the official website of Taian Arbitration Commission: https://zcw.taian.cn/art/2024/9/20/art_75448_10290751.html, last visited on May 27th, 2026.

⁸Co-edited by Tang Dehua, Sun Xiujun: New Interpretations of the Arbitration Law of China and its Supporting Regulations, People’s Court Press, 2003, pp. 191-192.

⁹“According to the universally recognized rules of private international law, the doctrine of combining the lex personalis of the parties and the law of the place of conduct is generally adopted for the identification of the capacity to conduct civil transactions in person, with the lex personalis as the main consideration and the law of the place of conduct as the auxiliary one. That is, when the parties do not have the capacity to conduct civil transactions in person under the lex personalis, but have this qualification under the law of the place of conduct, they shall be deemed as possessing the capacity to conduct civil transactions in person. This principle is also applicable in resolving the competency of personally-conducting arbitration of the parties to international commercial arbitration agreements. Article V (1) (a) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards states that, ‘the parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity’, recognition and enforcement of the award may be refused.” The law application of international commercial arbitration agreements, homepage of the University of International Business and Economics: https://ielaw.uibe.edu.cn/fxlw/gjzcf/14021.htm, last visited on May 27^th, 2026.

¹⁰The official website of ICSID: https://icsid.worldbank.org/resources/rules-and-regulations/convention/overview, last visited on last visited on June 18th, 2026.

¹¹Article 12 of the Law of the People’s Republic of China on Foreign State Immunity states that: If a foreign State has entered into an agreement in writing according to which a dispute arising out of a commercial activity between the foreign State and an organization or an individual of another State, including the People’s Republic of China, is submitted to arbitration; or has agreed in an international investment treaty or otherwise in writing to submit an investment dispute between the foreign State and an organization or an individual of another State, including the People’s Republic of China, to arbitration, the foreign State shall not enjoy immunity from the jurisdiction of the courts of the People’s Republic of China in the following matters which are subject to review by the courts:

(1) the validity of the arbitration agreement;

(2) the recognition and enforcement of the arbitration award;

(3) setting aside of the arbitration award; or

(4) other matters related to arbitration which are subject to review by the courts of the People’s Republic of China as provided by the law.

¹²Sina Finance Headlines: https://cj.sina.com.cn/articles/view/7295052889/1b2d1ac5902001dl3k, last visited on May 27th, 2026.

¹³China Energy Network: https://www.cnenergynews.cn/article/4OAKdTWU5vJ, last visited on May 27th, 2026.

¹⁴Edited by Civil Trial Division IV of Hubei High People’s Court: Research on Jurisdiction in Foreign-Related Civil Litigation, Wuhan University Press, 2008, p. 192.

¹⁵Edited by Civil Trial Division IV of Hubei High People’s Court: Research on Jurisdiction in Foreign-Related Civil Litigation, Wuhan University Press, 2008, p. 185.

¹⁶Edited by Wang Zhuxing: Foreign Procedure and Arbitration, Xiamen University Press, 2007, p. 53.

¹⁷Edited by Gao Fuping: Civil Law (2nd Edition), Law Press China, 2009, p. 235.

¹⁸Edited by Gao Fuping: Civil Law (2nd Edition), Law Press China, 2009, p. 235.

¹⁹Co-edited by the First Civil Division of SPC and the Research Office of SPC: Understanding and Application of SPC Interpretations on Issues Concerning the Application of the General Principles of the Contract Section in the Civil Code of China, People’s Court Press, 2023, p. 420.

²⁰Edited by Song Jianli: Judicial Review of Foreign Arbitral Awards Principles and Practice, Law Press China, 2016, pp. 30-31.

²¹“A voyage charter party (voyage C/P) refers to an agreement in which the shipowner provides the charterer with an agreed vessel or a portion of the vessel’s storage space, loads the agreed cargo, and transports it from one port to another, with the lessee paying for the freight. The standard format for voyage charter party is the ‘UNIFORM CHARTER PARTY’, also known as the GENCON Contract. Since its creation and implementation by The Baltic and International Maritime Council (BIMCO) in 1922, the GENCON Contract has been widely accepted in the shipping industry and has been the most commonly used standard contract format for charter contracts for general cargo and various dry bulk voyages. And after two revisions, this standard contract added some optional and substantive clauses, such as the charterer’s right of termination clause and the shipowner’s right of termination clause, making the 1994 GENCON standard charter party format the most authoritative charter party format in the field.”

²²Edited by Song Jianli: Judicial Review of Foreign Arbitral Awards Principles and Practice, Law Press China, 2016, pp. 30-31.

²³Edited by Song Jianli: Judicial Review of Foreign Arbitral Awards Principles and Practice, Law Press China, 2016, pp. 30-31.

²⁴The source of the 2nd to 5th judicially decided case listed here is: Edited by Song Jianli: Judicial Review of Foreign Arbitral Awards Principles and Practice, Law Press China, 2016, p. 33, pp. 34-35, pp. 38-40.

²⁵Edited by Wang Zhuxing: Foreign Procedure and Arbitration, Xiamen University Press, 2007, p. 204.

²⁶Edited by Wang Jifu: Course on Arbitration Law Cases, Yanshan University Press, 2017, p. 72.

²⁷Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (3rd edition), Renmin University Press, 2016, p. 111.

²⁸Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (3rd edition), Renmin University Press, 2016, p. 113.

²⁹Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (3rd edition), Renmin University Press, 2016, pp. 112-113.

³⁰Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (3rd edition), Renmin University Press, 2016, p. 113.

³¹Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (3rd edition), Renmin University Press, 2016, p. 114.

³²Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (3rd edition), Renmin University Press, 2016, p. 114.

³³Edited by Li Zheng, Xu Qiuju, Han Hongjun: Arbitration Law Training Course, Law Press China, 2017, p. 150.

³⁴Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (3rd edition), Renmin University Press, 2016, p. 5.

³⁵Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (3rd edition), Renmin University Press, 2016, pp. 116-117.

³⁶Edited by Jiang Wei and Xiao Jianguo, Arbitration Law (3rd edition), Renmin University Press, 2016, p. 117.

³⁷Edited by Li Zheng, Xu Qiuju, Han Hongjun: Arbitration Law Training Course, Law Press China, 2017, p. 21.