Olufunke Adekoya (Nigeria and UK) (online)

Senior Advocate of Nigeria (SAN), Independent Arbitrator

Thank you for inviting me to participate in this event. My apologies that I cannot be here in person due to a conflicting work schedule. I hope that on future occasions I will be able to personally attend. I have good memories of climbing the Great Wall of China, and I would love to do it again at some point in time. 

I would like to speak about the interface between international commercial arbitration, the New York Convention, and the role that China has taken with respect to this. 

China signed the New York Convention, the convention that ensures that foreign arbitration awards can be enforced based on a uniform procedure in all countries that have signed on to the Convention. China signed on to that Convention in 1987, quite a while ago. 

And 25, 26 years ago, China actually instituted a prior reporting mechanism which requires that courts must report upwards to the Supreme People's Court whenever a foreign-seated or foreign-related arbitration award is submitted to a court for enforcement.

So the procedure is that you go to the court for enforcement, and if for any reason enforcement is refused, then a report must be made to the next court level. If that court should also decide to agree with the court of first instance and refuse enforcement, it is also obliged to report upwards, and it gets to the Supreme People's Court. That court then takes the final decision. 

The effect of this is that, one, China has very good records as to foreign-seated or foreign-related arbitration awards that are brought to China for enforcement. And secondly, the reporting rate shows that possibly 91 or 92 percent, according to publicly available records, of foreign-seated awards that have gone to China for enforcement have been enforced. 

Therefore, if you do have a dispute against any company that has assets in China, the chances of enforcing that award within the People's Republic of China are very, very strong, rest assured. 

But I want to speak to where I think there is something that can still be done with respect to international commercial arbitration. I commend the Chinese government for bringing into force early this year a new arbitration law for China. It is modern and updated. It recognizes various aspects of ad hoc arbitration and provides more details in respect of what is meant by foreign-seated or foreign-related awards. 

But there is one thing that is still missing, and this is something that has actually attracted people to arbitration: the separation between arbitration tribunals and the courts where jurisdiction is an issue. 

The principle of competence-competence, which is one of the things that attracts many participants to the arbitration process, is that the tribunal has the power to determine its own jurisdiction when that is brought into play. However, the new arbitration law in China does not acknowledge this policy. Jurisdiction in arbitration proceedings is still a matter for court determination. 

And so the conundrum that I would like to leave you with is this: if you have a foreign-seated award that is brought to China for enforcement, and the jurisdiction of the tribunal was an issue in that award, and the tribunal did assert its own jurisdiction under the principle of competence-competence, would that award be enforced in China?

Would it be a basis for setting aside an award, either on the grounds of public policy because the arbitration law of China would not allow such to happen? And if it is a foreign-seated arbitration award where Chinese law is the law of the contract, or in fact is even the law of the procedure, and the issue of competence-competence arises, how would this matter be determined?

So this is something that I still think we need to discuss and ensure that, as much as possible, we are able to ensure uniformity between the jurisdiction, the competence-competence requirements that international commercial arbitration vests in arbitration tribunals, and the power to determine jurisdiction that is currently vested in the courts of China, even under this new Arbitration Act. 

I thank you for your attention, and I hope that at the next summit I will be able to be physically present. Thank you.