Abstract: Arbitration exception is one of the widely recognized exceptions to the jurisdictional immunity of the State, and it is embodied in the United Nations Convention on Jurisdictional Immunities of States and Their Property as well as in the domestic immunity legislation and practice of many States.  Originally considered a form of implied waiver of immunity, the arbitration exception gradually developed into an independent exception to jurisdictional immunity. Based on a thorough review of relevant international conventions and the domestic legislation and practices of other States such as the United Kingdom and the United States, Article 12 of the Law of the People’s Republic of China on the Immunity of Foreign States also provides for exceptions to State immunity in respect of arbitration, making it clear that foreign States do not enjoy immunity from jurisdiction in Chinese courts in respect of matters arising out of judicial review of specific arbitrations, such as those involving the validity of the arbitration agreement, recognition and enforcement of arbitration awards, and setting aside of arbitral awards. To promote the implementation of the pro-arbitration policy, the aforesaid Article 12 provides that the scope of the nature of an arbitration case is a dispute arising out of a commercial activity or an investment dispute. This article does not strictly require a strong connection between China and the arbitration case concerned, allowing Chinese courts to flexibly determine jurisdiction in judicial practice. At the same time, it provides for specific matters that may be subject to judicial review by Chinese courts and is supplemented by a catch-all clause. When applying the arbitration exceptions under this article, Chinese courts should consider existing legislation such as Arbitration Law and Civil Procedure Law, judicial practice, and international treaties such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Convention on the Settlement of Investment Disputes between States and Nationals of other States, take into account the unique nature of state immunity cases, and prudently review whether a foreign state enjoys immunity from jurisdiction. 

Keywords: state immunity; immunity from jurisdiction; waiver of immunity; New York Convention; Washington Convention

Authors: Li Qingming, research fellow, CASS Institute of International Law, and Liu Xinyu, graduate student, Law School of the University of CASS;

Source: 3 (2025) Journal of International Law.