According to the PRC Civil Procedure Law, when applying for recognition and enforcement of a foreign arbitral award, the applicant needs to submit its application to the people's court at the place of domicile of the party subject to enforcement or at the place where the property subject to enforcement is located. Further, according to the Interpretation of the PRC Civil Procedure Law released by China's Supreme People's Court (SPC), the place of domicile of a company is the place where the company's principal office is located; if the location of the company's principal office cannot be determined, the place of incorporation or registration of the company should be considered its place of domicile. Therefore, under PRC law, the place of domicile of a company may not necessarily be the same as its place of registration.
In practice, when determining the place of a company's principal office, Chinese courts may consider various facts, such as the address of the company reflected on the legal documents and its correspondence, the physical address the company uses for business activities, the nameplate or logo of the company at the relevant address, etc. Factors such as whether the company is owned or controlled by a PRC citizen may also be relevant. According to an SPC Interpretation concerning the judicial review of Arbitration [Fa Shi (2017) No.22], Article 3, the PRC courts can exercise jurisdiction on recognition, even when neither the respondent nor its property is located within the mainland China, provided that the foreign arbitral award is related to the case seized by the PRC courts.
In a recent PRC case (Amarante Shipping Pte Ltd vs Intermarine Shipping Co Ltd), a Singaporean company brought an application before the Tianjin Maritime Court for recognition and enforcement of a London ad hoc arbitral award in connection with a charter party agreement against a BVI company, based on the facts inter alia that the principal office of the BVI company was located in Beijing (in this instance, under PRC law, the Tianjin Maritime Court shall exercise its jurisdiction on recognition and enforcement of maritime arbitral awards if Beijing is the place of domicile of the party subject to enforcement or is the place where the property subject to enforcement is located).
After the Tianjin Maritime Court issued its decision to recognize and enforce the arbitral award, the BVI company appealed to the Higher People's Court of Tianjin by arguing that the Tianjin Maritime Court had no jurisdiction over the application given inter alia that the company was registered in BVI rather than Beijing and that the company's principal office was not located in Beijing.
In this case, the principal office is a key fact for both parties in the delivery and enforcement of the award. Since the Tianjin Maritime Court was probably not able to access the registration place in BVI nor elsewhere in the world, the Higher Court duly found that (1) the Beijing address of the BVI company was used in the letter of guarantee issued by it to the Singapore company and in email correspondence, (2) the same Beijing address was also used by the BVI company for payment under the charter party agreement, and (3) there was also a nameplate showing the name of the BVI company at such Beijing address, which provided adequate evidence for a practical solution of jurisdiction establishment. This highlights that accessibility, practicability, and enforceability are three prevailing factors for a PRC court to determine its jurisdiction for an arbitration case. In the light of the above, given there are many companies, such as the BVI company in the Amarante Shipping case, that operate in China but choose to register outside of China, it is important for these companies to be aware that in the event recognition and enforcement of arbitral awards are sought against them, the PRC courts may exercise jurisdiction assuming there is sufficient evidence that they have their principal office in China, disregarding the fact that their registration address is outside of China.
