Defining “administrative agreements” is a problem that has puzzled the legal community for many years. The type and scope of an administrative agreement will determine whether arbitration can be used to resolve disputes that arise from it.
Articles 2 and 3 of the Arbitration Law set out what types of dispute can and cannot be put to arbitration. These not only highlight the civil and social nature of arbitration but also distinguish the arbitration mechanism, whereby disputes are resolved through social power, from the judicial mechanism that settles disputes through state power.
Arbitration can only solve social disputes, but not administrative ones. Otherwise, it will tread on the authority of state power. This stipulation of arbitrability in the Arbitration Law relates to the scope of judicial power and its exercise. Its nature is mandatory, i.e. an arbitration award that violates this stipulation shall be revoked.
The second part of article 3 explicitly states that, “disputes that have been stipulated by law to be settled by administrative organs” cannot be put to arbitration. Item 11 of article 12 of the Administrative Litigation Law incorporates administrative agreements into the acceptance scope of administrative litigation, which excludes the possibility that arbitration may apply to administrative agreements.
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Xie Hongfei is an arbitrator at the Beijing Arbitration Commission/Beijing International Arbitration Centre (BAC/BIAC), and director of the Department of Civil Law, Institute of Law, China Academy of Social Sciences. Gao Zhuang, a case manager at BAC/BIAC, also contributed to the article
