Ad Hoc Arbitration in China: What Article 82 Allows, and Who It Leaves Out

China now permits ad hoc arbitration, but only in two situations, and ordinary cross-border sales disputes are not one of them. If you are a foreign buyer with a quality or payment claim against a Chinese supplier, Article 82 of the revised Arbitration Law probably does not apply to you, and the arbitration clause you need is still an institutional one.

That conclusion is worth stating plainly because the English-language coverage of the 2026 revision has mostly reported the headline — that China has recognised ad hoc arbitration for the first time since the Law took effect in 1995 — without setting out the two qualifying gateways. The gateways are narrow, and one of them is limited by the place where a company is registered rather than by the nature of the dispute.

The short answer

What the law said before 2026

The 1994 Arbitration Law recognised institutional arbitration only. A clause providing for an arbitral tribunal constituted by the parties themselves, with no administering institution, sat outside the statutory scheme. Chinese courts treated such clauses as unenforceable in the sense that there was no mechanism to constitute the tribunal, and in practice parties who wanted ad hoc arbitration avoided naming China as the seat.

That mattered most in shipping. Charterparties, salvage agreements and ship repair contracts routinely use ad hoc tribunals, and a clause naming Chinese law but London or Singapore as the seat was the standard workaround. The consequence was that Chinese maritime law was applied by foreign tribunals more often than by Chinese ones.

The three requirements in Article 82

Article 82 first paragraph, in translation:

"In respect of a foreign-related maritime dispute, or a foreign-related dispute between enterprises registered in a free trade zone established with the approval of the State Council, the Hainan Free Trade Port, or another area designated by the state, where the parties have agreed in writing to arbitrate, they may choose to have the arbitration administered by an arbitral institution; they may also choose the People's Republic of China as the seat of arbitration, and have a tribunal constituted by persons meeting the conditions laid down in this Law proceed under the agreed arbitration rules. That tribunal shall, within three working days of its constitution, file the names of the parties, the seat of arbitration, the composition of the tribunal and the arbitration rules with the arbitration association."

Three things follow from the text.

The agreement must be in writing. There is no oral or conduct-based route. A clause that leaves the mechanism to be agreed later is not an agreement to arbitrate.

The seat must be China. This is not a formality. The seat determines the nationality of the award, the law governing the procedure and which court supervises it.

The tribunal must be constituted by qualifying persons under agreed rules, and filed. The three-working-day filing duty is a feature with no equivalent in the UNCITRAL Model Law or in the institutional rules of the major seats. It is a registration requirement, not an approval requirement, but it has not yet been tested, and a tribunal that does not file has no obvious consequence written into the Law.

Gateway one: maritime disputes, with no party restriction

The first gateway is subject-matter based and open to anyone. If the dispute is a maritime dispute, a foreign buyer and a Chinese seller can agree to ad hoc arbitration with China as the seat, whatever their places of registration.

The boundary of "maritime dispute" matters here, because the Arbitration Law does not define it. The classification used in Chinese practice follows the Maritime Code and the Supreme People's Court's cause-of-action list: carriage of goods by sea, charterparties, towage, collision, salvage, general average, marine insurance, ship sale and ship mortgage. A claim under a contract of carriage of goods by sea is squarely inside. A claim that the goods themselves were non-conforming under a sale contract is generally outside, unless the claim is framed against the carrier rather than the seller.

For a buyer, the practical distinction is this: a dispute with the shipping line about cargo damage is a maritime dispute; a dispute with the seller about what was in the container is not. The second is the dispute buyers actually have.

Gateway two: enterprises registered in a designated area

The second gateway is based on where the parties are established, and it is the one that creates problems for foreign buyers.

The text says "a foreign-related dispute between enterprises registered in a free trade zone ... the Hainan Free Trade Port, or another area designated by the state". Read literally, it requires the enterprises to be registered in such an area. A foreign buyer incorporated in Dubai or Hamburg is not registered in a Chinese free trade zone, so it does not satisfy the description. The clause is available in practice to two Chinese companies registered in a free trade zone that have a foreign-related element in their transaction — for example, where the goods move across a border, or where performance involves a foreign party.

There is an alternative reading, under which "between enterprises" refers to the dispute rather than to the registration of both parties, so that one party registered in the zone would suffice. That reading is not natural on the Chinese text, and no judicial interpretation supports it. A buyer who wants to rely on it should not, unless the counterparty is also registered in a designated area.

The list of designated areas is not closed. "Another area designated by the state" leaves room for expansion by regulation, and free trade zones have been added steadily since 2013. A buyer with a Chinese subsidiary inside a zone therefore has a route that a buyer without one does not.

Why the seat provision matters more than the ad hoc provision

Article 81 is the quieter change and, for most foreign parties, the more useful one:

"The parties may agree the seat of arbitration in writing. Unless the parties have otherwise agreed the law applicable to the arbitral procedure, the seat of arbitration is the basis for determining the law applicable to the procedure and the court with supervisory jurisdiction. An arbitral award is deemed to be made at the seat of arbitration."

Before 2026, Chinese law linked the nationality of an award to the place of the administering institution, not to a seat chosen by the parties. That is not the international standard, and it created a specific problem: an award issued in China by a foreign institution, or an award issued elsewhere under Chinese institutional rules, had an uncertain status when it came to recognition and enforcement.

Article 81 aligns the position with the UNCITRAL Model Law. The seat now decides three things at once: the law governing the procedure, the nationality of the award, and which court hears a challenge. For a foreign party, that means a clause choosing Shanghai as the seat but Singapore law as the procedural law now has a predictable answer where before it had none.

Challenging and enforcing an award

An award made at a Chinese seat is a Chinese award, and it is challenged in a Chinese court on the grounds in Article 83: no arbitration agreement, no proper notice of the appointment or the proceedings, a tribunal or procedure inconsistent with the rules, or matters beyond the scope of the agreement. Article 84 sets the same grounds for refusing enforcement. Public policy is an additional ground in both.

For enforcement abroad, Article 85 is the operative provision: where the award is made within China and the party against whom enforcement is sought, or its property, is outside China, the applicant may apply directly to a competent foreign court. That route runs through the New York Convention, which China has been a party to since 1987.

Article 87 adds a promotional statement — parties are encouraged to choose an arbitration institution in China, including in the special administrative regions, and to agree China as the seat. Article 88 sets out the reverse case, for foreign awards requiring recognition and enforcement in China.

What buyers should actually do

1. Do not replace your institutional clause with an ad hoc clause. If your dispute is a sale of goods claim against a Chinese seller and you have no Chinese subsidiary in a free trade zone, Article 82 does not give you ad hoc arbitration. A clause purporting to use it may produce an arbitration agreement that cannot be performed.
2. If you are buying on FOB terms and the dispute is likely to be with the carrier, ask whether the maritime gateway helps. A cargo claim against the line can be arbitrated ad hoc with China as the seat, which was not possible before 2026. Whether that is better than the admiralty court in the port of discharge is a separate question, and often it is not.
3. Use Article 81 deliberately. Even in an institutional clause, state the seat. Naming CIETAC without naming a seat leaves the seat to be determined under the institutional rules, which is fine but avoidable. Naming the seat also fixes which court supervises the award.
4. Write the filing duty into the clause. If you do use Article 82, the clause should require the tribunal to file with the arbitration association within three working days, and should say what happens if it does not. The Law is silent on the consequence.
5. Assume nothing about pre-2026 clauses. A clause signed in 2024 providing for ad hoc arbitration in China was of doubtful validity when signed. Whether it is now enforceable by virtue of the revised Law is a transitional question that has not been settled. If such a clause matters to you, take advice before relying on it rather than after the dispute starts.

Frequently asked questions

Is ad hoc arbitration now generally available in China?

No. It is available in two situations: maritime disputes, and foreign-related disputes between enterprises registered in a free trade zone, the Hainan Free Trade Port or another designated area. A general commercial dispute between a foreign buyer and a Chinese seller outside those categories does not qualify.

Can a foreign company use Article 82 if it has a subsidiary in a free trade zone?

The subsidiary is a separate legal person registered in the zone, so a dispute to which the subsidiary is a party may qualify. The foreign parent's own dispute does not become qualifying because it owns the subsidiary. Whether the substance of the transaction is looked at is a question without an answer yet.

Does the award need to be filed to be valid?

The Law requires the tribunal to file within three working days of constitution. It does not state that failure invalidates the award. The filing is best understood as a registration and monitoring mechanism rather than a condition of validity, but no decision has addressed it.

Can I still choose CIETAC?

Yes, and for most sale of goods disputes you should. Article 82 is an additional option in defined cases; it does not displace institutional arbitration. Note that Article 78 now extends the foreign-related chapter to "other foreign-related disputes" beyond trade, transport and maritime matters, so the range of disputes that can be arbitrated at all has widened even where ad hoc arbitration is unavailable.

Does the new Law help with interim relief?

Article 82 second paragraph requires the tribunal to submit a party's application for property preservation, evidence preservation, or an order requiring or restraining conduct to the court, and requires the court to deal with it promptly. Article 39 provides for pre-arbitration preservation. In practice the tribunal has no power to grant relief itself; it is a conduit to the court. Buyers should treat the timing of a Chinese preservation application as a matter for the court, not the tribunal.

What about online arbitration?

Article 11 provides that arbitration may be conducted online unless a party expressly objects, and that online proceedings have the same legal effect as in-person ones. For a buyer who cannot travel, this is the most immediately useful change in the 2026 revision, and it applies to institutional arbitration without any of Article 82's limitations.

Decide the clause before the dispute, not after

Send me the draft arbitration clause and a short description of the transaction, and I will tell you whether Article 82 is available to you, what the seat and the supervisory court would be, and whether an institutional clause would serve you better. The institutional route is set out in what foreign buyers should know about CIETAC arbitration, and the drafting points in how to draft a CIETAC arbitration clause. Where the honest answer is that ad hoc arbitration is not open to you on these facts, that is what you will be told. Where each clause leads, and what a Chinese court will do with it, is set out in dispute resolution.

About the author

Li Xinlei (Aaron Li) is a partner at Beijing Huicheng (Jinan) Law Firm in Jinan, Shandong, where he acts for foreign companies and individuals in international trade disputes, cross-border enforcement and construction claims. He has five years of international engineering and market development experience in the Middle East and South Asia, and writes on China trade lawyer practice from the buyer's side — what to check, what it costs, and what can actually be recovered.

Source note: the statutory text discussed is the Arbitration Law of the People's Republic of China as revised and adopted by the Standing Committee of the 14th National People's Congress on 12 September 2025 and in force from 1 March 2026. It replaces the 1994 Law and runs to eight chapters and 96 articles, 16 more than the previous text. Chinese statutory text is quoted in English translation prepared for this article; the Chinese text governs. Statements that a point is unsettled reflect the absence of a judicial interpretation or reported decision as at the date of writing.

Disclaimer: This article provides general legal information and does not constitute legal advice for any specific case. Procedural rules and judicial practice change, and the appropriate route depends on the facts of the individual matter. Please consult and appoint a qualified lawyer for your own case.