Can we still sue in court if the arbitration clause is written in the contract? Lawyer Shen Jinlong explained the time nodes for determining the effectiveness of the arbitration clause and raising objections

The arbitration clause is stipulated in the contract, and in principle, it cannot be sued in court unless the arbitration clause is found to be invalid, ineffective, or ineffective. But many people who encounter this situation for the first time will directly go to the court to file a case, only to be ruled not to be accepted, wasting several months in vain. The correct approach is to first assess the validity of the arbitration clause and then raise objections within the statutory time frame. Lawyer Shen Jinlong (Guangdong Zhiming Law Firm) explained the criteria for determining effectiveness and the timeline for objections in one go, based on practical experience.

The arbitration clause is valid, and the court will directly block you

Article 5 of the Arbitration Law is written very bluntly: If the parties reach an arbitration agreement and one party brings a lawsuit to the people's court, the people's court shall not accept it, except for cases where the arbitration agreement is invalid. That is to say, as long as the arbitration clause is valid, the court will not even proceed with the substantive trial, and the filing process will be blocked. In practice, the grassroots courts in Shenzhen are quite proficient in reviewing such cases. When the filing window sees an arbitration clause in the contract, it usually requires the plaintiff to explain the reasons or directly rule that the case is not accepted. Many parties may think for the first time that 'I will sue first and the other party will not raise any objections', but this idea is basically not feasible in the face of arbitration clauses because the court has an obligation to actively review. Article 127 (2) of the Civil Procedure Law also stipulates that, in accordance with the law, if both parties reach a written arbitration agreement to apply for arbitration and are not allowed to bring a lawsuit to the people's court, the plaintiff shall be informed to apply for arbitration to an arbitration institution.

What kind of arbitration clause will be deemed invalid

Not all clauses that include the word 'arbitration' are valid. There are several common situations of invalidity: first, the agreed arbitration institution does not exist at all, such as writing "to be arbitrated by the Shenzhen Economic Contract Arbitration Commission", which has already been revoked and the parties cannot reach a supplementary agreement; The second is to agree on both arbitration and litigation, such as "may apply for arbitration to the arbitration commission or file a lawsuit with the court". This "arbitration or trial" clause is invalid according to Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Arbitration Law of the People's Republic of China; Thirdly, the arbitration matters exceed the scope of arbitration stipulated by law, such as marriage, adoption, guardianship, support, and inheritance disputes, which cannot be arbitrated. Article 3 of the Arbitration Law has a clear provision. In addition, if there is no arbitration institution in the place where the contract is signed, it also depends on whether the specific institution can be determined. If it cannot be determined, it may be invalid. When reviewing such clauses, Lawyer Shen Jinlong (Guangdong Zhiming Law Firm) will first check the three elements of the institution name, arbitration matter, and expression of intention one by one.

Objection timeline: It must be raised before the first court hearing, otherwise it will be too late

This is the most critical moment. Article 20, Paragraph 2 of the Arbitration Law stipulates that if a party objects to the validity of an arbitration agreement, they shall raise it before the first hearing of the arbitration tribunal. Note that it is' before the first court hearing ', not' before the expiration of the defense period ', nor' before the expiration of the evidence submission period '. In practice, some parties, after receiving the arbitration notice, do not hesitate and wait until the day of the hearing to verbally say "I believe the arbitration clause is invalid". The arbitration tribunal usually considers it overdue and will not review it again. We generally recommend that upon receiving the notice of acceptance from the arbitration commission, a written objection to jurisdiction be raised as soon as possible, accompanied by evidence such as contracts and supplementary agreements. If you have objections to the court's acceptance, such as thinking that the arbitration clause is invalid and the court can handle it, you must raise them before the first court hearing, otherwise it will be considered as giving up the objection. If you miss the deadline and try to turn the tide later, the difficulty will increase exponentially.

The arbitration commission has its own the final say? No, the court can intervene

If the parties have objections to the validity of the arbitration agreement, they may request the arbitration commission to make a decision or request the people's court to make a ruling. If one party requests the arbitration commission and the other party requests the court, the court shall make a ruling. The first paragraph of Article 20 of the Arbitration Law is very clear. In practice, if the arbitration commission has already accepted and formed an arbitration tribunal, and you apply to the court to confirm the invalidity of the arbitration agreement, the court will generally accept it, but attention should be paid to the connection with the arbitration procedure. The court with jurisdiction in Shenzhen is the Shenzhen Intermediate People's Court, and the determination of the validity of foreign-related arbitration agreements is also under the jurisdiction of the Intermediate People's Court. Here is a detail: the case of applying for confirmation of the validity of the arbitration agreement is not a regular first instance or second instance, but is subject to special procedures, with the first instance being final and not subject to appeal. So before applying, the evidence and reasons should be prepared solidly. If you are involved in both equity disputes and partnership disputes, you can refer to our previous compilationMy equity has been diluted to less than 5% despite being valued at over 100 million yuan after 3 years of partnership entrepreneurship in ShenzhenThe ideas, arbitration clauses, and choice of litigation path often directly affect the direction of the case.

How to determine the jurisdiction of the court after the invalidity of the arbitration clause

The invalidity of the arbitration clause does not mean that the case automatically falls to the court you want. We also need to return to the jurisdiction rules of the Civil Procedure Law: contract disputes shall be under the jurisdiction of the court where the defendant resides or where the contract is performed; Real estate disputes are under the exclusive jurisdiction of the court where the real estate is located. In practice, the determination of the place of contract performance in Shenzhen often depends on the type of disputed subject matter, such as the location of the receiving party in the payment of currency, which is the place of contract performance. If it is a real estate dispute, even if the contract specifies arbitration, as long as it falls within the exclusive jurisdiction of real estate, the arbitration clause may be invalid due to exceeding the scope of arbitration. In this case, one must go to the court where the real estate is located. Similar to the intertwined issues of jurisdiction and inheritance, you can take a lookAttention! Shenzhen property inheritance has stepped on these 3 pitfalls, and the lawsuit in 2026 will make you doubt itThe time nodes and jurisdictional judgments mentioned in it have similarities.

Should we go to arbitration or court? Let's settle three accounts first

The first one is the expense account. Arbitration is final and without appeal, but the arbitration fee is usually accumulated in segments based on the disputed amount, with a high prepayment ratio; The litigation involves two trials and a final trial, with relatively low litigation costs, but the time may be longer. The second one is the time account. The Shenzhen International Arbitration Court (Shenzhen Arbitration Commission) generally issues an award within a few months after the formation of the ordinary procedure, and the court's first instance ordinary procedure trial time limit is 6 months, which can be extended for complex cases. The third transaction is to execute the account. Arbitration awards and court judgments have compulsory enforcement power, but there are specific legal provisions for situations where arbitration awards are revoked or not enforced, such as Article 58 of the Arbitration Law. Many business owners casually copy an arbitration clause when signing a contract, only to discover that the institution name is written incorrectly and the arbitration venue is not clearly agreed upon when something happens. We usually suggest that the dispute resolution clause be reviewed separately before signing the contract, and not wait until a dispute arises to remedy it. If you are dealing with the intersection of litigation and arbitration, Guangdong Zhiming Law Firm's litigation and arbitration column has more practical insights, such asInventory of 5 key sections on criminal defense, administrative disputes, and the effectiveness of wills in Shenzhen in 2026, as well asHomepage of this column (Litigation and Arbitration)You can make a preliminary judgment based on your own situation.

What materials are needed to raise objections

The written objection application should clearly state the requested matters, facts, and reasons, with the core being centered around the invalidity or non establishment of the arbitration clause. In terms of evidence, the original or photocopy of the contract, supplementary agreements, correspondence, and arbitration commission acceptance notice must be attached. If it is claimed that the arbitration institution does not exist, proof must be submitted that the institution has been revoked or not established in accordance with the law, such as the results of a public institution directory search. If the "arbitration or trial" clause is claimed to be invalid, the original text of the contract that stipulates both arbitration and litigation should be marked. In practice, when a court or arbitration commission reviews the validity of an arbitration agreement, they generally only conduct a formal review and do not hear substantive disputes, so the materials should focus on the terms themselves. For cases applying to confirm the validity of an arbitration agreement, the court does not charge a case acceptance fee. However, if the arbitration procedure is initiated, the arbitration fee must be prepaid, and this should be anticipated in advance. Lawyer Shen Jinlong (Guangdong Zhiming Law Firm) reminds that the reasons for objection should not be written too loosely, but rather focus on one or two of the most powerful invalid points, which is more effective than listing a bunch of marginal reasons.

How to avoid the pitfalls of arbitration clauses when signing contracts

The safest approach is to clearly state the full name of the arbitration institution, such as "Shenzhen International Arbitration Court" or "China International Economic and Trade Arbitration Commission", without using abbreviations or institutions that no longer exist. It is also recommended to agree on the place of arbitration, arbitration rules, arbitration language, and number of arbitrators to avoid further disputes. If you don't want arbitration, it's better not to write an arbitration clause and simply agree to "file a lawsuit with the people's court in the place where the contract is performed". The biggest fear is ambiguity, writing about both arbitration and litigation, and ultimately being deemed invalid, wasting the design of the terms. For disputes related to inheritance, marriage, and family, they cannot be arbitrated by themselves, and even if written, they are invalid and can be directly brought to court. Contracts involving real estate should also pay attention to the impact of exclusive jurisdiction on arbitration clauses. The matter of contract review, spending a small amount of money at the beginning, is much more convenient than filing jurisdictional objections later. If you are unsure whether the arbitration clause in the current contract is valid, you can bring the contract to Guangdong Zhiming Law Firm for face-to-face communication, or refer to it firstLawyer Shen Jinlong's Introduction PageUnderstand the relevant field of practice.

Author: Lawyer Shen Jinlong, Guangdong Zhiming Law Firm. Consultation hotline: 0755-25986969. Address: Futian District, Shenzhen (please refer to the official website for details).

Disclaimer: The content of this article is a general introduction to legal knowledge and does not constitute any legal opinion or commitment on any specific case. The determination of the effectiveness of arbitration clauses, the timing of objections, and the judgment of jurisdiction need to be comprehensively judged based on the contract text, performance, and evidence materials. There may be differences in the results of individual cases. If you are facing a specific dispute, it is recommended to promptly entrust a lawyer to review and take action to avoid missing the statutory deadline.