International Commercial Dispute Settlement by jolinmilioncherie

VIEWS: 7 PAGES: 278

									Chapter 1
Introduction to International
Commercial Arbitration Law

       Prof. Zhao Xiuwen
Classification of the Methods for
the Dispute Resolution
   Judicial method
   Non-judicial method
       ADR (Alternative dispute resolution)
       Arbitration as an independent dispute
        resolution
Classification of the Disputes
--by subject-matter
   Sale of goods
   Sale of services
   Investment disputes:both foreign direct
    and indirect disputes
   Intellectual property disputes
Classification of Disputes
--by parties
   Between different states
   Between state and nationals of other
    states
   Between nationals of different states
WTO DS
   Disputes between WTO members
   DSB under WTO Rules
   Settlement disputes in accordance with
    WTO Rules (DSU & Various Agreements)
ICSID DS
   Convention on the Settlement of
    Investment Disputes between States
    and Nationals of Other States
ICSID Jurisdiction
   The jurisdiction of the Center shall extend to
    any legal dispute arising directly out of an
    investment, between a Contracting State (or
    any constituent subdivision or agency of a
    Contracting State designated to the Center by
    that State) and a national of another
    Contracting State, which the parties to the
    dispute consent in writing to submit to the
    Center. When the parties have given their
    consent, no party may withdraw its consent
    unilaterally.
DS between Nationals of
Different States
   Judicial method:litigation
   Non-judicial method
     Alternative Dispute Resolution (ADR)
Characteristics of ADR
   Alternative by the parties’ consent
   Legal status of the resolution
   Application of ADR
Expression of ADR
   Negotiation
   Conciliation or mediation
   Good offices
   Mini-trial
   Joint conciliation
Application of ADR
   Applied independently
   Combination with litigation and
    arbitration
International Litigation
   Jurisdiction
   Applicable law
   Recognition and enforcement of foreign
    judgment
Jurisdiction Determination
   Territorial supremacy(属地优越权)
   Personal supremacy (属人优越权)
   Concurrent jurisdiction (并行管辖)
     BP Case
Parallel Litigation
   Consent jurisdiction: forum shopping
   Exclusive jurisdiction
Litigation in National Courts
   Few conventions
   Principle rules on the jurisdiction v.
    national procedure law
   Difficult enforcement of foreign
    judgment due to lack of appropriate
    international convention
Enforcement of Foreign
Judgment
   Few international conventions
   Domestic law & reciprocity
Arbitration
   Voluntary method for the settlement of
    disputes
   Based on the arbitration agreement
   Binding force for the award
   Enforcement mechanism based on the
    New York Convention
Sources of International
Arbitration Law
   Domestic arbitration law
   International legislation: bilateral
    judicial cooperation treaty, international
    convention, model law
New York Convention
   Recognition and enforcement of
    arbitration agreement ;
   Recognition and enforcement of foreign
    arbitral awards
Other International Documents
   European Convention on International
    Commercial Arbitration;
   Geneva Conventions of 1923 and 1927
   World Bank Convention of 1965
   UNCITRAL Model Law on Int’l
    Commercial Arbitration of 1985
   UNCITRAL Arbitration Rules
Principles of International
Commercial Arbitration
   Parties’ autonomy
   Independent and impartial settlement
    disputes by the arbitral tribunal
   National courts’ supervision on the
    arbitration
China’s Int’l Arbitration Law
   Domestic arbitration law
   Bilateral judicial cooperation treaty and
    international convention to which China
    is a party
Arbitration Practices
   Comparative studies on international
    commercial arbitration practices
   Institutional v. ad hoc
   Judicial review in different countries
Main Topics
   Arbitration institutions
   International arbitration agreement
   Arbitration tribunal
   Arbitration procedures
   The law governing the arbitration
   Award and remedies
   Court supervision
German Zueblin v. Wuxi Woco
   22/12/00, two-page Agreement b/t the
    parties to construct a factory for Woco
    in Wuxi, Jiangsu Province, China;
   FIDIC Green Book General Terms and
    Conditions as Appendix incorporated by
    reference in the Agreement;
   Appendix: Arbitration: 15.3 ICC Rules,
    Shanghai shall apply.
Litigation in the Court
   10/10/02,Woco sued Zueblin in the Wuxi
    District Court over the Construction Contract
    then changed to torts claims;
   Zueblin challenged the jurisdiction of the
    Court based on the Arbitration Clause;
   The District Ct. decided its jurisdiction
    over the case, which was confirmed by
    the Wuxi Intermediate Ct. on 20/02/03.
Zueblin with ICC Arbitration
   23/ 04/03, Zublin applied to ICC for
    arbitrating the dispute with Woco.
   10/11/03, ICC tribunal rendered preliminary
    award to confirm its jurisdiction under the
    applied ICC Rules.
   30/03/04, final award was made in
    Shanghai in favor of Zueblin.
Court’ Decision on the Validity
of the Arbitration Agreement
   29/04/03, Zueblin applied to Wuxi
    district Ct. for confirmation of the
    validity of the arbitration agreement.
   02/09/04, Court denied the validity of
    the arbitration clause after the Reply
    from the Supreme Court on 8 July 2004
    through the Report system.
Chinese Court’s Decision on
Enforcement of the ICC Award
   30/08/04, Zueblin applied to the Wuxi
    Intermediate    People’s   Court      for
    enforcement of the ICC Award.
   19/07/06, Wuxi Intermediate People’s
    Court decided to refuse enforcement of
    the ICC Award due to invalid arbitration
    agreement under New York Convention.
References
   《国际商事仲裁法》,21世纪国际法学
    系列教材,人大版,2004;
   《国际商事仲裁案例解析》,人大版,
    2005;
   《国际商事仲裁法参考资料》,人大版,
    2006。
Chapter 2
Arbitration Institution
Ad hoc v. Inst’l Arbitration
   Business place
   Administration staff
   Rules of arbitration
   Panel list
Function of Institution
   Draft arbitration rules & supervision on
    the application of the Rules
       Administration works
       Maintain panel list
       Preliminary decision on the jurisdiction
       Assistance to the composition of the
        arbitration tribunal
       Appointment or withdraw of the
        appointment of the arbitrator
Advantages & Disadvantages
   Efficiency
   Quality of works
   Arbitration fee
   Enforcement issues
Classification on the Institution
   International based on int’l convention
       ICSID
   Local registered in particular country
Local Arbitration Institutions
   American Arbitration Association (AAA)
   London Court of International Arbitration
    (LCIA)
   Arbitration Institute of the Stockholm
    Chamber of Commerce (SCC)
   China International Economic & Trade
    Arbitration Commission (CIETAC)
   Hong Kong International Arbitration Center
    (HKIAC)
ICC in General
   ICC 1919: NGO
   ICC Arbitration Court 1923
   International Court of Arbitration (1998)
ICC Rules
   ICC Council
   1955 Rules: jurisdiction rules
   1975 Rules: procedure rules application
   1998 Rules: application of the
    substantive law
ICC Arbitration
   Arbitration rules
   Place of arbitration
   Language used
   Substantive rules
   Nationality of the arbitrators
Unique Characteristics
   Terms of reference
   Court review of the draft award before
    the official award sent to the parties
Model Arbitration Clause
   All disputes arising out of or in
    connection with the present contract
    shall be finally settled under the Rules
    of Arbitration of the International
    Chamber of Commerce by one or more
    arbitrators appointed in accordance
    with the said Rules.
Cases Relating to the
Application of ICC Rules
   Zublin Case
   Xiamen co. v. Taiwan co.
   Swiss co. v. Hainan co.
Xiamen co. v. Taiwan co.
   Dispute settled by friendly consultation
    or subject to ICC arbitration
   Supreme ct. replied in 1996 that ICC Ct.
    is the only institution to apply ICC Rules
   Ct. has no jurisdiction over the case
Swiss co. v. Hainan co.
   Dispute settled in accordance with ICC Rules
    in London
   Supreme ct. replied in 1996 that the
    arbitration clause is invalid due to lack of
    definite arbitration institution. The court has
    jurisdiction over the case.
Zurich Chamber of Commerce
   Basic facts (P.32-33)
   Arbitration clause?
   Is there an international trade
    arbitration organization in Zurich?
   Whether Zurich Chamber of Commerce
    to which the claimant brought the case
    is specially named in the arbitration
    clause?
德国奥特克案(47-52页)
   案情
   租船合同中的仲裁条款?
   临时仲裁还是机构仲裁?
   裁决在我国的承认与执行?
中化公司案(63-65页)
   买卖合同及仲裁条款
   仲裁机构的约定是否明确?
Arbitration Institution in China
   Before arbitration law in 1995
   Commercial arbitration after 1995
   Any ad hoc arbitration in China?
Provision of the Arbitration Law
on the Arbitration Institution
   Arbitration Commission(Art.10-13)
   Arbitration agreement must include the
    definite arbitration institution (Art.16)
   Supplementary agreement needed if no
    arbitration institution in the agreement,
    otherwise invalid(Art.18)
Judicial Interpretation by the
Supreme Court in 2006
   Implement on Sept. 8, 2006 (31 Arts.)
   Art. 3、4、5、6、7 deal with the
    arbitration institutions
   Unclear provision on the institution
   Arbitration Rules may decide
CIETAC Arbitration
   FTAC 1954
   FETAC 1980
   CIETAC 1988
   CIETAC South China Sub-Commission
    (Shenzhen Branch)
   CIETAC Shanghai Sub-Commission
CIETAC Rules
   1956   FTAC provisional rules
   1988   CIETAC Rules
   1994   CIETAC Rules
   1995   CIETAC Rules
   1998   CIETAC Rules
   2000   CIETAC Rules
   2005   CIETAC Rules
Other Arbitration Commissions
in China
   Independent   Institutions
   Independent   each other
   Independent   panel
   Independent   arbitration rules
   Independent   management
06司法解释第3条
   仲裁协议约定的仲裁机构名称不准确,
    但能够确定具体的仲裁机构的,应当认
    定选定了仲裁机构。
       例如在西安仲裁,而西安只有一个仲裁委员
        会
       在北京或者上海、深圳仲裁?
06司法解释第4条
   仲裁协议仅约定纠纷适用的仲裁规则的,
    视为未约定仲裁机构,但当事人达成补
    充协议或者按照约定的仲裁规则能够确
    定仲裁机构的除外。
       适用什么样的仲裁规则?规则由谁制定?为
        什么制定?是否应当具体情况具体分析?
06司法解释第5条
   协议约定两个以上仲裁机构的,当事人
    可协议选择其中的一个仲裁机构;当事
    人不能就仲裁机构达成一致的,仲裁协
    议无效。
06司法解释第6条
   仲裁协议约定由某地的仲裁机构仲裁且
    该地仅有一个仲裁机构的,当事人可以
    协议选择其中的一个仲裁机构申请仲裁;
    当事人不能就仲裁机构达成一致的,仲
    裁协议无效。
06司法解释第7条
   当事人约定可以向仲裁机构申请仲裁也
    可以向人民法院起诉的,仲裁协议无效。
    但一方向仲裁机构申请仲裁,另一方未
    在仲裁法第20条第二款规定期间内(仲
    裁庭首次开庭前)提出异议的除外。
Chapter 3
Arbitration Agreement
Definition and Forms
   Agreement between the parties to
    submit their dispute for the settlement
    by arbitration
   Submission to arbitration
   Arbitration clause in a contract
Content (CAL,Art.16)
   Intention of both parties to settlement
    their dispute by arbitration
   Matters to be arbitrated
   Definite arbitration institution,
    excluding ad hoc commercial arbitration
    tribunal
Matters to be arbitrated
   Art. 2 of the Judicial Interpretation:
       Contract disputes refers to the formation,
        validity, amendment, assignment,
        performance, liabilities for the breach,
        interpretation, termination of the contract.
Written Form
   Judicial interpretation(Art.1): apart
    from the contract, it could be expressed
    in the form of telegraph, telex, EDI,
    email, etc.
Void Arbitration Agreement
   CAL: Article 17
       if an agreed arbitrable matter exceeds the
        scope of arbitrable matters(Art.2,3 CAL)
        as specified by law;
       if a party that concluded the arbitration
        agreement has no capacity for civil acts or
        has limited capacity for civil acts; or
       if one party coerced the other party into
        concluding the arbitration agreement.
Art. 7 of the Jud. Interpr. on
Invalid arbitration agreement
   The parties agreed either arbitration or
    litigation. Unless one party applied for
    arbitration, the other party failed to
    challenge of the validity of the
    arbitration agreement prior to the first
    hearing of the arbitration tribunal.
   The parties failed to reach agreement
    on a definite arbitration institution.
Authority to decide (CAL20)
   If a party challenges the validity of the
    arbitration agreement, he may request an
    arbitration commission to make a decision or
    a People's Court to give a ruling. If one party
    requests an arbitration commission to make a
    decision and the other party requests a
    People's Court to give a ruling, the People's
    Court shall give a ruling.
   A party's challenge of the validity of the
    arbitration agreement shall be raised prior to
    the first hearing of the arbitration tribunal.
Competent Court to decide
validity of the arb. Agreement
   Intermediate people’s court
       where the agreed arb. Commission located;
       in case of no agreed definite arbitration
        commission, where the agreement was
        signed or the parties’ domicile or place of
        business located
Applicable Law for decision
   Judicial interpretation (Art. 16):
       Agreed by the parties
       Seat of arbitration if any
       Law of the national court
       In agreement with Art.5(1)(a) New York
        Convention
ICC Model Arb. Clause
   All disputes arising out of or in
    connection with the present contract
    shall be finally settled under the Rules
    of Arbitration of the International
    Chamber of Commerce by one or more
    arbitrators appointed in accordance
    with the said Rules.
ICC recommends the following
clause for arbitrations seated in
Mainland China after Zueblin
   All disputes arising out of or in connection
    with the present contract shall be finally
    settled by ICC Court of International
    Arbitration under the Rules of Arbitration of
    the International Chamber of Commerce by
    one or more arbitrators appointed in
    accordance with the said Rules.
   http://www.iccwbo.org/uploadedFiles/Court/A
    rbitration/other/mc_arb_chinese(1).doc
AAA Model Arb. Clause
   Any controversy or claim arising out of
    or relating to this contract shall be
    determined by arbitration in accordance
    with the International Arbitration Rules
    of the American Arbitration Association.
The Doctrine of Separability
of the Arb. Clause
   An arbitration clause which forms part
    of a contract shall be treated as an
    agreement independent of the other
    terms of the contract. A decision by the
    arbitral tribunal that the contract is null
    and void shall not entail ipso jure (L. 依
    法律)the invalidity of the arbitration
    clause.
Art. 16 UNCITRAL Model Law
   The arbitral tribunal may rule on its own
    jurisdiction, including any objections
    with respect to the existence or validity
    of the arbitration agreement.
Harbour Assurance Case (76-)
   UK Case b/w British co. and Finland co.
    over reinsurance contract
   The contract was void without
    permission from the British authority
   The invalidity of the main contract does
    not impeach the validity of the
    arbitration clause.
Art. 19 of CAL
   Arbitration agreements shall exist
    independently. The amendment,
    rescission, termination or invalidity of a
    contract shall not affect the
    effectiveness of the arbitration
    agreement.
Guangdong Huizhou JV Case
   JV K between Chinese co. and HK co.
   Arbitration clause in the K
   Dispute before the approval the
    contract by the authority
   Huizhou Intermediate Ct. ruled on its
    jurisdiction due to invalidity of the K
   Decision overruled by the Higher Ct.
Jiangsu co. v. HK and Canadian
co. in 1998
   Import used electronic machines K with
    arbitration clause
   Jiangsu co. applied to the ct. due to
    fraud contract
   HK and Canadian co. challenged the ct.
    jurisdiction
   The Supreme Ct. replied that the Ct.
    has no jurisdiction over the case
Judicial Interpretation (Art.10)
   The arbitration agreement is valid after
    it is formed but failed came into force
    or it is revoked.
Heyman v. Darwins ,1942
   Facts
   Dispute
   Judgment by the basic ct.
   Decision by the ct. of appeal
   Decision by the House of Lords
Assignment of Arb. Clause
   Whether the assignee is bound by the
    arbitration clause in the assigned
    contract?
Filanto v. Chilewich (85-89)
   Sales K between Chilewich and Russian
    co. for the supply of footwares
   Chilewich sent order with the same
    terms to Filanto, including arb. in
    Mosccow;
   Letter of credit opened by Chilewich
    w/o reply from Filanto
   Filanto challenged the arb. Clause
MS. Emja CASE(95-98)
   Construction K b/w Ferus(Dutch shipyard) to
    build Ms. Emja for Firden (Dutch company)
   Sales K b/w Firden and German Emja during
    construction of the ship
   Ferus sub-contracted Bijlma shipyard
   Bijlsma contracted Sweddish Wartsila for
    delivery of the diesel engines
   diesel engines dispute brought by German Ms.
    Emja against Swidish Wartsila
Chinese Practices
   No provision in CAL;
   Art.8 、9 of the Judicial Interpretation:
       The arb. Agreement is binding on assignee
        while the parties merged or separated.
       Successor’s responsibility
       Assignment of credits and liabilities
浙江诸暨外贸诉香港恺威110
   浙江诸暨外贸公司空白销售确认书
   仲裁条款的效力
Chapter 4 Arbitrability
Definition
   Whether the dispute under the
    arbitration agreement could be settled
    by arbitration
Why not arbitration
   Public interest consideration
   Different interpretation in different
    period of time even in the same state
Sion Soleimany (father) v.
Abner Soleimany (son) p.118
   Engaged in the export of Persian
    carpets from Iran in contravention of
    Iranian Revenue Laws and export
    controls
   Award
   Court procedures
Non-arbitrable Matters
   By statute
   By case
Applicable law
   Proper law of the contract
   Proper law of the arbitration agreement
   Law of the place of arbitration
   Lex loci
Authorities that decide
the applicable law
   Arbitral tribunal
   National court
    the court with jurisdiction
    where the arbitration is taken place
     where the enforcement is sought
SPA Italy v. MOD Iraq p.129
   Ks to build ships for Iraq navy b/w the
    parties with arbitration clause
   Effect of UN embargo in 1990 on the Ks
   SPA’s claim for the frustration of Ks and
    damages before Ks were performed
   Ct. of first instance – no jurisdiction
   Ct. of Appeal: non-arbitrability of the
    case according to Italian law
State’s capacity to arbitration
and applicable law
   ELF Aquitaine Iran (France) v. National
    Iranian Oil Company (NIOC) p.135
   K b/w NIOC and ERAP(French state agency)
    & Sofiran
   ERAP entitled to buy certain discovered oil at
    a preferential price
   ERAP transferred rights to ELF
   Arbitrability of the dispute on nationalization
    issues
   The arbitrator ruled his own jurisdiction
M.S.A. (Belgium) v. Co. M.
(Switzerland) p.151
   Exclusive distributorship agreement between
    the parties with Swiss Law applicable
   Arbitration agreement is invalid under the
    Belgian Law because the subject matter is
    non-arbitrable.
   Belgian District Ct. granted the claim
   Ct. of Appeal reversed on the ground that
    arbitrability is ascertained according to the
    law which applies to the arbitration
    agreement
Securities Arbitration
   Wilko v. Swan (1953)
   Sherk v. Alberto-Culver Co. (1974)
   Rodriguez v. Shearson/American
    Express (1989)
Arbitration for IP Rights
   Dispute over the validity of the rights
   Dispute under the licensing agreements
   US practices
Antitrust Claims
   American Safety Equipment Corp. v. J.P.
    Maguire & Co. (1968):反托拉斯法项下
    的争议不宜通过仲裁方式解决。
   Mutsubishi Motors Corp. v. Soler
    Chrysler-Plymouth(1985):合谋划分市
    场的违反反托拉斯法的请求权项可以通
    过仲裁的方式解决。
Labor dispute
   Arbitrable unless the law provides
    otherwise
Practices in China
   Arbitration Law Art. 2
   Securities
   Intellectual properties
   Labor disputes
Chapter 5
Arbitration Tribunal & Jurisdiction
Function of the Tribunal
   Trial the case according to the applied
    arbitration rules
   Render award
   Quality of the award depends on the
    quality of the arbitrator
Composition of the Tribunal
   Sole arbitrator tribunal
   Two arbitrators tribunal
   Three arbitrators tribunal
   Nationality requirement in international
    arbitration
Al Haddad v. M/S Agapi (171)
   C/P between the Al Haddad ( cargo owner)
    and M/S Agapi ( owner Diakan) with
    arbitration clause;
   Al brought lawsuit for damages to the cargo;
   Diakan applied for stay the action for
    arbitration and apply for unpaid charter hire;
   Arbitrated by sole arbitrator in favor of
    Diakan with default award;
   Diakan applied for enforcement in US Court.
Tribunal’s Authority
   To decide its own jurisdiction based on
    the competence-competence doctrine;
   To render an award.
Competence-Competence
Doctrine (仲裁庭自裁管辖)
   The arbitral tribunal may rule on its own
    jurisdiction, including any objections
    with respect to the existence or validity
    of the arbitration agreement( Art. 16
    UNCITRAL Model Law).
   The doctrine is universally recognized
    by the national legislation and
    arbitration rules.
Heyman v. Darwins (181)
   Facts: frustration of the contract with
    arbitration clause
   Dispute: whether the court should stay
    the action
   Trial judge refusing the stay;
   The Court of Appeal granted the stay
    and refused to appeal further;
   Appeal dismissed by the House of Lords.
Qualification of the Arbitrators
   In general
   Panel system : compulsory or elective?
IBA Ethics for Int’l Arbitrators
   International arbitrators should be
    impartial, independent, competent,
    diligent and discreet.
   Disclose all facts or circumstances that
    may give rise to justifiable doubts as to
    his impartiality or independence.
IBA Duty of Disclosure (4)
   Past or present business relationship
   Nature and duration of any substantial social
    relationship with any party
   Nature of any previous relationship with any fellow
    arbitrator
   Extent of any prior knowledge of the dispute
   Extent of any commitments which may affect his
    availability to perform his duties
   Disclosure duty throughout the proceedings
   In writing and communicated to all parties and
    arbitrators
Case for Failure in Disclosure
   Finish Supreme Court Case in 2005
   Civil liability for the failure in disclosure
    private relationship with the party by
    the chairman of the arbitral tribunal
   Stockholm International Arbitration
    Review, 2007:1 (117 -127 )
CIETAC Disclosure (Art.25)
   Any facts or circumstances likely to give
    rise to justifiable doubts as to his/her
    impartiality or independence;
   During the whole arbitration procedure
IBA Duty of Diligence (7)
   All arbitrators should devote such time
    and attention as the parties may
    reasonably require having regard to all
    the circumstances of the case, and shall
    do their best to conduct the arbitration
    in such a manner that costs do not rise
    to unreasonable proportion of the
    interests at stake.
Failure in the Duty of Diligence
   French Supreme Court decision in 2005: three
    arbitrators in a domestic ad hoc arbitration
    personally liable for having failed to render an
    award within the time period for arbitration,
    provided by Art.1456 of the New Code of Civil
    Procedure.
   Stockholm International Arbitration Review,
    2006
French Case (continued)
   Ad hoc award was set aside (1484) because it
    was rendered out of the time limit (1456),
    French Code of Civil Procedure.
   One of the parties brought a claim for liability
    for breach of contract against the arbitrators
    before the court.
   The Aners Court of Appeal Ruled that the
    arbitrators were not liable.
   Cour de Cassation found that the arbitrators
    were liable and sent the case back to the
    Orleans Court of Appeal for further
    consideration.
Confidentiality Duty ( IBA-9)
   The deliberations of the arbitral tribunal and
    the contents of the award itself remain
    confidential in perpetuity unless the parties
    release the arbitrators from this obligation.
    An arbitrator should not participate in, or give
    any information for the purpose of assistance
    in, any proceedings to consider the award
    unless, exceptionally he considers it his duty
    to disclose any material misconduct or fraud
    on the part of his fellow arbitrators.
Art.14 ICSID
   Persons designed to serve on the Panels shall
    be persons of high moral character and
    recognized competence in the field of
    law, commerce, industry or finance,
    who may be relied upon to exercise
    independent judgment. Competence in
    the field of law shall be of particular
    importance in the case of persons on the
    Panel of Arbitration.
Qualification in China
   Art. 13,CAL: righteous, upright persons, at least one
    of the following item required:
   engaged in arbitration work for at least eight years;
   as a lawyer for at least eight years;
   as a judge for at least eight years (2004 amended);
   engaged in legal research or education and to have a
    senior title; or
   have legal knowledge, to be engaged professionally
    in fields such as economic relations and trade, etc.
    and to have a senior title or attained an equivalent
    professional level.
Panel System
   CAL Art.11(4): commission should have
    appointed arbitrators;
   Each arbitration commission keep its
    own panel list
Composition of the tribunal
   Appointment by the parties
   Appointment of the permanent
    arbitration institution including ad hoc
   Appointment by the court in other
    countries
Jurisdiction of the Tribunal
   Decides its own jurisdiction in
    accordance with competence-
    competence doctrine
   Trial the dispute and make an award in
    accordance with the applied arbitration
    rules and law
Challenge to the Arbitrators
   Grounds for challenge
   Decision-made-authority for challenge
    to the arbitrators in other countries
Grounds for Challenge in PRC
   CAL: Art.34
   as a party in the case or a close relative of a
    party or of an agent in the case;
   has a material interest in the case;
   has another relationship with a party or agent
    in the case which may affect the impartiality
    of the arbitration; or
   privately met with a party or agent or
    accepted an invitation or gift from a party or
    agent (case for Tianjin & CIETAC)
Decision for Challenge
   Written form requirement for
    requirement for challenge with reasons
   Chairman of the arbitration commission
   Arbitration commission in case of
    chairman as concerned arbitrator
   Court decision in other countries
   Appointment of substitute arbitrator
Immunity Issues for Arbitrators
   IBA takes the position that int’l
    arbitrators should in principle be grant
    immunity from suit under national law,
    except in extreme cases of willful or
    reckless disregard of their legal
    obligations.
Practices in China
   No provisions as to the immunity of the
    arbitrators
    Criminal law as to the crime on the
    arbitrator’s malpractice that perverted
    law in adjudication of the case
   Hot discussion with two totally different
    view :worrying and welcome
Result in Failure in Duty
   Arbitration commission’s internal rules
    for arbitrators
   Withdraw from the panel
   Criminal charge if committed crime
   Art.399 Amendment Criminal Law on
    crime on making an award that
    perverted law for arbitrators(枉法
    裁决罪)
Worrying Side
   Voluntary method for the settlement of
    dispute,different from litigation
   CAL: independence without intervention
    from administration, social group and
    individual
   Remedies for malpractice could be
    turned either to the arbitration
    commission or to the court supervision
Welcome Side
   Both arbitrator and judge are
    implementing law.
   Both award and judgment are final.
   Judges could commit malpractices that
    perverted the law in adjudication of the
    case, so are arbitrators.
   Criminal law could apply to arbitration.
广东总统大酒店案
   95年12月17日,香港高速货运有限公司与酒店
    的租赁合同(贸仲北京仲裁)和管理协议
   96年10月17日,酒店与高速货运无限责任公司
    签订了酒店管理补充协议(贸仲深圳分会仲
    裁),此前与本协议不一致的地方,以本协议
    为准;
   97年11月高速货运向深圳分会申请仲裁:租赁
    合同继续履行
   98年11月酒店向贸仲北京总会基于同样的合同
    申请仲裁:终止租赁合同
Chapter 6
Interim Measures of Protection
Interim or conservatory
measures of protection
   Conserve: to save and protect from loss
    or damage
   Purpose: enforcement of award to
    prevent the party from transfer his key
    evidence, property or to preserve the
    status quo (维持现状)
Application for IM
   To the Arbitration institution or tribunal
   To the court
   Enforcement
International practices
   Unless otherwise agreed by the parties, the
    tribunal may, at the request of a party, order
    any party to take such interim measure of
    protection as the tribunal consider necessary
    in respect of the subject matter of the dispute.
    (Art.17, 1985 Model Law)
   UNCITRAL Rules(26), ICC 23, WIPO 46, AAA
    21, LCIA 25)
2006 Model Law Amendment
   Art.17 replaced by 11 articles, 5
    sections in Chapter 4
   IM and conditions for granting(17-A)
   Preliminary orders (PO,初步命令,B-C)
   Provisions applicable to IM and PO (D-G)
    Recognition & enforcement of IM(H-I)
   Court-ordered IM(J)
IM and conditions for granting
   Temporary measure granted prior to
    the issuance of the award
   Harm not adequately reparable by an
    award of damages likely result without
    the order;
   Requesting party could be reasonably
    successful
   Tribunal considered appropriate
PO and Conditions
   Directing a party not to frustrate the purpose
    of IM requested without notice to the other
    party;
   Notice to all parties of the request for IM and
    give opportunity for objection;
   PO shall expire after 20 days from the date of
    issuance prior to IM;
   Binding on the parties but unenforceable by
    the court;
Provisions on IM and PO
   Modification, suspension and
    termination
   Provision of security
   Disclosure obligations on material
    change in the circumstances
   Cost and damages
Recognition and Enforcement
   As binding award for court enforcement;
   Court may require security
   Conditions for refusing enforcement (I)
Court-ordered IM(17-J)
   A court shall have the same power of
    issuing an interim measure in relation to
    arbitration proceedings, irrespective of
    whether their place is in the territory of
    this State, as it has in relation to
    proceedings in courts. The court shall
    exercise such power in accordance with
    its own procedures in consideration of
    the specific features of int’l arbitration.
Sundaram v. NEPC 214
   Yearbk. Comm. Arbitration, 1999
   Hire-purchase agreement
   NEPC delayed in payment
   Apply to the court to take custody of
    the generators
   Whether IMP could be taken before
    arbitration procedure
Art. 256 of CPL(2007)
   If a party has applied for property
    preservation measures, the arbitral
    commission of the PRC handling cases
    involving foreign element shall refer the
    party’s application for a decision to the
    intermediate people’s court where
    the party against whom the application
    is made has his domicile or where his
    property is located.
Art.46, Arbitration Law
   Under circumstances where evidence may be
    destroyed or lost or be difficult to obtain later,
    a party may apply for interim measures of
    protection of evidence. If a party applies for
    interim measures of protection of evidence,
    the arbitration commission shall submit his
    application to the basic-level People's
    Court of the place where the evidence is
    located.
Practices in China
   Provisional Rules of FTAC 15
   Art. 13 of CPL(试行,1982)
   1988 Rules to confirm with CPL
   Art. 258 of CPL(1991);Art.256(2007)
临时性保全措施的发布与执行
   当事人将保全措施的申请提交仲裁委员
    会
   仲裁委员会将此申请提交相关法院
   法院依法做出裁定并予以执行
   国际上的做法
中国政府提交的意见
   中国法律并没有赋予仲裁庭作出有关保
    全措施的权力,也未赋予仲裁庭命令采
    取临时措施和初步命令的权力,因此现
    有案文与中国民事诉讼法、仲裁法的相
    关规定不符,我国法院缺乏承认与执行
    外国仲裁庭作出的临时措施、初步命令
    的法律依据
Chapter 7
Arbitration Procedure
Contents
   How the arbitration is to be carried out
   How to initiate the arbitration
   How to compose the arbitration tribunal
   How the merits of the case are tried
   How to render the Award
   Decided by the applied ARBITRATION
    RULES in particular case
Arbitration Rules v. Law
   Purpose: performing v. regulating
   mode of application
   binding force
Initiation of the Arbitration
   Notice of arbitration is received by the
    Respondent (UNCITRAL Rules)
   The Request is received by the
    Secretariat (ICC, AAA ,LCIA,CIETAC and
    most of the institutions’ rules)
Notice of Arb. (UNCITRAL)
   Demand for arbitration
   Names and addresses of the parties
   Reference to the arb. Agreement
   Dispute covered by the arb. Agreement
   Nature of claims and amount involved
   Relief or remedy sought
   Proposal as to the number of arbitrators
Notice of Arb. (UNCITRAL)
   Proposal for the appointments of a sole
    arbitrator or appointing authority
   Notification of the appointment of an
    arbitrator when 3 arbitrator required
   The statement of claim
Statement of Claim(申请书)
   Names and addresses of the parties
   Statement of the facts supporting the
    claim
   Points at issue
   Relief or remedy sought
Statement of Defense(答辩状)
   Parties
   Facts
   Merits
   Reliefs
Composition of Tribunal
   Sole arbitrator tribunal
   Two arbitrators plus an umpire tribunal
   Three arbitrators tribunal
R. A. Sally(Fin.) v. S.R.L.
Termarea (Italy) 455
   C/P between Sally and Termarea
   Arbitration clause
   Demurage claim from Sally
   Award by two chosen arbitrators
   Refusing enforcement by the Italian
    court due to improper composition of
    the tribunal
Trial of the case
   Terms of reference
   Place of arbitration
   Method of trial
   Award rendered
Terms of reference(ICC Art.18)
   Parties’names and descriptions;
   Communicable addresses of the parties
   Parties’ brief claims and counterclaims
   List of issue to be determined
   Arbitrators full names and descriptions
   Place of the arbitration
   Other particulars
仲裁地点及其决定
   仲裁地点、开庭地点、仲裁庭合议案件
    的地点
   仲裁
       当事人约定
       仲裁规则决定
   仲裁机构所在地与仲裁地点之间的关系
Place of arbitration
   The Seat or Legal Place of the arbitration:
    where the award was made
       The place where the case is to be hard
       The place where the tribunal deliberate the case
   Difference and similarities
   Determination of the seat
Determination of the seat
   By the applied arbitration rules or law
       By Parties autonomy
       By the arbitration institution or the tribunal
   Whether the place of arbitration is the
    very location of the institution ?
Place of arbitration in China
   No direct provision by law
   Indirect provision (Art. 58 Arb. Law)
   Art.31 CIETAC Rules
       by agreement;
       headquarter or sub-commission;
       award made at the place of arbitration
CIEATC Rules: Art. 31 仲裁地
   双方当事人书面约定仲裁地的,从其约
    定。
   如果当事人对仲裁地未作约定,仲裁委
    员会所在地为仲裁地。
   仲裁裁决应视为在仲裁地作出。
审理方式
   开庭审理:oral hearing
   书面审理: without oral hearing based
    on the written documents
Hearings
   Chairman arbitrator declared the parties and
    the composition of the tribunal
   Statement of claim
   Answer
   Evidence
   Conciliation upon the agreement
   Close statement


Without Hearing
   On the basis of documents and other
    materials for summary procedure
   By parties autonomy
Paklito v. Klockner (251)
   CIETAC award in 1990
   Sales contract b/w the parties
   White rust on the steel coils
   Defects existed during manufacturing
    process by the report
   Comments requirement from the
    respondent without such comments
US Firm v. FRG Firm (262)
   AAA award on written procedure
   German court of first instance grant the
    enforcement
   Court of Appeal refused enforcement
    due to public policy in 1975
Languages to be used
   By arbitration rules
   By parties autonomy
End of the Procedure
   Find out the facts
   Apply appropriate law
   Render award impartially and
    independently
仲裁规则与仲裁法之间的联系
   规范仲裁行为的规则
   制定机构与实施机构
   法律性质
   覆盖范围
仲裁规则及其适用
   仲裁规则的制定与实施
   临时仲裁庭仲裁规则的适用
   常设仲裁机构仲裁规则的制定与实施
Applicable Law for Int’l
Arbitration Procedure
   Basic principle: parties’ autonomy
   Role of the law of the State where the
    arbitration is taken place
   Mandatory provisions
Union of India v. Mcdonell
Douglas Corporation (269)
   Indian Arbitration Act of 1940 or any
    reenactment or modification thereof
   The seat of arbitration proceedings shall
    be London.
   What is the law governing the
    arbitration proceedings?
Delocalized Arbitration
   International arbitration has no real
    relation with the local legal order.
   Gotaverken(瑞典造船厂) v. Libyan
    General National Maritime Transport
   SEEE v. Yugoslavia
   法国和瑞士均拒绝对在其境内作出的裁
    决行使撤销裁决监督权。
Chromalloy Aeroservices Inc. v.
MOD of the Republic of Egypt
   K to provide maintenance and support
    fro a fleet of Sea King Commando
    helicopters for four years
   Egypt party terminated one year before
   Chromalloy refused to accept the
    notification of the cancellation of the K.
Arbitration & Litigation
   Award made by ad hoc tribunal
   Award was set aside by the Egyptian Ct.
   Chromalloy applied to the French and
    US court for enforcing the award set
    aside by the Egyptian court.
Practices in China
   Arbitration legislation relating to
    arbitration procedure
   Arbitration rules of the arbitration
    commissions
   Conciliation in the arbitration
    proceedings
黎明大酒店案(292)
   酒店经营管理合同争议
   被申请人参加了庭审,一方面提出了管
    辖权异议;另一方面又就实体问题进行
    了答辩;
   仲裁协议无效而拒绝承认与执行裁决;
    仲裁委未能就管辖权异议作出决定。
Chapter 8
Evidence in Int’l Arbitration
Significance of Evidence
   Basic for finding out the facts
   Basic for determination of the liabilities
   Basic for rendering impartial and
    independent award
诉讼证据与仲裁证据
   诉讼证据规则
   仲裁证据规则
       举证原则
       证据认定原则
Forms of Evidence
   Documents (书证)
   Evidentiary hearing (开庭取证)
   Witnesses of fact (证人证言)
   Expert witnesses (专家证据)
Documents
   Writings of any kind, whether recorded
    on paper, electronic means, audio or
    visual recordings or any other
    mechanical or electronic means of
    storing or recording information.
Evidentiary Hearing
   Any hearing, whether or not held on
    consecutive days, at which the arbitral
    tribunal receives oral evidence.
Witnesses of Fact
   Any party may present evidence as a
    witness, including a party or a party’s
    officer, employee or other
    representative.
   The arbitral tribunal may order any
    party to provide the appearance for
    testimony at an evidentiary hearing of
    any person.
Expert Evidence
   Party-appointed expert: an expert
    witness presented by a party for
    specific matters;
   Tribunal-appointed expert
   Expert report
On Site Inspection
The arbitral tribunal, at the request of a
 party or on its own motion, inspect or
 require the inspection by a tribunal-
 appointed expert of any site, property,
 machinery, or any other goods or
 process, or documents, as it deems
 appropriate.
Admissibility and
Assessment of Evidence
   The arbitral tribunal shall determine the
    admissibility, relevance, materiality and
    weight of the evidence.
Could Mountain v. Lewis 307
   Dispute over overpayment for
    renovations for Lewis’s properties
   Award in favor of Cold Mountain
   Lewis applied for set aside the award
    on the ground that the arbitrator
    refused to enforce the subpoena and
    require production of all of the invoices
Odyssey v. ADAS (Astra) 319
   Dispute on various reinsurance
    agreement b/w Odyssey and ADAS
    during 1969-1983
   ADAS ceased to exist and replaced
    partially by Astra
   Astra applied for set aside award by the
    arbitrator as to his jurisdiction.
Delphi Petroleum v. Derin 333
   Delphi applied for an order granting an
    interim measure of protection to secure
    evidence on Derin’s demurrage claim
   Whether it is appropriate for the court
    to allow Delphi’s request to secure the
    evidence of Derin’s former employee.
   The application is dismissed with costs.
Chinese Legislation & Practices
   2007年民事诉讼法第六章
   仲裁法43条(2)款、46、68条
   2005贸仲规则第35-39条
证据的提供
   谁主张,谁举证
   专家提供的证据
   仲裁庭主动调查
   法院协助:证据保全(仲裁法第46条、
    68条)
庭审笔录(35)
   开庭审理时,仲裁庭可以制作庭审笔
    录及/或影音记录。仲裁庭认为必要时,
    可以制作庭审要点,并要求当事人及/
    或其代理人、证人及/或其他有关人员
    在庭审笔录或庭审要点上签字或者盖
    章。
   庭审笔录和影音记录供仲裁庭查用
第三十六条 举证
   当事人应当对其申请、答辩和反请求所依据
    的事实提供证据加以证明。
   仲裁庭可以规定当事人提交证据的期限。当
    事人应当在规定的期限内提交。逾期提交的,
    仲裁庭可以不予接受。当事人在举证期限内
    提交证据材料确有困难的,可以在期限届满
    前申请延长举证期限。是否延长,由仲裁庭
    决定。
   当事人未能在规定的期限内提交证据,或者
    虽提交证据但不足以证明其主张的,负有举
    证责任的当事人承担因此产生的后果。
第三十七条 仲裁庭自行调查
   仲裁庭认为必要时, 可以自行调查事实,收集
    证据。
   仲裁庭自行调查事实、收集证据时,认为有必
    要通知双方当事人到场的,应及时通知双方当
    事人到场。经通知而一方或双方当事人不到场
    的,仲裁庭自行调查事实和收集证据不受其影
    响。
   仲裁庭自行调查收集的证据,应经仲裁委员会
    秘书局转交双方当事人,给予双方当事人提出
    意见的机会。
第三十八条 专家报告及鉴定报告
   仲裁庭可以就案件中的专门问题向专家咨询或者指
    定鉴定人进行鉴定。专家和鉴定人可以是中国或外
    国的机构或公民。
   仲裁庭有权要求当事人,而且当事人也有义务向专
    家或鉴定人提供或出示任何有关资料、文件或财产、
    货物,以供专家或鉴定人审阅、检验或鉴定。
   专家报告和鉴定报告的副本应送给双方当事人,给
    予双方当事人对专家报告和鉴定报告提出意见的机
    会。任何一方当事人要求专家或鉴定人参加开庭的,
    经仲裁庭同意后,专家或鉴定人可以参加开庭, 并
    在仲裁庭认为必要和适宜的情况下就他们的报告作
    出解释。
第三十九条 质证
   一方当事人提交的证据材料应经仲裁
    委员会秘书局转交对方当事人。
   开庭审理的案件,证据应当在开庭时
    出示,由当事人质证。
   当事人开庭后提交的证据材料,仲裁
    庭决定接受但不再开庭审理的,可以
    要求当事人在一定期限内提交书面质
    证意见。
Paklito v. Klockner (251)
   CIETAC award in 1990
   Sales contract b/w the parties
   White rust on the steel coils
   Defects existed during manufacturing
    process by the report
   Comments requirement from the
    respondent without such comments
上海仲裁委案件
   申请人请求不予执行,理由是未经质证
   依法驳回
Chapter 9
Applicable Law for
International Arbitration
Applicable Law in Int’l Arb.
   Applicable law for the arbitration
    agreement
   Applicable law for the arbitration
    procedure
   Applicable for merits of the case
Applicable Law for
Arbitration Agreement
   Arbitration agreement : contract
    between the parties to settle their
    dispute by arbitration
   Principles of private international law or
    conflict of law rules in national law
General Principles of
Private International Law
   Parties’ autonomy
   Closest relationship with the contract
   Compulsory application of particular law
    in different countries
Chinese Practices
   CAL, Contract Law 1999
   Art.16, Judicial Interpretation of CAL in
    2006
   First – that of selected by the parties
   Second – that of the seat of arbitration
   Lastly - that of the national court
Development in the Field
   The national court should make the
    international arbitration agreement
    effect as possible as it can.
   Art.187 of Swiss PL: an arbitration agreement
    is valid if it conforms either to the law
    chosen by the parties, or to the law
    governing the subject matter of the
    dispute, in particular the main contract,
    or to Swiss law.
Zueblin Case
   Construction agreement with FIDIC
    Green Book General Conditions by
    reference in its appendix:Arbitration
    15.3 ICC Rules Shanghai shall
    apply
   Woco brought the lawsuit to the Ct.
   Zueblin brought the case to ICC for
    Arbitration
Zueblin Case (2)
   Court decided its jurisdiction according
    to local law;
   Arbitral tribunal decides its jurisdiction
    according to the arbitration agreement
    and the applied ICC Rules.
   Court refused enforcement due to the
    invalid arbitration agreement.
AL of the Arb. Procedure
   Whether the parties may select to apply
    procedure law of the other country?
   Process to negotiate NYC
   Nationality of the award
Deciding Authority
   Arbitration institution
   Arbitration tribunal
   National court
Union of India v. Mcdonell
Douglas Corporation (269)
   The applicable law of the arbitration
   “In the event of dispute or difference arising out of
    or in connection with this agreement, which cannot
    be resolved by amicable settlement, the same shall
    be referred to an arbitration tribunal consisting of
    three members………The arbitration shall be
    conducted in accordance with the procedure
    provided in the Indian Arbitration Act of 1940
    or any reenactment or modification
    thereof……The seat of the arbitration
    proceedings shall be London……
Indian Supreme Ct. Case
   National Thermal Power Corporation
    (India) v. The Singer Company (USA)
   Construction Contract with arbitration
    clause: ICC Rules, seat decided by ICC,
    Indian law apply
   Award made in London
   Indian ct. refused enforcement and set
    aside the award
Conclusion of AL in Procedure
   The seat decided the applicable law for
    the arbitration procedure;
   The seat could be decided by the
    parties, and by the arbitration
    institution or the court in the absence of
    the agreement between the parties
Chinese Practices
   No special provision on the seat apart from
    CIETAC, but the name of arbitration
    commission;
   The location of the arbitration commission is
    usually considered as the seat of arbitration,
    since there is no distinction between the seat,
    the place of hearing and that of deliberation
    of the case by the tribunal.
Applicable Law for Zueblin
Case
   Arbitration agreement
   Arbitration procedure
   Merits of the case (main contract)
AL for Int’l Arb. Agreement
   NYC has no provision
   National law decides the issue
Delocalized Arbitration
   Denationalized arbitration
   International award has no relation with
    the legal order of any country
   Such award is floating until it is
    enforced.
Gotaverken Case 1980
   Gotaverken (Sweden) v. Libyan General
    National Maritime Transport
   ICC Rules, Paris
   French court refused setting aside the
    award on the ground of lack of
    jurisdiction;
   The Swedish court enforced the award.
SEEE Case
   SEEE (France) v. Yugoslavia
   K to build railway in 1932
   Award made by two arbitrators in Vaud, Switzerland
    in 1956
   Court in Vaud refused setting aside because Art.514
    of Vaud CPL required uneven number of arbitral
    tribunal. The award was a Swiss award.
   The Dutch court enforced the award as Swiss award
    in 1973, while the French court enforced it as a-
    national award made in another NYC member state.
Chromalloy Case (1996,US)
   Chromalloy Aeroservices Inc. (USA) v.
    Ministry of Defence (MOD) of the
    Republic of Egypt
   Contract of sale and service for 4 years
   MOD terminated K before it expired
   Arbitrated and set aside in Egypt
   French and US court ruled to enforce
AL for the Merits of the Case
   What law should be applied to decide
    the merits of the case?
   Proper law (applicable law) of the
    contract
Basic Principles
   Parties’ autonomy
   Closest relationship with the contract
   General principles of law, lex mercatoria,
    law merchant
Norsolor(France) v.
Pabalk(Turkey) at 381
   Agency contract with arbitration clause
   Arbitrated by ICC sole-arbitrator
    tribunal in Vienna
   Tribunal applied neither law of the
    parties, but equity
   Whether the tribunal may rule in equity
    as amiable compositeurs
Harmonization of the Applicable
Law in International Contract
   CISG: Vienna Convention on Contract
    for the International Sales of Contract
    by UNCITRAL
   Principles of European Contract Law
   UNIROIT (International Institute for
    Unification of Private Law) Principles for
    International Commercial Contract
Application the Uniform Law in
the International Arbitration
   Art.17 of ICC Rules
   (1) The parties shall be free to agree upon the rules
    of law to be applied by the Arbitral Tribunal to the
    merits of the dispute. In the absence of any such
    agreement, the Arbitral Tribunal shall apply the
    rules of law which it determines to be appropriate.
   (2) In all cases the Arbitral Tribunal shall take
    account of the provisions of the contract and
    the relevant trade usages.
   (3) The Arbitral Tribunal shall assume the powers of
    an amiable compositeur or decide ex aequo et bono
    only if the parties have agreed to give it such powers.
Art.1474 French CCP
   The arbitrator shall decide the dispute
    according to the rules of the law unless
    the parties have authorized him in the
    arbitration agreement to rule as
    amicable compositeur.
Chinese Practices
   Contract Law 1999
   Parties’ autonomy in general in priority:
    provisions in the contract
   Compulsory applicable law for the
    particular contracts: joint venture
    contracts
   Application of bilateral and multilateral
    convention
Chapter 10
International Arbitral Awards
Content of Award
   Jurisdiction
   Procedure
   Arguments for both parties
   Tribunal’s opinion on the issues
   Award
Revpower Case 399
   Proceedings
   Factual background and basic
    submissions by the parties
   Governing law
   The parties prayers
   Opinion
   Award
Classification of the awards
   Interim, preliminary, partial award
   Interlocutory award (中间裁决)
   Consent award (和解裁决)
   Award (终局裁决)
   Supplementary award (补充裁决)
Nationality of the int’l award
   Source of the legally binding force
   Power to set aside award
   National court decides
Criteria to decide the
nationality of int’l awards
   NYC
       Territoriality where the award is made
       Applicable law under which the award is
        made
   Other criteria
       仲裁员国籍:匈牙利
       裁决书签字地
       仲裁机构所在地
Revocation Awards
   General principle for remedies: setting aside and
    refusing enforcement: National courts are entitled to
    set aside their own awards. As to foreign awards, the
    courts may only decide whether to enforce or not.

   Revocation of international awards could be done
    only by the national courts that consider the awards
    as their own (domestic awards).
Int’l Standard Elec. Co. (USA)
v. Bridas (Argentine) 425
   Tibor Varady:International Commercial
    Arbitraiton, West Group, 1999, 631-636
   ICC Arbitration in Mexico city
   Award in favor of Bridas
   ISEC applied to vacate in New York court
   ISEC’s petition is dismissed on by the court
       The forum of arbitration is Mexico city, the
        governing procedural law is that of Mexico,
        only the court of Mexico have jurisdiction
        under the Convention to vacate the award.
Croatian co. v. Swiss co. 448
   Tibor Varady:International Commercial
    Arbitraiton, West Group, 1999, 636-637
   Croatian co. applied to the Croatian ct. to set
    aside the arbitral award made by ICC arbitral
    tribunal in Switzerland in accordance with
    substantive Croatian law
   Rejected by the ct. on the ground that the
    procedural law of a foreign state in which
    award is made was applied.
Conditions for set aside
   General principle: procedure issues
    instead of merits of the case
       Invalid arbitration agreement
       Lack of due procedure
       Tribunal beyond authority
       Impropriate composition of the tribunal
       Non-arbitrability of the dispute
       Award in conflict with the public policy
Invalid arbitration agreement
   ELF Aquitaine Iran(France) v. National
    Iranian Oil Co. (Iran) 135
   Tibor Varady,223-228;
   Nationalization of oil industry in Iran
   Arbitration agreement was void.
   Dispute is settled by the Special
    Committee of Iran.
   Sole arbitrator declared its competence.
Lack of due procedure
   Paklito Investment Ltd. v. Klockner East
    Asia Ltd. 251
   Sales K between the parties
   Dispute on the defects of the goods
   Expert opinions and review
   Award in favor of the buyer
   Refusing enforcement
Tribunal beyond its authority
Norsolor S. A. (France) v. Pabalk Ticaret
  Sirketi S.A. (Turkey) 381
Agency agreement b/w French and
  Turkey co.
ICC Arbitration award made in Vienna.
Tribunal beyond its authority via
 amicable compositeur.
Improper composition of the
tribunal
   Commercial man as arbitrator
   Engineer of the servant of the parties
    during the construction work
Arbitrability matters
   Wilko v. Swan (1953)
   Sherk v. Alberto-Culver Co. (1974)
   Rodriguez v. Shearson/American
    Express (1989)
Public policy consideration
   Julius A. Furer in the USA([1978] 3
    Yearbook Commercial Arbitration. 290 ;
   Army ship wreckaged
    near Netherlands in 1974
   Lloyd’s open form salvage agreement
   Dispute could not be arbitrated under US
    Public Vessel Act,
   Commercial matters reservation
Chinese Practices
   Domestic awards (国内裁决)
   Foreign-related awards(FRA, 涉外裁决)
   Foreign awards(外国裁决)
Foreign Related Awards(FRA)
   Art.260 CPL : award made by the
    Foreign-related Arbitration Institutions
    in the PRC (CIETAC, CMAC)
   Set aside and refusing enforcement in
    Art. 71, Art. 72(拒绝执行)CAL (Art.
    260 CPL applied)
   Jurisdiction of domestic & international
    arbitration institutions since 1996
Awards Classification
   Territoriality Standard in NYU
   Business place of the arbitration
    institution in domestic law
Vacating Domestic Awards
Art.58 CAL
   No arbitration agreement;
   Tribunal beyond the authority;
   Tribunal improperly composed;
   Evidence on which the award is based was
    forged;
   Party’s withhold evidence sufficient to affect
    the impartiality of the arbitration; or
   Arbitrator’s demanded or accepted bribes,
    award made that perverted the law.
Grounds for Vacating FRA
   CAL Art.70, Art.260, CPL (1991, Art.258
    in 2007)
   No arbitration agreement
   Lack of due process
   Improper composition of tribunal
   Tribunal beyond authority
   Burden of proof by respondent
Public Interest
   Art.58(2), CAL
   If the People's Court determines that
    the award is contrary to the public
    interest, it shall rule to vacate the
    award.
   CIETAC awards on US co. v. Chinese
    Travel co.
Competent Court for Revocation
   Intermediate People’s Court where the
    place of business of the Arbitration
    Commission is located.
Chapter 11
Enforcement of Arbitral Awards
Remedies for Int’s Awards
   Set aside (撤销)
   Refusing enforcement(拒绝执行)
   General principle: National courts are entitled to set
    aside their own awards. As to foreign awards, the
    courts may only decide whether to enforce or not.
Conditions for refusing
enforcement under NYC
   General principle: procedure issues
    instead of merits of the case
       Invalid arbitration agreement
       Lack of due procedure
       Tribunal beyond authority
       Impropriate composition of the tribunal
       Non-arbitrability of the dispute
       Award in conflict with the public policy
Invalid arbitration agreement
   ELF Aquitaine Iran(France) v. National
    Iranian Oil Co. (Iran) 135
   Tibor Varady,223-228;
   Nationalization of oil industry in Iran
   Arbitration agreement was void.
   Dispute is settled by the Special
    Committee of Iran.
   Sole arbitrator declared its competence.
Lack of due procedure
   Paklito Investment Ltd. v. Klockner East
    Asia Ltd. 251
   Sales K between the parties
   Dispute on the defects of the goods
   Expert opinions and review
   Award in favor of the buyer
   Refusing enforcement
Tribunal beyond its authority
Norsolor S. A. (France) v. Pabalk Ticaret
  Sirketi S.A. (Turkey) 381
Agency agreement b/w French and
  Turkey co.
ICC Arbitration award made in Vienna.
Tribunal beyond its authority via
 amicable compositeur.
Improper composition of the
tribunal
   Commercial man as arbitrator
   Engineer of the servant of the parties
    during the construction work
R. A. Sally(Fin.) v. S.R.L.
Termarea (Italy) p.455
   Yearbk. Comm. Arb’n 294(1979)
   C/P between Sally and Termarea
   Arbitration clause (ad hoc)
   Demurrage claim from Sally
   Award by two chosen arbitrators
   Refusing enforcement by the Italian
    court due to improper composition of
    the tribunal
Arbitrability matters
   Wilko v. Swan (1953)
   Sherk v. Alberto-Culver Co. (1974)
   Rodriguez v. Shearson/American
    Express (1989)
Public policy consideration
   Julius A. Furer in the USA([1978] 3
    Yearbook Commercial Arbitration. 290 ;
   Army ship wreckaged
    near Netherlands in 1974
   Lloyd’s open form salvage agreement
   Dispute could not be arbitrated under US
    Public Vessel Act,
   Commercial matters reservation
US Latest Cardegna Case
   Buckeye Check Cashing, INC. v. Cardegna Et
    Al.(US, Feb.21,2006)
   Agreement for deferred payment transaction
    b/w the parties
   Cardegna sued that Buckeye charged
    usurious interest rates and the agreement
    violated various Florida laws
   Trial court denied Buckeye’s motion to
    compel arbitration because the contract is
    illegal and void ab initio
Cardegna Case (2)
   State appellate court reversed
    in turn was reversed by the Florida Supreme
    Court: enforcing an arbitration agreement in
    a contract challenged as unlawful would
    violate state public policy and contract law
   Reversed by the US Supreme Ct.—the
    challenge should be decided by the arbitrator
    instead of the court.
Chinese Practices
   Domestic awards (国内裁决)
   Foreign-related awards(FRA, 涉外裁决)
   Foreign awards(外国裁决)
Foreign Related Awards(FRA)
   Art.260 CPL : award made by the
    Foreign-related Arbitration Institutions
    in the PRC (CIETAC, CMAC)
   Set aside and refusing enforcement in
    Art. 71, Art. 72(拒绝执行)CAL (Art.
    260 CPL applied)
   Jurisdiction of domestic & international
    arbitration institutions since 1996
Awards Classification by
the Place of Arbitration
   Domestic awards are those that were
    made in the State where the arbitration
    is taken place.
   Foreign awards are those that were
    made outside of the State where the
    arbitration is taken place.
International Awards
   Awards made in China under the
    administration of the Chinese arbitration
    institutions based on the international
    arbitration agreement
   Awards made in China under the
    administration of foreign arbitration
    institution (ICC, LCIA, AAA) in accordance
    with the Rules of such arbitration institutions
   Foreign awards made out of China
Court Supervision on the Int’l
Commercial Arbitral Awards
   Int’l award made in China by
    Chinese Arbitration Institutions
   Int’l award made in China by
    Foreign Arbitration Institutions
   Foreign award made outside China
Draft Provisions by the
Supreme Court in 2003
   Foreign-related arbitral awards refer to
    those involving foreign element made
    by the CIETAC, CMAC and other
    arbitration commissions (domestic arb.
    commissions) reorganized under CAL.
   How about awards made in China by
    foreign arbitration institutions, such as
    ICC, AAA, LCIA?
Grounds Refusing Enforcing
Domestic Awards: Art.217,CPL
   No arbitration agreement;
   Tribunal beyond the authority;
   Tribunal improperly composed;
   Main evidence insufficient;
   Definite error in application of the law;
   Arbitrators have committed embezzlement,
    accepted bribes or done malpractice for
    personal benefits or perverted the law.
Grounds for Refusing
Enforcement FRA
   CAL 71 & Art.260, CPL (1991, Art.258 in
    2007)
       No arbitration agreement
       Lack of due process
       Improper composition of tribunal
       Tribunal beyond authority
       Burden of proof by respondent
Public Interest
   Art.58(2), CAL
   If the People's Court determines that
    the award is contrary to the public
    interest, it shall rule to vacate the
    award.
   CIETAC awards on US co. v. Chinese
    Travel co.
Remedies for Foreign Awards
   NYC awards
   Non- NYC awards
Obligations under NYC
   China acceded NYC in 1986 with the
    following two reservations
   reciprocal reservation (互惠保留声明)
   Commercial reservation (商事保留声明)
Reciprocal Reservation
   China applies NYC only to recognition
    and enforcement of awards made in
    the territory of another NYC
    Contracting State.
   Territoriality standard to decide the
    nationality of the arbitral awards
Commercial Reservation
   China applies NYC only to differences
    arising out of legal relationships
    whether contractual or not which
    are considered as commercial under
    the national law.
Commercial Matters in China
   Notice by the Supreme Court on Apr. 10 1987:
    Commercial legal relationship of contractual
    or non-contractual matters refers to such
    economic rights and obligations under
    contract and torts as the sale, leasing,
    CJV, EJV, insurance, credit, agency,
    consultancy, all types transportation,
    product liability, environments pollution,
    etc. excluding dispute b/t the government
    and foreign investors.
Competent Court for Enforcement
   Intermediate People’s Court where the
    place of business of the respondent
    or his executing property is located.

								
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