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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（ 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（ 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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