International Commercial Arbitration
Section One Introduction to International Commercial Arbitration
Options to Resolve a Dispute Negotiation Litigation
Ⅰ Options to Resolve a Dispute
Third Party Dispute Resolution
Non –Litigation Dispute Resolution or ADR
ADR means amicable dispute resolution, not including arbitration; Another explanation says ADR means non-binding determination dispute resolution, including arbitration
Ⅱ Arbitration and Its Advantages What is arbitration?
Arbitration is a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding.
Differences with Domestic Arbitration and Mediation
International arbitration is a significant variant of the practice in many countries of arbitration, from which it is derived and shares many features. It is not just the fact that international arbitration arises in the context of international contracts that makes it different. In the international dispute resolution community, it is widely accepted to be a different animal entirely, involving different practices and rules, and being represented by a different community of arbitrators and legal practitioners.
Difference Between Arbitration and ADR
It is essential to draw a firm distinction between Arbitration and , which are both sometimes characterized as forms of ADR (Alternative Dispute Resolution). In fact, arbitration and mediation or conciliation are fundamentally different: the former is a binding determination of legal rights, the latter two forms of dispute resolution involve facilitated negotiation which aims at producing a consensual settlement. The one leads to a binding determination (arbitration), the other only in the event the parties agree to settle their dispute on mutually satisfactory terms (mediation).
Differences from Litigation
1.Basis of jurisdiction 2. Scope of jurisdiction 3.Formation of the hearing persons 4. Manner of hearing 5. Result of hearing 6. Recognition and enforcement of decision and reward
Final, biding decisions and not ordinarily subject to appeal Advantage of Arbitration
International Recognition and Enforcement of Arbitration Awards
Article II of New York Convention
1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
Article Ⅴ of New York Convention
2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country.
Background to New York Convention
In 1953, the International Chamber of Commerce (ICC) produced the first draft Convention on the Recognition and Enforcement of International Arbitral Awards to the United Nations Economic and Social Council. With slight modifications, the Council submitted the convention to the International Conference in the Spring of 1958. The Conference was chaired by , the Dutch Permanent Representative to the United Nations and Oscar Schachter, a leading figure in international law who later taught at Columbia Law School and the Columbia School of International and Public Affairs, and served as the President of the American Society of International Law.
Countries which have adopted the New York Convention have agreed to recognize and enforce international arbitration awards. As of October 1, 2009, there are 144 signatories which have adopted the New York Convention: 142 of the 192 United Nations Member States, the Cook Islands (库克群岛 a 库克群岛 New Zealand dependent territory), and the Holy See(梵蒂冈 ) have adopted the New York Convention. 梵蒂冈 Only 50 U.N. Member States and Taiwan have not yet adopted the New York Convention. A number of British dependent territories(英国属地 ) have not yet 英国属地 had the Convention extended to them by Order-inCouncil(枢密令 ). 枢密令
Ⅲ Arbitrability and Arbitrable Subject Matter
Arbitrability, refers to the situation that whether the dispute under the arbitration agreement could be settled by arbitration or not.
Ⅳ Kinds of Arbitration
1. Ad hoc and institutional arbitration 2. Provisional and formal arbitration
Ⅴ International Commercial Arbitration
International commercial arbitration is the process of resolving business disputes between or among transnational parties through the use of one or more arbitrators rather than through the courts.
What is "Commercial"?
The international commercial arbitration statutes only apply in respect of differences arising out of commercial legal relationships. There is no definition of "commercial" in the 1985 UNCITRAL Model Law. A note accompanying Article 1(1) of the 1985 UNCITRAL Model Law states, however, "commercial" should be interpreted as follows: The term "commercial" should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions:
Any trade transaction for the supply or exchange of goods or services Commercial representation or agency Factoring Leasing Construction of works Consulting Engineering Licensing Investment Financing Banking Insurance Exploitation agreement or concession Joint venture and other forms of industrial or business cooperation Carriage of goods or passengers by air, sea, rail or road.
What is international?
An arbitration is international if: a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or b) one of the following places is situated outside the State in which the parties have their places of business: (i) the place of arbitration if determined in, or pursuant to, the arbitration agreement; (ii) any place where a substantial part of the obligations of commercial relationship is to be performed or the place with which the subject- matter of the dispute is most closely connected; or c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country.
Section Ⅱ International Commercial Arbitration Institutions
Ⅰ ICC and ICC International Court of Arbitration
What is ICC? (1)
ICC (International Chamber of Commerce) is the voice of world business championing(捍卫 the global 捍卫) 捍卫 economy as a force for economic growth, job creation and prosperity. Because national economies are now so closely interwoven, government decisions have far stronger international repercussions than in the past. ICC - the world's only truly global business organization responds by being more assertive(坚决 坚决 主张的 ) in expressing business views.
What is ICC? (2)
ICC activities cover a broad spectrum, from arbitration and dispute resolution to making the case for open trade and the market economy system, business self-regulation, fighting corruption or combating commercial crime. ICC has direct access to national governments all over the world through its national committees. The organization's Paris-based international secretariat feeds business views into intergovernmental organizations on issues that directly affect business operations.
What does ICC do?
1. Setting rules and standards 2. Promoting growth and prosperity 3. Spreading business expertise 4. Advocate for international business
1. Setting rules and standards（1） （ ）
Arbitration under the rules of the ICC International Court of Arbitration is on the increase. Since 1999, the Court has received new cases at a rate of more than 500 a year. ICC's Uniform Customs and Practice for Documentary Credits (UCP 500) are the rules that banks apply to finance billions of dollars worth of world trade every year.
1. Setting rules and standards（2） （ ） ICC Incoterms are standard international trade definitions used every day in countless thousands of contracts. ICC model contracts make life easier for small companies that cannot afford big legal departments. ICC is a pioneer in business self-regulation of ecommerce. ICC codes on advertising and marketing are frequently reflected in national legislation and the codes of professional associations.
2. Promoting growth and prosperity（1） （ ） ICC supports government efforts to make a success of the Doha trade round. ICC provides world business recommendations（业务建议） （业务建议） to the World Trade Organization. ICC speaks for world business when governments take up such issues as intellectual property rights, transport policy, trade law or the environment.
2. Promoting growth and prosperity（2） （ ）
Signed articles by ICC leaders in major newspapers and radio and TV interviews reinforce the ICC stance on trade, investment and other business topics. Every year, the ICC Presidency meets with the leader of the G8 host country to provide business input to the summit. ICC is the main business partner of the United Nations and its agencies.
3. Spreading business expertise（1） （ ）
At UN summits on sustainable development, financing for development and the information society（信息社会）, ICC spearheads（当…的先锋 带 的先锋, （信息社会） （ 的先锋 头）the business contribution. Together with the United Nations Conference on Trade and Development (UNCTAD), ICC helps some of the world's poorest countries to attract foreign direct investment. In partnership with UNCTAD, ICC has set up an Investment Advisory Council for the least-developed countries.
3. Spreading business expertise（2） （ ）
ICC mobilizes business support for the New Partnership for Africa‘s Development（非洲发展新伙 （ 伴计划） 伴计划） . At ICC World Congresses（世界代表大会） （世界代表大会） every two years, business executives tackle the most urgent international economic issues. The World Chambers Congress, also biennial, provides a global forum for chambers of commerce 商会） （商会）. Regular ICC regional conferences focus on the concerns of business in Africa, Asia, the Arab World and Latin America.
4. Advocate for international business（1） （ ）
ICC speaks for world business whenever governments make decisions that crucially affect corporate strategies and the bottom line. ICC's advocacy has never been more relevant to the interests of thousands of member companies and business associations in every part of the world.
4. Advocate for international business（2） （ ）
Equally vital is ICC's role in forging internationally agreed rules and standards that companies adopt voluntarily and can be incorporated in binding contracts. ICC provides business input to the United Nations, the World Trade Organization, and many other intergovernmental bodies, both international and regional.
History of the International Chamber of Commerce
1. The ICC‘s origins（1） （ ）
The ICC was founded in 1919 with an overriding aim that remains unchanged: to serve world business by promoting trade and investment, open markets for goods and services, and the free flow of capital. Much of ICC‘s initial impetus(推动，促进 came from its 推动， 推动 促进) first president, Etienne Clémentel, a former French minister of commerce. Under his influence, the organization's international secretariat was established in Paris and he was instrumental in creating the ICC International Court of Arbitration in 1923.
1. The ICC‘s origins（2） （ ）
ICC has evolved beyond recognition since those early post-war days when business leaders from the allied nations met for the first time in Atlantic City. The original nucleus, representing the private sectors of Belgium, Britain, France, Italy and the United States, has expanded to become a world business organization with thousands of member companies and associations in around 130 countries. Members include many of the world's most influential companies and represent every major industrial and service sector.
2. Function of ICC
(1) The voice of international business (a)
Traditionally, ICC has acted on behalf of business in making representations to governments and intergovernmental organizations. Three prominent ICC members served on the Dawes Commission which forged the international treaty on war reparations（赔款） in 1924, seen as a breakthrough （赔款） in international relations at the time.
(1) The voice of international business（b） （ ）
A year after the creation of the United Nations in San Francisco in 1945, ICC was granted the highest level consultative status with the UN and its specialized agencies. Ever since, it has ensured that the international business view receives due weight within the UN system and before intergovernmental bodies and meetings such as the G8 where decisions affecting the conduct of business are made.
(2) Defender of the multilateral trading system (a)
ICC's reach and the complexity of its work have kept pace with the globalization of business and technology. In the 1920s ICC focused on reparations and war debts. A decade later, it struggled vainly through the years of depression to hold back the tide of protectionism and economic nationalism. After war came in 1939, ICC assured continuity by transferring its operations to neutral Sweden.
(2) Defender of the multilateral trading system (b)
In the post-war years, ICC remained a diligent defender of the open multilateral trading system. As membership grew to include more and more countries of the developing world, the organization stepped up demands for the opening of world markets to the products of developing countries. ICC continues to argue that trade is better than aid. In the 1980s and the early 1990s, ICC resisted the resurgence of protectionism in new guises such as reciprocal trading arrangements, voluntary export restraints and curbs introduced under the euphemism of "managed trade".
3. Challenges of the 21st Century (a)
After the disintegration of communism in eastern Europe and the former Soviet Union, ICC faced fresh challenges as the free market system won wider acceptance than ever before, and countries that had hitherto relied on state intervention switched to privatization and economic liberalization. As the world enters the 21st century, ICC is building a stronger presence in Asia, Africa, Latin America, the Middle East, and the emerging economies of eastern and central Europe.
3. Challenges of the 21st Century (b)
Today, 16 ICC commissions of experts from the private sector cover every specialized field of concern to international business. Subjects range from banking techniques to financial services and taxation, from competition law to intellectual property rights, telecommunications and information technology, from air and maritime transport to international investment regimes and trade policy.
4. Practical services to business
(1) The first Uniform Customs and Practice for
Documentary Credits came out in 1933 and the latest version, UCP 500, came into effect in January 1994. These rules are used by banks throughout the world. A supplement to UCP 500, called the eUCP, was added in 2002 to deal with the presentation of all electronic or part electronic documents. (2) In 1936, the first nine Incoterms were published, providing standard definitions of universally employed terms like Ex quay, CIF and FOB, and whenever necessary they are revised. Incoterms 2000 came into force on 1 January 2000.
(3) In 1950 the International Bureau of Chambers of Commerce (IBCC) was created. It quickly became a focal point for cooperation between chambers of commerce in developing and industrial countries, and took on added importance as chambers of commerce of transition economies responded to the stimulus of the market economy. In 2001, on the occasion of the 2nd World Chambers Congress in Korea, IBCC was renamed the World Chambers Federation (WCF), clarifying WCF as the world business organization's department for chamber of commerce affairs.
(4) Another ICC service, the Institute for World Business Law was created in 1979 to study legal issues relating to international business. At the Cannes film festival every year, the Institute holds a conference on audiovisual law.
5. The fight against commercial crime
In the early 1980s, ICC set up three London-based services to combat commercial crime: the International Maritime Bureau, dealing with all types of maritime crime; the Counterfeiting Intelligence Bureau; and the Financial Investigation Bureau. A cybercrime unit was added in 1998. An umbrella organization, ICC Commercial Crime Services, coordinates the activities of the specialized anticrime services.
ICC International Commercial Arbitration Institutions
The ICC International Court of Arbitration is the world’s leading institution for resolving international commercial and business disputes. The total number of cases handled by the Court since it was founded is more than 16,000. In 2009 alone, 817 cases were filed, involving 2,095 parties from 128 countries.
How does it work? (1)
The ICC Commission on Arbitration and its Task Forces(特别工作组 and Groups boast over 500 特别工作组) 特别工作组 members from 90 countries, including partners in international law firms, in-house counsel(公司法律顾 公司法律顾 问), law professors, experts in different dispute resolution services, and trade executives in member companies and international organizations.
How does it work?(2)
ICC, as the foremost business rule-maker for international trade, sets voluntary rules（自愿性规则） （自愿性规则） that companies from all parts of the world apply to millions of transactions every year. The rules created by the Commission on Arbitration, such as the Rules of Arbitration, the ADR Rules, the Expertise Rules and the Dispute Board Rules, have become part of the legal fabric of international commerce.
ICC 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.
ICC Hearing Centre
Ⅱ International Centre for Settlement of Investment Disputes (ICSID) Introduction
The International Centre for Settlement of Investment Disputes (ICSID)（解决投资争议国际中心）, an （解决投资争议国际中心） institution of the World Bank Group based in Washington, D.C., was established in 1966 pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention or Washington Convention，《解决国家与他国民间投资争议公约》 ). ， 解决国家与他国民间投资争议公约》 As of May 2005, 155 countries had signed the ICSID Convention.
ICSID has an Administrative Council, chaired by the World Bank's President, and a Secretariat. It provides facilities for the conciliation and arbitration of investment disputes between member countries and individual investors.
During the first decade of the twenty-first century, with the proliferation of bilateral investment treaties (BITs), most of which refer present and future investment disputes to the ICSID, the caseload of the ICSID substantially increased. As of March 30, 2007, ICSID had registered 263 cases more than 30 of which were pending against Argentina– Argentina‘s economic crisis in the late 1990s and subsequent Argentine government measures led several foreign investors to file cases against Argentina. Bolivia, Nicaragua(尼加拉瓜 Ecuador, and Venezuela（委内 尼加拉瓜), 尼加拉瓜 （ 瑞拉） 瑞拉） have announced their intention to withdraw from the ICSID.
On a number of occasions in the past, the World Bank as an institution and the President of the Bank in his personal capacity have assisted in mediation or conciliation of investment disputes between governments and private foreign investors. The creation of the International Centre for Settlement of Investment Disputes (ICSID) in 1966 was in part intended to relieve the President and the staff of the burden of becoming involved in such disputes. But the Bank's overriding consideration in creating ICSID was the belief that an institution specially designed to facilitate the settlement of investment disputes between governments and foreign investors could help to promote increased flows of international investment.
ICSID was established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States which came into force on October 14, 1966. ICSID has an Administrative Council and a Secretariat. The Administrative Council is chaired by the World Bank's President and consists of one representative of each State which has ratified the Convention. Annual meetings of the Council are held in conjunction with the joint Bank/Fund annual meetings.
ICSID is an autonomous international organization. However, it has close links with the World Bank. All of ICSID‘s members are also members of the Bank. Unless a government makes a contrary designation, its Governor for the Bank sits ex officio（依职权） on （依职权） ICSID's Administrative Council. The expenses of the ICSID Secretariat are financed out of the Bank's budget, although the costs of individual proceedings are borne by the parties involved.
Pursuant to the Convention, ICSID provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. Recourse to ICSID conciliation and arbitration is entirely voluntary. However, once the parties have consented to arbitration under the ICSID Convention, neither can unilaterally withdraw its consent. Moreover, all ICSID Contracting States, whether or not parties to the dispute, are required by the Convention to recognize and enforce ICSID arbitral awards.
Besides this original role, the Centre has since 1978 had a set of Additional Facility Rules authorizing the ICSID Secretariat to administer certain types of proceedings between States and foreign nationals which fall outside the scope of the Convention. Additional Facility conciliation and arbitration are also available for cases where the dispute is not an investment dispute provided it relates to a transaction which has "features that distinguishes it from an ordinary commercial transaction." The Additional Facility Rules further allow ICSID to administer a type of proceedings not provided for in the Convention, namely factfinding proceedings to which any State and foreign national may have recourse if they wish to institute an inquiry "to examine and report on facts."
A third activity of ICSID in the field of the settlement of disputes has consisted in the Secretary-General of ICSID accepting to act as the appointing authority of arbitrators for ad hoc (i.e., non-institutional) arbitration proceedings. This is most commonly done in the context of arrangements for arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL), which are specially designed for ad hoc proceedings.
In addition to these activities, ICSID also carries on advisory and research activities, publishing Investment Laws of the World and of Investment Treaties, and collaborates with other World Bank Group units. Since April 1986, the Centre has published a semi-annual law journal entitled ICSID Review-Foreign Investment Law Journal. ICSID proceedings do not necessarily take place in Washington, D.C. Other possible locations include the Permanent Court of Arbitration at The Hague, the at Cairo and Kuala Lumpur, the at Melbourne, the at Sydney, the at Bahrain and the Frankfurt International Arbitration Center of (DIS) and the Frankfurt Chamber of Commerce and Industry.
Ⅲ WIPO Arbitration and Mediation Center (1) Introduction
Based in Geneva, Switzerland, the WIPO Arbitration and Mediation Center was established in 1994 to offer Alternative Dispute Resolution (ADR) options for the resolution of international commercial disputes between private parties. Developed by leading experts in crossborder dispute settlement, the arbitration, mediation and expert determination procedures offered by the Center are widely recognized as particularly appropriate for technology, entertainment and other disputes involving intellectual property.
An increasing number of cases are being filed with the Center under the WIPO Arbitration, Expedited Arbitration (简易仲裁）, 简易仲裁） 简易仲裁 Mediation and Expert Determination（专家裁决） Rules. The （专家裁决） subject matter of these proceedings includes both contractual disputes (e.g. patent and software licenses, trademark coexistence agreements, distribution agreements for pharmaceutical products and research and development agreements) and non-contractual disputes (e.g. patent infringement). WIPO disputes have involved parties based in different jurisdictions including Austria, China, France, Germany, Hungary, India, Ireland, Israel, Italy, Japan, the Netherlands, Panama, Spain, Switzerland, the United Kingdom and the United States of America. The Center makes available a general overview of its caseload as well as descriptive examples of particular cases.
Ⅲ WIPO Arbitration and Mediation Center (2)
The Center believes that the quality and commitment of the neutrals are crucial to the satisfactory resolution of each case. The Center assists parties in the selection of mediators, arbitrators and experts from the Center‘s database of over 1,500 neutrals（中立人士） neutrals（中立人士） with experience in dispute resolution and specialized knowledge in intellectual property disputes. Where necessary in individual cases, the Center will use its worldwide contacts to identify additional candidates with the required background. After appointment also, the Center monitors its cases in terms of their time and cost effectiveness.
The Center conducts a number of workshops focused on its procedures in Geneva during the course of the year which are frequented especially by intellectual property professionals including prospective WIPO neutrals. There is also available an online course on arbitration and mediation under the WIPO Rules. One of the case administration facilities which the Center makes available at the parties' option is the WIPO Electronic Case Facility (WIPO ECAF). WIPO ECAF allows for secure filing, storing and retrieval of case-related submissions in a web-based electronic docket, by parties, neutral(s) and the Center from anywhere in the world. It also facilitates case management by providing, in addition to the online docket, a case overview, time tracking and finance information.
Ⅲ WIPO Arbitration and Mediation Center (3)
While WIPO ECAF is available only to parties to a WIPO procedure, the Center, under certain circumstances, makes available this facility in nonWIPO procedures. For example, the Center provides a customized version of WIPO ECAF for use in the Jury procedure of the 32nd America’s Cup, the international yachting competition（帆船赛） that （帆船赛） commenced in 2004, culminating in the final regattas 划船比赛） （划船比赛） in Valencia（巴伦西亚）, Spain in （巴伦西亚） summer 2007.
Ⅲ WIPO Arbitration and Mediation Center (4)
The Center has also focused significant resources on establishing an operational and legal framework for the administration of disputes relating to the Internet and electronic commerce. For example, today the Center is recognized as the leading dispute resolution service provider for disputes arising out of the abusive registration and use of Internet domain names. In addition, the Center is frequently consulted on other specialized dispute resolution services. An independent and impartial body, the Center forms part of the World Intellectual Property Organization.
Recommended WIPO Contract Clauses and Submission Agreements
"Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to mediation in accordance with the WIPO Mediation Rules. The place of mediation shall be [specify place]. The language to be used in the mediation shall be [specify language]."
Recommended WIPO Contract Clauses and Submission Agreements
"Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules. The arbitral tribunal shall consist of [three arbitrators][a sole arbitrator]. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim shall be decided in accordance with the law of [specify jurisdiction]."
Ⅳ London Court of International Arbitration
The London Court of International Arbitration (which now goes by the name of its acronym LCIA) is an institution based in London, United Kingdom providing the service of international arbitration. The administrative headquarters of the LCIA are merely based in London. LCIA is an international institution, and provides a forum for dispute resolution proceedings for all parties, irrespective of their location or system of law. Although arbitration and the provisional of formal arbitration tribunals are the institution's main focus, the LCIA is also active in mediation, a form of alternative dispute resolution (ADR).
On 5 April 1883, the Court of Common Council of the City of London set up a committee to draw up proposals for the establishment of a tribunal for the arbitration of domestic and, in particular, of transnational commercial disputes arising within the ambit of the City. The Law Quarterly Review wrote at the inauguration of the tribunal "[t]his Chamber is to have all the virtues which the law lacks. It is to be expeditious(迅速而有效 迅速而有效 率的 ) where the law is slow, cheap where the law is costly, simple where the law is technical, a peacemaker instead of a stirrer-up of strife."
In 1884, the committee submitted its plan for a tribunal that would be administered by the City of London Corporation, with the co-operation of the London Chamber of Commerce & Industry. However, though the plan had arisen out of an identified and urgent need, it was to be placed on hold pending the passing of the English Arbitration Act 1889. In April 1891, the scheme was finally adopted and the new tribunal was named The City of London Chamber 市政厅） of Arbitration. It was to sit at the Guildhall （市政厅） in the City, under the administrative charge of an arbitration committee made up of members of the London Chamber and of the City Corporation.
The Chamber was formally inaugurated on 23 November 1892, in the presence of a large and distinguished gathering, which included the then President of the Board of Trade. Considerable interest was also shown both by the press and in legal commercial circles. In April 1903, the tribunal was renamed the London Court of Arbitration and, two years later, the Court moved from the Guildhall to the nearby premises of the London Chamber of Commerce. The Court's administrative structure remained largely unchanged for the next seventy years.
In 1975, the Institute of Arbitrators (later the Chartered Institute) joined the other two administering bodies and the earlier arbitration committee became the Joint Management Committee, reduced in size from the original twenty four members to eighteen, six representatives from each of the three organizations. The Director of the Institute of Arbitrators became the Registrar of the London Court of Arbitration. In 1981, the name of the Court was changed to The London Court of International Arbitration, to reflect the nature of its work, which was, by that time, predominantly international.
Current operations and administration(1)
The LCIA remains one of the bigger permanent international arbitration institutions today. It promulgates its own rules and procedures, which are frequently adopted in ad hoc arbitrations even where the LCIA itself is not involved. The LCIA is formed as a not-for-profit company limited by guarantee(有限担保责任公司 The LCIA Board of 有限担保责任公司). 有限担保责任公司 Directors (made up largely of prominent Londonbased arbitration practitioners) is concerned with the operation and development of the LCIA's business and with its compliance with applicable company law.
Current operations and administration(2)
The LCIA Court is the final authority for the proper application of the LCIA Rules. Its key functions are appointing tribunals, determining challenges to arbitrators（对仲裁员的合法性表示反对）, and （对仲裁员的合法性表示反对） controlling costs. Although the LCIA Court meets regularly in plenary session, most of the functions to be performed by it under LCIA rules and procedures are performed, on its behalf, by the President, by a Vice President or by a Division of the Court.
Current operations and administration(3)
The Court is made up of up to thirty five members, selected to provide and maintain a balance of leading practitioners in commercial arbitration, from the major trading areas of the world, and of whom no more than six may be of UK nationality. Among other parties, the 2006 Softwood Lumber（软 （ 木） Agreement between the United States and Canada establishes a dispute settlement mechanism based around the LCIA for the two parties' international trade issues regarding softwood lumber.
Headed by the Registrar, the LCIA Secretariat is based at the International Dispute Resolution Centre in London and is responsible for the day-to-day administration of all disputes referred to the LCIA. LCIA case administration is highly flexible. All cases are allocated dedicated (专用的 专用的)computer and hard-copy 专用的 files and computerised account ledgers. Every case is computer-monitored, but the level of administrative support adapts to the needs and wishes of the parties and the tribunal (or ADR neutral), and to the circumstances of each case. Because of confidentiality laws, the LCIA does not publish facts or statistics about the matters it adjudicates（判决） upon. （判决）
Arbitration（1） （ ）
The LCIA arbitration rules are universally applicable. They offer a combination of the best features of the civil and common law systems, including in particular: 1. Maximum flexibility for parties and tribunals to agree on procedural matters 2. Speed and efficiency in the appointment of arbitrators, including expedited procedures 3. Means of reducing delays and counteracting delaying tactics 4. Tribunals' power to decide on their own jurisdiction
Arbitration（2） （ ）
5. A range of interim（临时、中间） and conservatory （临时、中间） measures 6. Tribunals' power to order security for claims and for costs 7. Special powers for joinder（联合诉讼、共同诉讼） of （联合诉讼、共同诉讼） third parties 8. Fast-track option （快速审理） 快速审理） 9. Waiver of right of appeal 10. Costs computed without regard to the amounts in dispute 11. Staged deposits（保证金、押金、定金） - parties are （保证金、押金、定金） not required to pay for the whole arbitration in advance.
Many major international businesses, based in a large number of different jurisdictions, of both civil and common law traditions, entrust their disputes to the LCIA. Many cases are technically and legally complex and sums in issue can run into US$ billions.
Seat of Arbitration（仲裁地） （仲裁地）
Although the LCIA is headquartered in London, the choice of seat, or legal place（住所、居住地）, is （住所、居住地） entirely up to the parties. Therefore, parties wishing to provide for a seat elsewhere than London should not be deterred from adopting the LCIA rules. Parties adopting, or adapting, the LCIA's recommended clauses will specify the seat in their contract, but, if they fail to do so, Article 16.1 of the LCIA rules provides for a London default seat. If, however, one or more of the parties wishes to argue for an alternative seat, the LCIA Court will decide the issue.
Types of contract in dispute
The subject matter of contracts in dispute is wide and varied, covering all aspects of international commerce, including telecommunications, insurance, oil and gas exploration, construction, shipping, aviation, pharmaceuticals, shareholder agreements, IT, finance and banking.
Costs of LCIA arbitration（1） （ ）
The LCIA's charges, and the fees charged by the tribunals it appoints, are not based on the sums in issue. The LCIA is of the view that a very substantial monetary claim (and/or counterclaim) does not necessarily mean a technically or legally complex case and that arbitration costs should be based on time actually spent by administrator and arbitrators alike. A non-refundable registration fee is payable on filing the Request for Arbitration. Thereafter, hourly rates are applied both by the LCIA and by its arbitrators, with part of the LCIA's charges calculated by reference to the tribunal's fees. The LCIA sets a range within which the arbitrators it appoints must (other than in exceptional cases) set their fees.
Costs of LCIA arbitration（2） （ ）
Interest on sums deposited by the parties is credited to the account of the party depositing them at the rate applicable to the amount of the deposit. Parties may call for financial summaries at any time to keep track of costs. Every payment on account of arbitrators‘ fees will be notified in advance and accounted for on disbursement（垫付）. （垫付） It is the LCIA Court which, under the Rules, must, determine the costs of each arbitration, according to the following procedure.
Costs of LCIA arbitration（3） （ ）
The Secretariat provides the Court with a financial dossier（文档）, which includes a complete financial （文档） summary of sums lodged by the parties, sums paid to the arbitrators, outstanding（未清偿的、未付的） fees （未清偿的、未付的） and expenses and interest accrued（应计利息）. （应计利息） The dossier also includes a copy of the original confirmation to the parties of the arbitrator‘s fee rate, copies of the arbitrator’s accounts, a copy of the LCIA‘s own time and disbursements（支出） ledger, （支出） copies of directions for deposits, and copies of all notices given to the parties of payments made from deposits.
Costs of LCIA arbitration（4） （ ）
The Court reviews the dossier and, if necessary, calls for any further information, or initiates any investigation it may require to satisfy itself that the costs are reasonable and are in accordance with the schedule of costs, before notifying the Secretariat of the amount to be notified to the Tribunal for inclusion in the award. Any dispute regarding administrative charges or the fees and expenses of the tribunal are determined by the LCIA Court.
Tribunals（1） （ ）
By Article 1.1(e) of the LCIA Rules, if the arbitration agreement calls for party nomination, the Claimant should nominate an arbitrator in the Request for Arbitration. By Article 2.1(d), the Respondent should nominate an arbitrator in the Request for Arbitration. By Article 2.3, failure by the Respondent to nominate within time (or at all) constitutes a waiver of the opportunity to nominate. By Article 5.3, there is a presumption in favor of a sole arbitrator unless the parties have agreed in writing otherwise, or unless the LCIA Court decides that the circumstances of the case demand three.
Tribunals（2） （ ）
By Article 5.5, the LCIA Court alone is empowered to appoint arbitrators, though always having due regard for any method or criteria for selection agreed by the parties. By Article 6.1, nationality restrictions apply in the selection of a sole arbitrator or Chair. By Article 7.1, any purported agreement that the parties themselves, or some third party, shall appoint an arbitrator is deemed an agreement for party nomination. By Article 7.2, the LCIA Court may, itself, select an arbitrator, notwithstanding an agreement for party nomination, if any party fails to nominate, or nominates out of time.
Tribunals（3） （ ）
By Article 8, multiple parties lose the right to nominate if they cannot agree that they represent two sides to the dispute for the purposes of the formation of the tribunal. By Article 9, the LCIA Court may abridge the time for the appointment of the tribunal, in cases of "exceptional urgency" and may, thus, require a Respondent to nominate its arbitrators within a shorter period than the 30 days prescribed by Article 2. By Article 11.1, the LCIA Court may refuse to appoint a party-nominated arbitrator if it determines that the nominee is not independent or impartial or is not "suitable".
Procedures （1） ）
In all cases, whether or not the arbitrators are nominated by the parties, the basic LCIA procedure is as follows, save that steps 4 and 5 are omitted in the case of party nomination: 1. The LCIA Secretariat reviews the Request for Arbitration and accompanying contractual documents, and the Response (if any). 2. A résumé of the case is prepared for the LCIA Court. 3. Key criteria for the qualifications of the arbitrator(s) are established. 4. The criteria are entered into the LCIA's database of arbitrators, from which an initial list is drawn.
Procedures （2） ）
5. If necessary, other institutions are consulted for further recommendations. 6. The résumé, the relevant documentation, and the names and CVs of the potential arbitrators are forwarded to the LCIA Court. 7. The LCIA Court advises which arbitrator(s) the Secretariat should contact (who need not be, but usually will be, those put forward by the Secretariat) to ascertain their availability and willingness to accept appointment. 8. The Secretariat sends the candidate(s) an outline of the dispute.
Procedures （3） ）
9. When the candidate(s) confirm their availability, confirm their independence and impartiality, and agree to fee rates within the LCIA's bands, the form of appointment is drafted. 10. The LCIA Court formally appoints the tribunal and the parties are notified. In addition to the basic procedures, above, the following features of common LCIA practice should be noted.
Procedures （4） ）
Given the Secretariat's considerable experience in selecting arbitrators, and personal knowledge of many candidates, there are some cases in which a suitable selection of candidate arbitrators may be put forward to the Court by the Secretariat, without the need to interrogate the database. (See step 4, above). Whilst the LCIA is, of course, concerned that each arbitrator should be appropriately qualified as to experience, expertise, language and legal training, it is also mindful of any other criteria specified by the parties in their agreement and/or in the Request and Response.
Procedures （5） ）
The LCIA is also concerned to ensure the right balance of experience, qualifications and seniority on a three-member tribunal; in particular, what qualities the Chair should have to complement those of his co-arbitrators. The LCIA is mindful also of any particular national and/or cultural characteristics of the parties to which it should be sensitive, so as to minimize conflict. Similarly, it addresses such issues as whether the arbitrator(s) should have a light touch or a firm touch, bearing in mind, for example, the degree of professionalism it expects of the parties given whom they have chosen to represent them.
Procedures （6） ）
Of course, the LCIA also considers the nature of the case (sum in issue, declaratory, technically complex, legally complex, etc); the identity and known characteristics of the parties' lawyers and, indeed, whether the parties are represented at all. The LCIA is equally concerned to ensure that arbitrators are not only suitably qualified and without conflict, but are also available to deal with the case as expeditiously as may be required. This does not mean that an arbitrator must have an immediately clear diary, but some cases place greater demands on an arbitrator's time (in reviewing submissions, dealing with preliminary issues, in hearings etc) earlier in the proceedings than do others.
Procedures （7） ）
Finally, the LCIA is always amenable to a joint request by the parties that it provides a list of candidate arbitrators, from which they may endeavor to select the tribunal, whether in straightforward negotiation, or by adopting an UNCITRAL-style list procedure. In such cases, the selection process described above is carried out in respect of all candidates to be included on the list, so that any candidate(s) selected by the parties have already confirmed their willingness and ability to accept appointment and have been approved for appointment by the LCIA Court.
LCIA Model Arbitration Clause
1. Future disputes
For contracting parties who wish to have future disputes referred to arbitration under the LCIA Rules, the following clause is recommended. Words/spaces in square brackets should be deleted/completed as appropriate. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be [one / three]. The seat, or legal place, of arbitration shall be [City and / or Country]. The language to be used in the arbitral proceedings shall be [ ]. The governing law of the contract shall be the substantive law of [ ].
2. Existing disputes
If a dispute has arisen, but there is no agreement between the parties to arbitrate, or if the parties wish to vary a dispute resolution clause to provide for LCIA arbitration, the following clause is recommended. A dispute having arisen between the parties concerning [ ], the parties hereby agree that the dispute shall be referred to and finally resolved by arbitration under the LCIA Rules. The number of arbitrators shall be [one / three]. The seat, or legal place, of arbitration shall be [City and / or Country]. The language to be used in the arbitral proceedings shall be [ ]. The governing law of the contract [is / shall be] the substantive law of [ ].
Ⅴ Arbitration Institute of the Stockholm Chamber of Commerce (AISCC)
Official name: Arbitration Institute of the Stockholm Chamber of Commerce Country: Sweden City: Stockholm Type of organization: Independent organization Date of creation: 1917 – 1970 (international commercial arbitration) – 1999 (Mediation) Interests: Arbitration - Mediation Fields of expertise: Commercial Disputes
SCC Model Arbitration Clause
? Full-scale arbitration (a flexible procedure for all claims) ? Expedited arbitration (a fast-track procedure for smaller and medium sized claims) ? Arbitration under the Insurance Arbitration Rules ? Expedited arbitration or full-scale arbitration depending on the circumstances ? Expedited arbitration or full-scale arbitration depending on the amount in dispute ? Mediation first hand, arbitration when the parties cannot agree on mediation or mediation is unsuccessful
任何因本合同而产生的或与本合同有关的争议、 任何因本合同而产生的或与本合同有关的争议、纠纷 或者有关违约、 或索 赔，或者有关违约、终止合同或 合同无效的争 议，均应当根据斯 德哥尔摩商会仲裁院仲裁规则通 过仲裁的方式最终予以解决。 过仲裁的方式最终予以解决。 当事人可视需要对仲裁条款做出以下补充： 当事人可视需要对仲裁条款做出以下补充： 仲裁庭应当由………名仲裁员（一名独任仲裁员）组 名仲裁员（一名独任仲裁员） 仲裁庭应当由 名仲裁员 成。 仲裁地应为………………。 。 仲裁地应为 仲裁程序应当使用的语言为………………。 。 仲裁程序应当使用的语言为 本合同应当由……（填入“管辖区域”）实体法所管 （填入“管辖区域” 本合同应当由 辖。
Ⅵ American Arbitration Association (AAA)
The American Arbitration Association (AAA) is a private enterprise in the business of arbitration, and one of several arbitration organizations that administers arbitration proceedings. The AAA also administers mediation and other forms of alternative dispute resolution. It is headquartered in New York City. The International Centre for Dispute Resolution (ICDR), established in 1996, administers international arbitration proceedings initiated under the institution's rules. ICDR currently (as of 2007) has offices in New York City, Dublin, and Mexico City, and is scheduled to open an office in Singapore.
Many contracts include an arbitration clause naming the AAA as the organization that will administer arbitration between the parties. The AAA does not itself arbitrate disputes, but provides administrative support to arbitrations before a single arbitrator or a panel of three arbitrators. The arbitrators are chosen in accordance with the parties' agreement or, if the parties do not agree otherwise, in accordance with the AAA rules. Under its rules, the AAA may appoint an arbitrator in some circumstances, for example, where the parties cannot agree on an arbitrator or a party fails to exercise its right to appoint an arbitrator. In July 2009, the AAA stopped accepting consumer debt collection cases, after the National Arbitration Forum (美 美 国国家仲裁院)was forced to do so after questions arose 国国家仲裁院 about the fairness of its process.
AAA Model Arbitration 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 parties may also wish to consider adding: (a) The number of arbitrators shall be (one or three); (b) The place of arbitration shall be (city and/ or country) (c) The language(s) of the arbitration shall be …”
Ⅶ The Hong Kong International Arbitration Centre (HKIAC)
The Hong Kong International Arbitration Centre (or HKIAC) was established in 1985 to assist disputing parties to solve their disputes by arbitration and by other means of dispute resolution. It was established by a group of the leading business and professional people in Hong Kong to be the focus for Asia of dispute resolution. It has been generously funded by the business community and by the Hong Kong Government but it is totally independent of both and it is financially self sufficient.
Hong Kong International Arbitration Centre is a nonprofit making company limited by guarantee. It operates under a Council composed of business and professional people of many different nationalities and with a wide diversity of skills and experience. Administration of HKIAC arbitration activities is conducted by the Council through the Centre's Secretary-General who is its chief executive and registrar.
HKIAC Recommended Arbitration and Mediation Clauses(1)
"Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force and as may be amended by the rest of this clause. The appointing authority shall be Hong Kong International Arbitration Centre. The place of arbitration shall be in Hong Kong at Hong Kong International Arbitration Centre (HKIAC).
HKIAC Recommended Arbitration and Mediation Clauses(2)
Arbitration Administered by the HKIAC "Any dispute, controversy or claim arising out of or relating to this contract, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in Hong Kong under the Hong Kong International Arbitration Centre Administered Arbitration Rules in force when the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be ... (one or three). The arbitration proceedings shall be conducted in .... (insert language)."
Ⅷ China International Economic and Trade Arbitration Commission (CIETAC)
The China International Economic and Trade Arbitration Commission (CIETAC) is one of the major permanent arbitration institutions in the world. Formerly known as the Foreign Trade Arbitration Commission, the CIETAC was set up in April 1956 under the China Council for the Promotion of International Trade (CCPIT). To meet the needs of China's ever-developing economic and trade relations with foreign countries after the adoption of the "reform and opening-up" policy, the Foreign Trade Arbitration Commission was firstly renamed as the Foreign Economic and Trade Arbitration Commission in 1980, and then as the China International Economic and Trade Arbitration Commission in 1988. Since 2000, the CIETAC is also known as the Arbitration Court of the China Chamber of International Commerce (CCOIC).
The CIETAC has its headquarters in Beijing and 3 subcommissions in Shanghai, Shenzhen, and Tianjin, respectively known as the CIETAC Shanghai Sub-Commission, the CIETAC South China Sub-Commission and the CIETAC Financial Arbitration Center in Tianjin. In order to meet the needs of the development of its arbitration practices, the CIETAC also successively established 21 liaison offices in different regions and specific business sectors to provide parties with convenient arbitration advice. To meet the demands of the parties, the CIETAC took the initiative to introduce into its arbitration practice dispute resolution services in specific business sectors, such as grain, commerce, construction, finance, leather and wool transactions. Moreover, CIETAC provides online dispute resolution service to the parties and is strongly engaged in research on the online resolution of e-commerce disputes so as to further develop an arbitration-centered multi-solution ADR system that meets the demands of the parties.
CIETAC Model Arbitration Clause
Any dispute arising from or in connection with this Contract shall be submitted to the China international Economic and Trade Arbitration Commission for arbitration which shall be conducted in accordance with the Commission's arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties.
The parties may also stipulate the following matters in the arbitration clause: 1) the place of arbitration and/or hearing; 2) the language of the arbitration; 3) the number of arbitrators; 4) the nationality of arbitrators; 5) the method of selection of arbitators; 6) the applicable law of the contract; and/or 7) the application of ordinary procedure or summary procedure.
Section Three International Commercial Arbitration Agreement
Kinds of Arbitration Agreement
1. Those referring an existing dispute to arbitration 2. Those relating to disputes that may arise in the future
1. Definition by UNCITRAL Model Law on International Commercial Arbitration
Article 7. Definition and form of arbitration agreement (1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (2) The arbitration agreement shall be in writing. (3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.
(4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; “electronic communication” means any communication that the parties make by means of data messages; “data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.
(5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by the other. (6) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.
Definition by the Arbitration Law of the People’s Republic of China
An agreement for arbitration shall include the arbitration clauses stipulated in the contracts or other written agreements for arbitration reached before or after a dispute occurs. An arbitration agreement shall contain the following: 1. The expression of application for arbitration(请求 请求 仲裁的意思表示 ). 2. Matters for arbitration(仲裁事项 ). 仲裁事项 3. The arbitration commission chosen(选定的仲裁委 选定的仲裁委 员会 ).
An agreement for arbitration shall be invalid in one of the following cases: 1. The matters agreed for arbitration exceed the scope of arbitration provided by law. 2. Agreements concluded by people being incapable or restricted in civil acts. 3. An agreement forced upon a party by the other party by means of coercion.
Whereas an agreement for arbitration fails to specify or specify clearly matters concerning arbitration or the choice of arbitration commission, parties concerned may conclude a supplementary agreement. If a supplementary agreement cannot be reached, the agreement for arbitration is invalid.
The effect of an agreement for arbitration shall stand independently and shall not be affected by the alteration, dissolution, termination or invalidity (变更、解除、终止 变更、解除、 变更 或者无效 )of a contract. An arbitration tribunal has the right to establish the validity of a contract.
Whereas parties concerned have doubt on the validity of an agreement for arbitration, a request can be made to the arbitration commission for a decision or to the people’s court for a ruling. If one party requests the arbitration commission for a decision while the other party requests the people’s court for a ruling, the people’s court shall pass a ruling. A doubt to the effectiveness of an arbitration agreement, should be raised before the first hearing at the arbitration tribunal. 当事人对仲裁协议的效力有异议， 当事人对仲裁协议的效力有异议，应当在仲裁庭首次开庭 前提出。 前提出。
2. Contents and Functions of Arbitration Agreement
In China, an arbitration agreement shall contain the following : (1) The expression of application for arbitration; (2) Matters for arbitration; (3) The arbitration commission chosen.
Generally speaking, in international business law, the parties may specify in their arbitration agreement : (1) Matters for arbitration; (2) Arbitral procedure (3) The arbitration institution; (4) Place of arbitration; (5) The binding effect of the award
Functions of Arbitration Agreement
1. The legal basis for arbitral settlement of international commercial disputes, and binding upon both parties. 2. Warranty for arbitration authorities and arbitrators to obtain the jurisdiction over the disputes therein specified. 3. Eliminates the jurisdiction of the court over relative disputes. 4. Warranty for the future arbitral award to be recognized and enforced, domestically and abroad.
Ⅲ Validity and Separability of Arbitration Clause
1. Validity of Arbitration Clause
Uniform Arbitration Act (2000)
(a) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract. (b) The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.
(c) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable. (d) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.
In China, the Arbitration Law stipulates in Article 4 as follows: In settling disputes through arbitration, an agreement to engage in arbitration should first of all be reached by parties concerned upon free will. Without such an agreement, the arbitration commission shall refuse to accept the application for arbitration by any one single party.
2. Severability and Law Governing the Arbitration Agreement
UNCITRAL Model Law on International Commercial Arbitration Article 16. Competence of arbitral tribunal to rule on its jurisdiction
(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, 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 (〈拉〉根据法 〈 律本身,依法律 律本身 依法律 )the invalidity of the arbitration clause.
The Arbitration Law in China
The effect of an agreement for arbitration shall stand independently and shall not be affected by the alteration, dissolution, termination or invalidity of a contract. An arbitration tribunal has the right to establish the validity of a contract.
Fiona Trust & Holding Corporation & 20 Others v. Yuri Privalov &17 Others
A dispute as to whether or not a charterparty (租 租 船合同)had been rescinded was something 船合同 which could be dealt with in arbitration pursuant to the charterparty’s arbitration clause, and the arbitration clause was separate and distinct from the agreement itself. Consequently, the arbitration clause was effective and subsisting 继续存在的） （继续存在的）, and an arbitrator could decide whether the agreement was a valid one.
This dispute arose out of a large overall dispute between the Russian Sovcomflot group of companies and a Mr Nikitin, who was alleged to have bribed several directors or employees of Sovcomflot. The dispute concerned eight charterparties which were allegedly procured through this bribery, and consequently were very favorable to the charterers to the disadvantage of the owners, Sovcomflot, and various of its subsidiaries. A large number of claimants commenced an action against Mr Nikitin for the tort of conspiracy（共谋侵权）, and to recover for damage （共谋侵权） sustained as a result of the payment of bribes and breaches of fiduciary duty. There was also a claim that the charterparties had been validly rescinded as a consequence of the above.
Each of the charterparties contained a clause relating to forum and jurisdiction, and provided that any disputes should be decided in England and that either party had the right to refer the dispute to arbitration in accordance with the rules of the London Maritime Arbitrators’ Association(伦敦海事仲裁协会 伦敦海事仲裁协会). 伦敦海事仲裁协会 The charterers tried to enforce their rights under the arbitration clause. The owners then applied to restrain （阻止） the arbitration proceedings on the basis that 阻止） they had rescinded the charterparties, and therefore also the arbitration clauses within them, because they had been entered into as a result of bribery. Consequently, there could be no arbitration. The charterers responded by seeking a stay of the rescission（解除、撤销） claims. （解除、撤销） The trial judge refused to stay the claims for rescission, and granted interlocutory injunctions restraining the arbitration proceedings pending the outcome of the trial on the tortious allegations. The charterers appealed.
The main issues for the Court to consider were: 1. Was the claim by the owners that the charterparties had been rescinded, a claim which would fall within the arbitration clause of the agreements? 2. Was the arbitration clause separable from the charterparties? 3 The procedural question of whether s9 or s72 of the Arbitration Act 1996 governed the position.
1. Any jurisdiction or arbitration clause in an international commercial contract should be construed liberally so as to avoid a process whereby a court would first need to rule on the status of a contract before the arbitrator could resolve the dispute. Consequently, a dispute whether the contract could be rescinded for bribery did fall within the arbitration clause. The only dispute which could not be covered by an arbitration clause would be a dispute as to whether the contract had even existed at all. Here, the question was whether the contract had been rescinded, not whether there was a contract.
2. There was clear authority that an arbitration clause would generally be construed as a separate and distinct agreement from the contract itself. It was therefore not enough to say that whatever invalidated the original agreement also invalidated the arbitration clause. The case of Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd (1993) 3 WLR 42 was applied, wherein the court held that an arbitrator could decide whether or not a contract was void for initial illegality. If this was the case, then there was nothing to suggest an arbitrator could not decide whether the contract had been entered into as a result of bribery.
3. If there was a valid arbitration agreement, proceedings could not be commenced under s72, as the court should not allow its process to be used in such a way. Here, there clearly was a valid arbitration agreement because the arbitration clause was not affected by the grounds being used to attack the validity of the charterparty. Consequently, s72 could not apply. In this case, court proceedings had been instituted and an application made to stay such proceedings. In this situation, s9 applied and if there was an issue as to the existence of an arbitration agreement, that question would also be decided under s9. Appeal allowed. The owners’ claims for rescission to be stayed pursuant to s9(4) of the Arbitration Act, and all applications made under s72 of the Act to be dismissed.
Section Ⅳ International Commercial Arbitration Procedure
International Commercial Arbitration Procedure
Ⅳ Arbitration Award Ⅲ Hearing and Ruling
Ⅱ Composition of Arbitration Tribunal
Ⅰ Application and Acceptance
Ⅰ Application and Acceptance
1. Requirements in Applying for Arbitration 2. Application for Arbitration 3. Acceptance of a Case 4. Statement of Defense 5. Counterclaim 6. Withdrawal and Dismissal
Ⅰ Application and Acceptance 1. Requirements in Applying for Arbitration
A party’s application for arbitration shall meet the following requirements: (1)There is an arbitration agreement; (2)There is a specific arbitration claim and there are facts and reasons; (3)The application is within the scope of the arbitration commission’s acceptability.
Ⅰ Application and Acceptance 2. Application for Arbitration
1. Submit a Request for Arbitration in writing signed by and/or affixed with the seal of the Claimant and/or its authorized representative(s). (提交由申请人及 或申请人授权的代理人签名及 或盖章 提交由申请人及/或申请人授权的代理人签名及 提交由申请人及 或申请人授权的代理人签名及/或盖章 的仲裁申请书 ) 2. Attach to the Request for Arbitration the relevant evidence supporting the facts on which the Claimant’s claim is based. 3. Make payment of the arbitration fee in advance to the CIETAC according to its Arbitration Fee Schedule.
Request for Arbitration
Request for Arbitration shall, inter alia, include: (a) the names and addresses of the Claimant and the Respondent, including the zip code, telephone, telex, fax and telegraph numbers, Email addresses or any other means of electronic telecommunications; (b) a reference to the arbitration agreement that is invoked;(申请仲裁所依据的仲裁协议 ) 申请仲裁所依据的仲裁协议 (c) a statement of the facts of the case and the main issues in dispute; (d) the claim of the Claimant; and (e) the facts and grounds on which the claim is based.
Ⅰ Application and Acceptance 3. Acceptance of a Case
Upon receipt of the Request for Arbitration and its attachments, if the CIETAC after examination finds the formalities(手续 required 手续) 手续 for arbitration application to be incomplete, it may request the Claimant to complete them. Where the formalities are found to be complete, the CIETAC shall send a Notice of Arbitration to both parties together with one copy each of the CIETAC Arbitration Rules, the Panel of Arbitrators and the Arbitration Fee Schedule. The Request for Arbitration and its attachments submitted by the Claimant shall be sent to the Respondent under the same cover. The CIETAC or its Sub-Commission shall, after accepting a case, appoint a staff-member of its secretariat to assist the arbitral tribunal in the procedural administration of the case.
Ⅰ Application and Acceptance 4. Statement of Defense
1. Within forty-five (45) days from the date of receipt of the Notice of Arbitration, the Respondent shall file a Statement of Defense in writing with the Secretariat of the CIETAC or its Sub-Commission. The arbitral tribunal may extend that time period if it believes that there are justified reasons. The Statement of Defense shall be signed by and/or affixed with the seal of the Respondent and/or its authorized representative(s), and shall, inter alia, include: (a) the names and addresses of the Respondent, including the zip code, telephone, telex, fax and telegraph numbers, Email addresses or any other means of electronic telecommunications;
Ⅰ Application and Acceptance 4. Statement of Defense
(b) the defense to the Request for Arbitration setting forth the facts and grounds on which the defense is based; and (c) the relevant evidence supporting the defense. 2. The arbitral tribunal has the power to decide whether to accept a Statement of Defense submitted after expiration of the above time limit. 3. Failure of the Respondent to file a Statement of Defense shall not operate to affect the arbitral proceedings.
Ⅰ Application and Acceptance 5. Counterclaim
(1) Within forty-five (45) days from the date of receipt of the Notice of Arbitration, the Respondent shall file with the CIETAC its counterclaim in writing, if any. The arbitral tribunal may extend that time period if it believes that there are justified reasons. (2) When filing a counterclaim, the Respondent shall specify its counterclaim in its written Statement of Counterclaim and state the facts and grounds upon which its counterclaim is based with relevant evidence attached thereto. (3) When filing a counterclaim, the Respondent shall pay an arbitration fee in advance according to the Arbitration Fee Schedule of the CIETAC within a specified time period.
(4) Where the formalities required for filing a counterclaim are found to be complete, the CIETAC shall send the Statement of Counterclaim and its attachments to the Claimant. The Claimant shall, within thirty (30) days from the date of receipt of the Statement of Counterclaim and the attachment, submit in writing its Statement of Defense to the Respondent’s counterclaim. (5) The arbitral tribunal has the power to decide whether to accept a Statement of Defense submitted after expiration of the above time limit. (6) Failure of the Claimant to file a Statement of Defense to the Respondent’s counterclaim shall not operate to affect the arbitral proceedings.
Ⅰ Application and Acceptance 6. Withdrawal and Dismissal
(1) A party may file a request with the CIETAC to withdraw its claim or counterclaim in its entirety. In the event that the Claimant withdraws its claim in its entirety, the arbitral tribunal shall proceed with its examination of the counterclaim and render an arbitral award thereon. In the event that the Respondent withdraws its counterclaim in its entirety, the arbitral tribunal shall proceed with the examination of the claim and render an arbitral award thereon.
Ⅰ Application and Acceptance 6. Withdrawal and Dismissal
(2) Where a case is to be dismissed before the formation of the arbitral tribunal, the decision shall be made by the Secretary-General of the CIETAC. Where the case is to be dismissed after the formation of the arbitral tribunal, the decision shall be made by the arbitral tribunal. (3) Where a party files with the CIETAC a request for arbitration for a claim which has been withdrawn, the CIETAC shall decide whether or not to accept the request anew（重新）. （重新）
Ⅱ Composition of Arbitration Tribunal
Choice of Arbitrators
Withdrawal of Arbitrators
Ⅲ Hearing and Ruling 1. Conduct of Hearing
(1)The arbitral tribunal shall examine the case in any
way that it deems appropriate unless otherwise agreed by the parties. Under any circumstance, the arbitral tribunal shall act impartially and fairly and shall afford reasonable opportunities to all parties for presentations and debates. (2)The arbitral tribunal shall hold oral hearings when examining the case. However, oral hearings may be omitted and the case shall be examined on the basis of documents only if the parties so request or agree and the arbitral tribunal also deems that oral hearings are unnecessary.
Ⅲ Hearing and Ruling
(3)Unless otherwise agreed by the parties, the arbitral tribunal may adopt an inquisitorial or adversarial approach when examining the case, having regard to the circumstances of the case. (4)The arbitral tribunal may hold deliberation （进行合 议）at any place or in any manner that it considers appropriate. (5)The arbitral tribunal may, if it considers it necessary, issue procedural directions and lists of questions, hold pre-hearing meetings and preliminary hearings, and produce terms of reference, etc., unless otherwise agreed by the parties. 发布程序指令、发出问题单、举行庭前会议、召开预备庭、 发布程序指令、发出问题单、举行庭前会议、召开预备庭、 制作审理范围书等
Ⅲ Hearing and Ruling 2. Oral Hearings
1.The date of the first oral hearing shall be fixed by the arbitral tribunal and notified to the parties by the Secretariat of the CIETAC at least fifteen(15) days in advance of the oral hearing date. A party having justified reasons may request a postponement of the oral hearing. However, such request must be communicated to the arbitral tribunal at least ten (10) days in advance of the oral hearing date. The arbitral tribunal shall decide whether to postpone the oral hearing or not. 2. Where the arbitral tribunal decides to hear the case orally, only one oral hearing shall be held unless it is otherwise truly necessary. 3. A notice of oral hearing subsequent to the first oral hearing and a notice of a postponed oral hearing shall not be subject to fifteen (15)-day time limit provided for in the foregoing paragraph.
Ⅲ Hearing and Ruling 3.Evidence and Examination of it（举证和质证） （举证和质证）
(1) Each party shall have the burden of proving the facts relied on to support its claim, defense or counterclaim. (2) The arbitral tribunal may specify a time period for the parties to produce evidence and the parties shall produce evidence within the specified time period. The arbitral tribunal may refuse to admit any evidence produced beyond the period. If a party has difficulties to produce evidence within the specified time period, it may apply for an extension before the expiration of the period. The arbitral tribunal shall decide whether or not to extend the time period. (3) If a party having the burden of proof fails to produce evidence within the specified time period, or the produced evidence is not sufficient to support its claim or counterclaim, it shall bear the consequences thereof.
Ⅲ Hearing and Ruling Examination of Evidence（质证） （质证）
1. All evidence submitted by a party shall be filed with the Secretariat of the CIETAC for transmission to the other party. 2. Where a case is examined by way of an oral hearing, the evidence shall be exhibited at the hearing and examined by the parties. 3. In the event that evidence is submitted after the hearing and the arbitral tribunal decides to admit the evidence without holding further hearings, the arbitral tribunal may require the parties to submit their opinions thereon in writing within a specified time period.
Ⅲ Hearing and Ruling 4. Investigation by the Arbitral Tribunal
(1) The arbitral tribunal may, on its own initiative, undertake investigations and collect evidence as it considers necessary. (2) When investigating and collecting evidence by itself, the arbitral tribunal shall promptly notify the parties to be present at such investigation if it considers it necessary. In the event that one or both parties fail to be present, the investigation and collection shall proceed without being affected. (3) The arbitral tribunal shall, through the Secretariat of the CIETAC, transmit the evidence collected by itself to the parties and afford them an opportunity to comment.
Ⅲ Hearing and Ruling 5. Combination of Conciliation with Arbitration
(1) Where the parties have reached a settlement agreement by themselves through negotiation or conciliation without involving the CIETAC, either party may, based on an arbitration agreement concluded between them that provides for arbitration by the CIETAC and the settlement agreement, request the CIETAC to constitute an arbitral tribunal to render an arbitral award in accordance with the terms of the settlement agreement. Unless the parties agree otherwise, the Chairman of the CIETAC shall appoint a sole arbitrator to form such arbitral tribunal, which shall examine the case in the procedure it considers appropriate and render an award in due course. The specific procedure and the time limit for rendering the award shall not be subject to other provisions of these Rules.
(2) Where both parties have the desire for conciliation or one party so desires and the other party agrees when approached by the arbitral tribunal(经仲裁庭征 得另一方当事人同意 ), the arbitral tribunal may conciliate the case during the course of the arbitration proceedings. (3) The arbitral tribunal may conciliate the case in the manner it considers appropriate. (4)The arbitral tribunal shall terminate the conciliation and continue the arbitration proceedings if one of the parties requests a termination of the conciliation or if the arbitral tribunal believes that further efforts to conciliate will be futile.
(5) A settlement agreement reached between the parties during the course of conciliation by the arbitral tribunal but without the involvement of the arbitral tribunal shall be deemed as one reached through the conciliation by the arbitral tribunal. (6) Where settlement is reached through conciliation by the arbitral tribunal, the parties shall sign a written settlement agreement. Unless otherwise agreed by the parties, the arbitral tribunal will close the case and render an arbitral award in accordance with the terms of the settlement agreement. (7) Where conciliation fails, the arbitral tribunal shall proceed with the arbitration and render an arbitral award.
(8) Where conciliation fails, any opinion, view or statement and any proposal or proposition expressing acceptance or opposition by either party or by the arbitral tribunal in the process of conciliation shall not be invoked as grounds for any claim, defense or counterclaim in the subsequent arbitration proceedings, judicial proceedings or any other proceedings. 如果调解不成功， 如果调解不成功，任何一方当事人均不得在其后的仲裁程 序、司法程序和其他任何程序中援引对方当事人或仲裁庭 在调解过程中曾发表的意见、提出的观点、作出的陈述、 在调解过程中曾发表的意见、提出的观点、作出的陈述、 表示认同或否定的建议或主张作为其请求、 表示认同或否定的建议或主张作为其请求、答辩或反请求 的依据。 的依据。
Ⅳ Arbitration Award 1. Making Award
(1) The arbitral tribunal shall independently and impartially make its arbitral award on the basis of the facts, in accordance with the law and the terms of the contracts, with reference to international practices and in compliance with the principle of fairness and reasonableness. (2) The arbitral tribunal shall state in the award the claims, the facts of the dispute, the reasons on which the award is based, the result of the award, the allocation of the arbitration costs and the date on which and the place at which the award is made. The facts of the dispute and the reasons on which the award is based may not be stated in the award if the parties have agreed so, or if the award is made in accordance with the terms of a settlement agreement between the parties. The arbitral tribunal has the power to determine in the arbitral award the specific time period for the parties to execute the award and the liabilities to be borne by a party failing to execute the award within the specified time.
(3) The CIETAC’s stamp shall be affixed to the award. (4) Where a case is examined by an arbitral tribunal composed of three arbitrators, the award shall be rendered by all three arbitrators or a majority of the arbitrators. A written dissenting opinion shall be docketed into the file and may be attached to the award, but it shall not form a part of the award. (5) Where the arbitral tribunal cannot reach a majority opinion, the award shall be rendered in accordance with the presiding arbitrator’s opinion. The written opinion of other arbitrators shall be docketed into the file and may be attached to the award, but it shall not form a part of the award.
(6) Unless the award is made in accordance with the opinion of the presiding arbitrator or the sole arbitrator, the arbitral award shall be signed by a majority of arbitrators. An arbitrator who has a dissenting opinion may or may not sign his/her name on the award. (7) The date on which the award is made shall be the date on which the award comes into legal effect. (8) The arbitral award is final and binding upon both parties. Neither party may bring a suit before a law court or make a request to any other organization for revising the award.
Ⅳ Arbitration Award 2. Interlocutory Award and Partial Award
An interlocutory arbitral award or partial award may be made by the arbitral tribunal on any issue of the case at any time during the arbitration before the final award is made if considered necessary by the arbitral tribunal, or if the parties request and the arbitral tribunal accepts. Either party’s failure to perform the interlocutory award will not affect the continuation of the arbitration proceedings, nor will it prevent the arbitral tribunal from making a final award.
Ⅳ Arbitration Award 3. Scrutiny of Draft Award The arbitral tribunal shall submit its draft award to the CIETAC for scrutiny before signing the award. The CIETAC may remind the arbitral tribunal of issues in the award on condition that the arbitral tribunal’s independence in rendering the award is not affected.
Ⅳ Arbitration Award 4. Execution of Award
(1) The parties must automatically execute the arbitral award within the time period specified in the award. If no time limit is specified in the award, the parties shall execute the arbitral award immediately. (2) Where one party fails to execute the award, the other party may apply to a competent Chinese court for enforcement of the award pursuant to Chinese laws, or apply to a competent court for enforcement of the award according to the 1958 United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards or other international treaties that China has concluded or acceded to.
Section Five Recognition and Enforcement of Foreign Arbitral Awards
Three Questions May Arise after the Arbitral Award Is Given
1. What are the conditions required for recognition or enforcement? 2. What procedure should be expected? 3. What defense might be available?
What Are Foreign Arbitral Awards?
“Foreign arbitral awards” are arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.
Ⅰ Legal Rules in the New York Convention
1. Recognizing and Enforcing under the Principle of National Treatment Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which the Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
2. Documents to Supply to Obtain the Recognition and Enforcement
The duly authenticated original award or a duly certified copy The original agreement or a duly certified copy
3. Refusal at the Request of the Party against Whom the Award is Invoked
(1) The parties to the agreement were , under some capacity, or the said agreement is not valid. (2) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case. (3) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration.
(4) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place. (5) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
4. Refusal by the Competent Authority
(1)The subject matter of the difference in not capable of settlement by arbitration under the law of that country; (2) The recognition or enforcement of the award would be contrary to the public policy of that country.
Ⅱ Legal Rules in the Chinese Law and Regulations
1. Domestic Recognition and Enforcement of Arbitral Awards Rendered by Chinese International Commercial Arbitration Institutes（仲裁委员会裁决的国内执行） （仲裁委员会裁决的国内执行）
The parties concerned shall execute the arbitral award. If one of the parties refuses to execute the award, the other party may apply for enforcement with the people’s court according to the relevant provisions of the Civil Procedure Law.
In a case in which an ward has been made by an arbitral organ of the People’s Republic of China handling cases involve foreign element, the parties may not bring an action in a people’s court. If one party fails to comply with the arbitral award, the other party may apply for its enforcement to the intermediate people’s court of the place where the party against whom the application for enforcement has his domicile or where his property is located.
Whereas the person against whom the application is made provides evidences which prove that the arbitration award made by the foreign affairs arbitration agency of the People’s Republic of China involves any of the following circumstances, the people’s court shall, after examination and verification by a collegial panel, order to stop the execution of the award:
(1) The parties concerned have not stipulated clauses on arbitration in the contract or have not subsequently reached a written agreement for arbitration; (2) The person against whom the application is made is not duly notified to appoint the arbitrator or to proceed with the arbitration, or the said person fails to state its opinions due to reasons for which he is not held responsible; (3) The composition of the arbitration division or the procedure for arbitration is not in conformity with the rules of arbitration; or (4) Matters for arbitration are out of the scope of the agreement for arbitration or the limits of authority of the arbitration agency.
If the people’s court establishes that an arbitral award goes against the public interests, the award should be cancelled by the court. Whereas one party applies for an enforcement while the other applies for a cancellation of a award, the people’s court shall order the termination of the performance of the award. Whereas the people’s court has ordered the cancellation of an award, it should also order the termination of performance of the award. Whereas an application for the cancellation of an award is rejected, the people’s court shall order the restoration of the performance of the award.
If an application for the setting aside or suspension of the award has been made to a competent authority, the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.
Whereas the people’s court has ordered the cancellation of an award, it should also order the termination of performance of the award. Whereas an application for the cancellation of an award is rejected, the people’s court shall order the restoration of the performance of the award.
If the enforcement of an arbitral award is disallowed by a written order of people’s court, the parties may, in accordance with a written arbitration agreement reached between them, apply for arbitration again; they may also bring an action in a people’s court.
2. Abroad Recognition and Enforcement of Arbitral Awards Rendered by Chinese International Commercial Arbitration Institutes (外国对中国仲裁裁决的承认与执行 外国对中国仲裁裁决的承认与执行) 外国对中国仲裁裁决的承认与执行
Whereas a party involved in a foreign arbitration case applies for the enforcement of the award that has taken legal effect, the party shall apply directly with a foreign law court with the jurisdiction for recognition and enforcement if the party that should implement the award or its property is not in the territory of the People’s Republic of China.
If a party applies for enforcement of a legally effective arbitral award made by an arbitral organ in the People’s Republic of China handling cases involving foreign element and the opposite party or his property is not within the territory of the People’s Republic of China, he may directly apply for recognition and enforcement of the award to the foreign court which has jurisdiction.
3. Domestic Recognition and Enforcement of a Foreign Arbitral Award in China (中国对外国仲裁裁决的承认与执行 中国对外国仲裁裁决的承认与执行) 中国对外国仲裁裁决的承认与执行
If an award made by a foreign arbitral organ requires the recognition and enforcement by a people’s court of People’s Republic of China, the party concerned shall directly apply to the intermediate people’s court of the place where the party subjected to enforcement has his domicile or where his property is located. The people’s court shall deal with the matter in accordance with the international treaties concluded or acceded to by the People’s Republic of China or with the principle of reciprocity.
When according to the New York Convention, the People’s Republic of China declared that it will, on the basis of reciprocity, apply the Convention to the Recognition and enforcement of awards made only in the territory of another Contracting State; and also declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of China making such declaration.