Chapter 13 International Arbitral Awards.ppt

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1、Chapter 13 International Arbitral Awards,Content of Award,Jurisdiction Procedure Arguments for both parties Tribunals opinion on the issues Award,Classification of the awards,Interim, preliminary award Interlocutory award Consent award Final Award & Partial Award Supplementary award,Final Award,the

2、award contains the final decision of the tribunal on all matters that were submitted to it the award finally settles a portion of the dispute that can be separated from the remainder of the dispute but it does not necessarily terminate the arbitration or the mandate of the arbitrators to consider th

3、e remaining portions of the dispute,Partial Award,a separable portion of the dispute may be finally settled in what is often referred to as a partial award.,Interim award,Generally limited to those awards that do not finally settle any aspect of the dispute, an award on interim measures of protectio

4、n. In some cases it is used to mean a partial award,Consent award,It is a frequent occurrence that the parties in an arbitration are able to arrive at a settlement.,Nationality of the intl award,Source of the legally binding force Power to set aside award National court decides,Criteria to decide th

5、e nationality of intl awards,NYC Territoriality where the award is made Applicable law under which the award is made Other criteria Nationality of the arbitrator：Hungary Signing place of the arbitral award The place of the arbitration institution,Form requirements,Signature Notification Registration

6、? Germany Approval by institution? ICC,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 co

7、uld be done only by the national courts that consider the awards as their own (domestic awards).,Intl Standard Elec. Co. (USA) v. Bridas (Argentine),Tibor Varady：International Commercial Arbitraiton, West Group, 1999, 631-636 ICC Arbitration in Mexico city Award in favor of Bridas ISEC (Internationa

8、l Standard Electric Corp) applied to vacate in New York court ISECs 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.,International Standa

9、rd Electric Corp.ISEC, a wholly owned subsidiary of International Telephone and Telegraph Co.(ITT) , did business in Argentina by establishing a wholly owned subsidiary, Compania Standard Electric Argentina S.A.(CSEA) Six years later, ISEC sold its 97% interest in CSEA to Siemens, a German multinati

10、onal corporation.,Bridas sought arbitration with the International Chamber of Commerce ICC under the agreement claiming the breach of contract and breach offiduciary obligation for not giving Bridas adequate notice of the proposed sale of its shares to Siemens.Under the agreement the place of arbitr

11、ation was Mexico City and the governing laws of the agreement were those of the State of New York. The arbitrators awarded Bridas damages ,legal fees and expenses of for the costs of the arbitration.,ISEC petitioned to vacate the award at the U.S. District Court for the Southern District of New York

12、, and Bridas cross-petitioned to enforce the award under the 1958 New York Convention. The Court first addressed lack of subject matter jurisdiction to vacate a foreign arbitral award under the Convention. The courts of Mexico, where the award was rendered,were held to have jurisdiction to vacate or

13、 set aside the award.,The Court next considered the phrase “or under the law which, that award was made”for setting aside the award in Article V 1(e)of the 1958 Convention as referred exclusively to the procedural law under which the arbitration was conducted, and not the substantive law of contract

14、 which was applied in the case. The law of the State of New York was the relevant substantive law, and law of Mexico was the governing procedural law.,The Court rejected ISECs defense of manifest disregard of the law, stating that the Convention provided no grounds. The Court granted enforcement of

15、the award.,Croatian co. v. Swiss co.,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 t

16、he 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 No

17、n-arbitrability of the dispute Award in conflict with the public policy,The Model Law,article 34(a) the party making the application furnishes proof that: (i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to

18、which the parties have subjected it or, failing any indication thereon, under the law of this State; or (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or,(iii) the award

19、 deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submi

20、tted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or,(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provis

21、ion of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or,(b) the court finds that: (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or(ii) the award is in conflict with th

22、e public policy of this State.,Invalid arbitration agreement,ELF Aquitaine Iran(France) v. National Iranian Oil Co. (Iran) 135 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

23、 due procedure,Paklito Investment Ltd. v. Klockner East Asia Ltd. Sales contract 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. (T

24、urkey) 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,

25、Case 1-Appeal Court of Paris, May 19, 1993, Labinal v. Mors,Revue de larbitrage The case involved two parties (a French and a British corporation) related by a joint venture agreement that included an arbitration agreement. The French party alleged that the counterparty entered into an agreement wit

26、h its main competitor and filed a suit asking for damages.,Taking into account the existence of an arbitration agreement, the Appeal Court ofParis ruled that the arbitrators should decide on their own jurisdiction and on the arbitrability of the matter subjected to them, even thoughtheir decision mi

27、ght be subject to judicial control in a subsequent setting aside procedure.,antitrust,CASE LAW: Audiencia Provincial de Barcelona, July 19, 1995. Questions concerning antitrust are arbitrable, with the only exception of those related to criminal issues. Notwithstanding the fact that those matters in

28、volve not only the private interest of the corporations implicated but also the public interest in order to preserve a fair competition in the market, the question of whether the parties have violated or not an antitrust agreement and the judgment of the resulting economic consequences are able to b

29、e settled by arbitrators.,Public policy consideration,Chinese Practices,Domestic awards Foreign-related awards（FRA） Foreign awards,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.

30、 71, Art. 72 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; Tribun

31、al beyond the authority; Tribunal improperly composed; Evidence on which the award is based was forged; Partys withhold evidence sufficient to affect the impartiality of the arbitration; or Arbitrators demanded or accepted bribes, award made that perverted the law.,Grounds for Vacating FRA,CAL Art.7

32、0, Art.260, CPL (1991, Art.258 in 2007,Art.274 in 2012) 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 Peoples Court determines that the award is contrary to the public intere

33、st, it shall rule to vacate the award.,Competent Court for Revocation,Intermediate Peoples Court where the place of business of the Arbitration Commission is located.,Effect of Annulment on Recognition and Enforcement,Article V(1)(e) New York Convention Article 36 (2) Uncitral ML Chromalloy,Enforcem

34、ent of Arbitral Awards,Remedies for Ints Awards,Set aside Refusing enforcement 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: p

35、rocedure 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,Foreign Related Awards(FRA),Art.260 CPL : award made by the Fo

36、reign-related Arbitration Institutions in the PRC (CIETAC, CMAC) Set aside and refusing enforcement in Art. 71, Art. 72 CAL (Art. 260 CPL applied) Jurisdiction of domestic & international arbitration institutions since 1996,Awards Classification by the Place of Arbitration,Domestic awards are those

37、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 a

38、rbitration 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 Intl Commercial Arbitral Awards,Intl award made in China by C

39、hinese Arbitration Institutions Intl 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 commissi

40、ons (domestic arb. commissions) reorganized under CAL. How about awards made in China by foreign arbitration institutions, such as ICC, AAA, LCIA?,Chinese court for the first time recognize the enforcement of foreign arbitration awards made in china,April 2009, Ningbo Intermediate Peoples Court rule

41、d that the award made in Beijing under the ICCs ruling by ICC Court of Arbitration tribunal, which should be recognized and enforced by law.,Supreme Courts Notice on the related issues of the enforcement of Hong Kong arbitral awards in the Mainland,If the party applyes to the peoples court for enfor

42、cement of the interim arbitration award made in the Hong Kong SAR,or the award made by the Court of Arbitration of International Chamber of Commerce and other foreign arbitration which made in the Hong Kong SAR, the peoples court shall review it in accordance with the “arrangement“ requirement. The

43、arbitration award may be enforced in the Mainland if there is no violation to Article VII of “arrangement“.,Grounds Refusing Enforcing Domestic Awards: Art.217,CPL,No arbitration agreement; Tribunal beyond the authority; Tribunal improperly composed; Main evidence insufficient; Definite error in app

44、lication 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 tribun

45、al Tribunal beyond authority Burden of proof by respondent,Public Interest,Art.58(2), CAL If the Peoples 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- NY

46、C awards,Obligations under NYC,China acceded NYC in 1986 with the following two reservations reciprocal reservation Commercial reservation,Reciprocal Reservation,China applies NYC only to recognition and enforcement of awards made in the territory of another NYC Contracting State. Territoriality sta

47、ndard 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.

48、 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 Peoples Court where the place of business of the respondent or his executing property is located.,