以下文章来源于中伦文德律师事务所 ，作者中伦文德

On July 26, 2022, the Taipei District Court of Taiwan Province of the PRC(the "Court") issued the civil ruling Lu Xu Zi No.2, recognizing the arbitral award (Zhong Guo Mao Zhong Min Cai Zi [2022] No.4, hereinafter referred to as the "Award") rendered by the China International Economic and Trade Arbitration Commission(CIETAC) on January 20, 2022.

The Applicant, Ju Jiang Zhi Zao (Xiamen) Technology Co., Ltd. filed a request to CIETAC for arbitration concerning a contractual dispute with the Respondent, Yunguangtong Co, Ltd. The Respondent made a counterclaim on January 20, 2022, following, the arbitration commission rendered the Award. The Award became effective on January 20, 2022. The Respondent refused to perform the obligation under the Award, and the Claimant applied to the Court for acknowledgment.

The Court found that: If a civil arbitration award made in mainland is not contrary to the public order or good customs in Taiwan Province, it may be applied for the court's acknowledgment. If the aforesaid judgment approved by the court is based on the content of payment, it may be approved by the court for execution . According to Article 10 of Chapter 3 of the Cross-Straits Agreement on Joint Crackdown on Crimes and Mutual Assistance in Justice, the two sides have agreed, on the principle of mutual benefit and in compliance with public order and good customs, recognize and enforce each other's final civil decisions and arbitral awards (arbitral judgments). The Applicant submitted the Award and its certificate of validity and notarial certificate, and the aforementioned documents were verified by the Straits Exchange Foundation, which issued the certificate for reference. The content of the Award is based on the legal contractual relationship between the two parties which is the Applicant filed the application for arbitration under the contract and the Respondent applied for the counterclaim, the parties have conducted cross-examination and forwarded the relevant evidence. The Award which rules the Respondent to perform its payment obligation fully protects the parties’ procedural rights that are not contrary to the public order or good customs in Taiwan. Therefore, this application shall be granted.

On August 16, 2022, the RCEP and ASEAN International Arbitration Summit Forum (hereinafter referred to the "Forum") held in Nanning. With the theme of "Sharing Opportunities and Creating Prosperity - Innovation and Development of China-ASEAN International Arbitration in the Context of RCEP", the Forum invited domestic and foreign arbitration law experts to focus on hot issues at the forefront of international arbitration, exchange practical experiences and latest achievements in international arbitration under the new situation. The success of the Forum will promote the high-quality implementation of RCEP, deepen the economic and trade exchanges between China and ASEAN member countries and other RCEP member countries, and promote regional interconnection and economic integration.

As an important outcome of the Forum, the China International Economic and Trade Arbitration Commission (CIETAC) ASEAN Tribunal Center was officially inaugurated(the "Center") will help Guangxi to build a regional arbitration base for RCEP member countries, especially ASEAN countries, create an international business environment under the rule of law, create a convenient arbitration environment for both parties to disputes between China and ASEAN, and encourage foreign trade and investment enterprises to actively use arbitration to resolve disputes.

On 4 August 2022, the International Centre for Settlement of Investment Disputes (ICSID) released the Statistics on ICSID Cases(the "Report"), reviewing the trends in cases related to the fiscal year of 2022 and all ICSID cases since 1972.

The Report shows that the majority of newly registered cases in FY2022 (56%) are based on bilateral investment treaties asserting ICSID’s jurisdiction, but the proportion of cases brought on the basis of contracts concluded between the investor and the host country has increased in recent years (13%), followed by cases brought on the basis of the Energy Charter Treaty (11%).

In terms of origin, new cases involved countries from worldwide, with the top two being South American countries (22%) and Eastern European and Central Asian countries (20%). In terms of industry distribution, the largest proportion of ICSID cases involved the mining and energy industry, with 24% of new cases involving the power and other energy industry and 22% involving the oil, gas and mining industry. 

The cases regarding the construction industry is also prominent, which accounts for 12% of the number of disputes, followed closely by the information and communications industry (10%) and the water, sanitation and flood control industry (8%). Meanwhile, ICSID maintained the balance between host countries and investors in terms of case outcomes, with 48% of the awards in cases heard by the tribunal partially or fully upholding the investors' claims.

Case Description:

On March 3, 2008, the Defendant Voltas Ltd ("Voltas") entered into a contract with Resorts World at Sentosa Pte Ltd ("RWS") for the construction of the District Cooling Plant Project (hereinafter referred to as the "DCP Project"). On April 3, 2011, Voltas purchased five coolers from the Plaintiff York International Pte Ltd ("York") at a cost of SGD 5,230,000 for the DCP Project. Between March 2011 and May 2022, the engines of the coolers broke down successively and a dispute arose between the Plaintiff and the Defendant over the performance of the equipment purchase contract.

On January 21, 2012, York initiated an arbitration at the Singapore International Arbitration Centre (SIAC) pursuant to an arbitral agreement between the parties, seeking payment of the outstanding purchase price from Voltas. Voltas filed a counterclaim seeking damages from York for the supply of defective goods, including claims made against it by RWS. On August 25, 2014, the arbitral tribunal issued an award partially upholding Voltas' claim. In order to avoid unjust enrichment gained by Voltas, the tribunal decided to make a conditional award on the claim which was York shall pay Voltas such compensation up to a maximum of SGD 1,132,439.46 after Voltas has paid compensation to RWS (hereinafter referred to as the "2014 Award").

On August 12, 2015, Voltas and RWS entered into a Settlement Agreement. Pursuant to the above agreement, RWS should pay Voltas a lump sum of SGD 1 million to settle all debt disputes under the construction contract between the parties, including the amount of RWS's claims against Voltas. Accordingly, Voltas believed that it had paid the claim amount to RWS by way of set-off.

From 2015 to 2018, Voltas had repeatedly demanded SGD 1,132,439.46 in compensation from York. However, York asserted that Voltas did not have sufficient evidence to prove that it had in fact paid compensation to RWS.

On August 24, 2020, Voltas applied to the arbitral tribunal for a further award to determine (1) whether Voltas had paid compensation to RWS; (2) if so, what amount of compensation Voltas paid to RWS; and (3) what amount of compensation York should pay to Voltas. Meanwhile, Voltas filed a new arbitration case on the same subject matter.

York contested Voltas' actions based on the following reasons: in relation to the new arbitration case, York argued that the dispute in the case did not fall within the scope of the arbitral agreement; for the application for a further award by the arbitral tribunal, York argued that the arbitral tribunal no longer had the jurisdiction since the 2014 Award was rendered. On August 23, 2021, the arbitraltribunal issued a decision finding that it still has jurisdiction over the case (the "2021 Decision"). Therefore York applied to the High Court of Singapore (the "Court") for a decision on whether the arbitral tribunal had jurisdiction in relation to the 2021 Decision.

Court’s View:

The Court held that according to previous jurisprudence, an arbitral award may be considered the final award if : (i) the arbitral award on a claim or dispute is res judicata, i.e. the same dispute or claim cannot be reheard; 

(ii) the arbitral award has reached a sufficient degree of finality, i.e., the arbitral award is no longer subject to appeal or revocation at the place of arbitration; and (iii) the arbitral award is final and has disposed all claims. In determining whether an arbitral award has disposed of all disputes, according to the previous jurisprudence, the court can start by (i) focusing on the substantive issues and not just focus on the form; (ii) but the form is also important. The arbitral tribunal's description of the award, although not decisive, should also be considered in the judgment; (iii) how a reasonable recipient of the award would view the arbitral award; and (iv) a reasonable recipient of the award might consider the objective features of the arbitral award, including the arbitral tribunal's description of the award, how the formality of the language used in the arbitral award, and the level of detail in the arbitral tribunal's reasoning.

Accordingly, the Court held that the 2014 Award had resolved all disputes on the following grounds: 

(i) The arbitral tribunal chose to make a conditional award on the amount of compensation, rather than choosing to suspend the case. It can be shown that in rendering the 2014 Award, the arbitral tribunal attempted to completely and utterly resolve the dispute between the parties without any intention to retain the jurisdiction.

(ii) Despite the absence of any clear legal basis, in the 2021 Decision, the arbitral tribunal considered that the reservation of jurisdiction was a significant matter and should be made clearly and unambiguously. Since there was no indication of reservation of jurisdiction by the arbitral tribunal in the 2014 Award, it follows that the arbitral tribunal did not intend to reserve jurisdiction when it made the 2014 Award.

(iii) The 2014 Award has adequately resolved the dispute between the parties. Both parties agreed that the conditional award can deal with all disputes in the case. Although the 2014 Award did not stipulate the specific amount of compensation, it did specify the calculation method of the specific amount. Accordingly, the 2014 Award has actually clarified York's responsibilities and obligations, and no further ruling by the arbitration tribunal is required.

(iv) The 2014 Award has the characteristics of a final award for the following reasons: (1) The name of the 2014 Award is "Final Award", and a reasonable recipient of the award should consider it to be final. (2) The 2014 Award included a final order on costs. An order on costs intended to address all cost-sharing issues in the arbitration, including the fees of the arbitrators. Such an order on costs would normally be found in a final award only.

In light of the foregoing, the Court decided that the arbitral tribunal had lost its jurisdiction when it issued a final and conditional award on the dispute between the parties and was not entitled to issue a new award on the same dispute.

Case Description:

In 2014, the two Plaintiffs, Zejian Lin, Gang Lin, and the Defendant, Jungmin Lee, entered into a business contract for migration agency services(hereinafter referred to as the “Contract”). The Contract included the following dispute resolution escalation provisions【The Escalation Clause shall means that the clause requires the parties to take certain steps prior to commencing formal arbitration proceedings, such as good faith negotiations prior to the commencement of arbitration, etc.】:

Article 11: Dispute Resolution

A. If a dispute arises arising out of or in connection with this Agreement, or the breach, termination, validity or subject matter hereof, or in respect of any claim for damages at law, in equity or under any

statutory regulation, the Parties agree to discuss such dispute to reach a mutually acceptable agreement. The Agreement will be documented in writing and dated by the Agent and the Customer.

B. If one of the parties requests an opportunity to discuss the dispute, the parties shall attempt to reach an agreement within 21 days of such request (or a longer period agreed by the parties).

C. If the parties do not reach agreement within 21 days, the parties agree to refer the dispute to theAustralian Commercial Disputes Centre (ACDC) for final resolution by one arbitrator appointed in accordance with the ACDC's rules, or by such other dispute resolution procedures as recommended by the ACDC and accepted by the parties. It is anticipated that any fees payable to ACDC or ACDC's nominee will be paid by each party equally.

D. If the parties are unable to resolve their dispute through ACDC any party may commence court proceedings which will not be completed within 28 days of the date the matter was submitted to ACDC.

E. Customer may vary the procedures set out in this clause if Customer is able to determine that DIAC may require Customer to leave Australia. 

In September 2021, the Plaintiff commenced proceedings in the High Court of Queensland, claiming that the defendant had committed breach of the Contract and negligence. The Defendant argued that under the escalation clause in clause 11 of the Contract, the court proceedings should be suspended and the dispute should be submitted to arbitration. The court of first instance held that clause 11 envisaged the possibility of arbitration, but did not expressly agree to submit the dispute to arbitration and did not constitute an arbitration agreement. Article 11 of the Contract was not an arbitration agreement. The defendant appealed the above court decision to the Court of Appeal of Queensland (hereinafter referred to as the"Court") and applied for the dispute to be submitted to arbitration.

Court’s View:

The Court held that the case focused on whether the dispute resolution clause stipulated in the Contract contained an "agreement to arbitrate". The term "final settlement" in the escalation clause 11(c) should be interpreted to "the final determination or conclusion of the dispute between the parties". Although clause 11(c) contemplated that the parties may resolve their dispute by further agreement to use procedures other than arbitration, this possibility does not affect the fact that, in the absence of such agreement, the parties have agreed to submit their dispute to arbitration. Therefore, the Court held that the effect of clause 11(c) was that if the parties could not resolve their dispute through discussions, the decision should be made by a single arbitrator retained by the ACDC and appointed under the ACDC rules. In reaching these conclusions, the Court cited the general principle that commercial contracts must be interpreted in a commercial manner and referred to as the primary objective of arbitration law is to promote the fair and final resolution of commercial disputes by an impartial tribunal without unnecessary delay or expense.

In summary, the Court supported the claims of the appellants and ruled that the parties shallsubmit the dispute to arbitration.

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