以下文章来源于中伦文德律师事务所 ，作者中伦文德

China Arbitration Summit and the second Global Arbitrators

Conference of CIETAC held in Beijing

On 6 September 2022, the China International Economic and Trade Arbitration Commission (CIETAC), the All China Lawyers Association (ACLA) and the United Nations Commission on International Trade Law (UNCITRAL) co-organised the "2022 China Arbitration Summit and the Second Global Arbitrators Conference of CIETAC in Beijing and released the "2022 Global Arbitrators' Initiative of CIETAC". Vice Minister of Justice Xiong Xuanguo attended the forum and delivered a speech.

Xiong Xuanguo pointed out that it is necessary to conscientiously implement the spirit of General Secretary Xi Jinping's important instructions on arbitration work, focus on cultivating a number of international first-class arbitration institutions, and make the work of foreign-related rule of law protection and services more effective. By the end of 2021, 274 arbitration institutions had been established across the country, with a total of more than 4 million cases handled, involving a subject value of 5.8 trillion yuan, and parties to foreign-related arbitration cases covering more than 100 countries and regions.

Xiong Xuanguo stressed that the pilot project of building an international commercial arbitration centre should be a strategic task to vigorously strengthen foreign-related legal services in the new era, and to promote Beijing as an international commercial arbitration centre to serve the international centre for scientific and technological innovation and international communication, Shanghai as a global-oriented Asia-Pacific arbitration centre, Guangzhou and Shenzhen in Guangdong Province as a global-oriented international arbitration centre linking Hong Kong and Macao, to serve the construction of the Guangdong-Hong Kong-Macao Greater Bay Area, Hainan Province as an international commercial arbitration centre serving the Hainan Free Trade Port and facing the Pacific and Indian Oceans, in an effort to develop China into a new destination for international arbitration.

Annual Report on International Commercial Arbitration in 

China (2021-2022) published

The China International Economic and Trade Arbitration Commission (CIETAC) released Annual Report on International Commercial Arbitration in China (2021-2022) (“report”)on 5 September. The report shows that in 2021, 270 arbitration committees across the country received a total of 415,889 cases, and the total value of arbitration cases nationwide was RMB 859.3 billion, an increase of RMB 140.6 billion and 19.6% year-on-year from 2020.

According to the report, 4,071 cases were received by CIETAC in 2021, an increase of 12.61% year-on-year, with the number of cases received increasing for the past three consecutive years. There were 636 cases involving 93 countries and regions, Hong Kong, Macao and Taiwan(including 61 international cases in which both parties were foreign), and 136 cases involving " Belt and Road"(covering 36 Belt and Road countries and regions). 

The total value of arbitration cases received amounted to RMB 123.21 billion, with 182 cases with a value of over RMB 100 million, including 16 cases with a value of over RMB 1 billion.

The internationalisation of cases has increased significantly, with a significant increase in the number of foreign-related cases and an increase in the parties choosing to apply international conventions and extraterritorial laws, including the United Nations Convention on Contracts for the International Sale of Goods and the laws of Hong Kong SAR of China, the Netherlands, Greece, the Philippines, the United Kingdom and other countries and regions.

It was also reported that as far as the types of disputes are concerned, the traditional types of disputes such as disputes over the sale and purchase of goods, disputes over mechanical and electrical equipment, and disputes over equity are still the main types of disputes involved. It is worth noting that the number of disputes in areas such as the Internet, the cultural and entertainment industry and intellectual property rights is also gradually increasing, a growing trend that places higher demands and challenges on the professional competence of arbitration institutions and arbitrators.

Shenzhen Intermediate People's Court Issues Announcement 

on Adjusting the Level of Jurisdiction of Arbitration Award Enforcement Cases

In order to implement the requirements of the localization reform of the four levels of adjudication functions, rationalize the allocation of judicial resources and improve the efficiency of enforcement, the Supreme People's Court approved in September 2022 to adjust the level of jurisdiction of the people's courts within the administrative area of Shenzhen (including the Shenzhen-Shantou Special Cooperation Zone) in relation to the enforcement of arbitral awards, and the announcement reads as follows:

I. With effect from 21 September 2022, except for the enforcement of foreign arbitral awards involving Hong Kong, Macao and Taiwan made by arbitral institutions in mainland, the following arbitral awards (including arbitral mediation, the same below) shall be subject to the jurisdiction of the basic people's courts in Shenzhen, and the parties shall apply directly to the basic people's courts for their enforcement: (1) where both parties are domiciled in or are not in Guangdong Province and the subject matter of enforcement is less than RMB 500 million; (2) one of the parties is domiciled outside Guangdong Province and the subject matter of enforcement is less than RMB 100 million.

II. The Shenzhen Intermediate People's Court shall have jurisdiction over all other cases of enforcement of arbitral awards except those provided for in Article 

1: (1) where both parties are or are not domiciled in Guangdong Province and the subject matter of enforcement is RMB 500 million or more (inclusive);

(2) where one party is domiciled outside Guangdong Province and the subject matter of enforcement is RMB 100 million or more (inclusive); 

(3)where the domicile of the executor is or the seat of the property to be enforced is in Shenzhen, in cases of enforcement of foreign arbitral awards involving Hong Kong, Macao and Taiwan and foreign arbitral awards made by arbitral institutions in mainland.

III. Before 21 September 2022, cases that have been filed but not yet enforced will continue to be handled by the original court. Cases in which application materials have been submitted but not yet filed shall be handled in accordance with the provisions of the Notice.

IV. Cases of judicial review of arbitration, such as applications for setting aside arbitral awards and non-enforcement of arbitral awards by executors and outsiders, as well as arbitration preservation cases, shall continue to be handled in accordance with the original provisions.

V. If the Supreme People's Court adjusts the jurisdictional standards for civil and  commercial litigation cases, the jurisdictional standards for cases of enforcement of arbitral awards covered by the Notice shall be adjusted accordingly.

Federal Court of Australia:

The reference time for conversion of foreign currency into local currency is the day before the judgment

Case description：

The plaintiff, Siemens WLL, and the plaintiff, Siemens AG (collectively, "Siemens"), and the defendant, BIC Contracting LLC ("BICC"), are in dispute over the project of design, construction, maintenance and operation of a pavement system in the Education City of Qatar(“the project”).The contractor for the project is a consortium of Siemens and Leighton, and in accordance with clause 17.2 of their consortium agreement signed in February 2012, all disputes are to be resolved through arbitration at the London Court of International Arbitration (“LCIA”), with an arbitral tribunal of three arbitrators, with the place of arbitration being London, UK.

In September 2018, Siemens, entered into a mutual insurance agreement with BICC and Leighton to ensure the financial stability of the project. The agreement set out that Leighton had cash flow issues on the project and that Siemens had entered into a payment transfer in favour of Leighton to overcome these issues. The agreement also documented that BICC would guarantee further transfers of funds from Siemens to Leighton, and that BICC provided payment guarantees to each Siemens company. The payment guarantees contain an arbitration clause which provides that any dispute under the guarantees will be finally resolved by three arbitrators in accordance with the arbitration rules of the International Chamber of Commerce(“ICC”). The place of arbitration is Dubai, United Arab Emirates. In addition, BICC irrevocably agrees to enforce any award or judgment rendered under the guarantee in any court of competent jurisdiction.

In 2019, Siemens commenced a LCIA arbitration against Leighton and BICC under the Consortium Agreement and the Mutual Assurance Agreement. On 29 March 2020, Siemens commenced an ICC arbitration against BICC under the Payment Guarantee. The same three-member tribunal was appointed in both arbitrations, namely Professor Doug Jones AO(appointed by Siemens), Stephen Furst QC (appointed by Leighton and BICC) and Nicholas Dennys QC (chief).The London Court of International Arbitration rendered its final award on 10 August 2021 in London, England. The Arbitral Tribunal of the International Chamber of Commerce rendered its final award on 6 October 2021 in Dubai, UAE.

Siemens applied to the Australian courts to enforce the above award and its application included a request for the court to enter judgment in a currency other than the Australian dollar, namely the Qatar riyal, the euro, the pound sterling, the United States dollar and the United Arab Emirates dirham, or other equivalent currency. The application was later amended to request payment in Australian currency (Australian dollar).

Court’s View:

The Australian Court (" Court") held that enforcement of an arbitral award required that the award be a "foreign award" under section 8 of the International Arbitration Law. In section3(1) of the law, a "foreign award" is defined as an arbitral award made in a country other than Australia under an arbitration agreement, being an arbitral award in relation to which the New York Convention applies. As both the United Kingdom (in force since 23 December 1975) and the UAE (in force since 19 November 2006) have acceded to the New York Convention, both are Contracting States to the Convention. Therefore, the two awards above are undoubtedly foreign awards under international arbitration law and are enforceable.

The central issue in this case was that Siemens sought judgment in Australian dollars. There are previous decisions indicating that where a judgment is sought in an Australian court and an application is made for enforcement of an arbitral award in Australia, if the enforcement applicant seeks judgment in Australian dollars, then judgment should be given in Australian dollars. This approach should be adopted in this case.

The question then arises as to the method of determining the date of conversion of foreign currency amounts into Australian dollars. There are two conflicting approaches to the English law in previous decisions, ranging from the date of the award as the base date for conversion into Australian currency【Transpac Capital Pte Ltd v Buntoro (2008 NSWSC 671)】, to the date of the judgment granting enforcement of the award as the base date for conversion into Australian currency【China Sichuan Changhong Electric Co Ltd v CTA International Pty Ltd (2009 FCA 397)】.

In this case, the judge held that: the award in this case provided for interest at a particular rate until 28 days after the date of the award and then for further interest thereafter until the date of payment. Rules 39.06 of the Federal Court Rules provides for post-judgment interest at the particular rate. In this case, the only appropriate date for conversion to Australian dollars is the date of the judgment. Any earlier date would mean that the interest rates specified in the judgment would no longer apply as they are or may be specific to the particular currency. That said, it is often the case that exchange rates are not available at the time of the morning session of the court, particularly in currencies in other parts of the world or other parts of the world west of Australia, and it is impractical to convert to Australian dollars at the rate of the date of judgment. On this basis, the exchange rate on the daybefore the court session is acceptable. 

As it adequately reflects the exchange rate on the date of the judgment, the judgment in this case was delivered on the day of the trial. The calculation table provided by the agent used the exchange rates published by the Reserve Bank of Australia for the euro, the pound sterling and the US dollar. However, the Reserve Bank did not publish the exchange rate for the Qatar Riyal or the UAE Dirham. The Agent has therefore used the exchange rates published by the Central Bank of Qatar and the Central Bank of the UAE for these currencies respectively. These exchange rates are accepted as appropriate.

Paris Court of Appeal:Whether an arbitration clause was

entered into for fraudulent purposes does not affect arbitral tribunal's self-adjudication jurisdiction

Case description：

Mr H is the legal representative of Midgard. Mr J is a shareholder of Tanaka. Both Mr H and Mr J are French citizens.Toyoshima USA is an American company, une filiale de Toyoshima & Co Ltd. In July 2009, Mr J and Mr H were employed by Toyoshima USA. In March 2011, Mr J and Mr H entered into an agency contract with Toyoshima USA for the former to act for the latter in the sale and purchase of raw cotton. In September 2017, Midgard entered into an agency contract with Toyoshima USA, which contained an arbitration clause. On the same date, Tanaka entered into an agency contract with Toyoshima USA, which contained an arbitration clause. In May 2020, Toyoshima USA terminated the agency contract with Mr H and Tanaka.

In June 2020, Mr J, Mr H, Tanaka and Midgard ("Plaintiffs") filed a lawsuit against Toyoshima and Toyoshima USA ("Defendants") in the Paris Court of Great Instance, claiming remuneration and damages, while Toyoshima and Toyoshima USA argued that the agency contract contained an arbitration clause and that the Paris Court of Great Instance did not have jurisdiction. In December 2021, the Paris Court of Great Instance ruled that it had no jurisdiction and in 2022, Mr H, Tanaka ("Appellants") appealed the decision to the Court of Appeal of Paris ("Court").

With regard to the validity of the arbitration clause, the Appellant argued that the arbitration clause in the agency contract was manifestly invalid and inapplicable under article 1448 of the Code of Civil Procedure. The reasoning was that Toyoshima USA had included the arbitration clause in the agency contract solely for the purpose of fraud, that is, to avoid tax obligations by evading the application of French law and to avoid the risk of litigation in the French courts in relation to taxation by means of the arbitration clause.

The Defendant argued that the arbitration clause in the agency contract was clear, unambiguous and fully valid. The Paris Court of Great Instance did not have jurisdiction to hear the allegations of tax fraud claimed by the Plaintiff, which was not the subject of the Appellant's appeal. According to the principle of self-adjudication jurisdiction, jurisdictional disputes should be submitted to the Swiss Court of Arbitration, and only the arbitrator was competent to rule on his jurisdiction.

Court’s view：

The Court held that the mere fact that an arbitration clause had been agreed in the agency contract did not in itself circumvent the application of French law, as there was no choice of applicable law in the contract. The Appellant's intention, as a trader, to agree in the contract to submit any dispute to arbitration was clear and precise and was the common intention of the parties. Furthermore, the court held that the Appellant's claim that the inclusion of the arbitration clause in question was for fraudulent purposes would be subject to substantive review did not fall within the circumstances of a manifestly invalid or manifestly inapplicable arbitration clause under article 1448 of the Code of Civil Procedure, and it did not follow that the arbitral tribunal was not entitled to review its own jurisdiction. The Court therefore ultimately dismissed Mr H's and Tanaka's appeals.

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