SIMC Covid-19 Protocol Released

Since the Covid-19 pandemic has severely impacted business communities, Singapore International Mediation Center ( “SIMC” ) has launched the SIMC Covid-19 Protocol, which provides businesses with an expedited, economical and effective route to resolve any international commercial disputes during the Covid-19 pandemic period.

More details of the Protocol can be found on the website: www.simc.com.sg/simc-covid-19-protocol . To briefly summarize, some key aspects of the Protocol are as follows:

(a)   Parties may refer their disputes for mediation under the Protocol by submitting a request form at SIMC’s website and paying a S$250 filing fee;

(b)   SIMC will organize the mediation within 10 working days;

(c)   Parties will enjoy reduced fees based on dispute amount;

(d)   Cases will be matched with experienced mediators to facilitate settlement.

The Guidelines for Actively and Steadily Advancing Arbitration Procedures during the Covid-19 pandemic (for Trial Implementation) Released

On April 28, 2020, the China International Economic and Trade Arbitration Commission ("CIETAC") released the Guidelines for Actively and Steadily Pushing Forward the Arbitration Procedures during the Covid-19 pandemic (for Trial Implementation) (the "Guidelines") for implementation as of May 1, 2020, which will be repealed after the Covid-19 pandemic.

The Guidelines addressed major issues affected by the pandemic, and suggested reducing the impact of the pandemic to the greatest extent through the use of technologies and means such as online case filing, electronic service, written hearing and online hearing to promote arbitration proceedings. For example, the parties concerned and their arbitration agents are advised to submit their application for filing a case via the CIETAC Online Case Filing System (http://online.cietac.org/ ) or by mail and non-contact means. With respect to any case that needs oral hearing, the tribunal is advised to give priority to the feasibility of hearing online and may choose to hold it through the “CIETAC Smart Hearing Platform”( https://kt.cietac.org/portal/main/domain/index.htm ). The arbitration tribunal shall render an arbitral award as soon as possible. If the conditions for making a final award are not met but some requests of the parties concerned may be settled first, the arbitration tribunal is advised to consider the feasibility of making a partial award in accordance with the Arbitration Rules of the CIETAC.

The Seminar on Access of Overseas Arbitration Organizations and Nationality of Arbitral Awards held in Shanghai

On April 28, the seminar on Access of Overseas Arbitration Organizations and Nationality of Arbitral Awards, which was a major theoretical issues in the revision of the Arbitration Law of the Ministry of Justice, was held in Shanghai. Wang Guohua (Dean of the Law School of Shanghai Maritime University), Du Tao (Vice President of the International Law School of East China University of Political Science and Law), Yuan Dujuan (Vice President of ADR and School of Arbitration of Shanghai University), Mou Di (Doctor of International Law), Yu Weifeng (President of Shanghai Arbitration Association) and other experts and members participated in the seminar.

Experts and members exchanged preliminary research results centering on the themes of "access of overseas arbitration organizations, nationality identification of arbitration awards, and legislative design of the place of arbitration". They also exchanged views on different themes including "reforming and improving the internal governance structure of the arbitration commission", "accelerating the reform and innovation of the arbitration system", and "improving the ability of arbitration to serve national strategies of all-round openness and development". According to the requirements of the Ministry of Justice, this task shall be completed in June.

Saudi Arabia’s accession to the United Nations Convention on International Settlement Agreements Resulting from Mediation (the "Singapore Convention on Mediation")

On May 19, 2020, Saudi Arabia submitted the instrument of ratification of the United Nations Convention on International Settlement Agreements Resulting from Mediation (hereinafter referred to as the "Convention") to Headquarters of the United Nations, whereby it became the fourth State Party to the Convention.

According to the content of the Convention, the Convention comes into force six months after the third contracting state accedes to the Convention. As the third contracting party, Qatar, acceded to the Convention on March 12, 2020, the Convention will come into force as of September 12, 2020. And as the instrument of ratification submitted by Saudi Arabia comes into force on May 5, 2020, the Convention will come into force for Saudi Arabia as of November 5, 2020.

The Latest Case Concerning the Revocation of the Arbitral Award of the CIETAC by the Beijing No.4 Intermediate People's Court

Relevant Provisions:

Article 9 of the Arbitration Law of the People's Republic of China provides, “A system of a single and final award shall be practiced for arbitration. If a party applies for arbitration to an arbitration commission or institutes an action in a people's court regarding the same dispute after an arbitration award has been made, the arbitration commission or the people's court shall not accept the case. If an arbitration award is set aside or its enforcement is disallowed by the people's court in accordance with the law, a party may apply for arbitration on the basis of a new arbitration agreement reached between the parties, or institute an action in the people's court, regarding the same dispute.”

Article 248 of The Interpretation of the Supreme People's Court on the Application of the "Civil Procedure Law of the People's Republic of China” provides, “Where a litigant files another lawsuit due to occurrence of new facts after a ruling has come into legal effect, the People's Court shall accept lodgment pursuant to the law.”

On August 30, 2012, UNI-TOP Asia Investment Limited (“UNI-TOP”) applied to China International Economic and Trade Arbitration Commission (“CIETAC”) for arbitration based on the Agency Agreement in relation to this case, requesting SINOPEC International Petroleum Exploration and Production Corporation (“SINOPEC”) to pay agency remuneration and compensate for anticipated losses. The tribunal rendered an arbitral award (2013) Zhong Guo Mao Zhong Jing Cai Zi No. 0907 on December 30, 2013 (the “Former Case”), rejecting all claims of UNI-TOP. After the award of the previous case is rendered, the CIETAC rendered the (2017) Zhong Guo Mao Zhong Jing Cai Zi No.0836 Award on the basis of the ascertainment of the award of the previous case and the "new facts" that SINOPEC was negligent in or refused to perform the right of claim for compensation. The reasons for SINOPEC's request to the Beijing No.4 Intermediate People's Court for revocation of the said award are as follows: firstly, SINOPEC's failure to effectively deliver some procedural documents including the notice of arbitration to SINOPEC in accordance with the law resulted in its failure to obtain the notice of appointment of an arbitrator and conduct of the first hearing procedure and the arbitration procedure was illegal. Secondly, the CIETAC accepted the arbitration application filed by UNI-TOP on the same dispute, and the arbitral tribunal rendered repeated awards on the same request filed by UNI-TOP, which violated the legal provision of "a final and binding decision".

Court’s View:

The Court revocated the above arbitration award for the following reasons:

a) Notices shall be deemed effectively given when the arbitration documents are sent to the addressee’s place of business, registration, domicile or habitual residence or mailing address. Pursuant to the above provisions, the legal effect that CIETAC effectively delivers documents shall not be affected, either whether SINOPEC treats such documents as private correspondence or has actual access to such documents. Therefore, there is no problem in the delivery procedure of the arbitration of this Case;

b) The parties involved in two or more CIETAC arbitration awards are the same, the subject matter is the same and the arbitration claims are the same, so they belong to the same dispute. The CIETAC has made two awards on the same dispute, which violates the legal system of "one final award";

c) The fact that UNI-TOP claimed that SINOPEC was slow to recover relevant rights and interests did not fall under the scope of "new facts"; therefore, Article 248 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China provides that " Where a litigant files another lawsuit due to occurrence of new facts after a ruling has come into legal effect, the People's Court shall accept lodgment pursuant to the law ", which refers to the civil litigation procedures. The Arbitration Law does not provide that the arbitration institution has the right to arbitrate again after the occurrence of the "new fact".

The Recognition by Hsinchu Local Court in Taiwan Region of China of the Latest Arbitration Award of Xiamen Arbitration Commission

Relevant Provision:

Article 74 of the Regulations on People’s Relations between the Taiwan Region and the Mainland provides, “Civil judgments and arbitration awards made in the mainland may be applied to courts for recognition, if they do not violate the public order or the customs of good faith in Taiwan Region; With respect to the aforesaid contents ratified by the court through rulings, if payment is the content, the enforcement may be applied; In the case of a civil judgment or civil arbitration in Taiwan Region as prescribed in the preceding, the parties concerned may apply to a competent court in the Mainland for ruling of recognition or enforcement.”

In April 2016, Fujian Fuxin Electronic Technology Co., Ltd. ("Fuxin") applied for a loan from Liancheng Sub-branch of Industrial and Commercial Bank of China Limited ("ICBC Liancheng Sub-branch") with Cao Zhizhong and Huang Yuyu, local residents of Taiwan region as the joint guarantors. After the expiry of the loan period, Cao Zhizhong and Huang Yuyu shall bear joint and several liability for repayment of the loans for that Fuxin had failed to repay the loans as agreed. Therefore, ICBC Liancheng Sub-branch applied to the Xiamen Arbitration Commission for an award, requiring Cao Zhizhong and Huang Yuyu to assume joint liability for repayment of the loans. Xiamen Arbitration Commission made an award, requiring Fuxin to repay the loan principal and interest to ICBC Liancheng Sub-branch. The creditor’s right determined in the arbitration award rendered by ICBC Liancheng Sub-branch was transferred several times and finally acquired by Fujian Liancheng State-owned Investment Group Co., Ltd. Therefore, Fujian Liancheng State-owned Investment Group Co., Ltd. submitted an application to Taiwan Xinzhu Local Court for recognition of the above award. The core content of this ruling ((108 Year Zhong Xu Zi No.1)) is: whether the above arbitral award shall be acknowledged.

Court’s View：

The court recognized the above ruling for the following reasons:

a) The notice of hearing had been successfully delivered to Cao Zhizhong and Huang Yuzhan at the domiciles in Taiwan region, which shall be deemed to have been duly served;

b) The arbitration award by default was rendered due to the reasons that Cao Zhizhong and Huang Yuzhan failed to appear in court and was in no violation of the public order or good customs of Taiwan;

c) The issue of authenticity of the signature on the guarantee contract as raised by the respondent does not fall within the scope of the court's examination, and shall be examined separately.

This is the first time that Xiamen Arbitration Commission’s award has been recognized by a court in Taiwan region. In this case, the transferee of the creditor's right determined by the arbitration award can be the proper subject to apply for the recognition of the award or judgment, which is conducive to the flow and protection of the creditor's right.

This Newsletter is produced by ZLWD International Business Committee and for your reference only.

Editorial Board: Wei LIN  Simon TANG  Philip DUAN  Ellen WANG  Yuming LI  Lingling GUO

Hao LIU  Ning NING

All Information published in this Newsletter is from open source.

If you have any suggestion or need more information, please contact us.