WIPO Arbitration and Mediation Shanghai Center established, being the first arbitration institute of international organization in China
On October 20, the 17th Shanghai Intellectual Property International Forum opened. At the opening ceremony of the Forum, Lu Weidong, Secretary of the Party Committee and Director General of the Shanghai Bureau of Justice introduced the implementation and substantial operation of the WIPO Shanghai Center for Arbitration and Mediation (hereinafter referred to as the "WIPO Shanghai Center").
The WIPO Shanghai Center is an overseas arbitration agency registered with the Shanghai Municipal Bureau of Justice and approved by the Ministry of Justice, and is also the first agency established by an arbitration agency of international organizations in China. The business scope of the WIPO Shanghai Center is to carry out arbitration and mediation of cases involving foreign-related intellectual property disputes within the territory of China, which mainly includes: (1) Activities such as case acceptance, hearing, mediation, hearing and judgment; (2) Activities such as business consulting and guidance; and (3) Activities such as business seminars, trainings, exchanges and promotion.
The establishment of the WIPO Shanghai Center is a milestone for the opening -up of China's arbitration business to the outside world. It is also a vivid practice and best example of Shanghai's commitment to building an international intellectual property protection highland, an Asia-Pacific arbitration center oriented towards the world, and a market-oriented, law-based and international business environment.
Shenzhen, with the support of the Central Government, takes the lead in building an international investment joint arbitration center
The General Office of the Central Committee of the Communist Party of China and the General Office of the State Council have recently issued the "Implementation Plan for the Pilot Comprehensive Reform of Building a Pilot Demonstration Zone of Socialism with Chinese Characteristics in Shenzhen (2020-2025)" (Hereinafter referred to as the " Plan").
The "Plan" clearly stated in the overall requirements to support Shenzhen to promote reform and opening up at a higher starting point, higher level and higher goals. Item 15 of the "Plan" clearly stated: Support the improvement of cross-border collaboration mechanisms in the field of rule of law, and improve international legal services and dispute resolution mechanisms. In the first batch of authorized matters, it clearly supported “the international arbitration institutions of special economic zones to take the lead in the construction of international investment joint arbitration centers”.
It is particularly noteworthy that the "Plan" puts forward the novel concept of "International Investment Joint Arbitration Center" for the first time, and clearly assigns the opportunity of building an International Investment Joint Arbitration Center to Shenzhen Special Economic Zone.
International Commercial Dispute Prevention and Resolution Organization formally established in Beijing
As one of the achievements of the second “Belt and Road” International Cooperation Summit Forum, the International Commercial Dispute Prevention and Resolution Organization was formally established in Beijing on October 15.
The International Commercial Dispute Prevention and Resolution Organization was initiated by industry and commerce and legal service agencies in more than 40 countries and regions, and aims to provide international commercial entities with diversified services from dispute prevention to resolution.
Gao Yan, chairman of the China Council for the Promotion of International Trade, stated at the establishment meeting of the International Organization for Commercial Dispute Prevention and Resolution that today’s world economic and social development is getting closer, but there are still many uncertain factors. The business communities of various countries are concerned about legal risk prevention and dispute settlement. After the establishment of the International Commercial Dispute Prevention and Resolution Organization, it will operate independently, adhering to the concept of "consulting, co-constructing, and sharing", and providing new options for the prevention and resolution of international commercial disputes.
Guangzhou Intermediate People's Court:
The arbitration tribunal did not deal with the objection to jurisdiction and should be revoked
Article 13(1)of the Arbitration Rules of the Guangzhou Arbitration Commission provides, “If the parties have objections to the existence and validity of the arbitration agreement or the jurisdiction of the case, they shall raise their objections in writing before the first hearing; if they agree not to hold the hearing, they shall raise their objections in writing before the expiry of the defense period. "
Article 58(1)-3 of the Arbitration Law of the People's Republic of China provides, “Where the parties concerned can provide evidence disproving the arbitration award in any of the following circumstances, they may request a cancellation of the arbitration award by an intermediate People's Court at the place where the arbitration commission is located:
(3) the establishment of the arbitration tribunal or arbitration procedures are in contravention of legal proceedings…...”
On May 27, 2017, Pan Yingyi and Xu Qiwen signed the "Shareholder Cooperation Agreement", agreeing that both parties will jointly form a company, and agreed that all disputes arising from the implementation of this agreement or related to this agreement should be submitted to the Guangzhou Arbitration Commission for arbitration. After the establishment of the company on August 28, 2017, the two parties had a dispute over the sharing of rights and obligations between shareholders, and Xu Qiwen therefore filed an arbitration with the Guangzhou Arbitration Commission. On May 24, 2019, the Guangzhou Arbitration Commission accepted Xu Qiwen’s application, and made (2019) Suizhong Case Zi No. 7639 arbitration award on October 25, 2019. The award did not respond to Pan Yingyi’s application for jurisdictional objection . Pan Yingyi therefore applied to the Guangzhou Intermediate People's Court to revoke the aforementioned arbitration award. The core dispute of this case [(2020) Yue 01 Min Te No. 18] is: if the arbitration tribunal did not handle the jurisdictional objection, whether the arbitration shall be revoked.
The Court revoked the arbitration ruling for the following reasons:
According to Pan Yingyi’s comments and the transcripts of the arbitration court hearing, he had filed a written application for a jurisdictional objection before the first hearing, and the form and time for filing a jurisdictional objection were in compliance with the Arbitration Rules. However, the arbitration tribunal did not deal with the aforementioned application, which should be a procedural violation. The court shall revoke the arbitration award in accordance with the law.
The above ruling has been reviewed and approved by the Guangdong Higher People's Court.
The Intermediate People's Court of
The two arbitrations involved in the case belong to the "same dispute", and the subsequent arbitration shall be revoked
Article 247(1) of the Interpretations of the Supreme People’s Court on Application of the “Civil Procedural Law of the People’s Republic of China provides, “
Where a litigant files another lawsuit over a matter, for which a lawsuit has been filed during the litigation process or after the ruling has come into legal effect, and the following criteria are satisfied, it shall be deemed as a repeated lawsuit:
(1) The litigants in the latter lawsuit and the former lawsuit are identical;
(2) The latter lawsuit and the former lawsuit have the same subject matter of lawsuit; or
(3) The claims in the latter lawsuit and the former lawsuit are identical, or the claims in the latter lawsuit essentially negate the outcome of the ruling of the former lawsuit.”
Article 9 of the Arbitration Law of the People's Republic of China provides, “Arbitration awards shall be final. Where an arbitration award has been made and a party reapplies for arbitration or requests a hearing before the People's Court upon the same matter, the arbitration commission or People's Court shall not deal with the matter.
Where the People's Court has, in accordance with the law, ordered an arbitration award to be dismissed or not carried out, the disputing parties may, having reached a further arbitration agreement, apply for arbitration, and may also apply to have the case heard before a People's Court.”
Article 59 of the Arbitration Law of the People's Republic of China provides, “An application by a party for the cancellation of an arbitration award shall be made within six (6) months of its receipt of the application award document.”
On June 28, 2013, Hubei Second Construction Company and Jingchu Institute of Technology signed the "Construction Contract of Hubei Province Construction Project" on the housing construction project of Jingchu Institute of Technology. After the completion of the project, the two parties disputed whether labor costs should be priced according to the pricing document issued by the Hubei Provincial Department of Housing and Urban-Rural Development. Therefore, Hubei Second Construction Company applied to Jingmen Arbitration Commission for arbitration in 2016, and the arbitration commission issued an arbitration ruling Jingcai  No. 44: The evidence submitted by Hubei Second Construction Company was not sufficient to prove its arbitration request. Hubei Second Construction Company applied for arbitration to the Jingmen Arbitration Commission again after obtaining the appraisal opinion issued by a third-party consulting company in 2019. The Jingmen Arbitration Commission considered the appraisal opinion to be new evidence, which can prove that the construction project involved in the case was not calculated in accordance with the pricing documents issued by the Hubei Provincial Department of Housing and Urban-Rural Development. This trial is not a repeated arbitration, and the decision of Jingcai  No. 713 was issued, supporting the request of Hubei Second Construction Company to request Jingchu Institute of Technology to pay for the project. Jingchu Institute of Technology believes that the Jingcai  No. 713 ruling made by the Jingmen Arbitration Commission constitutes a repeated arbitration and requires the court to revoke it. The core dispute of this case [(2020) E 08 Min Te No. 10] is: whether the decision of Jing Cai  No. 713 is a repeated arbitration and whether it should be revoked.
The Court revoked the arbitration decision of Jing Cai  No. 713 for the following reasons:
a) Jingmen Arbitration Commission re-arbitrated the same dispute, which obviously violated Article 9 of the Arbitration Law of the People's Republic of China, and triggersthe circumstances for revocation as stipulated in the Arbitration Law. Jingchu Institute of Technology's reasons for claiming that the arbitration in dispute was redundant and should be revoked are tenable;
b) The arbitration both takes place after the completion of the relevant works. The key dispute between the parties is whether the administrative regulations of Hubei Province are applicable to the calculation of the labor fees for the disputed construction works instead of whether the inspection and acceptance of the construction works has been completed. Therefore, it is not a new fact that the construction works has been inspected and accepted when the latter arbitration takes place, the workload of the construction works can be ascertained;
c) Jing Cai  No.713 was served on Jingchu Institute of Technology on May 8, 2020, and Jingchu Institute of Technology applied to this court on July 7, 2020 for revocation of the arbitration award, which did not exceed the six-month time limit as prescribed in Article 59 of the Arbitration Law of the People's Republic of China.
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.