Fa Shi [2020] No.13

Provisions are as follows：

1. For the purpose of the Arrangement, the procedures for enforcing arbitral awards of the Mainland or the Hong Kong Special Administrative Region shall be interpreted as including the procedures for recognition and enforcing arbitral awards of the Mainland or the Hong Kong Special Administrative Region.

2. Amend the preamble and Article 1 of the Arrangement to read: “In accordance with the provisions of Article 95 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, through consultation between the Supreme People’s Court and the government of the Hong Kong Special Administrative Region (hereafter referred to as the “HKSAR”), the following arrangements are hereby made on the reciprocal enforcement of arbitral awards:

“1. This Arrangement shall apply to the enforcement of arbitral awards made in accordance with the Arbitration Ordinate of the HKSAR by the people’s courts in the mainland and the enforcement of arbitral awards made in accordance with the Arbitration Law of the People’s Republic of China by the courts in the HKSAR.”

3. Paragraph 3 of Article 2 of the Arrangement is amended as: “Where the respondent has a domicile in both the mainland and the HKSAR or property that can be enforced, the applicant may apply to the courts in both places for enforcement respectively. Courts in both places shall, at the request of the courts of the other side, provide each other with information about their enforcement of arbitral awards. The total amount of property enforced by courts in the two places shall not exceed the amount determined in the award.

4. One paragraph is added to Article 6 of the Arrangement as Paragraph 2: “Before or after the acceptance of an application for enforcement of an arbitral award, the relevant court may, upon application and in accordance with the provisions of laws of the place of enforcement, take preservation or mandatory measures. ”

5. Articles 1 and 4 of this Supplementary Arrangement shall come into force as of November 27, 2020, and the effective date of Articles 2 and 3 shall be announced by the Supreme People’s Court after the relevant procedures are completed in the HKSAR.

Nanping Ecological Arbitration Institute established, being the first in China

On November 6, Nanping Ecological Arbitration Institute, the first ecological arbitration institute in China specially handling civil and commercial disputes over eco-environment and resources, was officially established.

Nanping Ecological Arbitration Institute applies arbitration in the ecological field for the first time, mainly accepting cases involving ecological environmental pollution such as air, water, soil, etc., to promote and protect the full and correct implementation of laws on ecological environmental resources, to achieve diversified settlement of ecological disputes, and to protect the people’s rights and interests in the ecological environment. It has innovative significance, leading value and brand effect in China.

Through telephone consultation with Nanping Arbitration Commission, we have learned that: At present, Nanping Arbitration Commission and Nanping Ecological Arbitration Institute mainly accept civil and commercial disputes over eco-environment and resources, such as mining contract. Where arbitration is agreed upon in the contract, such agreement shall apply. In case no arbitration is agreed in the contract, the parties may enter into a supplementary agreement according to their mutual willingness for arbitration. If no arbitration agreement can be reached, the dispute may be resolved through legal proceedings at court.

It is expected that Nanping Ecological Arbitration Institute will give full play to its advantages in arbitration system and ecology, so as to promote the construction of ecological civilization.

The nation’s first: Guangzhou arbitration ODR negotiation platform resolved multiple commercial disputes

Recently, Guangzhou Arbitration Commission launched the nation’s first ODR negotiation platform, that is, online dispute resolution negotiation platform. Since the operation of the negotiation platform, Guangzhou Arbitration Commission has successfully handled the service contract disputes, transportation contract disputes, commission contract disputes etc., and is committed to providing the efficient and convenient electronic solutions for small and medium-size enterprise (hereafter referred to as the “SMEs”).

The key person of Guangzhou Arbitration Commission said: “During the COVID-19 outbreak, the arbitration business accepted by guangzhou Arbitration Commission grew very rapidly, reaching about 50 percent. We are deeply aware of the difficulties encountered in the production and operation of SMEs and feel that arbitration institution should help them. Therefore, we have worked overtime to develop the ODR negotiation platform with the purpose of providing a low-cost and efficient dispute resolution mechanism.” “Traditional litigation usually goes through first instance and second instance, and it usually takes about one year to settle a case, while offline arbitration takes about four months. However, the ODR negotiation platform solves economic disputes in only 10 days, which has obvious advantages in time and efficiency."

At present, the ODR negotiation platform developed by Guangzhou Arbitration Commission has been put into operation, and its effect will be jointly verified and witnessed by SMEs international counterparts and all sectors of society.

China Maritime Arbitration Commission creates the development pattern of north-south double headquarters 

The arbitration institutions of the Yangtze River Delta are advancing hand in hand

On November 6, the headquarter of China Maritime Arbitration Commission in Shanghai was officially unveiled. “China maritime arbitration commission Shanghai headquarter” was renamed from “China maritime arbitration commission Shanghai branch” and it will become the core business, brand focus, publicity window and innovation platform of China Maritime Arbitration Commission, echoing the Beijing headquarter, and forming the development pattern of “Beijing + Shanghai” north-south double headquarters of China Maritime Arbitration Commission, and taking the lead in exploring the new development and management mode of international arbitration double headquarters in China.

Upon the launching of the Shanghai headquarter focusing on “great logistics”, “big traffic” business development ideas, with “innovation driven, transformation and upgrading” as the goal, so as to gain a foothold in Shanghai, serve the whole country and face the world, it will provide important support for the construction of the Shanghai International Shipping Center and the Asia-pacific Arbitration Center, and inject new impetus to the improvement of the business environment in Shanghai.

The Second Intermediate People’s Court of Beijing:

The arbitration agreement shall be invalid if the signing place of the agreement is not clear

Relevant Provisions:

Paragraph 2 of Article 16 of the Arbitration Law of the People’s Republic of China:

An arbitration agreement shall include the following:

(1) the expression of a request for arbitration;

(2) arbitration claims;

(3) the chosen arbitration commission.

Article 18 of the Arbitration Law of the People’s Republic of China:

Where an arbitration agreement has not specified or has not specified clearly arbitration claims or the choice of an arbitration commission, the parties concerned may conclude a supplementary agreement. If a supplementary agreement cannot be reached, the arbitration agreement shall be void.

Case Description:

On May 26, 2015, Xin Huaxin Company signed a Cooperation Agreement (“Agreement”) with Chinese Time Company. In this Agreement, both Parties agree that: “Matters not mentioned herein shall be settled by the Parties through friendly consultations. If such consultations fail, any Party may choose the arbitration institution in the signing place of this Agreement for arbitration.” The signing place of this Agreement is not specified. Xin Huaxin Company and Chinese Time Company hold different opinions. Xin Huaxin Company holds that the Agreement is signed in Xi’an, while Chinese Time Company holds that the Agreement is signed in Beijing. Therefore, the applicant Xin Huaxin Company applies to the Second Intermediate People’s Court of Beijing for confirming the validity of the Agreement. The core dispute of this case [(2017) Jing 02 Min Te No. 38] is: The signing place of the Agreement is not clear, whether the Agreement is invalid.

Court’s View:

The Agreement between Xin Huaxin company and Chinese Time Company does not indicate the place where the contract was signed. During the review by the Court, both parties insisted on their claims without providing corresponding evidence to the court to prove their claims. Therefore, the Parties cannot reach an agreement. In this situation, it is impossible to determine the specific place for signing the Agreement, so the arbitration institution agreed upon by the two parties is unclear. Xinhua Xin’s claim on confirming the validity of the arbitration clause involved in this case has no factual and legal basis, so the Court does not support its claim.

The Second Intermediate People’s Court of Beijing ruled as follows: Rejected the application of Shanxi Xin Huaxin Estate Co., Ltd. 

The Intermediate People’s Court of Lianyungang, Jiangsu Province:

The arbitrator who has given advisory opinions on a case shall withdraw

Relevant Provisions:

Item 3 of Paragraph 1 of Article 58 of the Arbitration Law of the People’s Republic of China:

Where the parties concerned can provide evidence proving any of the following circumstances, they may request a cancellation of the arbitration award before an intermediate People’s Court at the place where the arbitration commission is located:

(3) the establishment of the arbitral tribunal or arbitration procedures are in contravention of legal proceedings;

Article 20 of the Interpretation of the Supreme People’s Court on Certain Issues relating to Application of the Arbitration Law of the People’s Republic of China:

The phrase “contravention of statutory procedures” as mentioned in Article 58 of the Arbitration Law shall mean the circumstances where the arbitration procedures contravene the provisions of the Arbitration Law and where arbitration rules selected by parties may affect the correct ruling of a case.

Case Description:

Lianyungang Arbitration Commission, in accordance with the arbitration clauses of the Agreement executed by and between Tianyi Company and Zhuge Chendong, accepted a case on auction contract dispute on July 19, 2012 with case No.: (2012) Lian Zhong Zi No.270. On August 9, 2012, Zhuge Chendong filed a counterclaim. On August 15, 2012, the Arbitration Commission decided to accept the case with Case No. (2012) Lian Zhong Zi No. 318 and notified the Parties to handle the case together with (2012) Lian Zhong Zi No. 270. On September 9, 2013, the Arbitration Commission convened an expert meeting and formed the Meeting Minutes, within which Zhu Zhouping expressed his opinion as one of the experts. On January 10, 2014, the Arbitration Commission rendered the Decision ((2012) Lian Zhong Jue Zi No.270 and No.318) to approve Tianyi Company and Zhuge Chendong respectively to withdraw their arbitration applications. In the arbitration case ((2016) Lian Zhong Zi No.0008), Zhu Zhouping, as an arbitrator, signed the Arbitrator Information Disclosure on May 4, 2016, without disclosing the information on his participation in the expert meeting on 2013 for the arbitration case as an expert. The core dispute of this case ((2016) Su 07 Min Te No.48) is: if the arbitrator has previously participated in the expert consultation for this case and given advisory opinions, does such situation constitute a legal basis for recusal?

Court’s View:

Zhu Zhouping, accepted the appointment as arbitrator of this case, clearly stated in the written Arbitrator Information Disclosure submitted by him that he had not provided consultation on this case in advance. However, in 2012, Tianyi Company submitted to Lianyungang Arbitration Commission for arbitration regarding the dispute over the auction contract, and Lianyungang Arbitration Commission accepted this Case. However, Lianyungang Arbitration Commission organized expert consultation for the relevant dispute of this case, and Zhu Zhouping attended the meeting and expressed opinions. Therefore, the consultation provided by Zhu Zhouping on the dispute in this case may affect the correct ruling of this case, which conforms to the circumstance as provided in Item 3, Paragraph 1 of Article 58 of the Arbitration Law of the People’s Republic of China, and shall be ruled to revoke the arbitral award.

The Intermediate People’s Court of Lianyungang ruled as follows: revoke the award ((2016) Lian Zhong Zi No.0008).

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

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