国际商事仲裁法教学大纲.doc

INTERNATIONAL COMMERCIAL ARBITRATION LAW OUTLINE 国国际际商商事事仲仲裁裁法法教教学学大大纲纲 CHAPTER 1 GENERAL INTRODUCTION OF INTERNATIONAL COMMERCIAL ARBITRATION LAW 第一章第一章 导论导论 课时 2 本章的教学目的是要求学生理解并掌握国际商事仲裁的起源与发展 国际商事仲裁法 的概念 性质和法律渊源 以及我国国际仲裁法的主要内容 Section 1 Arbitration and Other Methods for the Settlement of Dispute Origin and development of arbitration Nature and characteristics of arbitration Relationship between arbitration and other methods for the settlement of dispute Arbitration law governing arbitration Section 2 International Commercial Arbitration Law Origin and development of international commercial arbitration law Parties for the international commercial arbitration law Subject matters of the international commercial arbitration law relationship between the parties under the arbitration agreement relationship between the arbitration institution arbitration tribunal and the parties national courts supervision on the international commercial arbitration law Sources of international commercial arbitration law Domestic arbitration law International legislation bilateral judicial cooperation treaty international convention model law Section 3 Basic Principles of International Commercial Arbitration Law Parties autonomy Independent and impartial settlement disputes by the arbitral tribunal National courts supervision on the arbitration Section 4 International Commercial Arbitration Law in China Domestic arbitration law Bilateral judicial cooperation treaty and international convention to which China is a party Section 5 Construction of the Course Arbitration institutions International arbitration agreement Arbitration tribunal Arbitration procedures The law governing the arbitration Award and remedies Court supervision Case Study German Zueblin v Wuxi Woco CHAPTER 2 INTERNATIONAL COMMERCIAL ARBITRATION INSTITUTIONS 第第二二章章 国际商事仲裁机构国际商事仲裁机构 课时 4 本章的教学目的是要求学生理解并掌握临时仲裁机构与常设仲裁机构之间的区别 常 设仲裁机构在通过仲裁解决争议中的作用 主要的国际商事仲裁机构 以及我国现行 国际仲裁制度 仲裁委员会及其作用 Section 1 General Introduction Ad hoc v Inst l Arbitration Business place Administration staff Rules of arbitration Panel list Permanent arbitration institutions set in the State set by international conventions Section 2 Functions of Institutional Arbitration Draft arbitration rules if a party that concluded the arbitration agreement has no capacity for civil acts or has limited capacity for civil acts or if one party coerced the other party into concluding the arbitration agreement Art 7 of the Judicial Interpretation on Invalid arbitration agreement The parties agreed either arbitration or litigation Unless one party applied for arbitration the other party failed to challenge of the validity of the arbitration agreement prior to the first hearing of the arbitration tribunal The parties failed to reach agreement on a definite arbitration institution Authority to decide the validity of the Arbitration Agreement CAL20 If a party challenges the validity of the arbitration agreement he may request an arbitration commission to make a decision or a People s Court to give a ruling If one party requests an arbitration commission to make a decision and the other party requests a People s Court to give a ruling the People s Court shall give a ruling A party s challenge of the validity of the arbitration agreement shall be raised prior to the first hearing of the arbitration tribunal Competent Court to decide validity of the Arbitration Agreement in the PRC Intermediate people s court where the agreed arb Commission located in case of no agreed definite arbitration commission where the agreement was signed or the parties domicile or place of business located Applicable Law for decision Judicial interpretation Art 16 Agreed by the parties Seat of arbitration if any Law of the national court In agreement with Art 5 1 a New York Convention Assignment of the Arbitration Agreement Al brought lawsuit for damages to the cargo Diakan applied for stay the action for arbitration and apply for unpaid charter hire Arbitrated by sole arbitrator in favor of Diakan with default award Diakan applied for enforcement in US Court Section 2 Jurisdiction of the Arbitral Tribunal Tribunal s Authority To decide its own jurisdiction based on the competence competence doctrine To render an award Competence Competence Doctrine 仲裁庭自裁管辖原则 仲裁庭自裁管辖原则 The arbitral tribunal may rule on its own jurisdiction including any objections with respect to the existence or validity of the arbitration agreement Art 16 UNCITRAL Model Law The doctrine is universally recognized by the national legislation and arbitration rules Section 3 Rights and Obligations of the Arbitral Tribunal Qualification of the Arbitrators In general Panel system compulsory or elective IBA Ethics for Int l Arbitrators International arbitrators should be impartial independent competent diligent and discreet Disclose all facts or circumstances that may give rise to justifiable doubts as to his impartiality or independence IBA Duty of Disclosure 4 Past or present business relationship Nature and duration of any substantial social relationship with any party Nature of any previous relationship with any fellow arbitrator Extent of any prior knowledge of the dispute Extent of any commitments which may affect his availability to perform his duties Disclosure duty throughout the proceedings In writing and communicated to all parties and arbitrators Case for Failure in Disclosure Finish Supreme Court Case in 2005 Civil liability for the failure in disclosure private relationship with the party by the chairman of the arbitral tribunal Stockholm International Arbitration Review 2007 1 117 127 Section 4 Chinese Legislation and Practices on the Composition of the Arbitral Tribunal and its Authority Qualification being an arbitrator in China Art 13 CAL righteous upright persons at least one of the following item required engaged in arbitration work for at least eight years as a lawyer for at least eight years as a judge for at least eight years 2004 amended engaged in legal research or education and to have a senior title or have legal knowledge to be engaged professionally in fields such as economic relations and trade etc and to have a senior title or attained an equivalent professional level Panel System in the PRC CAL Art 11 4 commission should have appointed arbitrators Each arbitration commission keep its own panel list Composition of the tribunal Appointment by the parties Appointment of the permanent arbitration institution including ad hoc Appointment by the court in other countries Jurisdiction of the Tribunal Decides its own jurisdiction in accordance with competence competence doctrine Trial the dispute and make an award in accordance with the applied arbitration rules and law Challenge to the Arbitrators in the PRC CAL Art 34 as a party in the case or a close relative of a party or of an agent in the case has a material interest in the case has another relationship with a party or agent in the case which may affect the impartiality of the arbitration or privately met with a party or agent or accepted an invitation or gift from a party or agent case for Tianjin Requesting party could be reasonably successful Tribunal considered appropriate Section 3 Interim Measures of Protection in Some other States Court ordered IM A court shall have the same power of issuing an interim measure in relation to arbitration proceedings irrespective of whether their place is in the territory of this State as it has in relation to proceedings in courts The court shall exercise such power in accordance with its own procedures in consideration of the specific features of int l arbitration Sundaram v NEPC 教科书第 教科书第 214 页 页 Yearbk Comm Arbitration 1999 Hire purchase agreement NEPC delayed in payment Apply to the court to take custody of the generators Whether IMP could be taken before arbitration procedure Section 4 Legislation and practices in the PRC 民诉法民诉法 Art 256 of CPL 2007 If a party has applied for property preservation measures the arbitral commission of the PRC handling cases involving foreign element shall refer the party s application for a decision to the intermediate people s court where the party against whom the application is made has his domicile or where his property is located Art 46 Arbitration Law Under circumstances where evidence may be destroyed or lost or be difficult to obtain later a party may apply for interim measures of protection of evidence If a party applies for interim measures of protection of evidence the arbitration commission shall submit his application to the basic level People s Court of the place where the evidence is located Practices in China Provisional Rules of FTAC 15 Art 13 of CPL 试行 1982 1988 Rules to confirm with CPL Art 258 of CPL 1991 Art 256 2007 临时性保全措施的发布与执行临时性保全措施的发布与执行 当事人将保全措施的申请提交仲裁委员会 仲裁委员会将此申请提交相关法院 法院依法做出裁定并予以执行 国际上的做法 中国政府向联合国国际贸易法委员会提交的意见中国政府向联合国国际贸易法委员会提交的意见 中国法律并没有赋予仲裁庭作出有关保全措施的权力 也未赋予仲裁庭命令采取临时 措施和初步命令的权力 因此现有案文与中国民事诉讼法 仲裁法的相关规定不符 我国法院缺乏承认与执行外国仲裁庭作出的临时措施 初步命令的法律依据 CHAPTER 7 INTERNATIONAL COMMERCIAL ARBITRATION PROCEDURE 第七章第七章 国际商事仲裁程序国际商事仲裁程序 课时 4 本章的教学目的是要求学生理解并掌握国际商事仲裁程序的基本概念 如何撰写仲裁 申请书 答辩书和反诉书 国际商事仲裁规则及其适用 仲裁规则与仲裁法之间的联 系与区别 仲裁程序的适用法律 仲裁地点在国际商事仲裁中的作用 非内国仲裁的 理论与实践 以及我国相关立法与实践 Section 1 General Introduction 仲裁程序的主要内容 仲裁程序的主要内容 Contents How the arbitration is to be carried out How to initiate the arbitration How to compose the arbitration tribunal How the merits of the case are tried How to render the Award Decided by the applied ARBITRATION RULES in particular case Arbitration Rules v Law Purpose performing v regulating mode of application binding force Section 2 International Commercial Arbitration Rules and their Application Statement of Claim 仲裁申请书 仲裁申请书 Names and addresses of the parties Statement of the facts supporting the claim Points at issue Relief or remedy sought Statement of Defense 仲裁答辩书或者反请求书 仲裁答辩书或者反请求书 Parties Facts Merits Reliefs Composition of Tribunal Sole arbitrator tribunal Two arbitrators plus an umpire tribunal Three arbitrators tribunal R A Sally Fin v S R L Termarea Italy 455 C P between Sally and Termarea Arbitration clause Demurage claim from Sally Award by two chosen arbitrators Refusing enforcement by the Italian court due to improper composition of the tribunal Trial of the case Terms of reference Place of arbitration Method of trial Award rendered Section 3 Applicable Law to the International Commercial Arbitration Basic Principles to decide the applicable law for the arbitration procedure 主观原则 Parties autonomy 当事人意思自治原则 客观原则 the law of the legal place of arbitration Mandatory provisions Legal Place of arbitration seat The Seat or Legal Place of the arbitration where the award was made The place where the case is to be hard The place where the tribunal deliberate the case Difference and similarities Determination of the seat Determination of the seat By the applied arbitration rules or law By Parties autonomy By the arbitration institution or the tribunal Whether the place of arbitration is the very location of the institution Union of India v Mcdonell Douglas Corporation 269 Indian Arbitration Act of 1940 or any reenactment or modification thereof The seat of arbitration proceedings shall be London What is the law governing the arbitration proceedings Section 4 Delocalized Arbitration Cases on Delocalized Arbitration International arbitration has no real relation with the local legal order Gotaverken 瑞典造船厂 v Libyan General National Maritime Transport SEEE v Yugoslavia 法国和瑞士均拒绝对在其境内作出的裁决行使撤销裁决监督权 Chromalloy Aeroservices Inc v MOD of the Republic of Egypt K to provide maintenance and support fro a fleet of Sea King Commando helicopters for four years Egypt party terminated one year before Chromalloy refused to accept the notification of the cancellation of the K Section 5 Legislation and Practices in the PRC Practices in China Arbitration legislation relating to arbitration procedure Arbitration rules of the arbitration commissions Conciliation in the arbitration proceedings Practices in China Arbitration legislation relating to arbitration procedure Arbitration rules of the arbitration commissions Conciliation in the arbitration proceedings CHAPTER 8 EVIDENCE IN INTERNATIONAL COMMERCIAL ARBITRATION 第七章第七章 国际商事仲裁证据国际商事仲裁证据 课时 2 本章的教学目的是要求学生理解并掌握国际商事仲裁证据规则及其基本形式 国际商 事仲裁证据的获取及其认定 以及我国相关立法与实践 Section 1 General Introduction Significance of Evidence Basic for finding out the facts Basic for determination of the liabilities Basic for rendering impartial and independent award 诉讼证据与仲裁证据诉讼证据与仲裁证据 诉讼证据规则 仲裁证据规则 举证原则 证据认定原则 Section 2 Forms of Evidence Documents Writings of any kind whether recorded on paper electronic means audio or visual recordings or any other mechanical or electronic means of storing or recording information Evidentiary Hearing Any hearing whether or not held on consecutive days at which the arbitral tribunal receives oral evidence Witnesses of Fact Any party may present evidence as a witness including a party or a party s officer employee or other representative The arbitral tribunal may order any party to provide the appearance for testimony at an evidentiary hearing of any person Expert Evidence Party appointed expert an expert witness presented by a party for specific matters Tribunal appointed expert Expert report Section 3 Taking Evidence and its Confirmation On Site Inspection The arbitral tribunal at the request of a party or on its own motion inspect or require the inspection by a tribunal appointed expert of any site property machinery or any other goods or process or documents as it deems appropriate Admissibility and Assessment of Evidence The arbitral tribunal shall determine the admissibility relevance materiality and weight of the evidence Section 4 The Chinese Legislation and Practices on the Evidence Rules ChineseChinese LegislationLegislation Applicable law under which the award is made Other criteria 仲裁员国籍 匈牙利 裁决书签字地 仲裁机构所在地 Section 3 Revocation of the Int l Commercial Arbitral Award by National Court Conditions for set aside General principle procedure issues instead of merits of the case Conditions for setting aside Invalid arbitration agreement Lack of due procedure Tribunal beyond authority Impropriate composition of the tribunal Non arbitrability of the dispute Award in conflict with the public policy Section 4 Revocation of the Int l Arbitral Award by the Chinese Court Chinese Practices Domestic awards 国内裁决 Foreign related awards FRA 涉外裁决 Foreign awards 外国裁决 Grounds for Vacating Tribunal beyond the authority Tribunal improperly composed Evidence on which the award is based was forged Party s withhold evidence sufficient to affect the impartiality of the arbitration or Arbitrator s demanded or accepted bribes award made that perverted the law Competent Court for Revocation of international awards Intermediate People s Court where the place of business of the Arbitration Commission is located CHAPTER 11 RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS 第十一章第十一章 外国仲裁裁决的承认与执行外国仲裁裁决的承认与执行 课时 4 本章的教学目的是要求学生理解并掌握外国仲裁裁决的含义及其认定 本国裁决与外 国裁决的区分 拒绝承认与执行外国仲裁裁决的理由 仲裁裁决被撤销后的承认与执 行 以及我国相关立法与实践 Section 1 Definition of Foreign Awards Territoriality of the New York Convention NYC Art 1 1 This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought Scope of Application of NYC Foreign awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought Awards not considered as domestic awards in the State where their recognition and enforcement are sought Section 2 Basis for the Recognition and Enforcement of Foreign Arbitral Awards New York Convention National Law Section 3 Recognition and Enforcement of Foreign Arbitral Awards Grounds Refusing Enforcement of Foreign Arbitral Awards No arbitration agreement Lack of due process Improper composition of tribunal Tribunal beyond authority Burden of proof by respondent Arbitrability issues and public policy Section 4 Chinese Legislation and Practices China NYC China acceded NYC in 1987 with the following two reservations reciprocal reservation 互惠保留声明