1、Chapter 1Introduction to International Commercial Arbitration Law,Prof. Zhao Xiuwen,Classification of the Methods for the Dispute Resolution,Judicial methodNon-judicial methodADR (Alternative dispute resolution)Arbitration as an independent dispute resolution,Classification of the Disputes-by subjec
2、t-matter,Sale of goodsSale of servicesInvestment disputes:both foreign direct and indirect disputesIntellectual property disputes,Classification of Disputes-by parties,Between different statesBetween state and nationals of other statesBetween nationals of different states,WTO DS,Disputes between WTO
3、 membersDSB under WTO RulesSettlement disputes in accordance with WTO Rules (DSU & Various Agreements),ICSID DS,Convention on the Settlement of Investment Disputes between States and Nationals of Other States,ICSID Jurisdiction,The jurisdiction of the Center shall extend to any legal dispute arising
4、 directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Center by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Center. When the part
5、ies have given their consent, no party may withdraw its consent unilaterally.,DS between Nationals of Different States,Judicial method:litigationNon-judicial method Alternative Dispute Resolution (ADR),Characteristics of ADR,Alternative by the parties consentLegal status of the resolution Applicatio
6、n of ADR,Expression of ADR,Negotiation Conciliation or mediationGood officesMini-trialJoint conciliation,Application of ADR,Applied independentlyCombination with litigation and arbitration,International Litigation,JurisdictionApplicable lawRecognition and enforcement of foreign judgment,Jurisdiction
7、 Determination,Territorial supremacy(属地优越权）Personal supremacy （属人优越权）Concurrent jurisdiction (并行管辖） BP Case,Parallel Litigation,Consent jurisdiction: forum shoppingExclusive jurisdiction,Litigation in National Courts,Few conventionsPrinciple rules on the jurisdiction v. national procedure lawDifficu
8、lt enforcement of foreign judgment due to lack of appropriate international convention,Enforcement of Foreign Judgment,Few international conventionsDomestic law & reciprocity,Arbitration,Voluntary method for the settlement of disputesBased on the arbitration agreement Binding force for the awardEnfo
9、rcement mechanism based on the New York Convention,Sources of International Arbitration Law,Domestic arbitration lawInternational legislation: bilateral judicial cooperation treaty, international convention, model law,New York Convention,Recognition and enforcement of arbitration agreement ;Recognit
10、ion and enforcement of foreign arbitral awards,Other International Documents,European Convention on International Commercial Arbitration;Geneva Conventions of 1923 and 1927World Bank Convention of 1965UNCITRAL Model Law on Intl Commercial Arbitration of 1985UNCITRAL Arbitration Rules,Principles of I
11、nternational Commercial Arbitration,Parties autonomyIndependent and impartial settlement disputes by the arbitral tribunalNational courts supervision on the arbitration,Chinas Intl Arbitration Law,Domestic arbitration lawBilateral judicial cooperation treaty and international convention to which Chi
12、na is a party,Arbitration Practices,Comparative studies on international commercial arbitration practicesInstitutional v. ad hocJudicial review in different countries,Main Topics,Arbitration institutionsInternational arbitration agreementArbitration tribunalArbitration proceduresThe law governing th
13、e arbitrationAward and remedies Court supervision,German Zueblin v. Wuxi Woco,22/12/00, two-page Agreement b/t the parties to construct a factory for Woco in Wuxi, Jiangsu Province, China;FIDIC Green Book General Terms and Conditions as Appendix incorporated by reference in the Agreement;Appendix: A
14、rbitration: 15.3ICC Rules, Shanghai shall apply.,Litigation in the Court,10/10/02，Woco sued Zueblin in the Wuxi District Court over the Construction Contract then changed to torts claims;Zueblin challenged the jurisdiction of the Court based on the Arbitration Clause;The District Ct. decided its jur
15、isdiction over the case, which was confirmed by the Wuxi Intermediate Ct. on 20/02/03.,Zueblin with ICC Arbitration,23/ 04/03, Zublin applied to ICC for arbitrating the dispute with Woco.10/11/03, ICC tribunal rendered preliminary award to confirm its jurisdiction under the applied ICC Rules.30/03/0
16、4, final award was made in Shanghai in favor of Zueblin.,Court Decision on the Validity of the Arbitration Agreement,29/04/03, Zueblin applied to Wuxi district Ct. for confirmation of the validity of the arbitration agreement.02/09/04, Court denied the validity of the arbitration clause after the Re
17、ply from the Supreme Court on 8 July 2004 through the Report system.,Chinese Courts Decision on Enforcement of the ICC Award,30/08/04, Zueblin applied to the Wuxi Intermediate Peoples Court for enforcement of the ICC Award.19/07/06, Wuxi Intermediate Peoples Court decided to refuse enforcement of th
18、e ICC Award due to invalid arbitration agreement under New York Convention.,References,国际商事仲裁法，21世纪国际法学系列教材，人大版，2004；国际商事仲裁案例解析，人大版，2005；国际商事仲裁法参考资料，人大版，2006。,Chapter 2Arbitration Institution,Ad hoc v. Instl Arbitration,Business place Administration staffRules of arbitrationPanel list,Function of In
19、stitution,Draft arbitration rules & supervision on the application of the RulesAdministration worksMaintain panel listPreliminary decision on the jurisdictionAssistance to the composition of the arbitration tribunalAppointment or withdraw of the appointment of the arbitrator,Advantages & Disadvantag
20、es,Efficiency Quality of worksArbitration feeEnforcement issues,Classification on the Institution,International based on intl conventionICSIDLocal registered in particular country,Local Arbitration Institutions,American Arbitration Association (AAA)London Court of International Arbitration (LCIA)Arb
21、itration Institute of the Stockholm Chamber of Commerce (SCC)China International Economic & Trade Arbitration Commission (CIETAC)Hong Kong International Arbitration Center (HKIAC),ICC in General,ICC 1919: NGOICC Arbitration Court 1923International Court of Arbitration (1998),ICC Rules,ICC Council195
22、5 Rules: jurisdiction rules1975 Rules: procedure rules application1998 Rules: application of the substantive law,ICC Arbitration,Arbitration rules Place of arbitrationLanguage usedSubstantive rulesNationality of the arbitrators,Unique Characteristics,Terms of referenceCourt review of the draft award
23、 before the official award sent to the parties,Model Arbitration Clause,All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the
24、said Rules.,Cases Relating to the Application of ICC Rules,Zublin CaseXiamen co. v. Taiwan co.Swiss co. v. Hainan co.,Xiamen co. v. Taiwan co.,Dispute settled by friendly consultation or subject to ICC arbitrationSupreme ct. replied in 1996 that ICC Ct. is the only institution to apply ICC RulesCt.
25、has no jurisdiction over the case,Swiss co. v. Hainan co.,Dispute settled in accordance with ICC Rules in London Supreme ct. replied in 1996 that the arbitration clause is invalid due to lack of definite arbitration institution. The court has jurisdiction over the case.,Zurich Chamber of Commerce,Ba
26、sic facts （P.32-33)Arbitration clause?Is there an international trade arbitration organization in Zurich?Whether Zurich Chamber of Commerce to which the claimant brought the case is specially named in the arbitration clause?,德国奥特克案（4752页）,案情租船合同中的仲裁条款？临时仲裁还是机构仲裁？裁决在我国的承认与执行？,中化公司案（63-65页）,买卖合同及仲裁条款仲
27、裁机构的约定是否明确？,Arbitration Institution in China,Before arbitration law in 1995Commercial arbitration after 1995Any ad hoc arbitration in China?,Provision of the Arbitration Law on the Arbitration Institution,Arbitration Commission（Art.10-13）Arbitration agreement must include the definite arbitration in
28、stitution (Art.16)Supplementary agreement needed if no arbitration institution in the agreement, otherwise invalid(Art.18）,Judicial Interpretation by the Supreme Court in 2006,Implement on Sept. 8, 2006 (31 Arts.)Art. 3、4、5、6、7 deal with the arbitration institutionsUnclear provision on the instituti
29、onArbitration Rules may decide,CIETAC Arbitration,FTAC 1954FETAC 1980CIETAC 1988CIETAC South China Sub-Commission (Shenzhen Branch)CIETAC Shanghai Sub-Commission,CIETAC Rules,1956 FTAC provisional rules1988 CIETAC Rules1994 CIETAC Rules1995 CIETAC Rules1998 CIETAC Rules2000 CIETAC Rules2005 CIETAC R
30、ules,Other Arbitration Commissions in China,Independent InstitutionsIndependent each otherIndependent panelIndependent arbitration rulesIndependent management,06司法解释第3条,仲裁协议约定的仲裁机构名称不准确，但能够确定具体的仲裁机构的，应当认定选定了仲裁机构。例如在西安仲裁，而西安只有一个仲裁委员会在北京或者上海、深圳仲裁？,06司法解释第4条,仲裁协议仅约定纠纷适用的仲裁规则的，视为未约定仲裁机构，但当事人达成补充协议或者按照约定
31、的仲裁规则能够确定仲裁机构的除外。适用什么样的仲裁规则？规则由谁制定？为什么制定？是否应当具体情况具体分析？,06司法解释第5条,协议约定两个以上仲裁机构的，当事人可协议选择其中的一个仲裁机构；当事人不能就仲裁机构达成一致的，仲裁协议无效。,06司法解释第6条,仲裁协议约定由某地的仲裁机构仲裁且该地仅有一个仲裁机构的，当事人可以协议选择其中的一个仲裁机构申请仲裁；当事人不能就仲裁机构达成一致的，仲裁协议无效。,06司法解释第7条,当事人约定可以向仲裁机构申请仲裁也可以向人民法院起诉的，仲裁协议无效。但一方向仲裁机构申请仲裁，另一方未在仲裁法第20条第二款规定期间内（仲裁庭首次开庭前）提出异议的
32、除外。,Chapter 3Arbitration Agreement,Definition and Forms,Agreement between the parties to submit their dispute for the settlement by arbitrationSubmission to arbitrationArbitration clause in a contract,Content （CAL,Art.16),Intention of both parties to settlement their dispute by arbitrationMatters to
33、 be arbitratedDefinite arbitration institution，excluding ad hoc commercial arbitration tribunal,Matters to be arbitrated,Art. 2 of the Judicial Interpretation: Contract disputes refers to the formation, validity, amendment, assignment, performance, liabilities for the breach, interpretation, termina
34、tion of the contract.,Written Form,Judicial interpretation（Art.1): apart from the contract, it could be expressed in the form of telegraph, telex, EDI, email, etc.,Void Arbitration Agreement,CAL:Article 17 if an agreed arbitrable matter exceeds the scope of arbitrable matters（Art.2,3 CAL) as specifi
35、ed by law;if a party that concluded the arbitration agreement has no capacity for civil acts or has limited capacity for civil acts; orif one party coerced the other party into concluding the arbitration agreement.,Art. 7 of the Jud. Interpr. on Invalid arbitration agreement,The parties agreed eithe
36、r 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 dec
37、ide （CAL20),If a party challenges the validity of the arbitration agreement, he may request an arbitration commission to make a decision or a Peoples Court to give a ruling. If one party requests an arbitration commission to make a decision and the other party requests a Peoples Court to give a ruli
38、ng, the Peoples Court shall give a ruling.A partys 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 arb. Agreement,Intermediate peoples court where the agreed arb. Commission locat
39、ed;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 partiesSeat of arbitration if anyLaw of the national courtIn agreement with Art.5(1
40、)(a) New York Convention,ICC Model Arb. Clause,All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.,ICC recommend
41、s the following clause for arbitrations seated in Mainland China after Zueblin,All disputes arising out of or in connection with the present contract shall be finally settled by ICC Court of International Arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or m
42、ore arbitrators appointed in accordance with the said Rules.http:/www.iccwbo.org/uploadedFiles/Court/Arbitration/other/mc_arb_chinese(1).doc,AAA Model Arb. Clause,Any controversy or claim arising out of or relating to this contract shall be determined by arbitration in accordance with the Internatio
43、nal Arbitration Rules of the American Arbitration Association.,The Doctrine of Separability of the Arb. Clause,An arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract i
44、s null and void shall not entail ipso jure (L. 依法律）the invalidity of the arbitration clause.,Art. 16 UNCITRAL Model Law,The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.,Harbour Assurance Case （76-
45、）,UK Case b/w British co. and Finland co. over reinsurance contractThe contract was void without permission from the British authorityThe invalidity of the main contract does not impeach the validity of the arbitration clause.,Art. 19 of CAL,Arbitration agreements shall exist independently. The amen
46、dment, rescission, termination or invalidity of a contract shall not affect the effectiveness of the arbitration agreement.,Guangdong Huizhou JV Case,JV K between Chinese co. and HK co.Arbitration clause in the KDispute before the approval the contract by the authorityHuizhou Intermediate Ct. ruled
47、on its jurisdiction due to invalidity of the KDecision overruled by the Higher Ct.,Jiangsu co. v. HK and Canadian co. in 1998,Import used electronic machines K with arbitration clauseJiangsu co. applied to the ct. due to fraud contractHK and Canadian co. challenged the ct. jurisdictionThe Supreme Ct
48、. replied that the Ct. has no jurisdiction over the case,Judicial Interpretation (Art.10),The arbitration agreement is valid after it is formed but failed came into force or it is revoked.,Heyman v. Darwins ,1942,FactsDisputeJudgment by the basic ct.Decision by the ct. of appealDecision by the House
49、 of Lords,Assignment of Arb. Clause,Whether the assignee is bound by the arbitration clause in the assigned contract?,Filanto v. Chilewich （85-89）,Sales K between Chilewich and Russian co. for the supply of footwaresChilewich sent order with the same terms to Filanto, including arb. in Mosccow; Letter of credit opened by Chilewich w/o reply from Filanto Filanto challenged the arb. Clause,
