新闻公告

您现在的位置:  首页 > 新闻公告 > 新闻动态

中欧仲裁的最新发展:中欧争议解决研讨会实录(四)

2016-07-20 14:05:49     来源:     

编者按:2016年6月18日,由深圳国际仲裁院(又名“华南国际经济贸易仲裁委员会”,英文简称“SCIA”)和瑞士仲裁协会(英文简称“ASA”)共同主办的“中欧争议解决研讨会暨中欧国际仲裁合作签约仪式”在深圳前海举行。SCIA与ASA等机构签署了合作协议,将加强多元化争议解决机制的创新和交流。活动还得到深圳市律协、瑞士驻广州总领事馆、中国欧盟商会、瑞士商会仲裁院(英文简称“SCAI”)等机构的大力支持。来自瑞士、法国、德国、英国、加拿大、美国、香港和中国内地的境内外专家和专业人士共200余人参加了本次活动并对中欧国际仲裁相关问题进行了深入探讨。本微信公众号将陆续推出研讨会的英文实录稿。  

 

 

LATEST DEVELOPMENT OF CHINESE AND EUROPEAN ARBITRATION: 

THE TRANSCRIPTIONS OF SINO-EUROPEAN DISPUTE RESOLUTION SEMINAR (IV)

中欧仲裁的最新发展 

—— 中欧争议解决研讨会实录(四)

 


7. The Speech by Ms. Mariana Zhong, Senior Associate at Dechert LLP, Beijing

 

 

Good morning, ladies and gentlemen. I'm very honored to be here today. I would like to thank SCIA and ASA for giving me this great opportunity to speak on the new development of arbitration from a China perspective.

 

Today, I will first briefly comment on the general trends and development. I will then come to talk about specific issues relating to the new rep offices in China which everyone is talking about. I will also talk about a new development relating to arbitrating Chinese disputes abroad, and enforcement of foreign arbitral awards in China.

 

First of all, about the general trends of development, arbitration in China in recent years has shown at least two general trends. First is a trend of internatinalization, which is a process comprised of localization of international practice, as well as the involvement of Chinese practice towards international standards and norms. This process itself can be evidenced by, for instance, the establishment of the new rep offices in Shanghai, and more Chinese parties willing to submit arbitration to foreign arbitration institutions, and as Dr. Liu mentioned, more foreign parties willing to arbitrate in China.

 

The second trend is a progressing improvement of judicial support, of judicial attitude towards international arbitration. This is a progressive improvement generally from judicial intervention to judicial support, from anti-arbitration to pro-arbitration, and there are policy reasons behind this change, because China wants to develop itself into a regional and international arbitration center. So it's quite necessary to contemplate a friendly arbitration environment.

 

 

This slide shows that in recent years, there are more and more cases involving Chinese parties submitting to ICC. There is a steady growth.

 

About the new rep offices in China, everyone knows in the past year there are three foreign arbitration institutions establishing new offices in Shanghai, and for now, due to the limitation, they cannot directly accept or administer cases in China, and their roles are basically limited to communication, facilitation and promotion of international arbitration practices.

 

However, many are quite optimistic about the prospects, because this is the first step of exploring Chinese markets. So we are wondering whether there will be more foreign arbitration institutions in China in the near future.

 

About arbitrating Chinese disputes abroad. As we know,under Chinese law, parties to a foreign-related contract could submit a dispute it a foreign arbitration institution. What about parties to a domestic contract?

 

The law is silent. Obviously the court dealing with the case of Chao Lai Xin Sheng v. Suo Wang Zhi Xin believes that they cannot. The answer is no. And thisis still adhered to by most judiciaries these days. In this case, the parties are Chinese-registered. The respondent is wholly owned by a Korean citizen. And the clause provides for arbitration by the Korean Arbitration Board, and the court enforcing the award held that this arbitration clause is invalid, because there's no foreign element, and the parties cannot submit to the Korean Arbitration Board.

 

Of course, this court decision has been criticized for not respecting party autonomy, but what I want to discuss here today is how to find foreign elements in a specific case. There are several rules and guidelines involved, and for time's sake, I will not expand. But there have been several new progresses in a recent two cases where the Chinese courts have adopted a more expansive approach in finding foreign elements.

 

The first case is Ninbo Xinhui. Again, Chinese parties, sales of goods contract. Place of delivery is in Shanghai Free Trade Zone. They obtained a foreign awardas to foreign-related proceedings. The respondent challenged this proceeding, because there is no foreign element. And the Beijing court found that there is indeed foreign element, because the goods were actually delivered in the Free Trade Zone, and before clearing customs, the goods were located outside China.

 

Another case which is even more progressive is Golden Landmark v Siemens International. These two parties are registered in China. You can see that they're owned by foreign investors. They obtained an award from the Singapore International Arbitration Center, and the claimant argued att he arbitration clause is invalid because there is no foreign element. And Siemens argued that there is indeed foreign element, because Siemens itself is a foreign invested entity, and the goods were located outside China before it came into China. And alternatively, Siemens argued that even if there is no foreign element, it does not say that Chinese parties cannot submit their dispute to a foreign arbitration institution.The court held that again, Chinese parties cannot submit their pure domestic case to a foreign arbitration institution. However, the court continued to say that there is indeed argument. The court reasons that, first, the parties involved foreign elements, judging from the source of the capital, the process of their operation, decision-making, the benefiting parties, and the place of registration, because Siemens is registered in Shanghai Free Trade Zone. And also, judging from the circulation of the goods, the goods are imported into China. Therefore, based on those two factors, the court found that there is a foreign element and the arbitration clause is valid, the award should be fully enforced.

 

What is the take-away from these two cases? It's that now the Chinese courts are taking a more expansive and liberal approach in finding foreign elements, and it is likely to find a foreign element in the Chinese subsidiary of a foreign investor.

 

About enforcements of foreign arbitral awards in China, there has been some progress. Recently in a case, the Supreme People's Court clearly distinguished article 5.1 and article 5.2 of the New York Convention, and the Supreme People's Court reasoned that only for public policy ground under article 5.2 could the Chinese court apply ex officio, and for all the other grounds under article 5.1, they have to be applied per parties' application.

 

The Supreme People's Court also held the view that the court will not enforce a foreign award if the award has been annulled, its seat, and the Chinese court shall have the discretion to suspend the enforcing proceedings if there is an ongoing set-aside proceedings.

 

 

This slide shows the recent events going on. It is not exhaustive, but it includes, for instance, the establishment of the arbitration center across the Straits and the promulgation of its arbitration rules. This is just for your reference. I will not expand.

 


These are ongoing discussions, interesting topics considered by the SPC and also topics discussed among arbitration practitioners which we can discuss after the conference. Thank you very much.