China: 刍议仲裁当事人意思自治原则与仲裁机构管理权的冲突与界限

Last Updated: 25 November 2019
Article by Yan Shujing
Most Read Contributor in China, November 2019

——从对SIAC所作仲裁裁决(来宝公司案)的不予承认与执行谈起

一、引子:SIAC所作的来宝公司案仲裁裁决被中国法院裁定不予承认和执行

2017年8月11日,上海市第一中级人民法院(下称"上海一中院")以(2016)沪01协外认1号《民事裁定书》,裁定不予承认与执行新加坡国际仲裁中心(下称"SIAC")适用快速程序作出的2015年005号仲裁裁决书。该裁定结果,引发仲裁业界的关注和讨论。

上海一中院不予承认该仲裁裁决的理由如下:

"本案双方当事人已在仲裁条款中明确约定应由三名仲裁员组成仲裁庭,且未排除该组成方式在仲裁"快速程序"中的适用,SIAC2013年第五版仲裁规则亦未排除"快速程序"中适用其它的仲裁庭组成方式。SIAC2013年第五版仲裁规则第5.2条(b)项所规定的"主席另有决定的除外"不应解释为新加坡国际仲裁中心主席对仲裁庭的组成方式享有任意决定权;相反,在其行使决定权时应当充分尊重当事人关于仲裁庭组成方式的合意,保障当事人的意思自治。

SIAC在仲裁条款约定仲裁庭由三名仲裁员组成且信泰公司(仲裁被申请人)明确反对独任仲裁的情况下,仍然依据仲裁规则之规定决定采取独任仲裁员的组成方式,违反了案涉仲裁条款的约定,属于《纽约公约》第五条第一款(丁)项所规定的"仲裁机关之组成或仲裁程序与各造间之协议不符"的情形。"

研读上海一中院的民事裁定书,结合法院查明事实、梳理SIAC决定不采三人仲裁庭而适用快速程序/独任仲裁员的过程,笔者认为,该案对探讨仲裁当事人意思自治原则与仲裁机构管理权(及仲裁庭管辖权)的冲突与界限问题具有启发意义。

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