China: Public Policy Strikes Again (Chinese)

Last Updated: 3 February 2017
Article by Richard Bell

简介

Wicor Holding AG、泰州浩普投资有限公司等申请承认与执行法院判决、仲裁裁决案件、仲裁程序案件案, (2015)泰中商仲审字第00004号 (2016年6月2日),(江苏省泰州市中级人民法院)

在近期的一个案件中,以不损害中华人民共和国的"社会公共利益"为由,江苏省泰州市中级人民法院(以下简称"泰州法院")拒绝执行国际商会仲裁院的一项裁决。这是近期第二起中国内地法院基于《内地与香港特别行政区相互执行仲裁裁决的安排》(以下简称《安排》)第7条关于公共政策例外的规定拒绝执行境外仲裁裁决的案件。

事实背景

案涉争议源于一家中国公司泰州浩普投资有限公司(以下简称"泰州投资")和一家瑞士公司Wicor Holding AG(以下简称"Wicor")之间签订的中外合资合同。

案涉合同约定准据法为中国法,约定仲裁适用国际商会仲裁院仲裁规则(以下简称"仲裁协议"),但仲裁协议中未明确约定仲裁机构。在审理双方另一关联案件中,江苏省高级人民法院裁定,由于未明确仲裁机构,仲裁协议无效(2012苏商外辖终字第0012号民事裁定, 2012年12月11日)。

其后,双方因上述中外合资合同产生了纠纷,Wicor于2011年在香港向国际商会仲裁院提起仲裁。据此,国际商会仲裁院于2014年7月18日作出了终局裁决,并于2014年11月27日作了补充(以下简称"裁决")。

Wicor随后向泰州市人民法院申请执行上述裁决。泰州投资辩称,案涉仲裁协议在裁决作出的19个月前就已经被裁定为无效,而国际商会仲裁院无视中国法院作出的生效裁定而认定仲裁协议有效,违反了中华人民共和国的司法主权。因此,若泰州市人民法院执行该裁决将有悖于中华人民共和国的公共政策。

法律背景

根据中华人民共和国法律,人民法院应当根据上述《安排》决定是否承认和执行在香港作出的仲裁裁决。《安排》第7条规定了不予承认和执行的情形,其首段和末段表述如下:

"在内地或者香港特区申请执行的仲裁裁决,被申请人接到通知后,提出证据证明有下列情形之一的,经审查核实,有关法院可裁定不予执行:

内地法院认定在内地执行该仲裁裁决违反内地社会公共利益,或者香港特区法院决定在香港特区执行该仲裁裁决违反香港特区的公共政策,则可不予执行该裁决。"

第7条所称的"公共政策"的定义十分宽泛,涵盖了诸多事宜。在本案之前,第一起也是唯一一起基于公共政策例外而做出相同拒绝执行裁定的案件是"Henofarm"案。济南市人民法院拒绝执行国际商会仲裁院作出的一项仲裁裁决,因该仲裁裁决裁定被申请人向中国法院申请财产保全不合法且其向中国法院提起的相关诉讼违反合同条款。

因此,基于已经被认定无效在先的仲裁协议作出的一项仲裁裁决是否有悖于中华人民共和国的公共政策引起了争议。尽管仲裁协议在中国法下无效,但是根据上述安排第7条,仲裁协议的效力应当根据仲裁裁决作出地,即香港的法律进行认定。

判决

2016年6月2日,泰州市人民法院裁定拒绝执行上述仲裁裁决。

泰州市人民法院承认上述裁决是国际商会仲裁院在香港作出的,且应当根据《安排》的有关规定承认该仲裁裁决。

然而,鉴于仲裁协议已经在作出裁决之前被认定为无效,执行相关裁决将与中华人民共和国的公共政策发生直接冲突并有悖于中华人民共和国的"社会公共利益"。

提示

Wicor一案的判决强调了境外公司在同中国公司签订合同时,确保仲裁协议在中国法下有效的重要性,尤其是当合同具有涉外因素时。

尽管中国法院对于承认境外作出的仲裁裁决有着较为良好的记录,但Wicor案的判决证明,若仲裁裁决同中国法律相违背,中国法院将毫不犹豫地适用公共政策例外的有关规定。即使有关仲裁裁决在仲裁地有效也是如此。

因此,法律顾问和当事人都应当确保在合同签订前慎重考虑仲裁条款在中国法下是否有效。

Public Policy Strikes Again (Chinese)

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