China: Enforcement Of Arbitral Awards In China – A Ray Of Light? (Chinese)

Last Updated: 13 April 2017
Article by Richard Bell

恩尼德案判决分析:首例在中国大陆被承认与执行的贸仲委香港分会仲裁裁决

简介

恩尼德建筑师事务所诉富力南京地产开发有限公司仲裁裁决案, (2016)苏01认港1号 (2016年12月13日),(江苏省南京市中级人民法院)

2012年9月,中国规模最大,历史最悠久的仲裁机构——中国际经济贸易仲裁委员会(以下简称"贸仲委")在香港设立了分支机构(以下简称"贸仲委香港分会")。该分支机构旨在进一步彰显贸仲委的国际形象,使当事人能够在香港就与香港有关的涉华争端进行仲裁。

在近期的一个案件中,江苏省南京市中级人民法院(以下简称 "南京法院")裁定执行贸仲委香港分会的一项裁决。这是第一起中国内地法院根据《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》),裁定执行贸仲委香港分会仲裁裁决的案件。本文主要对该案进行讨论,并就针对中方执行合同权利的重要性进行探讨。

事实背景

2015年,美国的恩尼德建筑师事务所(以下简称"恩尼德"),就其与中国的富力南京地产开发有限公司(以下简称"富力南京")之间的纠纷,向贸仲委香港分会提请仲裁,追讨两个设计合同项下富力南京未支付的设计费及相应利息。

庭审于2015年8月25日在香港进行。仲裁庭于2015年11月28日作出了终局仲裁裁决(简称"裁决")。该裁决支持了恩尼德的主张,判令富力南京立即向恩尼德支付拖欠的设计费、相应利息及仲裁费。富力南京向恩尼德支付了设计费和仲裁费。就利息部分(人民币851,438.59元),双方另行达成和解协议,约定如果富力南京在2016年5月31日前付款,则恩尼德接受以60万元人民币作为全部和解款。和解协议约定,如果富力南京未能在上述日期前按时付款,则恩尼德将有权向富力南京追讨仲裁裁决判定的全部未付利息。富力南京未能在上述约定的日期前支付和解款,恩尼德遂向南京法院申请执行仲裁裁决项下的全部利息。

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1条规定了承认和执行的一般情形,表述如下:

"在内地或者香港特区作出的仲裁裁决,一方当事人不履行仲裁裁决的,另一方当事人可以向被申请人住所地或者财产所在地的有关法院申请执行。"

《安排》第7条规定了一系列不予执行仲裁裁决的情形,包括当事人无行为能力,仲裁庭的组成及仲裁程序或存在程序性失格,或裁决业经仲裁地的法院或按仲裁地的法律撤销或停止执行等。

2016年12月13日,南京市人民法院裁定执行上述仲裁裁决。

法院认为,上述仲裁裁决不存在任何《安排》第7条所规定的承认与执行的例外情形,应当予以承认与执行。该判决标志着贸仲委香港分会仲裁裁决首次在中国大陆得到执行。

简评

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(在中国,法院拒绝承认一项仲裁裁决必须经由完整的司法审查程序审查),但是对中国企业执行一项国外仲裁裁决往往十分困难。政府官员的拖延以及地方保护主义往往会阻却仲裁裁决的执行,从而导致胜诉方的权利无法得到保障。

在上述执行难的背景下,恩尼德案的判决是一个积极的发展。 这表明,只要符合《安排》的规定,中国法院将同样会针对对中国企业执行贸仲委香港分会作出的仲裁裁决。

因此,同中国企业签订合同的当事人可以考虑将争议解决条款约定为争议由贸仲委香港分会仲裁。如果恩尼德案得到遵循,那么贸仲委香港分会,作为中国主要仲裁机构的分支,其作出的仲裁裁决,相对于其他国际仲裁机构根据各自规则作出的裁决,将更有可能在中国大陆得到执行。

我们将拭目以待,在其他执行案件中,恩尼德案的判决是否能得到遵循。

2017年4月《中国法律快讯》的完整链接和其他文章的链接如下:

Enforcement Of Arbitral Awards In China – A Ray Of Light? (Chinese)

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