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No. 5 of Six Model Cases of Supporting Hong Kong Arbitration Published by the Supreme People's Court: Accurately Applying the Hong Kong Law and Determining that the Document Referred to in the Contract Constitutes a Valid Arbitration Agreement—Case of Application for Recognition and Enforcement of an Arbitral Award Made in Hong Kong Filed by W Company
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最高人民法院发布6件支持香港仲裁典型案例之五：柳某申请认可和执行香港仲裁裁决案——积极查明和适用香港法律 认定瑕疵仲裁协议效力
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【法宝引证码】
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| No. 5 of Six Model Cases of Supporting Hong Kong Arbitration Published by the Supreme People's Court: Accurately Applying the Hong Kong Law and Determining that the Document Referred to in the Contract Constitutes a Valid Arbitration Agreement—Case of Application for Recognition and Enforcement of an Arbitral Award Made in Hong Kong Filed by W Company | | 最高人民法院发布6件支持香港仲裁典型案例之五：柳某申请认可和执行香港仲裁裁决案——积极查明和适用香港法律 认定瑕疵仲裁协议效力 |
| [Basic Facts] | | 【基本案情】 |
| W Company and Ningde [REDACTED] Industrial and Trading Company entered into a Supply Agreement on October 20, 2008. It was stipulated in Clause 16 thereof that "any dispute arising from the performance of this Agreement shall be subject to arbitration by the HKIAC." During the performance process, the above two companies and [REDACTED] Coal Company entered into an Amendment Agreement, in which the three parties confirmed that: new clauses added to the Amendment Agreement shall be added to the Supply Agreement as new clauses; with respect to the clauses that have been altered, the Amendment Agreement shall prevail; except for Clauses 6, 7, and 10 to 13, the remaining clauses that have not been altered shall be subject to the provisions of the Supply Agreement. Since both Ningde [REDACTED] Industrial and Trading Company and [REDACTED] Coal Company violated the Amendment Agreement, W Company applied to the HKIAC for arbitration. The HKIAC made several arbitral awards from March 23, 2016 to D ecember 28, 2016. W Company filed an application with the Intermediate People's Court of Nanping City, Fujian Province for recognition and enforcement of the awards involved. [REDACTED] Coal Company contended that there was no arbitration clause in the Amendment Agreement. Therefore, there was no arbitration agreement between [REDACTED] Carbon Company and W Company. In accordance with the provisions of item (1) in paragraph 1 of Clause 7 of the Arrangements, the arbitral awards involved should not be recognized and enforced. | | 柳某与龙某签订三份《借款协议》，就出借款项、期限、利息等进行约定，并约定“协议项下一切争议与纠纷若无法通过友好协商解决，应当提交香港国际经济贸易仲裁委员会，按照香港国际经济贸易仲裁委员会现行程序规则予以仲裁。”因龙某未按期还本付息，柳某向中国国际经济贸易仲裁委员会香港仲裁中心（以下简称贸仲香港仲裁中心）申请仲裁，贸仲香港仲裁中心作出裁决后，柳某向广东省深圳市中级人民法院申请认可和执行。龙某主张案涉裁决不应被认可和执行，主要理由为：仲裁条款约定的“香港国际经济贸易仲裁委员会”并不能指向唯一的仲裁机构，故该仲裁条款无效；龙某还提交了其委托香港大律师出具的法律意见书，认为该协议约定的仲裁机构不明确，应当按香港《仲裁条例》第10条及609C章规定，由香港国际仲裁中心对送达文件、委任仲裁员、仲裁员人数作出具体指示。广东省深圳市中级人民法院委托某法律查明和商事调解中心查明香港法律，由香港大律师出具法律意见书，认为香港法院判例表明仲裁协议瑕疵并非罕见，法庭应考虑并实现合约方的真实意向，指示合约方在最合适、最能反映双方意愿的仲裁庭进行仲裁。 |
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