Chapter 10 International Arbitral Awards

1. Chapter 10International Arbitral Awards

2. Content of Award • Jurisdiction • Procedure • Arguments for both parties • Tribunal’s opinion on the issues • Award

3. Revpower Case 399 • Proceedings • Factual background and basic submissions by the parties • Governing law • The parties prayers • Opinion • Award

4. Classification of the awards • Interim, preliminary, partial award • Interlocutory award （中间裁决） • Consent award （和解裁决） • Award （终局裁决） • Supplementary award （补充裁决）

5. Nationality of the int’l award • Source of the legally binding force • Power to set aside award • National court decides

6. Criteria to decide the nationality of int’l awards • NYC • Territoriality where the award is made • Applicable law under which the award is made • Other criteria • 仲裁员国籍：匈牙利 • 裁决书签字地 • 仲裁机构所在地

7. Revocation Awards • General principle for remedies: setting aside and refusing enforcement: National courts are entitled to set aside their own awards. As to foreign awards, the courts may only decide whether to enforce or not. • Revocation of international awards could be done only by the national courts that consider the awards as their own (domestic awards).

8. Int’l Standard Elec. Co. (USA) v. Bridas (Argentine) 425 • Tibor Varady：International Commercial Arbitraiton,West Group, 1999, 631-636 • ICC Arbitration in Mexico city • Award in favor of Bridas • ISEC applied to vacate in New York court • ISEC’s petition is dismissed on by the court • The forum of arbitration is Mexico city, the governing procedural law is that of Mexico, only the court of Mexico have jurisdiction under the Convention to vacate the award.

9. Croatian co. v. Swiss co. 448 • Tibor Varady：International Commercial Arbitraiton,West Group, 1999, 636-637 • Croatian co. applied to the Croatian ct. to set aside the arbitral award made by ICC arbitral tribunal in Switzerland in accordance with substantive Croatian law • Rejected by the ct. on the ground that the procedural law of a foreign state in which award is made was applied.

10. Conditions for set aside • General principle: procedure issues instead of merits of the case • Invalid arbitration agreement • Lack of due procedure • Tribunal beyond authority • Impropriate composition of the tribunal • Non-arbitrability of the dispute • Award in conflict with the public policy

11. Invalid arbitration agreement • ELF Aquitaine Iran(France) v. National Iranian Oil Co. (Iran) 135 • Tibor Varady，223-228; • Nationalization of oil industry in Iran • Arbitration agreement was void. • Dispute is settled by the Special Committee of Iran. • Sole arbitrator declared its competence.

12. Lack of due procedure • Paklito Investment Ltd. v. Klockner East Asia Ltd. 251 • Sales K between the parties • Dispute on the defects of the goods • Expert opinions and review • Award in favor of the buyer • Refusing enforcement

13. Tribunal beyond its authority Norsolor S. A. (France) v. Pabalk Ticaret Sirketi S.A. (Turkey) 381 Agency agreement b/w French and Turkey co. ICC Arbitration award made in Vienna. Tribunal beyond its authority via amicable compositeur.

14. Improper composition of the tribunal • Commercial man as arbitrator • Engineer of the servant of the parties during the construction work

15. Arbitrability matters • Wilko v. Swan (1953) • Sherk v. Alberto-Culver Co. (1974) • Rodriguez v. Shearson/American Express (1989)

16. Public policy consideration • Julius A. Furer in the USA（[1978] 3 Yearbook Commercial Arbitration. 290 ； • Army ship wreckaged • near Netherlands in 1974 • Lloyd’s open form salvage agreement • Dispute could not be arbitrated under US Public Vessel Act， • Commercial matters reservation

17. Chinese Practices • Domestic awards （国内裁决） • Foreign-related awards（FRA, 涉外裁决） • Foreign awards（外国裁决）

18. Foreign Related Awards(FRA) • Art.260 CPL : award made by the Foreign-related Arbitration Institutions in the PRC (CIETAC, CMAC) • Set aside and refusing enforcement in Art. 71, Art. 72（拒绝执行）CAL (Art. 260 CPL applied) • Jurisdiction of domestic & international arbitration institutions since 1996

19. Awards Classification • Territoriality Standard in NYU • Business place of the arbitration institution in domestic law

20. Vacating Domestic Awards Art.58 CAL • No arbitration agreement; • Tribunal beyond the authority; • Tribunal improperly composed; • Evidence on which the award is based was forged; • Party’s withhold evidence sufficient to affect the impartiality of the arbitration; or • Arbitrator’s demanded or accepted bribes, award made that perverted the law.

21. Grounds for Vacating FRA • CAL Art.70, Art.260, CPL (1991, Art.258 in 2007) • No arbitration agreement • Lack of due process • Improper composition of tribunal • Tribunal beyond authority • Burden of proof by respondent

22. Public Interest • Art.58(2), CAL • If the People's Court determines that the award is contrary to the public interest, it shall rule to vacate the award. • CIETAC awards on US co. v. Chinese Travel co.

23. Competent Court for Revocation • Intermediate People’s Court where the place of business of the Arbitration Commission is located.