新冠疫情下的社交隔离：仲裁协议的变与不变

2020-05-08 15:49:35 265

Tailoring a Fresh Arbitration Agreement to the COVID-19 Social Distancing

新冠疫情下的社交隔离：仲裁协议的变与不变

COVID-19 has posed serious challenges to commercial operations and finances across industry sectors. In this circumstance, more disputes will indefinitely arise in the mid- and post-pandemic stage. Dispute resolution has been affected during the pandemic, especially resolution mechanism that calls for more sophisticated procedural requirements such as litigation. In contrast, arbitration has been serving as a relatively more cost-effective way of dispute settlement, and enables cash-strapped companies to resolve their business disputes more quickly, because of its flexibility and party autonomy. This article will discuss preliminarily the social distancing measures and its impact on international commercial arbitration during the COVID-19 crisis from the perspective of arbitration agreement, including arbitration clause and submission agreement.

新型冠状病毒对不同行业的商业运营与金融业务带来了巨大挑战，于是，“疫情时代”的争议随之而来，“后疫情时代”的争议也将层出不穷。在此期间，争议解决机制同样受到冲击，其中，由于疫情防控措施的出台，受限于复杂程序的法院诉讼受到的影响尤为严重。相比之下，兼具快捷性、经济性、灵活性与当事人意思自治的仲裁将更受到企业的青睐。本文将从仲裁协议（包括仲裁条款、仲裁协议书）的角度初步讨论新冠疫情下社交隔离措施对国际商事仲裁的影响。

Social Distancing 社交隔离

To avoid the spread of coronavirus, social distancing has been adopted across countries out of public health administration concerns. In practicing social distancing, it is strongly recommended or even compulsory in large numbers of countries that physical space is increased, mass gatherings are avoided, events are cancelled or postponed, and public institutions are closed. Legal practitioners have been working from home instead of at the office, turning to electronic devices for conferences and hearings. In terms of international arbitration, social-distancing measures to mitigate the influence of the pandemic have at the same time incurred problems and inconvenience, and accordingly measures have been taken by arbitration institutions, which will be analyzed in the following parts.

为了避免新型冠状病毒的传播，完善公共卫生管理，各国纷纷出台社交隔离措施，减少人与人之间的接触。具体措施包括减少人群聚集、推迟或取消大型活动、关闭公共场所。包括法律从业者在内的上班族则选择居家办公、视频会议的形式减少人群接触。对于国际仲裁来说，这些社交隔离措施同样带来了一系列不便。为了应对疫情，如下文所述，国际仲裁机构先后采取了一系列措施积极推进仲裁程序。

Arbitration Agreement 仲裁协议

The arbitration agreement is in the form of either an arbitration clause reached by the parties when concluding the principal agreement or a submission agreement to submit the existing disputes to arbitration, both of which reflect the consent of the parties to submit their disputes to arbitration.[1] Usually, an arbitration agreement may include: (1) the intention and scope of the arbitration; (2) the seat of the arbitration; (3) the governing law; (4) the applicable procedural rules; and (5) a method for selecting the arbitrators.

仲裁协议充分反映了当事人意思自治，一般分为两种形式：主合同中的仲裁条款，以及为了专门的争议内容而单独订立的仲裁协议书。通常来说，仲裁协议包含以下几个部分：（1）仲裁意向和仲裁事项；（2）仲裁地；（3）适用法律；（4）适用程序规则；以及（5）仲裁庭组成。

Interface between Arbitration and Litigation

仲裁与诉讼

An arbitration agreement has the function of excluding the court jurisdiction. It protects the course of arbitration from court intervention unless the parties proceed to the court for judicial remedies in the course of arbitration under applicable law. Since parties would not anticipate what kind of dispute they would handle in the future when reaching a contract, issues may arise inter alia the matter of jurisdiction and the validity of an award. For example, in Oracle (China) Software Systems Co Ltd v. CITIC 21 (China) Technology Co Ltd and Others[2], the arbitral award was set aside by the Beijing First Intermediate People’s Court on the basis that the tribunal erred in rejecting the Respondents’ cross-claims, followed by the decision made by the Beijing Higher People’s Court to direct the dispute to be remitted to the Intermediate People’s Court in accordance with Article 9(2) of the Arbitration Law of the People’s Republic of China[3].

仲裁协议具有排除法院管辖的作用。当事人除非根据适用法另有约定通过诉讼程序寻求司法救济，否则不能向法院起诉，法院也不受理有仲裁协议的起诉。然而，由于当事人在订立主合同时无法预见到未来可能发生的争议，诸如管辖权、仲裁裁决有效性等问题也将无法避免。例如，在甲骨文（中国）软件系统有限公司诉中信21世纪（中国）科技有限公司、中信21世纪有限公司、甲骨文香港有限公司一案中，由于先前的仲裁庭没有受理被申请人的交叉请求，仲裁裁决被北京市第一中级人民法院撤销。此后，北京市高级人民法院裁定，根据《中华人民共和国仲裁法》第九条第二款，当事人若未重新达成仲裁协议，则应向中级人民法院起诉。

Fresh Arbitration Agreement

重新达成的仲裁协议

Since no new agreement was reached for further arbitration, the dispute was then taken to the Hong Kong Court for judicial remedies. It took more than three years from the rendering of the arbitral award, setting aside by the courts in Beijing, and then being taken to and making of the procedural decision by the Hong Kong High Court according to the published decision. An arbitration clause was incorporated in the agreement, yet no fresh arbitration agreement was reached after the award was set aside, leading to the redundancy and the delay of the dispute settlement procedure.

由于当事人没有达成新的仲裁协议，之后，一方当事人诉至香港法院。从此案公开信息可知，从仲裁庭作出裁决，到北京中院撤销裁决，再到当事人诉至香港高等法院、法院作出裁定，已过去三年之久的时间。尽管当事人在合同订立之时已达成仲裁条款，但仲裁裁决被北京中院撤销后，由于没有达成新的仲裁协议，只能向法院提起诉讼，最终导致了程序的延误，降低了争议解决的效率。

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Cross-Border Disputes and Court Jurisdiction

跨境争议解决与法院的管辖权

Should the dispute arise during the pandemic, especially between parties from different jurisdictions, procedures would be more lumbering since court hearings may be postponed or cancelled, staff are sealed indoors and, due to the statutory procedural rules, it is almost impossible for parties to reach a procedural agreement tailored to apply to this circumstance where they submit the dispute to courts where more process controls are imposed and less flexibility is involved. For example, where disputes arise between corporations from China and Italy, they may find it harder to proceed with litigation, since both States are seriously affected by COVID-19 in 2020 and so are the courts in both States amid rigid procedures. In this case, arbitration would be more desirable and it would be more flexible if the parties can reach an agreement incorporating a detailed arbitration clause. For example, they may choose to arbitrate in a less COVID-19 affected location as the venue of arbitration. It should be noted that both China and Italy are Member States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards[4] and that Treaty between the People’s Republic of China and the Republic of Italy on Judicial Assistance in Civil Matters also includes the recognition and enforcement of awards,[5] providing for a practical mechanism.

如果此类争议发生在疫情期间，尤其是发生在不同国家、地区的当事人之间，情势将更加复杂。为了避免新冠病毒传播，法院庭审可能被推迟甚至取消，工作人员于家中隔离，并且不同于仲裁遵循的当事人意思自治原则，在诉讼程序中当事人几乎无法就法定程序的有效推进主动达成程序性协议。假如争议当事人是中国和意大利的企业，受疫情影响，严格的诉讼进程将更为缓慢。在这种情况下，争议双方就争议如果能够达成新的仲裁协议，就成为了一种更加合理、高效、便捷的选择。例如，在协议中，当事人可以约定仲裁地为受疫情影响较小的国家与城市。另外，中国与意大利均为《联合国关于承认和执行外国仲裁裁决的纽约公约》缔约国，两国之间还达成了《中华人民共和国和意大利共和国关于民事司法协助的条约》，为仲裁裁决的承认与执行提供了更加便利的机制。

As such, drafting a post-dispute agreement, or including more details in the pre-dispute arbitration clause out of precaution would enable parties to resolve their disputes in a more efficient manner or to have a fresh agreement to move their disputes from litigation to arbitration.

因此，为了更加高效地解决争议，当事人可以选择在争议发生后达成新的仲裁协议，也可以在未来的合同缔约过程中达成更为详细的仲裁条款。对于已经进入诉讼程序的争议，当事人同样可以达成新的协议将争议提交仲裁解决。

Institutional Responses

国际仲裁机构的应对措施

Guidelines adopted by major international institutions to mitigate the effects of the pandemic could be modelled on when entering into an agreement. China International Trade and Economic Arbitration Commission (“CIETAC”) has issued the CIETAC Guidelines on Proceeding with Arbitration Actively and Properly during the COVID-19 Pandemic (Trial)[6]. Specific measures are taken to encourage remote proceedings, eg. online case filing, submission of documents via emails, procedural orders, evaluation of appraisal, etc. In addition, documents-only case examination, or virtual hearing, may be conducted on prior basis after hearing the views of the parties.

为有效应对新冠肺炎疫情的影响，国际仲裁机构纷纷采取措施，积极推进仲裁程序的进行。当事人在达成仲裁协议时，也同样可以借鉴相应的指引。例如，中国国际经济贸易仲裁委员会（CIETAC）发布《关于新冠肺炎疫情期间积极稳妥推进仲裁程序指引（试行）》，鼓励当事人在线提交立案申请、以邮件方式提交仲裁文件，仲裁庭可发布程序令，也应综合考虑各种因素决定是否开展鉴定。此外，书面审理、在线开庭等方式也可以在征求当事人意见后被优先考虑。

The Hong Kong International Arbitration Centre (“HKIAC”) has estimated that 85% of all hearings have or will require virtual hearing services in April and May. It has been providing multi-faced services and adopted tools to enable virtual hearings.[7] Similarly, the International Chamber of Commerce (“ICC”) issued the ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic[8]. It is advised by the ICC that one or more partial awards could be rendered, issues that could be resolved without witness could be identified, an agreed chronology of facts could be established, and that ICC Expedited Rules Provisions[9] could be considered. Also, the London Court of International Arbitration (“LCIA”) requests the arbitrators to deliver awards by email, which would be transmitted to parties electronically.[10] Besides, a series guides on virtual hearing adopted by the American Arbitration Association (“AAA”) and its International Center for Dispute Settlement (“ICDR”)[11] could also be looked at.

根据香港国际仲裁中心（HKIAC）发布的报告，2020年4月至5月期间，其受理的案件将有80%为在线开庭。为保证在线开庭的顺利进行，香港国际仲裁中心已上线相应的多种形式的在线争议解决服务。与此同时，国际商会（ICC）也发布《关于旨在减轻新冠肺炎疫情影响可行措施的指导说明》，建议仲裁庭可作出一个或多个部分裁决，也应注意不需证人作证的事由；当事人可就案件进程的时间点达成协议，也可在必要时适用《国际商会紧急仲裁规则》。此外，伦敦国际仲裁院（LCIA）也要求仲裁员以邮件的方式提交裁决，仲裁院也以电子形式向当事人转交材料。美国仲裁协会（AAA）与国际争议解决中心（ICDR）也发布了一系列有关在线开庭的程序指引。

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New Content in an Arbitration Agreement

仲裁协议的全新约定

Based on the above-mentioned discussion, it is advised that in addition to the usual clauses included in a contract, parties may consider entering into fresh arbitration agreements, setting out timelines for procedures and allowing for new venues or virtual hearings, examinations conducted by videoconference, written witness statements for direct testimony, etc. For those parties already involved in a litigation, they could either move an entire dispute or part of a dispute to arbitration, provided that they agree on issues concerning the discontinuance of the court proceeding, procedural steps, the scope of an arbitration motion, etc.[12] New ways for arbitration agreed upon by the parties shall be decided by the tribunal, and it is worth giving it a try in responding to social distancing in the pandemic. Considering a fresh arbitration agreement could prevent parties from redundant procedures (as in the example of an award being set aside or when more issues arise), giving arbitration a more important role to play during the pandemic.

当事人在未来达成新的仲裁协议时，可以参考以上讨论，除通常包含的条款之外，另行对仲裁程序的时间点、仲裁地、在线开庭、在线鉴定、证人书面证言等事由作出特别约定。已经将争议提交法院的当事人，同样可以达成补充协议，将全部或者部分争议移交仲裁解决。在此情形下，当事人应就法庭程序的终止、仲裁程序、仲裁事项作出约定。双方约定的新的仲裁方式需要仲裁员决定，但应对疫情社交隔离，尚值得尝试。新达成的仲裁协议可在疫情期间推进争议解决程序，让仲裁在疫情期间发挥更大的作用，尤其是在上例中裁决被撤销或者更多争议事由出现的情形下。

Proactive Planning of Arbitration

积极推进仲裁程序

In conclusion, based on the principle of party autonomy, it is worth taking proactive and effective measures to mitigate the side effects posed by COVID-19 before it is too late. Since arbitration has provided for viable options, parties are entitled to various opportunities to move the disputes forward through reaching a new arbitration agreement and to enjoy the benefits of ADR offered by arbitration.

总之，基于当事人意思自治原则，为了尽可能减小新冠肺炎疫情对争议解决带来的影响，当事人应积极主动采取措施推进仲裁程序。仲裁是最能体现当事人意思自治的争议解决方式，当事人应利用仲裁的优势，把握仲裁带来的另类争议解决的机遇和益处，积极主动达成新的仲裁协议，推进仲裁程序的进行。

References

[1] Blackaby, N, Partasides, C QC, Redfern, A & Hunter, M 2015, Redfern and Hunter on International Arbitration, 6th edn, Oxford University Press, Oxford, p.192.

[2] Oracle (China) Software Systems Co Ltd v. CITIC 21 (China) Technology Co Ltd and Others [2013] HKCFI 1528.

[3] Article 9(2) of the Arbitration Law of the People’s Republic of China 2018 provides, “If the arbitration award is canceled or its enforcement has been disallowed by a people’s court in accordance with the law, the parties may, in accordance with a new arbitration agreement between them in respect of the dispute, re-apply for arbitration or initiate legal proceedings with the people’s court”.

[4] United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Award 1958.

[5] Treaty between the People’s Republic of China and the Republic of Italy on Judicial Assistance in Civil Matters 1995, ch. 3.

[6] China International Trade and Economic Arbitration Commission Guidelines on Proceeding with Arbitration Actively and Properly during the COVID-19 Pandemic (Trial) 2020, effective as of May 1, 2020.

[7] Hong Kong International Arbitration Centre 2020, Virtual Hearings at HKIAC: Services and Success Stories, viewed 7 May 2020,.

[8] International Chamber of Commerce Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic 2020, issued on April 9, 2020.

[9] International Chamber of Commerce, Expedited Rules Provisions, viewed 6 May 2020,.

[10] London Court of International Arbitration 2020, LCIA Services Update: COVID-19, viewed 6 May 2020,.

[11] For more details, please see: AAA & ICDR 2020, Covid-19 Update, viewed 6 May 2020,. The guides include Virtual Hearing Guide for Arbitrators and Parties, Virtual Hearing Guide for Arbitrators and Parties Utilizing ZOOM, and Order and Procedures for a Virtual Hearing via Videoconference.

[12] Seers, MM, Sherkey, E, Burke, M & Allen, H 2020, Moving Disputes Forward during COVID-19: the Arbitration Option, Torys LLP, viewed 6 May 2020,.

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