Author | Li Shu Tang Qinglin Yuan Hui
From: The French Empire
Special note: All works indicated as "source" or "transferred from" in this number are reproduced from the media, and the copyright belongs to the original author and the original source. The content shared is the author's personal opinion, which is for the reader's study and reference only, and does not represent the views of this number
Commercial arbitration is a final adjudication, but after the arbitration is successful, it does not mean that the winning outcome is finalized, and there is still a possibility of being overturned by the judicial review procedure. We have noted that in recent years, in judicial practice, there have been an increasing number of cases in which applications for the setting aside of arbitral awards, non-enforcement of arbitral awards and confirmation of the validity of arbitration agreements have continued to increase, and the issues of dispute have become more and more complex. Combining years of practical experience and research accumulation, especially on the basis of summarizing a large number of successful experiences, the commercial arbitration team of Beijing Yunting Law Firm has comprehensively sorted out the adjudication views of thousands of arbitration judicial review cases heard by courts across the country in recent years, sorted out and analyzed the hot and difficult issues in practice in a typed manner to form a book manuscript (to be published), and successively pushed more than 100 book manuscript articles through the "Fake Empire" public account to feed readers.
Read the tips
In the course of arbitration, the composition of the arbitral tribunal shall be selected by the parties or appointed by the arbitration commission, and there are strict requirements for the qualification of arbitrators, the selection of arbitrators and the replacement of arbitrators in each arbitration rules. If the composition of the arbitral tribunal violates statutory procedures, the parties may apply to the people's court for the setting aside of the arbitral award made. So, what circumstances are the circumstances in which the composition of the arbitral tribunal violates the statutory procedure? This article shares a total of 7 cases (including the main text case and the extended reading case), and summarizes the violation of legal procedures by the composition of the arbitral tribunal for the reader's reference.
Summary of the Trial
After the presiding arbitrator withdraws from the arbitration activities, the two parties shall jointly select or jointly entrust the chairman of CIETAC to appoint a new arbitrator, and CIETAC shall not have the right to directly appoint a new presiding arbitrator, otherwise it constitutes a procedural violation and the arbitral award shall be revoked.
Brief facts of the case
1. Linsen Real Estate applied to shiyan arbitration commission for arbitration due to a dispute with Li Conghai.
2. During the arbitration period, on July 12, 2013, qiu Mingyu, the former presiding arbitrator, applied to withdraw from the arbitration activities for health reasons. The Shiyan Arbitration Commission Arbitrator Selection (Appointment) Approval Form "Opinion Column of the Secretary Undertaking the Case" states that "Qiu Mingyu, the originally appointed presiding arbitrator, applied to withdraw from the trial of the case, and with the consent of the director, Qiu Mingyu withdrew from the trial of the case, and asked the leader to appoint a new presiding arbitrator to hear the case". The "Approval Opinion Column of the Minister of Arbitration Affairs" states that "Xu Xiaodong is recommended to serve as the presiding arbitrator and form an arbitral tribunal with Jiang Hua and Zhang Guangxing to continue to hear the case, please approve it."
3. On January 23, 2014, Shiyan Arbitration Commission rendered the (2014) Ten Arbitration Character No. 003 Arbitral Award.
4. After Linsen Real Estate was dissatisfied with the arbitral award made by the Shiyan Arbitration Commission, it applied to the Shiyan Intermediate Court to revoke the arbitral award. The reasons are: 1. The arbitral award clearly exceeds the matters of the application for arbitration and violates the principle of relativity of the contract; 2. the composition procedure of the original arbitral tribunal does not conform to the Arbitration Rules of shiyan Arbitration Commission, and the replacement of the presiding arbitrator does not conform to the procedures stipulated in the arbitration rules; 3. The arbitral tribunal's inadmissibility of the applicant's application for judicial appraisal violates the statutory procedures.
5. The Shiyan Intermediate People's Court upheld Linsen Real Estate's application after trial and ruled to revoke the (2014) Shiyan Arbitration Award No. 003 made by the Shiyan Arbitration Commission.
Court gist
Article 58 (3) of the Arbitration Law of the People's Republic of China stipulates that "where a party submits evidence to prove that the award has any of the following circumstances, it may apply to the intermediate people's court where the arbitration commission is located to set aside the award: (3) the composition of the arbitral tribunal or the arbitration procedure violates the statutory procedures;" and the Arbitration Rules of the Shiyan Arbitration Commission clearly stipulate the procedure for the composition of the arbitral tribunal.
In this case, in the course of arbitration, after the former presiding arbitrator Qiu Mingyu was unable to perform his duties for health reasons and voluntarily applied for withdrawal, the Shiyan Arbitration Commission did not notify the parties to jointly select or jointly entrust the chairman of the Shiyan Arbitration Commission to appoint a new presiding arbitrator within ten days in accordance with the provisions on the replacement of arbitrators in Article 22 of the Arbitration Rules of the Shiyan Arbitration Commission, and directly appointed a new presiding arbitrator, which clearly violated the provisions of Article 22 of the Arbitration Rules of the Shiyan Arbitration Commission on the replacement of arbitrators , which is a violation of statutory procedures by the composition of the arbitral tribunal. According to Article 58(3) of the Arbitration Law of the People's Republic of China, the arbitral award shall be set aside. Therefore, the Shiyan Intermediate People's Court supported Linsen Real Estate's application and ruled to revoke the (2014) Ten Arbitration Character No. 003 arbitral award made by shiyan arbitration commission.
Summary of practical experience
The professional legal team of Mr. Tang Qinglin and Mr. Li Shu of Beijing Yunting Law Firm have handled and analyzed a large number of legal issues involved in this article and have rich practical experience. At the same time, a large number of cases were also summarized and the experience of handling cases was published, and the "Yunting Legal Practice Book Series" was published, which is excerpted from the book series. The authors of the book series are all professional lawyers fighting in the front line of Beijing Yunting Law Firm, with profound theoretical foundation and rich practical experience. The topic selection and writing style of the book series are mainly based on the case analysis of actual occurrences, and strive to start from the needs of practice and seek the most direct solutions to difficult and complex legal problems often encountered in practice.
1. The Arbitration Rules provide for strict procedures for the selection and replacement of arbitrators, the principle of which is that the parties themselves choose, which actually reflects the principle of party autonomy. If the ARBITRATION Commission skips the autonomy of the parties and decides or changes the composition of the arbitral tribunal on its own, it constitutes a procedural violation, and the parties have the right to apply to the people's court to revoke the arbitral award made.
2. In general, the arbitral tribunal shall consist of three arbitrators, of whom each of the parties shall select an arbitrator and jointly appoint a presiding arbitrator. If the parties fail to select an arbitrator or jointly appoint a presiding arbitrator within the time limit to be appointed, they may entrust CIETAC to appoint them. The replacement of arbitrators should also follow the principle of autonomy of the parties, and the parties should be notified of the selection first, and CIETAC has no right to directly appoint new arbitrators.
(Mainland China is not a case law country, and the precedents cited and analyzed in this article are not Guiding Cases and are not binding on the trial and adjudication of similar cases.) At the same time, it should be noted that in judicial practice, the details of each case are very different, and the views of the adjudication in this article must not be directly quoted. The sorting out and research of the adjudication documents of different cases by the lawyers of Beijing Yunting Law Firm aims to provide more readers with different research angles and observation perspectives, which does not mean that the lawyers of Beijing Yunting Law Firm agree with and support the views of the adjudication of this case, nor does it mean that the court should necessarily cite or refer to such adjudication rules when handling similar cases. ）
Relevant legal provisions
Arbitration Law of the People's Republic of China
Article 58 Where a party submits evidence to prove that the award has any of the following circumstances, it may apply to the intermediate people's court where the arbitration commission is located to set aside the award:
(1) there is no arbitration agreement;
(2) the matters to be awarded do not fall within the scope of the arbitration agreement or the ARBITRATION Commission does not have the power to arbitrate;
(3) the composition of the arbitral tribunal or the procedures for arbitration violate legally prescribed procedures;
(4) The evidence on which the award is based is fabricated;
(5) The other party conceals evidence sufficient to affect a fair ruling;
(6) The arbitrator has solicited or accepted bribes, favoritism, or perverted the law in making an award in the arbitration of the case.
Where a people's court, upon review and verification of a collegial panel, has any of the circumstances provided for in the preceding paragraph, it shall rule to revoke it.
Where the people's court finds that the ruling is contrary to the societal public interest, it shall rule to revoke it.
Article 59:Where a party applies to set aside an award, it shall be submitted within six months from the date of receipt of the award.
Article 60:The people's court shall make a ruling to revoke the ruling or reject the application within two months of accepting the application for revocation of the ruling.
Interpretation of the Supreme People's Court on <中华人民共和国仲裁法>Several Issues Concerning the Application
Article 20 The "violation of statutory procedures" provided for in Article 58 of the Arbitration Law refers to the circumstances in which the arbitration procedures and arbitration rules chosen by the parties may affect the correct adjudication of the case.
Shiyan Arbitration Commission Arbitration Rules
Article 22 Replacement of Arbitrators
(1) If an arbitrator is unable to engage in arbitration work due to death or health reasons, or voluntarily withdraws from the trial of the case, or the director decides to recuse himself, or both parties unanimously request him to withdraw from the trial of the case, he shall be replaced.
(2) If the Bac considers that an arbitrator is legally or in fact unable to perform his or her duties or fails to perform his or her duties in accordance with the requirements of these Rules, he may also take the initiative to replace him.
(3) Before making a decision in accordance with Paragraph (2), the Union shall give the parties and all members of the arbitral tribunal the opportunity to submit written opinions.
(4) Where the arbitrator to be replaced is selected by the parties, the parties shall re-select them within 5 days from the date of receipt of the notice; if the chairman appoints him, the chairman shall appoint him separately and send the notice of the reappointment of arbitrators to the parties within 5 days; after the re-selection or appointment of arbitrators, the parties may request that the arbitral proceedings already be conducted be re-conducted, and whether necessary or not, the arbitral tribunal shall decide; the arbitral tribunal may also decide on its own whether the arbitral proceedings that have been conducted shall be resumed. Where the arbitral tribunal decides to re-conduct the arbitral proceedings, the time limit provided for in Articles 43, 52 and 59 of these Rules shall be calculated from the date of the reconstitution of the arbitral tribunal.
Court judgment
The following is the court's discussion of this issue in the "This Court considers" section of its ruling:
At trial, the Shiyan Intermediate People's Court held that:
Article 58 of the Arbitration Law of the People's Republic of China stipulates that "where a party submits evidence to prove that the award has any of the following circumstances, it may apply to the intermediate people's court where the arbitration commission is located to set aside the award... (c) the constitution of the arbitral tribunal or the procedure of the arbitration violates the legally prescribed procedures; Where a people's court, after forming a collegial panel to review and verify that the ruling has any of the circumstances provided for in the preceding paragraph, it shall rule to revoke it." Article 20 of the Interpretation of the Supreme People's Court on Several Issues Concerning> the Application of the < the Arbitration Law of the People's Republic of China stipulates that "the "violation of statutory procedures" provided for in Article 58 of the Arbitration Law refers to the circumstances in which the arbitration procedures stipulated in the Arbitration Law and the arbitration rules chosen by the parties may affect the correct adjudication of the case". In this case, the parties chose to arbitrate at the Shiyan Arbitration Commission, and the Shiyan Arbitration Commission also served on the Shiyan Arbitration Rules and other documents, and Article 84 (2) of the Rules stipulates that "any party agreeing to submit a dispute to the Union for arbitration shall be deemed to have agreed to arbitrate in accordance with these Rules". The parties also did not agree to apply other arbitration rules, indicating that the arbitration in this case should be conducted in accordance with the arbitration procedures stipulated in the Arbitration Law and the Arbitration Rules of shiyan arbitration commission.
Article 22(1) of the Arbitration Rules of shiyan arbitration commission stipulates that "the arbitral tribunal shall be composed of three arbitrators or one arbitrator. Composed of three arbitrators, the presiding arbitrator shall be established". Article 23(2) provides that "the presiding arbitrator shall be jointly selected or jointly appointed by the two parties within 10 days from the date of receipt of the notice of arbitration by the respondent"; Where the chairman of the Union is jointly selected or jointly entrusted to appoint the presiding arbitrator, the chairman of the Union shall appoint the arbitrator. Article 28(1) provides that "the arbitrator is unable to perform his duties due to death or health or other reasons ... The arbitrator shall be re-selected or appointed in accordance with the procedures and time limits for the original selection or appointment of the arbitrator.
According to the above provisions, if the presiding arbitrator is unable to perform his duties for health reasons and voluntarily withdraws, the parties shall be notified to jointly select or jointly entrust the chairman of the Shiyan Arbitration Commission to appoint the chairman within ten days, and if the chairman of the Shiyan Arbitration Commission is not jointly selected or jointly entrusted within ten days to appoint the presiding arbitrator, the chairman of the Shiyan Arbitration Commission shall appoint the presiding arbitrator. The arbitration file of this case reflects that after the original presiding arbitrator Qiu Mingyu was unable to perform his duties due to health reasons and voluntarily withdrew from the application, the Shiyan Arbitration Commission directly appointed a new presiding arbitrator without notifying the parties to jointly select or jointly entrust the director of the Shiyan Arbitration Commission to appoint within ten days, violating the statutory procedures. Circumstances that comply with the provisions of subparagraph (3) of the first paragraph of Article 58 of the Arbitration Law of the People's Republic of China stipulate that "the composition of the arbitral tribunal or the arbitration procedure violates the statutory procedures" shall be revoked. Moreover, the arbitration commission directly awarded the matters not requested by the parties and did not reply to the appraisal application.
In summary, the (2014) Shiyazi No. 003 arbitral award made by Shiyan Arbitration Commission violated statutory procedures and was revoked.
Source of the case
Shiyan Linsen Real Estate Development Co., Ltd., Li Conghai, etc. applied for revocation of the arbitral award civil ruling [Shiyan Intermediate People's Court (2014) Eshiyan Zhongmin Yizhong Zi No. 00003]
Read more
1
In addition to the main cases in this article, the author of this book also searched the following 6 cases when writing, corresponding to 6 kinds of situations in which the arbitral award was revoked due to the formation of the arbitral tribunal in violation of statutory procedures, for the reader's reference.
Case 1: Wang Shaoqin, Shiyan Municipal Transportation Bureau, etc. applied for revocation of the civil ruling of the arbitral award [Shiyan Intermediate People's Court (2015) Eshiyan Zhongmin Yizhong Zi No. 00006]
During the trial, the Shiyan Intermediate People's Court held that the third reason for Wang Shaoqin's application for revocation was whether the case was directly appointed by the secretary general of the association to serve as a sole arbitrator to hear whether the case violated legal procedures. Article 12 of the Arbitration Law stipulates that "the arbitration commission shall be composed of one chairman, two to four deputy directors and seven to eleven members". That is, the director provided for in the Act does not include the deputy director. Article 32 of the Arbitration Law stipulates that "if the parties fail to agree on the composition of the arbitral tribunal or the selection of arbitrators within the time limit prescribed in the Arbitration Rules, the chairman of circumtermination commission shall appoint them". Therefore, in this case, the deputy director of the Shiyan Arbitration Commission appointed an arbitrator who violated the statutory procedures and should be revoked.
Case 2: First Instance Civil Ruling of Jiang Jia and Jiang B's Application for Revocation of Arbitral Award [Hangzhou Intermediate People's Court (2010) Zhejiang Hangzhou No. 51]
During the hearing, the Hangzhou Intermediate People's Court held that judging from the statement of the Hangzhou Arbitration Commission on the matter of handwriting appraisal in the (2008) Hangzhou Arbitration Award No. 99, and the content of whether the Court notified the Hangzhou Arbitration Commission whether to conduct re-arbitration, the case should be a situation in which the arbitration procedure was re-arbitrated due to the illegality of the arbitration procedure. According to Articles 72 and 73 of the Arbitration Rules of the Hangzhou Arbitration Commission submitted by the parties, a new arbitral tribunal shall be formed for hearing when the arbitration is re-arbitrated. However, in the course of the re-arbitration of this case, no new arbitral tribunal was formed, and the original arbitral tribunal continued to hear the case, which violated the above provisions of the Arbitration Rules and was a violation of the statutory procedures of the arbitration procedure. According to the first and second paragraphs of Article 58 of the Arbitration Law of the People's Republic of China, the arbitral award shall be revoked.
Case 3: Shaanxi Changyan Real Estate Co., Ltd. and Zhang Guoliang Applied for Revocation of Arbitral Award Civil Ruling [Baoji Intermediate People's Court (2013) Baozhong Withdrawal No. 00018]
During the hearing, the Baoji Intermediate People's Court held that the Baoji Arbitration Commission sent a notice of the formation of a single tribunal to the parties on March 15, 2013, but the approval opinion in the "Submission of Approval Form for the Members of the Arbitral Tribunal of the Baoji Arbitration Commission" was on March 18, 2013. The composition of the arbitral tribunal violated Article 32 of the Arbitration Law of the People's Republic of China and Article 29 of the Interim Rules for Arbitration of the Baoji Arbitration Commission.
Case 4: Civil Ruling on dispute between the Applicant (Former Respondent) Chengde County New Cooperative Real Estate Development Co., Ltd. and the Respondent (Original Applicant) Zhang Yanhui [Chengde Intermediate People's Court (2017) Ji 08 Minte No. 49]
During the trial, the Chengde Intermediate People's Court held that when the arbitral tribunal held a dispute between Zhang Yanhui and Chengde County New Cooperative Real Estate Development Co., Ltd. over the contract for the sale and purchase of commercial housing, the arbitrator Jiang Wentao, selected by Chengde County New Cooperative Real Estate Development Co., Ltd., did not participate in the hearing, the composition of the arbitral tribunal seriously violated the statutory procedures, and the applicant's application for revocation of the arbitral award was sufficient, and this court supported it.
Case 5: Shandong Boshi Technology Industrial Co., Ltd., Weifang Hengsheng Construction Co., Ltd., etc. Applied for Revocation of Arbitral Award Civil Ruling [Weifang Intermediate People's Court (2015) Weizhong Withdrawal No. 2]
The Weifang Intermediate People's Court held that ,...... First, there is the question of whether the appointment of the presiding arbitrator violates statutory procedure. Paragraph 1 of Article 31 of the Arbitration Law of the People's Republic of China stipulates that where the parties agree that three arbitrators shall constitute an arbitral tribunal, they shall each select or entrust the chairman of circumteriating commission to appoint one arbitrator, and the third arbitrator shall be jointly selected by the parties or jointly entrusted to the chairman of CIETAC for appointment. The third arbitrator is the presiding arbitrator. It can be seen from the provisions of that article that the presiding arbitrator shall be appointed by the Chairman of CIETAC, unless jointly selected by the parties. In the arbitration proceedings in this case, the parties did not jointly select the presiding arbitrator, so the presiding arbitrator should be appointed by the chairman of CIETAC. By reviewing the Weifang Arbitration Commission's (2014) Weinan Arbitration Zi No. 8 case file, the presiding arbitrator mei fang of the case was appointed by "Sun Zhongzhen", and the existing evidence showed that "Sun Zhongzhen" was not the director of the Weifang Arbitration Commission, and the case was supported by the court because the appointment of the presiding arbitrator violated the statutory procedures, resulting in the illegal constitution of the arbitral tribunal, which may affect the correct decision of the case.
Case 6: Civil Ruling on the Dispute over the Revocation of Arbitral Award by Linli Anfu Real Estate Development Co., Ltd. [Changde Intermediate People's Court (2014) Chang Min Yi Withdrawal No. 1]
During the trial, the Changde Intermediate People's Court held that, with regard to the focus of the dispute, Article 2 of the Lawyers Law of the People's Republic of China stipulates: """Lawyers as used in this Law refer to practitioners who have obtained a lawyer's practice certificate in accordance with law, accepted entrustment or designation, and provided legal services to the parties." Article 5 stipulates: "Applicants applying for lawyers to practice shall meet the following conditions: (3) Have completed one year of internship in a law firm..." Therefore, it can be determined that lawyers should practice after one year of internship. Mr. Lui Zhiqiang obtained his lawyer's practice certificate in May 2006, and his practice should be calculated from May 2006. Article 13 of the Arbitration Law of the People's Republic of China stipulates: "Cietah Commission shall appoint arbitrators from among fair and upright personnel. An arbitrator shall meet one of the following conditions: (1) have been engaged in arbitration for eight years; (2) have been engaged in lawyer work for eight years; (3) have served as judges for eight years; (4) are engaged in legal research or teaching work and have a senior professional title; (5) have legal knowledge, are engaged in economic and trade and other professional work, and have a senior title or have the same professional level. CIETAC shall establish a panel of arbitrators according to different specialties. "When Mr. Lu Zhiqiang appointed him as an arbitrator and served as an arbitrator in this case, he had been engaged in lawyer work, that is, he had been practicing as a lawyer for less than eight years; there was no evidence to prove that he had legal knowledge, engaged in professional work such as economics and trade, and had a senior professional title or the same professional level; that is, Lu Zhiqiang was hired by the Changde Arbitration Commission as an arbitrator of the Commission, and engaged in the arbitration work of the case, which did not meet the conditions for the appointment of arbitrators, violated the provisions of Article 13 of the Arbitration Law, and should be found to be in violation of statutory procedures according to law. Therefore, the arbitral award rendered by the arbitral tribunal (2013) Chang Arbitration Zi No. 39 shall be revoked by ruling. This court will not support Luo Yonghui's claim that the selection of arbitrators does not fall within the scope of the people's court's review, that the composition of the arbitral tribunal does not violate statutory procedures, and that it does not fall within the grounds of revocation provided for in Article 58 of the Arbitration Law of the People's Republic of China.