THE REFORM OF ARBITRATION IN FRANCE AND ITS

IMPLICATIONS FOR THE ENFORCEMENT OF AWARDS INVOLVING FRANCE AND THE PEOPLE’S REPUBLIC OF CHINA

 

By

 

Daniel Arthur LaprŹs

Avocat ą la Cour d’Appel de Paris

Barrister and Solicitor Nova Scotia Canada

Special Counsel to Kunlun Law Firm, Beijing

 

and

 

Qin Yang

Kunlun Law Firm, Beijing

 

 

*

 

*          *

 

 

 

1. - Introduction

 

As has been expected for some time, the French Government has, by a decree of January 13, 2011 (the Decree), adopted a reform of arbitration procedures,[1] as they are stipulated in the Civil Procedure Code (CPC).

 

The new rules entered into effect on May 1, 2011, though transitory measures will apply where the arbitration agreements were concluded, the arbitral tribunal was constituted or the awards were rendered before that date.

 

According to the Report of the Prime Minister, the reform is intended to simplify arbitration procedures, both national and international, and to increase their effectiveness.[2] More particularly, the new measures are intended to consolidate the leading role of Paris as a center for international arbitration.

 

    Below, attention is first concentrated on the new régime governing international arbitration proceedings under French law. Then, we turn our attention to the conditions of recognition and enforcement of awards involving France and the People’s Republic of China (PRC).

 

By way of preliminary to that presentation, it bears noting that France’s domestic arbitration rules would apply in the following conditions:

 

Š where the proceedings are held on French territory and the dispute does not involve international commercial interests; examples would include a commercial dispute involving French domestic interests but could also cover proceedings in non-commercial domestic disputes such as one between French parties to an employment contract performed on French territory and

 

Š whether or not the dispute involves international commercial interests and whether the proceedings are held in France or abroad, if the domestic régime is specifically chosen by the parties, is designated under the rules of the competent arbitration institution, or is selected by the tribunal to govern the proceedings.

 

The French courts lend a broad interpretation to international commercial arbitration as it can cover proceedings even between parties in France, such as companies constituted in France though controlled by foreign owners, if their dispute concerns a transaction with transnational implications.

 

The differences between the domestic and international arbitration régimes arise at all stages of the process but are not likely to impact on the recognition or enforcement of the ensuing award in the PRC. A table summarizing the major differences is attached as an Appendix.

 

 

2. - The origins of the French legal frameworks governing domestic and international arbitration

   

While the validity of agreements to arbitrate existing disputes was recognized in the 1807 version of the CPC, contractual clauses requiring submission to arbitration of future disputes were considered to be null by application of article 2061 of the Civil Code (prior to its amendment in 2001[3]) unless otherwise provided by particular laws and this rule was applied by the French courts.[4] But, as such an attitude conflicted with a general trend in the business community to have recourse to arbitration clauses, the French legislature adopted on December 31, 1925 an amendment to article 631 of the Commercial Code allowing parties to submit their future disputes about commercial matters to arbitration.[5]

 

Some thirty years ago, the French government adopted comprehensive sets of regulations covering international and domestic arbitration proceedings,[6] and since then an ample body of case-law refined and developed arbitration régimes that generally reflects an arbitration-friendly attitude.

 

To this day, there remains a distinction between arbitration proceedings characterized as “French” and those characterized as “international” and the characterization of an arbitration as “international” entails decisive consequences for the conditions in which the proceedings may unfold.

 

The Decree does not change the characterization as “international” of arbitration proceedings that “involve interests in international commerce”.[7]

 

Unless the parties agree otherwise, the Chief Justice of the Tribunal de Grande Instance (Superior Court) of Paris (referred to below as the supporting judge) is competent to intervene with respect to the issues identified in the CPC where:

 

Š the seat of the arbitration proceedings is located in France,

 

Š the parties have elected to apply French procedural rules,

 

Š the parties have expressly designated the French courts to resolve procedural difficulties and

 

Š any of the parties risks suffering a denial of justice.[8]

 

The supporting judge is seized by any of the parties or by the tribunal or by any of the arbitrators. Actions before the supporting judge are initiated, investigated and judged in the same manner as summary proceedings ("référé").[9] The supporting judge’s orders are not subject to any recourse except where he/she has ruled that there is no need to appoint an arbitrator because the arbitration agreement is manifestly void or inapplicable.[10]

 

 

3. - Arbitration proceedings

 

3.1. - The arbitration agreement

 

    Agreements to arbitrate international commercial disputes are not subject to any formal requirements.[11]

 

In French law, the legality of an agreement to arbitrate an international commercial dispute is appreciated by reference to the laws of the countries where it is likely to be enforced.[12]

 

Agreements to arbitrate may be adopted even while the dispute is before the courts.[13]

 

    The Decree maintains the current position under French law that the agreement to arbitrate is independent of the contract adopting it in the sense that it applies even if that contract itself is void, has expired or become moot, or has been rescinded or terminated.[14] Where the agreement to arbitrate is invalid, it is deemed void ab initio.[15]

 

    The intervention of the French courts may be solicited prior to the commencement of arbitration proceedings where the arbitral tribunal has not yet been seized and where the agreement to arbitrate is manifestly void or inapplicable; the court may not refuse jurisdiction unless requested to so by a party.[16]

 

    Notwithstanding an agreement to arbitrate a dispute, and as long as the tribunal has not been seized thereof, the parties may petition the courts to obtain orders imposing measures of inquiry or provisional or conservatory measures.[17] Such actions are brought before the Chief Justice of the Tribunal de Grande Instance or the Chief Justice of the Tribunal de Commerce (the Commercial Court).[18]

 

3.2. - The appointment of the arbitrator(s)

    In the arbitration agreement, the parties may directly appoint the arbitrator(s), or they may refer for such purpose to a set of arbitration rules or to a set of procedural rules or they may provide for their appointment in some other manner.[19]

Where the parties are unable to agree on the designation of the members of the arbitration tribunal or experience any other irresolvable difficulty in constituting the tribunal, the legal person or institution charged with the organization of the proceedings is invested with the power to make the appointments or, in the absence of such an organizing authority, the power to make the appointment(s) or resolve the disagreement is vested in the supporting judge.[20]

 

    Once the arbitrators accept their appointments, the arbitral tribunal is deemed to have been constituted and to have been seized of the dispute.[21]

 

    Immediately upon learning of their existence, arbitrators are obligated to disclose any circumstances that might impeach their independence or impartiality, regardless of whether they had arisen prior to the arbitration or they occurred during the proceedings.[22] In the event of difficulties on this point, the matter is referred to the organizing institution or, in the absence of same, to the supporting judge.[23]

 

    Except in the event of a justified impossibility or other legitimate reason for their abstention or resignation, arbitrators must execute their missions until their completion. Where there is a dispute about the reality of the event invoked by an arbitrator, the issue is decided within one month of the arbitrator’s withdrawal by the institution responsible for organizing the proceedings or, in the absence thereof, by the supporting judge.[24]

 

    The revocation of the arbitrator(s) is subject to the unanimous consent of the parties and, in the event of disagreement among the parties, the matter is decided by the institution responsible for organizing the proceedings or, in the absence thereof, by the supporting judge.[25]

 

3.3. - The conduct of arbitration proceedings

    Unless otherwise agreed by the parties, arbitration proceedings may be initiated jointly by the parties or by any one them acting on its own.[26]

 

The arbitral tribunal has exclusive power to decide disputes about its jurisdiction.[27]

 

Where a party, without a legitimate excuse, fails to invoke an irregularity before the tribunal of which it had full knowledge, it is estopped from doing so subsequently.[28]

 

The tribunal undertakes the inquiries it considers necessary unless the parties accept that it delegates one of the arbitrators to do so. The tribunal may hear any witnesses. They are heard without having to be sworn in. Where a party has evidence in its possession, the tribunal may order its communication, where necessary, subject to penalties for failure to do so.[29]

 

Arbitral tribunals may order such conservatory or provisional measures as they deem appropriate, including subject to penalties in the event of non-performance. But only the courts are empowered to order seizures of property or judicial liens.[30]

 

Where a party intends to force a third party to provide evidence, it must, subject to provision of a comfort letter by the tribunal, petition a court to that effect. The competent court is chosen pursuant to the general rules of French civil procedure. The petition is processed by the court as a summary action ("référé"). The resulting order is subject to appeal within 15 days of service of notice of the decision.[31]

 

Except where provided otherwise, the tribunal has the power to decide allegations of fraud in accordance with the normally applicable rules of French civil procedure.[32]

 

The tribunal is empowered to suspend the proceedings where appropriate and the order their resumption as it sees fit.[33]

 

The deadline for rendering the award may be extended by agreement of the parties or, in the absence thereof, by the supporting judge.[34]

 

The parties and the arbitrator(s) must act expeditiously and with loyalty. [35]

 

In their arbitration agreement, the parties may determine the rules of procedure to govern their proceedings either directly or by reference to a set of arbitration rules or to a set of procedural rules. In the absence of any such stipulation, the tribunal, when necessary, sets down the procedures either directly or by reference to a set of arbitration rules or to a set of procedural rules.[36]

   

No matter what the manner of determining the rules of procedures governing international arbitrations, the tribunal must impose respect for equality of the parties and for the rights of the parties to defend their rights and interests.[37]

 

    In deciding the dispute, the tribunal must apply the rules of law chosen by the parties or, in the absence of such a choice, the rules of law that it considers appropriate and, in all cases, it must take account of commercial customs.[38]

    Where the parties have so provided, the tribunal may act as conciliator.[39]

    Unless otherwise provided by the parties, awards are rendered by a majority vote of the tribunal’s members. They must be signed by all the tribunal’s members, but if a minority refuses to sign, mention of the fact must be noted on the original of the awards. Where there is no majority, the chairman renders a sole award and if the other arbitrators refuse to sign the award, the chairman makes mention thereof on the original which he alone signs.[40]

   

Arbitral proceedings are stipulated to be confidential.[41]

 

    In principle, the arbitral tribunal is responsible for deciding whether it has jurisdiction to hear any case.[42]

 

    French law has imported, in the guise of respect for good faith, the concept of estoppel from the common law so that parties can be prevented from adopting behavior that conflicts with their prior conduct, such as by raising new arguments in an untimely manner.[43]

 

3.4. - The arbitration award

 

    The deliberations of the arbitrators must be kept secret.[44]

 

    Arbitral awards must contain the names of the parties and their domiciles, the names of the lawyers or other persons that represented them, the names of the arbitrators, the date of the award and the place where the award was rendered.[45]

 

    The award must contain a succinct statement of the parties’ claims and of their arguments. Awards must be reasoned.[46]

 

    Immediately upon being rendered, arbitration awards have the effect of res judicata as regards the matters in dispute.[47]

Awards may be stipulated to be provisionally executory.[48]

    The rendering of the award relieves the tribunal of its mission. But any party may apply to the tribunal for interpretations of the award, for corrections of material errors or omissions or for decisions with respect to any claims left undecided. The tribunal renders its decision after hearing the parties.[49] Such applications must be filed within three months from notice of the award. Decisions on such applications are rendered within three months from seizure of the tribunal to that effect, but the deadline may be extended by agreement of the parties or, in the absence thereof, by a decision of the supporting judge.[50]

 

 

4. - The recognition and enforcement of arbitration awards involving France and the PRC

   

    France and the PRC are both parties to the following multilateral treaties that govern the conditions of recognition and enforcement of French arbitral awards in the PRC:

 

Š the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention),[51]

 

Š the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States - International Centre for Settlement Of Investment Disputes (ICSID), signed in Washington and that entered into force on October 14, 1966 (the ICSID Convention).[52]

 

France and the PRC have also concluded bilateral agreements that can impact on the conditions of recognition and enforcement in the PRC of French arbitral awards:

 

Š the agreement with respect to judicial cooperation in civil and commercial affairs concluded in Beijing on May 4, 1987 (the Judicial Cooperation Agreement) and

 

Š the agreement with respect to the reciprocal encouragement and the protection of investments signed in Beijing on November 26, 2007 (the Investments Protection Agreement.

 

4.1. - The recognition and enforcement by French courts of foreign awards and international awards rendered in France

 

Arbitral awards are recognized and are rendered executory in France subject to proof thereof by the party making the claim and provided such recognition or enforcement would not be manifestly contrary to international public policy.[53]

 

    Arbitral awards are proved by presentation of their originals accompanied by the agreement to arbitrate or copies of such documents that suffice to establish their authenticity. When these documents are not set down in French,[54] they must be translated by an official translator.[55]

 

Arbitration awards are executory in France only if they have been validated by a judgment of exequatur rendered by the Tribunal de Grande Instance (Superior Court) seating in the jurisdiction where the award was rendered or, if it was rendered outside France, then by the Tribunal de Grande Instance (Superior Court) of Paris.[56] The procedure may be initiated by any party to the proceedings and it is conducted ex parte. [57]  

 

The grant of exequatur is mentioned on the original or the accepted substitute therefor as well as, where applicable, on the translation.[58]

On some matters, the provisions in French law with respect to recourses against awards are common to both foreign awards, including Chinese awards, and awards rendered in France in disputes involving international commerce, but as regards other matters distinctions are drawn between them.

 

Foreign awards become subject to review by French courts upon being solicited by a party to obtain their recognition or enforcement in France.

 

4.1.1. - Common provisions

 

Whether an award was rendered in France in a matter of international arbitration or was rendered abroad, actions to have it quashed and appeals against orders for its exequatur do not suspend the enforcement of the award, though the court of appeal may order suspension of enforcement or impose conditions thereon in order to avoid that a party’s rights might be “seriously damaged”.[59]

Applications for revisions of awards are filed before the tribunal that rendered the award.[60] This recourse is available when, without any fault of the petitioner:

Š it is revealed after the rendering of the award that it was obtained by fraud of its beneficiary,

Š after the award was rendered, evidence is discovered which would have had a decisive influence on the outcome and which was withheld by the victorious party or

Š the award was rendered on the basis of evidence that is admitted or is declared by a court after the rendering of the award to be false.[61]

The recourse must be exercised within two months from the date on which the relevant information came to the attention of the petitioner.[62] All the parties to the arbitral proceedings must be served notice of the recourse.[63] Judgments with respect to recourses in revision are not subject to any recourses other than revision based on facts having arisen after the original decision.[64]

    Arbitral awards in international commercial disputes are not subject to opposition or recourses before the Cour de Cassation.[65]

4.1.2. - Awards rendered in France with respect to international disputes

 

Awards rendered in France with respect to international arbitrations are subject only to recourses in annulment.[66]

 

Under article 1520 of the CPC as revised, actions to have awards quashed may succeed only if:

 

Š the tribunal erroneously assumed or declined jurisdiction,

 

Š the tribunal was improperly constituted,

 

Š the tribunal rendered a decision without complying with the role conferred upon it,

 

Š the rights of the parties to defend themselves were not respected or

 

Š the recognition or enforcement of the award would violate international public policy.[67]

 

Actions to set awards aside are brought before the court of appeal in the jurisdiction where the award was rendered.[68] Such actions may be brought once the award is rendered and the right is lost one month after notification of the award. Unless the parties agree otherwise, notice is accomplished by service.[69]

 

Exequatur may be granted by the court of appeal immediately upon being seized.[70]

 

By specific agreement, the parties to arbitral awards may renounce recourses to have them quashed, but even in such event they may appeal against orders of exequatur of the award on the grounds stipulated in article 1520 of the CPC as delineated above.[71] Such appeals must be brought within one month of service of notice of the award bearing the order of exequatur.[72]

 

Judgments that refuse recognition or enforcement of international arbitration awards rendered in France may be appealed.[73] Such appeals must be brought within one month of service of notice of the judgment.[74] The court of appeal seized of such an action is also competent to hear petitions to have the award quashed from any party which has not renounced such right and provided that the deadline for such petitions has not expired.[75]

    Judgments granting exequatur of international awards rendered in France are not subject to recourses except that:

 

Š where the parties have expressly renounced recourse to actions for quashing the relevant award in which case, they may appeal against the exequatur order on the grounds specified in article 1520 of the CPC or

 

Š where a party has sought to have quashed to award for which exequatur was granted, the court seized of the annulment action is deemed to be competent to review the exequatur order within the limits of the terms of reference of the quashing action.[76]

 

4.1.3. - Recourses against judicial decisions concerning the recognition and/or enforcement of Chinese arbitral awards

As regards awards rendered abroad generally, and in the PRC in particular, orders of recognition or exequatur pronounced by French courts may be appealed.[77]

 

Such appeals must be brought within one month of service of the award, though the parties may agree on other formalities of notice where the appeal is brought against an award on which exequatur has been granted.[78]

 

The court of appeal may only refuse recognition or exequatur of foreign awards in the event of one of the occurrences mentioned in article 1520 of the CPC.[79]

 

Based on a search of published judgments of French courts, it would seem that they have not had the occasion to review the recognition or enforcement of Chinese awards.

 

A difficulty might arise when a PRC arbitral award were to violate “social public interests” in the PRC[80] and not “international public policy” as provided under French law. In such an event, an award that would be unenforceable in the PRC could be recognized and enforced in France.

 

4.2. - Recognition and enforcement of French arbitration awards in the PRC[81]  

 

The principal sources governing the recognition and enforcement by the Chinese courts of French (and other foreign) arbitration awards are:

 

Š the Arbitration Law,[82]

 

Š the Civil Procedure Law (the CPL) as amended in 2007,[83]

 

Š more than 30 interpretations issued by the Supreme People’s Court including at least 11 since 2007, most of which are replies and instructions to lower courts.

 

In its article 267, the CPL provides that the Chinese courts, in deciding whether to recognize and enforce foreign arbitration awards, should have regard to the provisions of international agreements binding upon the PRC and respect the principle of reciprocity. Indeed, in accordance with the CPL’s article 236, when there arise conflicts between the PRC’s domestic law and the requirements of international treaties after taking account of any reservations made by the PRC, the conventional provisions must prevail.

 

As a matter of fact, it appears the People’s Courts denied the enforcement of 12 foreign arbitration awards between 2000 and 2008.[84] According to article 2 of an Interpretation of Supreme People’s Court as revised in 2008, a denial of recognition by an Intermediate Court must be approved by the Supreme Court.

 

Contrary to what might have been expected, the grounds most often invoked by the Supreme People’s Court to justify enforcement denials are not violations of PRC public policy pursuant to article 5 (d) of the New York Convention, but instead:

 

Š violations or non-compliance with the relevant arbitration rules, such as “the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties”,

 

Š violations of the rights of procedural justice, such as when “the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case” and

 

Š delay beyond the two-year limit for requesting for enforcement.[85]

 

Indeed on August 11, 2008, the Supreme People’s Court upheld a Shandong Intermediate Court denial of enforcement of an ICC award for the tribunal’s assumption of jurisdiction over issues not submitted to arbitration.[86] On the other hand, the enforceability of the award was not questioned as a matter of principle.

 

4.2.1. - The application of the New York Convention in the PRC

 

     The PRC has made two reservations with respect to the scope of application of the Convention:

 

Š the Convention applies only to recognition and enforcement of awards made in the territory of another contracting State,

Š it applies only to differences arising out of legal relationships, whether contractual or not, that are considered commercial under Chinese law.[87]

France has made only the first reservation.[88]

 

Under the Convention, a French arbitration award would be recognized and enforced in the PRC whether it arose out of differences between physical or legal persons[89] and regardless of whether the arbitrators were appointed ad hoc by a permanent arbitral body to which the parties have submitted, such as the International Court of Arbitration of the International Chamber of Commerce (ICC).[90]

 

To be recognized or enforced, an award must arise from an agreement to arbitrate that was set down in writing[91] whether it was included in a contract or arbitration agreement or arose from an exchange of correspondence.[92]

 

According to the Convention, in deciding whether to recognize and enforce French arbitral awards, the Chinese courts would apply local rules of procedure.[93]

 

Under the Convention’s provisions, to have a French award recognized or enforced in the PRC, the claimant would have to provide a duly authenticated original award or a duly certified copy thereof and the original arbitration agreement or a duly certified copy[94] as well as a Chinese translation thereof certified by an official or sworn translator or by a diplomatic or consular agent.[95]

 

According to the Convention’s article 5, recognition and enforcement of a French award might be refused by a Chinese court only if:

 

Š the parties were, under the law applicable to them, under some incapacity, or the arbitration agreement was not valid under the law to which the parties have subjected it or, failing any indication thereon, under French law as the law of the country where the award was made or

 

Š the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case or

 

Š the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration could be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration might be recognized and enforced or

 

Š the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of France as the country where the arbitration took place or

 

Š the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority in France as the country in which, or under the law of which, that award was made.[96]

 

According to the Convention, a Chinese court at least at the intermediate level might also refuse recognition and enforcement of a French arbitral award where:

 

Š the subject matter of the difference is not capable of settlement by arbitration under Chinese law or

 

Š the recognition or enforcement of the award would be contrary to Chinese public policy.[97]

 

Consequently, in a variety of circumstances, the recognition and enforcement in the PRC of valid French arbitration awards might be challenged in the PRC, just as awards that would be recognized and enforced in the PRC might be subject to challenges before the French courts.

 

First, a French award in an international commercial dispute could be based on an oral agreement to arbitrate, since no formal conditions are imposed by French law, while the Convention requires that the arbitration agreement be in writing as does the CPL.[98]

 

Secondly, a French award could be challenged before the French courts on grounds that do not correspond exactly to those in the Convention, such that it might be recognized and enforced in the PRC.

 

For instance, as noted above, an international arbitration award rendered in France may be set aside by a French court on any of the grounds listed in article 1520 of the CPC. Whereas the New York Convention mentions the incapacity of the parties as a ground for refusal of recognition or enforcement, that condition is not expressly stated in the article 1520 of the CPC, though it might arguably be interpreted as included within the meaning of an improper acceptance of jurisdiction by a tribunal seized by parties without capacity.

 

Another difficulty of reconciliation could also arise where a French award might violate Chinese “public policy” as provided in the Convention[99] while not violating international public policy defined to be a circumstance in which a French court would set aside an award rendered in France.[100]

 

Yet another problem of reconciliation might arise where an arbitration tribunal rendered an award in France under the domestic régime in a non-commercial matter, which would not preclude its recognition and enforcement in France, or under the New York Convention but for the fact that the PRC has excluded this eventuality by virtue of its reservation as mentioned above.

 

A constant line of case law has been set down by PRC courts with respect to the conditions of local recognition and enforcement of awards rendered in countries that are parties to the New York Convention.[101]

 

Most recently the Chinese courts have recognized and enforced awards rendered by the Stockholm Chamber of Commerce Arbitration Commission,[102] the Singapore International Arbitration Center,[103] the Singapore Mercantile Exchange,[104] the Hamburg Mercantile Exchange,[105] the International Cotton Council,[106] and a sole ad hoc arbitrator in the United Kingdom even though ad hoc arbitration is not permissible in Chinese domestic arbitrations.[107]

 

A particular problem concerns the recognition and enforcement in the PRC of awards rendered under the auspices of the ICC’s Court of International Arbitration that may under its own rules organize proceedings abroad, therefore in the PRC, whereas Chinese rules lend themselves to the interpretation that only arbitration awards rendered under the auspices of PRC arbitration institutions will be regarded as domestic awards, whereas arbitration awards of foreign organizations will not be treated as domestic awards even the proceedings were held in the PRC. The Supreme People’s Court[108] and the Ningbo Intermediate People’s Court[109] have ruled that an ICC award rendered after proceedings conducted in China would be enforceable as a non-domestic award. In its Notice on Issues relevant to the Enforcement of Hong Kong Arbitration Awards in Mainland China,[110] the Supreme People’s Court decided that an ICC award rendered in Hong Kong would be treated as a Hong Kong award not as a French one, as had been ruled in a previous case.[111] This attachment of a an ICC award rendered in Hong Kong to Hong Kong would seem to call into question the coherence of treating ICC awards rendered in China as non-domestic under Chinese procedural rules for recognition and enforcement of arbitration awards.

 

4.2.2. - The ICSID Convention

 

    This Convention applies to any “legal dispute

arising directly out of an investment, between a Contracting State and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre”.[112]

 

Under article 44 of the Convention, the parties have the option to choose the rules of procedure to govern the arbitration proceedings and where a

question of procedure arises which is not covered by e Convention or the ICSID Arbitration Rules or any

rules agreed by the parties, the Tribunal enjoys discretionary power to decide the question. In such circumstances, arbitration proceedings under the ICSID Convention could be settled by reference to French procedural rules, and that option would be especially likely where an investment in France were the subject of debate.

 

The Contracting States are obligated to recognize an award rendered pursuant to the Convention as binding and to enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.[113] Execution of awards is governed by the laws concerning the execution of judgments in force in the State where such execution is sought.[114]

 

No dispute involving the PRC has yet been subjected to arbitration under the auspices of the ICSID, and France has only been involved in one case in which it claimed against Argentina.[115]

 

4.2.3. - Judicial Cooperation Agreement

 

France and the PRC promise each other’s citizens the right to equal treatment in terms of judicial protection and access to their courts.[116]

 

The parties agree to cooperate as regards the recognition and enforcement of arbitral awards in both commercial and civil matters.[117] This provision seems to extend the possibilities of enforcement of French awards beyond the PRC’s reservation under the New York Convention to commercial matters only.

 

But another article of the Agreement provides that each of the parties will recognize and enforce arbitral awards rendered on the territory of the other in accordance with the provision of the New York Convention.[118]

 

As the Judicial Cooperation Agreement was signed two weeks after the entry into effect of the New York Convention as regards the PRC, the reservation in the New York Convention would not seem to supersede the commitment in the bilateral cooperation agreement.

 

Also, as noted above, the French régime covering the recognition and enforcement of foreign awards and international awards rendered in France applies only to commercial disputes.

 

So whether France would recognize or enforce a Chinese arbitration award in a non-commercial matter not excluded from arbitration by the Arbitration Law[119] depends on the interpretation of the Judicial Cooperation Agreement.

 

Were France to recognize and enforce PRC awards in non-commercial matters, then by the principle of reciprocity, the Chinese courts would be expected to do likewise as regards French non-commercial awards.

 

4.2.4. - The Investments Protection Agreement

 

  This Agreement contains provisions about the settlement, on the one hand, of disputes between the parties under the rules of public international law,[120] which is beyond the scope of this presentation, and on the other hand, of disputes between an investor from one of the party-countries and the other country.[121]

 

  As regards the latter disputes, and after a failed attempt at finding an amicable solution, the investor has three options. It may bring an action before the courts of the party-country where the investment was made or it may submit the dispute to the ICSID under the rules described above. Its third option would be to resort to ad hoc arbitration under the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL).[122]  

  Under UNCITRAL Rules, the place of arbitration is decided by the parties and, in the absence of such a choice by the arbitral tribunal “having regard to the circumstances of the case”. The award is deemed to have been made at the place of arbitration.[123]

 

In the case of a hypothetical dispute between a Chinese investor over an investment in France, whether the proceedings would be governed by France’s domestic or its international arbitration régime would presumably depend on the place of arbitration, on the identity of the claimant and on whether the investment were intended to be for profit or non-lucrative.

 

If the arbitration were held outside French territory and involved international commerce, then the proceedings would be under the international régime.

 

As to arbitrations held in France, under article 2(2) of the Investment Protection Agreement, the claimant investor would be the foreign investor and the dispute would then be considered as involving an international matter.[124]

 

Where the investment were non-lucrative as is admitted under article 2(2) of the Agreement, a dispute arising between France and the Chinese investor would not fall within the scope of the French international arbitration regime. On the other hand, it would not readily fit within the domestic regime due to the foreign nationality of the investor.

 

    In all events, the award would be considered definitive and binding upon the parties and both the PRC and France are committed to its recognition and enforcement.[125]

 

 

5. - Conclusion

 

    The recent reform of arbitration procedures in France is intended to enhance France’s position as a leading place of international arbitration.

 

It does not contain any changes that would cause the conditions of recognition and enforcement of French awards by PEC courts to deteriorate.

 

    Of the few cases in which the PRC courts have commented on French awards within the PRC, none have called into the question the principle of their recognition and enforcement pursuant to the New York Convention.

 

While there do not appear to have been any cases arbitrated under the bilateral agreements to that effect binding upon France and the PRC, those agreements would seem to extend the scope for such recognition and enforcement of awards, in particular as regards non-commercial disputes.


APPENDIX 1

 

 

Comparison of the French domestic and international arbitration régimes

 

 

Domestic

International

Subject matter

No limitation.

International commerce.

The agreement to arbitrate

It must be in writing.[126]

No formal requirements.[127]

Right to appeal

Possible unless the parties have agreed otherwise.[128]

No appeal.[129]

Right of recourse to set aside

Cannot be waived unless the parties have expressly provided a right of appeal.[130]

Can be waived by agreement of the parties at any time, but then they can appeal the relevant exequatur order on the grounds admitted for setting the award aside.[131]


 

Grounds for action to set aside[132]

Violations of French public policy.[133]

 

The award is not reasoned or is not dated or the award does not mention the names of the  arbitrator(s), contain his(their) signature(s) or was not rendered by a majority vote.[134]

Violations of  international public. policy.[135]

Recourses against judgments on exequatur

Exequatur orders are not subject to any recourse[136] but refusals of exequatur may be appealed.[137]

 

Awards may include a disposition that they are provisionally enforceable, but the court may suspend or modify the execution and may order provisional enforcement where it is not stipulated in the award.[138]

 

 

Foreign awards:

Exequatur orders may be set aside on the grounds stated in article 1522 of the CPC[139] and refusals of exequatur can be appealed.[140]

 

Awards rendered in France in international commerce:

Judgments on recognition or enforcement may be appealed.[141]

 

In both cases: recourses do not suspend execution unless so ordered by the Court of Appeal where a party’s interests might suffer serious harm.[142]

Other recourses

Third-party opposition[143] and revision.[144]

None


APPENDIX 2

 

Principal Supreme People’s Court Interpretations with respect to arbitration[145]

 

 

PLEASE SEE ATTACHED PDF FILE TO BE INSERTED HERE.

 

 


 APPENDIX 3

PRC courts’ treatment of the recognition and enforcement of foreign arbitration awards

 

最高人民法院关于申请人番禺珠江钢管有限公司与被申请人深圳市泛邦国际货运代理有限公司申请确认仲裁协议效力一案的请示的复函(200955日 [2009]民四他字第7号)

http://bmla.chinalawinfo.com/NewLaw2002/SLC/SLC.asp?Db=chl&Gid=132730

 

最高人民法院关于夏新电子股份有限公司与比利时产品有限公司确认经销协议仲裁条款效力的请示的复函(2009320日 [2009]民四他字第5号)

http://bmla.chinalawinfo.com/NewLaw2002/SLC/SLC.asp?Db=chl&Gid=132728


最高人民法院关于舟山中海粮油工业有限公司申请不予执行香港国际仲裁中心仲裁裁决一案的请示复函(2009318日 [2009]民四他字第2号)

http://bmla.chinalawinfo.com/NewLaw2002/SLC/SLC.asp?Db=chl&Gid=132741

 

最高人民法院关于GRD Minproc有限公司申请承认并执行瑞典斯德哥尔摩商会仲裁院仲裁裁决一案的请示的复函(2009313日 [2008]民四他字第48号)

http://bmla.chinalawinfo.com/NewLaw2002/SLC/SLC.asp?Db=chl&Gid=132740

 

最高人民法院关于裁定不予承认和执行社团法人日本商事仲裁协会东京05-03号仲裁裁决的报告的答复([2008]民四他字第18号 2008910日)

http://bmla.chinalawinfo.com/NewLaw2002/SLC/SLC.asp?Db=chl&Gid=141704

 

最高人民法院关于对中海发展股份有限公司货轮公司申请承认伦敦仲裁裁决一案的请示报告的答复([2008]民四他字第17号 200886日)

http://bmla.chinalawinfo.com/NewLaw2002/SLC/SLC.asp?Db=chl&Gid=141711

最高人民法院关于不予承认和执行国际商会仲裁院仲裁裁决的请示的复函(200862日 [2008]民四他字第11号)

http://bmla.chinalawinfo.com/NewLaw2002/SLC/SLC.asp?Db=chl&Gid=132739

 

最高人民法院《关于不予承认日本商事仲裁协会东京0405号仲裁裁决的报告》的复函(200833日 [2007]民四他字第26号)

http://bmla.chinalawinfo.com/NewLaw2002/SLC/SLC.asp?Db=chl&Gid=125492

 


最高人民法院关于马绍尔群岛第一投资公司申请承认和执行英国伦敦临时仲裁庭仲裁裁决案的复函(2008227日 [2007]民四他字第35号)

http://bmla.chinalawinfo.com/NewLaw2002/SLC/SLC.asp?Db=chl&Gid=125493

 

最高人民法院关于邦基农贸新加坡私人有限公司申请承认和执行英国仲裁裁决一案的请示的复函(2007625日 [2006]民四他字第41号)

http://bmla.chinalawinfo.com/NewLaw2002/SLC/SLC.asp?Db=chl&Gid=110722

 

最高人民法院关于彼得Š舒德申请承认及执行美国仲裁委员会裁决一案的请示的复函(2007122日 [2006]民四他字第35号)

http://bmla.chinalawinfo.com/NewLaw2002/SLC/SLC.asp?Db=chl&Gid=125661

 



[1] Decree number 2011-48 of January 13, 2011, available at www.lapres.net/decree.pdf.

[2] A copy of the Report (in French) is available at  www.lapres.net/report.pdf

[3] Law n° 2001-420 of May 15, 2001 - art. 126 JORF May 16, 2001.

[4] Cour de cassation, July 1, 1843, Rec. Sirey 1845.1.562, but the parties could validate retrospectively the clause by its voluntary implementation.

[5] Travaux préparatoires, S., 1926, 57, D.P., 1926, 4, 25; Jean Vincent and Serge Guinchard, Procédure Civile, 22nd ed. Dalloz, Paris, 1991, p. 868.

[6] Decree 80-354 of May 14, 1980 and Decree 81-500 of December 5, 1981.

[7] Article 1504 of the CPC as amended by article 2 of the decree.

[8] Article 1505 of the CPC as amended by article 2 of the Decree. These rules consolidate French case-law as typified in NIOC v. Israel, CA Paris, 1e ch., March 29, 2001, Revue de l'Arbitrage 2002, 427, 441, note Fouchard.

[9]  Articles 1506 and 1460 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[10] Articles 1506 and 1460 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[11] Article 1507 of the CPC as amended by article 2 of the decree. In domestic proceedings, the agreement to arbitrate may be inferred from exchanges of correspondence to that effect as well as from the inclusion of arbitration agreements in contracts with which the arbitrated dispute has connexity, article 1443 of the CPC.

[12] Cour de cassation, Civ. 1re, 29 June 2007.

[13] Articles 1506 and 1446 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[14] Articles 1506 and 1447 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[15] Articles 1506 and 1447 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[16] Articles 1506 and 1448 of the CPC as amended by article 2 of the Decree. It would appear that provisions to the contrary would not be deemed void as regards international arbitration, though they would be in domestic proceedings. These provisions apply unless the parties have agreed otherwise.

[17] Article 1509 of the CPC as amended by article 2 of the Decree; conservatory seizures of property and judicial liens are subject to the ordinary rules of French procedure.

[18] Articles 1506 and 1449 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[19] Article 1508 of the CPC as amended by article 2 of the Decree.

[20] Articles 1506 and 1452-1454 of the CPC as amended by article 2 of the Decree. The supporting judge must refuse to make the requested appointments where the invoked arbitration agreement is manifestly void or inapplicable, article 1455 of the CPC. These provisions apply unless the parties have agreed otherwise.

[21] Articles 1506 and 1456(1) of the CPC as amended by article 2 of the Decree; these provisions apply unless the parties have agreed otherwise. However, under article 1461 of the CPC, the parties may agree in their contracts or indirectly via the rules of the organizing institution that the arbitrators will be deemed to have been seized, and therefore that the deadline for rendering an award will have begin to run, only once they are in a position to decide the case, such as when they have received appropriate documents.

[22] Articles 1506 and 1456(2) of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[23] Articles 1506 and 1456(3) of the CPC as amended by article 2 of the Decree; under the previously applicable provision of the CPC, the arbitrator who had doubts about this point could accept the mission subject to agreement of all the parties. These provisions apply unless the parties have agreed otherwise. They apply to awards rendered by tribunals constituted after May 1, 2011.

[24] Articles 1506 and 1457 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise. They apply to awards rendered by tribunals constituted after May 1, 2011.

[25] Articles 1506 and 1458 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise. They apply to awards rendered by tribunals constituted after May 1, 2011.

[26] Articles 1506 and 1462 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[27] Articles 1506 and 1465 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[28] Articles 1506 and 1466 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[29] Articles 1506 and 1467 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[30] Articles 1506 and 1468 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[31] Articles 1506 and 1469 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[32] Articles 1506 and 1470 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[33] Articles 1506 and 1472 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[34] Articles 1506 and 1463(2) of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[35] Articles 1506 and 1464(3) of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[36] Article 1509 of the CPC as amended by article 2 of the Decree.

[37] Article 1510 of the CPC as amended by article 2 of the decree.

[38] Article 1511 of the CPC as amended by article 2 of the decree.

[39] Article 1512 of the CPC as amended by article 2 of the decree.

[40] Article 1513 of the CPC as amended by article 2 of the decree; these provision apply only to awards rendered after May 1, 2011.

[41] Article 1464 of the CPC.

[42] Article 1465 of the CPC.

[43] Article 1466 of the CPC.

[44] Articles 1506 and 1479 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[45] Articles 1506 and 1481 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[46] Articles 1506 and 1482 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[47] Articles 1506 and 1484(1) of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[48] Articles 1506 and 1484(2) of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[49] Articles 1506 and 1485(1) and (2) of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[50] Articles 1506 and 1486 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise. They apply to awards rendered by tribunals constituted after May 1, 2011.

[51] The Convention entered into effect as regards the PRC, on April 22, 1987 and as regards France on September 24, 1959, UNCITRAL, http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html

[52] The Convention entered into effect as regards the PRC, on February 6, 1993 and as regards France on September 20, 1967, ICSID, http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDDocRH&actionVal=ContractingStates&ReqFrom=Main.

[53] Article 1514 of the CPC as amended by article 2 of the decree.

[54] Article 1515 of the CPC as amended by article 2 of the decree.

[55] As recognized in France or any other country of the European Union, of the European Economic Zone or Switzerland, article 1515 of the CPC as amended by article 2 of the decree.

[56] Article 1516 of the CPC as amended by article 2 of the Decree, and article 1507 of the CPC referring to article 1487 of the CPC as amended by article 2 of the Decree.

[57] Article 1516 of the CPC as amended by article 2 of the Decree.

[58] Article 1517 of the CPC as amended by article 2 of the Decree.

[59] Article 1526 of the CPC as amended by article 2 of the Decree. These provisions apply to awards rendered after May 1, 2011.

[60] Articles 1506 and 1502 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise. They apply to awards rendered by tribunals constituted after May 1, 2011.

[61] Articles 595, 1506 and 1502 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise. They apply to awards rendered by tribunals constituted after May 1, 2011.

[62] Articles 597, 1506 and 1502 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise. They apply to awards rendered by tribunals constituted after May 1, 2011.

[63] Articles 596, 1506 and 1502 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise. They apply to awards rendered by tribunals constituted after May 1, 2011.

[64] Articles 603, 1506 and 1502 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise. They apply to awards rendered by tribunals constituted after May 1, 2011.

[65] Articles 1506 and 1503 of the CPC as amended by article 2 of the Decree. These provisions apply unless the parties have agreed otherwise.

[66] Article 1518 of the CPC as amended by article 2 of the Decree.

[67] Article 1520 of the CPC as amended by article 2 of the Decree.

[68] Article 1519 of the CPC as amended by article 2 of the Decree.

[69] Article 1519 of the CPC as amended by article 2 of the Decree.

[70] Article 1521 of the CPC as amended by article 2 of the Decree.

[71] Article 1522 of the CPC as amended by article 2 of the Decree. Unless the parties agree otherwise, notice is effected by service. These provisions apply to awards rendered by tribunals constituted after May 1, 2011.

[72] Article 1522 of the CPC as amended by article 2 of the Decree. Unless the parties agree otherwise, notice is effected by service.

[73] Article 1523 of the CPC as amended by article 2 of the Decree.

[74] Article 1523 of the CPC as amended by article 2 of the Decree.

[75] Article 1523 of the CPC as amended by article 2 of the Decree.

[76] Article 1524 of the CPC as amended by article 2 of the Decree.

[77] Article 1525 of the CPC as amended by article 2 of the Decree.

[78] Article 1525 of the CPC as amended by article 2 of the Decree.

[79] Article 1525 of the CPC as amended by article 2 of the Decree.

[80] Article 258 of the CPL.

[81] For a presentation of arbitration in the PRC, the reader is referred to Han Jian and Went Yanhua, chapter 30 on Arbitration in Business Law in China, editors: Daniel LaprŹs, Zhang Yuejiao (ICC, Paris, 2nd ed., 2008).

[82] Adopted at the 8th Session of the Standing Committee of the 8th NPC and promulgated on August 31, 1994.

[83] The Civil Procedure Law, adopted by the fourth meeting of the seventh session of the Supreme People’s Congress on September 4, 1991 and amended by the 10th session of the Supreme People’s Court at its 30th meeting on October 28, 2007, that entered into effect on April 1, 2008.

[84] According to a speech of the Deputy-Chief Justice of the Supreme People’s Court in 2008 posted at RUC International Law, http://www.rucil.com.cn/article/default.asp?id=798.

[85] Accordingly, it behooves the parties carefully to respect the rules of the relevant arbitration authority and to conserve their arbitration files in case they might be needed as evidence in subsequent enforcement proceedings.

[86] Hemofarm DD, MAG International Trading Company v Jinan Yongning Pharmaceutical Co., 际贸易公司、拉么媒体有限公司与 南永宁制股份有限公司, http://www.chinanews.com/cj/cyzh/news/2008/07-16/1314096.shtml.

[87] UNCITRAL, The New York Arbitration Convention, http://www.newyorkconvention.org/new-york-convention-countries/contracting-states. Upon resumption of sovereignty over Hong Kong on 1 July 1997, the PRC extended the territorial application of the Convention to Hong Kong Special Administrative Region (SAR). On 19 July 2005, China declared that the Convention applies to the Macao SAR. In each case, the submission is subject to the above reservations.

[88] UNCITRAL, The New York Arbitration Convention, http://www.newyorkconvention.org/new-york-convention-countries/contracting-states.

[89] Article 1 of the New York Convention.

[90] Article 1 of the New York Convention.

[91] Article 2(1) of the New York Convention.

[92] Article 2(2) of the New York Convention.

[93] Article 3 of the New York Convention.

[94] Article 4(1) of the New York Convention.

[95] Article 4(2) of the New York Convention.

[96] Article 5(1) of the New York Convention.

[97] Article 5(2) of the New York Convention.

[98] Article 255 of the CPL.

[99] Article 5(2) of the New York Convention.

[100] Article 1520(5) of the CPC.

[101] Guangzhou Maritime Court, 17 October 1990 (Guangzhou Ocean Shipping Company v. Marships) Yearbook XVII (1992) pp. 485-487; Beijing First Intermediate People's Court, 17 November 1997 (Food Industries' Planning & Servicing Ltd. v. China Hua Yang Technology and Trade Corporation) Yearbook XXIII (1998) pp. 641-643; Supreme People's Court, 12 November 2003 (Hong Kong Heung Chun Cereal & Oil Food Co. Ltd. v. Anhui Cereal & Oil Food Import & Export Co. Ltd., et al.) Yearbook XXXI (2006) pp. 620-623; Supreme People's Court, 5 July 2004 (Wei Mao International (Hong Kong) Co. Ltd. v. Shanxi Tianli Industrial Co. Ltd.) Yearbook XXXI (2006) pp. 624-628.

[102] (Supreme People’s Court) Mitsui - Japan Xin Jing Wu Chan Zhu Shi v Hainan Provincial Textile Industry - Sheng Fang Zhi Gong Ye Company, (July 13, 2005).

[103] (Guangzhou Intermediate People’s Court) S.E.M.T. v. Zeng Cheng Jiang Long Dian Li Company, S.E.M.T. 皮尔斯帝克公司法国与增城江龙电力有限公司 2006) http://bmla.chinalawinfo.com/case/displaycontent.asp?Gid=117569048&Keyword=

[104] (Zhejiang Superior People’s Court), Eastland Produce - Dong Di Wu Chan Private Limited Company v Zhejiang Tian Tai Xin Xing Xiang Jiao Limited Company, 地物私人有限公司与浙江天台鑫星橡有限公司 (2009). http://bmla.chinalawinfo.com/case/displaycontent.asp?Gid=117694461&Keyword=

[105] (Jiangsu High People’s Court) Shu Le Da Company v Hua Da Company, 公司与江苏华食品工有限公司 (2009). http://bmla.chinalawinfo.com/case/displaycontent.asp?Gid=117682965&Keyword=

[106] (Suzhou Intermediate People’s Court) Dunavant v Hua Fang Ji Tuan Jin Chu Kou Limited Company, 利文股份有限公司与芳集团进出口有限公司 (2006). http://bmla.chinalawinfo.com/case/displaycontent.asp?Gid=117541034&Keyword=

[107] (Wuhan Maritime Court) White Bear Limited v Zhong Guo Jiang Du Ya Hai Zao Chuan Limited Company, 白熊有限责任公司与中国.江都亚海造船有限公司 (2006). http://bmla.chinalawinfo.com/case/displaycontent.asp?Gid=117525625&Keyword=

[108] (Supreme People’s Court) Zublin International Gmbh v Wuxi Woke General Engineering Rubber Co. Ltd. (July 19, 2006).

[109] (Ningbo Intermediate People’s Court) Duferco S.A. v Ningbo Arts a Crafts Import & Export Corporation (April 22, 2009).

[110] Fa (2009), n° 415, issued on December 30, 2009.

[111] Hong Kong Weima v Shanxi Tianli 2004.

[112] Article 25 of the ICSID Convention.

[113] Article 54(1) of the ICSID Convention.

[114] Article 54(3) of the ICSID Convention. These rules are not to be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution, Article 55 of the ICSID Convention.

[115] The case settled and no award was rendered, France Telecom S.A. v. Argentine Republic (ICSID Case No. ARB/04/18), ICSID, http://icsid.worldbank.org/ICSID/FrontServlet.

[116] Article 1 of the Judicial Cooperation Agreement.

[117] Article 2(3) of the Judicial Cooperation Agreement.

[118] Article 25 of the Judicial Cooperation Agreement.

[119] Under article 2 of the Arbitration Law, disputes over contracts and disputes over property rights and interests may be submitted to arbitration. The matters excluded from arbitration are stated in article 3 to be limited to disputes over marriage, adoption, guardianship, child maintenance and inheritance and administrative disputes falling within the jurisdiction of the relevant administrative organs according to law.

[120] Article 10 of the Investments Protection Agreement.

[121] Article 7 of the Investments Protection Agreement.

[122] Adopted by the General Assembly on December 15, 1976 and revised on June 2010 as applied to arbitration agreements entered into after 15 August 2010, http://www.trans-lex.org/705502.

[123] Article 18 of the Arbitration Rules.

[124] According to article 2(2) of the Investment Protection Agreement, “investor” refers to individuals who are citizens or legal persons constituted under the laws of and possessing its registered office on the territory of one of the parties. Articles 3 and 4 of the Agreement impose on each state to provide just and equitable treatment and national treatment and most favoured nation status in favour of investments of “investors” from the other country.

[125] Article 7 of the Investment Protection Agreement.

[126] Article 1443 of the CPC.

[127] Article 1507 of the CPC.

[128] Article 1489 of the CPC.

[129] Article 1518 of the CPC.

[130] Article 1491 of the CPC.

[131] Article 1522 of the CPC.

[132] The common grounds are: the tribunal erroneously assumed or declined jurisdiction, the tribunal was improperly constituted, the tribunal rendered a decision without complying with the role conferred upon it, the rights of the parties to defend themselves were not respected, Articles 1492 and 1520 of the CPC.

[133] Article 1492(5) of the CPC.

[134] Article 1492(6) of the CPC.

[135] Article 1520 of the CPC.

[136] Article 1499 of the CPC.

[137] Article 1500 of the CPC.

[138] Article 1497 of the CPC.

[139] Article 1523 of the CPC.

[140] Article 1524 of the CPC.

[141] Article 1525 of the CPC.

[142] Article 1526 of the CPC.

[143] Article 1501 of the CPC.

[144] Article 1502 of the CPC.

[145] Han Jian and Went Yanhua, chapter 30 on Arbitration in Business Law in China, editors: Daniel LaprŹs, Zhang Yuejiao (ICC, Paris, 2nd ed., 2008), p. 1134.