二份合同一个仲裁通知：仲裁通知无效
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英国高等法院宣布仲裁通知无效
在A v B [2017] EWHC 3417（Comm）案中，英国高等法院商事法庭认为，根据2014年《伦敦国际仲裁院规则》（“《LCIA规则》”）提交的一份仲裁请求，并非有效地将两个不同合同项下的争议提交仲裁，且如果被申请人在第一次提交答辩意见时提出异议，则并不丧失对仲裁庭提出管辖权异议的权利。 判决原文 http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Comm/2017/3417.html&query=(EWHC)+AND+(3417) 引 言 仲裁申请人（法院诉讼程序中的被告）根据两份单独的合同向被申请人出售两批原油。这两份合同所有实质性内容均相同：适用英国法律，相同的一般条款和销售条件，并包含援引2014年《LCIA规则》的仲裁条款。这些货物通过背对背同的单独合同转售给第三方。 申请人声称，被申请人未能支付合同项下的全部到期价款，并提起LCIA仲裁。申请人提交了一份仲裁请求，并支付了一份申请费。被申请人辩称，根据《LCIA规则》第1条（仲裁请求），应对每项仲裁提出单独的书面请求，以确定特定“争议”和与之相关的特定仲裁协议。被申请人在提交答辩意见的日期届满前不久提出该异议。 仲裁庭就管辖权作出部分裁决，驳回了被申请人的异议，理由是提交异议太晚。因此，被申请人根据1996年《英国仲裁法》（“《仲裁法》”）第67条对该裁决提出异议，并要求法院裁定该裁决无效。该合同适用英国法，仲裁地为伦敦。 法院需要对两个问题作出裁定。其一，根据《LCIA规则》提出的一份仲裁请求是否有效地将两个不同合同下的争议提交仲裁（“无效问题”）。其二，如果请求无效，被申请人是否因为在提交答辩状日期届满前不久提出异议而丧失提出异议的权利（“时间问题”）。 无效问题 申请人承认，仲裁依据一份仲裁协议处理一项争议，反对该请求有效地开始了两项单独的仲裁，与两份合同一一对应。申请人辩称，根据1925年《物权法》第61条，《LCIA规则》第1条对提起仲裁（单数）应理解为包括仲裁（复数），因而允许一项仲裁请求开始两项仲裁。 Phillips 法官基于对《LCIA规则》的简单的字面解读，驳回了申请人的主张。他认为《LCIA规则》第22.1（x）条规定只有在双方同意的情况下，才有权合并仲裁。在他看来，这种独特的基于协议的程序，将单独的争议分别提交仲裁的约定，不允许将相同当事人之间的密切相关的争议通过单一请求开始仲裁程序。 Phillips 法官考虑了Hamblen 法官在The Biz（[2011] 1 Lloyd's Rep 688）案中的判决。在该案中，一份单独的仲裁通知，根据十份提单开始了十项单独的仲裁，被认为有效，因为仲裁通知应该被广泛而清楚地解释。Phillips法官采用了Hamblen 法官的推理，但对当前案件进行了区分，因为先前案件没有适用仲裁规则，仲裁通知并非由律师起草，应注重请求的实质而非形式。本案他认为，如果请求由律师准备并根据《LCIA规则》提交，那么处于接受者立场的通情达理的人会认为该请求开始的是一项仲裁，特别是从表面看，它提及单一的仲裁协议，请求单一的损害赔偿数额，并且为开始一项仲裁支付单一的费用。 时间问题 鉴于该请求无效，有待裁定的第二个问题是，被申请人是否已丧失对仲裁庭的实体管辖权提出异议的权利，因为仲裁庭已经裁定，《LCIA规则》第23.3条中的“尽快”一词意味着除特殊情况外，应当及时提出异议，至少应当在当事人知道异议或合理地应当知道导致这种异议的事实后，通过送交答辩意见提出。 Philips 法官认为，根据《仲裁法》第31和73条的强制性规定，被申请人并未丧失对仲裁庭管辖权提出异议的权利，因为它已在不迟于提交答辩意见的时间提出异议。 具体而言，《仲裁法》第31条规定，对于仲裁庭缺乏实体管辖权的异议，应由一方当事人“不迟于他在程序中第一次就任何事项的实体问题提出答辩”时提出。第73条规定未提出异议的后果，即如果仲裁程序的一方不提出异议，以及“在没有立即或在仲裁协议或仲裁庭允许的时间内提出异议的情况下，参加或继续参加仲裁程序”，则该方放弃对管辖权提出异议的权利。Philips 法官认为，根据上述规定，《LCIA规则》第23.3条关于异议“应尽快提出，但不得迟于其提交答辩意见的时间”的规定，不应视为本质上背离《仲裁法》规定的效力。他进一步指出，鉴于本条的目的和措词（该条的起草相当于《UNCITRAL示范法》第16（2）条），“尽快”一词不可能打算建立一个新的、更严格的管辖权异议制度。如果打算这样做，就需要更清楚的措辞。 Philips法官还附带评论说，如果《LCIA规则》要引入一个比《仲裁法》第31（1）条更严格的期限，则法律上的限制必须优先考虑。 结 论 对于一些仲裁从业者而言，法院对无效问题的判决可能会令人惊讶，因为对《LCIA规则》的严格的字面解读似乎与其明确的商业目的，以及与英国法院对进行仲裁的一般许可方式不一致。 在多重合同情况下进行LCIA仲裁的各方现在需要提交单独的请求，支付单独的申请费，可能指定多个仲裁庭，并根据《LCIA规则》第22.1（x）条尽早提出合并请求。然而，目前尚不清楚该裁定是否会被上诉或是否会修改《LCIA规则》以解决这一缺陷，但目前的现状难以处理且缺乏竞争力，因为在适用相互竞争的仲裁规则（如ICC、SIAC或SCC的规则）时或在进行临时仲裁时，单一仲裁请求可能有效。例如，2016年《SIAC规则》第6条明确规定，仲裁通知可以包括一份确定每份合同和所涉仲裁的声明。《ICC规则》第9条也是如此，其中明确规定，由一项或多项合同引起的或与之有关的请求可以在单一仲裁中提出。 A v B的判决也与英国法院商事法庭（Agarwal Coal Corp (S) Pte Ltd vHarmony Innovation Shipping Pte Ltd案，未报道，2017年11月20日）的一项未经报道的判决形成鲜明对比。虽然该案件未涉及《LCIA规则》的审议，但Cockerill 法官认为根据一份合同向两名被申请人发出的仲裁通知足以针对每名被申请人发起两项单独的仲裁，理由是内容的实质重于比形式。 对时间问题的裁定无疑是正确的，Philips 法官所采用的目的性方法与英国法院重视仲裁协议总体目的的方法更加一致。 1925年《物权法》第61条规定:“在本法生效后订立或生效的所有契据、合同、遗嘱、命令和其他文书中，除非上下文另有要求，否则……（c）单数包括复数，反之亦然。”
有关法律条款和仲裁规则 Section 14 of the 1996 Act "Commencement ofarbitral proceedings. (1) The parties are free to agree when arbitral proceedings are to be regarded as commenced for the purposes of this Part andfor the purposes of the Limitation Acts. (2) If there is no such agreement the following provisions apply. (3) Where the arbitrator is named or designated in the arbitration agreement, arbitral proceedings are commenced in respect of a matter when one party serves on the other party or parties a notice in writing requiring him or them to submit that matter to the person so named or designated. (4) Where the arbitrator or arbitrators are to be appointed by the parties, arbitral proceedings are commenced in respect of a matter when one party serves on the other party or parties notice in writing requiring him or them to appoint an arbitrator or to agree to the appointment of an arbitrator in respect of that matter. (5) Where the arbitrator or arbitrators are to be appointed by a person other than a party to the proceedings, arbitral proceedings are commenced in respect of a matter when one party gives notice in writing to that person requesting him to make the appointment in respect of that matter."
Article 1 of the LCIA Rules "1.1 Any party wishing to commence an arbitration under the LCIA Rules (the "Claimant") shall deliver to the Registrar of the LCIA Court (the "Registrar") a written request for arbitration (the "Request"), containing or accompanied by: … (ii) the full terms of the Arbitration Agreement (excepting the LCIA Rules) invoked by the Claimant to support its claim,together with a copy of any contractual or other documentation in which those terms are contained and to which the Claimant's claim relates; … (iii) a statement briefly summarising the nature and circumstances of the dispute, its estimated monetary amount or value, the transaction(s) at issue and the claim advanced by the Claimant against any other party to the arbitration (each such other party being here separately described as a "Respondent"); (iv) a statement of any procedural matters for the arbitration (such as the arbitral seat, the language(s) of the arbitration, the number of arbitrators, their qualifications and identities) upon which the parties have already agreed in writing or in respect of which the Claimant makes any proposal under the Arbitration Agreement; … (vi) confirmation that the registration fee prescribed in the Schedule of Costs has been or is being paid to the LCIA, without which actual receipt of such payment the Request shall be treated by the registrar as not having been delivered and the arbitration as not having been commenced under the Arbitration Agreement; … 1.4 The date of receipt by the Registrar of the Request shall be treated as the date upon which the arbitration has commenced for all purposes (the "Commencement Date"), subject to the LCIA's actual receipt of the registration fee."
Section 31 of the 1996 Act Objections to the substantive jurisdiction of a tribunal "(1) An objection that the arbitral tribunal lacks substantive jurisdiction at the outset of the proceedings must be raised by a party not later than the time he takes the first step in the proceedings to contest the merits of any matter in relation to which he challenges the tribunal's jurisdiction. A party is not precluded from raising such an objection by the fact that he has appointed or participated in the appointment of an arbitrator. (2) Any objection during the course of the arbitral proceedings that the arbitral tribunal is exceeding its substantive jurisdiction must be made as soon as possible after the matter alleged to be beyond its jurisdiction is raised. (3) The arbitral tribunal may admit an objection later than the time specified in subsection (1) or (2) if it considers the delay justified."
Section 73 of the 1996 Act The loss of the right to object "(1) If a party to arbitral proceedings takes part,or continues to take part, in the proceedings without making, either forthwith or within such time as is allowed by the arbitration agreement or the tribunal or by any provision of this Part, any objection— (a) that the tribunal lacks substantive jurisdiction, (b) that the proceedings have been improperly conducted, (c) that there has been a failure to comply with the arbitration agreement or with any provision of this Part, or (d) that there has been any other irregularity affecting the tribunal or the proceedings, he may not raise that objection later, before the tribunal or the court, unless he shows that, at the time he took part or continued to take part in the proceedings, he did not know and could not with reasonable diligence have discovered the grounds for the objection."
Article 23 of LCIA Rules "23.3 An objection by a respondent that the Arbitral Tribunal does not have jurisdiction shall be raised as soon as possible but not later than the time for its Statement of Defence; and a like objection by any party responding to a cross-claiming party shall be raised as soon as possible but not later than the time for its Statement of Defence to Cross-claim. An objection that the Arbitral Tribunal is exceeding the scope of its authority shall be raised promptly after the Arbitral Tribunal has indicated its intention to act upon the matter alleged to lie beyond its authority. The Arbitral Tribunal may nevertheless admit an untimely objection as to its jurisdiction or authority if it considers the delay justified in the circumstances."
【英文原文】 High Court Declares Arbitration Notice Invalid
Akima Paul Lambert Introduction The claimant in the arbitration (the defendant in thecourt proceedings) sold two consignments of crude oil to the respondent pursuant to two separate contracts. These contracts were identical in all material respects; they were both governed by English law, incorporated the same general terms and conditions of sale, and contained an arbitration clause referable to the 2014 LCIA Rules. The consignments were also re-sold to a third party by separate contracts which mirrored the two crude oil contracts. The claimant alleged that the respondent failed to pay the full purchase price due under the contracts and commenced LCIA arbitration for the price due under both contracts. The claimant delivered a single request for arbitration, accompanied by payment of a single registration fee. The respondent argued that a separate written request for each arbitration that identified the particular ‘dispute’ and the specific arbitration agreement to which it was related ought to have been made pursuant to Article 1 of the LCIA Rules (Request for Arbitration). This challenge was made shortly before the date on which the respondent’s Statement of Defence was due. The arbitral tribunal made a partial award on jurisdiction dismissing the respondent’s challenge on the basis that it was brought too late. The respondent therefore made an objection to the award under section 67 of the English Arbitration Act 1996 (the ‘Arbitration Act’), seeking an order that it was of no effect. The contract was governed by English law andthe place of arbitration was London. Two questions arose for decision by the court. The first was the whether a single request for arbitration under the LCIA Rules was valid to refer disputes under two distinct contracts to arbitration (the ‘invalidity question"). The second was if the request was not valid,whether the respondent lost the right to object by failing to make the point until shortly before its Statement of Defence was due (the ‘timing question’). The invalidity question The claimant accepted that arbitration could only encompass a dispute arising under a single arbitration agreement but contended that the request validly commenced two separate arbitrations, one in relation to each contract. The claimant argued that the references to an arbitration (singular) in Article 1 of the LCIA Rules should be read as including arbitrations (plural) in light of section 61 of the Law of Property Act 1925, and that it was therefore permissible to commence two arbitrations by a single request. This submission was rejected by Judge Phillips J on the basis of a plain and literal reading of the LCIA Rules. He was persuaded by the fact that Article 22.1(x) of the LCIA Rules contained the power to consolidate arbitrations only with the agreement of the parties. In his view, the presence of a distinct agreement-based process for separate disputes to be brought within a single arbitration militated against the implication that closely-related disputes between the same parties could be commenced by a single request. Philips J considered the judgment of Hamblen J in The Biz ([2011] 1 Lloyd's Rep 688) in which a single notice of arbitration that commenced ten separate arbitrations under ten bills of lading, was held to be valid on the basis that the notice of arbitration should be construed broadly and exibly. Phillips J adopted the reasoning of Hamblen J but distinguished the current case on the basis that the prior case was one where no arbitral rules were applicable and because the arbitration notice was not drafted by lawyers,and regard was had to the substance and not the form of the request. He held that in the instant case, where the request was prepared by lawyers and submitted pursuant to the LCIA Rules, a reasonable person in the position of the recipient would have understood the request as starting a single arbitration, particularly because on its face it referred to a single arbitration agreement, sought a single amount by way of damages, and a single fee was paid for the commencement of one arbitration. The timing question In light of the invalidity of the request, the second question that fell to be decided was whether the respondent had lost the right to object to the substantive jurisdiction of the arbitral tribunal, since it had decided that ‘as soon as possible’ in Article 23.3 of the LCIA Rules meant raising the objection promptly and save in exceptional circumstances, this should be from at least, the service of the Response if the party has knowledge of the objection or reasonably ought to know of facts giving rise to such objection. Philips J held that the respondent had not lost its right to challenge the tribunal’s jurisdiction as it had objected no later than the time for its Statement of Defence, being persuaded by the mandatory provisions of sections 31 and 73 of the Arbitration Act. Particularly, section 31 of the Arbitration Actprovides that an objection that the tribunal lacks substantive jurisdiction ought to be made by a party ‘no later than the time he takes the first step in the proceedings to contest the merits of any matter’. Section 73 provides for the consequences of a failure to object, setting out that a party to arbitral proceedings forbears his right to object for jurisdiction if he does not object and ‘he takes part or continues to take part in the proceedings without making,either forth with or within such time as allowed by the arbitration agreement or the tribunal’. Philips J held that in light of the above, Article 23.3 of the LCIA Rules which provides that the objection ‘shall be raised as soon as possible but not later than the time for its Statement of Defence’ should not be presumed to have an effect which materially diverges from the provisions of the Arbitration Act. He further noted that in light of the purpose and wording of this Article (which was drafted to be the equivalent of Article 16(2) of the UNCITRAL Model Law) the words ‘as soon as possible’ could not have intended to create a new, stricter regime for raising jurisdictional challenges. Had the intention been to do so, clearer words would have been required. Philips J also commented, obiter, that if the LCIA Rules were to introduce a stricter time limit than that contemplated in section31(1) of the Arbitration Act, the limit in the law would have to take precedence. Conclusions The judgment of the court on the invalidity question may be surprising to some arbitration practitioners as the strict, literal reading of the LCIA Rules appears to be out of sync with their clear commercial purpose, and the general permissive approach of English courts to the conduct of arbitration. Parties conducting LCIA arbitration in a multiple contract situation will now need to file separate requests with separate registration fees, possibly appointing multiple arbitral tribunals and also making early requests for consolidation under Article 22.1(x) of the LCIA Rules. It is not clear, however, whether the decision will be appealed or if the LCIA Rules will be modified to address this lacuna, but the current status quo is unwieldy and uncompetitive given that a single request for arbitration is likely to be valid where different competing arbitral rules apply (such as those of the ICC or SIAC or the SCC) or where the arbitration is ad hoc. Rule 6 of the SIAC Rules 2016, for instance,specifically provides that the Notice of Arbitration can include a statement identifying each contract and arbitration involved. The same is true of Article 9 of the ICC Rules which expressly provides that claims arising out of or in connection with more than one contract may be made in a single arbitration. The decision in A v B also contrasts with the approach of the English court in a recent, unreported decision of the Commercial Court (Agarwal Coal Corp (S) Pte Ltd v Harmony Innovation Shipping Pte Ltd,unreported, 20 November 2017). Although the case did not involve consideration of the LCIA Rules, Cockerill J held that an arbitration notice to two respondents under one contract was sufficient to commence two separate arbitrations against each respondent, on the basis that substance was more important than form. The decision on the timing question is undoubtedly correct and the purposive approach adopted by Philips J is more consistent with the approach of the English courts to place value on the overall purpose of the arbitration agreement. Section 61 of the Law of Property Act 1925 provides:‘In all deeds, contracts, wills, orders and other instruments, made or coming into operation after the commencement of the Act, unless the context requires otherwise ... (c) The singular includes the plural and vice versa’. |
