网络安全检测|网络安全服务|网络安全扫描-香港墨客投资移动版

　　On 1 February 2012, Farenco Shipping Pte. Ltd. (“Farenco”) of Singapore signed a contract of affreightment(“COA”) with Eastern Ocean Transportation Co., Ltd. (“Eastern Ocean”), agreeing that Eastern Ocean would transport the goods of Farenco, and all disputes arising from the COA would be submitted to arbitration in Hong Kong SAR with the application of the law of the United Kingdom (“UK law”). On 21 April of the same year, Farencosent an e-mail to Eastern Ocean to confirm that both parties had entered into a supplementary contract on the basis of the aforementioned COA, agreeing to add an additional lot of cargo to be transported, and that other terms and conditions of the COA would apply. Subsequently, a dispute over the performance of the supplementary contract arose between the parties, followed by its submission to arbitration in Hong Kong SAR by Farencoon 16 February 2016. According to the first final award and the final award on costs it handed down, the arbitral tribunal in Hong Kong SAR ruled that Eastern Ocean was to pay the corresponding damages and related arbitration fees.

　　After the arbitration awards came into effect, Farencoapplied to the Guangzhou Maritime Court for recognition and enforcement of the two arbitration awards.  Eastern Ocean responded that the arbitration agreement submitted by Farenco had not been notarised and certified, nor had an officially certified Chinese translation been submitted.  The freight in question was the subject matter of the supplementary contract, which was reached orally by both parties over the phone without having any arbitration clauses agreed on or any arbitration agreement concluded.  Besides, Eastern Ocean had never recognised the jurisdiction of the arbitral tribunal.  For these reasons, the enforcement of the arbitration awards would contravene the requirements under the Arbitration Law of the Mainland that arbitration agreement must be express and the relevant provisions of the General Rules of the Civil Law on the expression of intention, and would be contrary to the public interests.

　　II. Rulings

　　The Guangzhou Maritime Court held that: First, the instruments Farenco submitted in its application for recognition and enforcement of the arbitration awards conform to the requirements on the necessary documents under the Supreme People’s Court’s Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region (“the Arrangement”).  Second, whether an arbitration agreement is tenable falls within the scope of its validity review and, in view of the lack of an agreement between the two parties on the applicable law for ascertaining the validity of the arbitration agreement, pursuant to Article 7(1) of the Arrangement, whether an arbitration agreement in question is tenable should be decided in accordance with the law of the place of arbitration, i.e. the law of Hong Kong SAR. According to the law of Hong Kong SAR, the incorporation terms set out in the subject email constitutes a valid arbitration agreement. Third, violation of relevant provisions of the law of the Mainland is not equivalent to breach of the public interests of the Mainland unless the recognition and enforcement of the arbitration awards will seriously damage the basic principles of the law of the Mainland.  The requirements for express arbitration agreement under the Arbitration Law of the Mainland and expression of intention under the General Rules of the Civil Law are outside the ambit of the basic principles of the law of the Mainland.  In view of the above reasons, it was held that the two arbitration awards should be recognised and enforced.  Besides, in response to Farenco’s application, the Guangzhou Maritime Court had frozen Eastern Ocean’s deposit at the China Merchants Bank (Shenzhen Branch) before handing down a ruling on the case.

　　III. Significance

　　First, the case has clarified that whether an arbitration agreement is tenable falls within the scope of validity review.  An arbitration agreement is an essential instrument for the application by a party for recognition and enforcement of an arbitration award.  It has a direct implication on the jurisdiction of the relevant arbitral tribunal.  A review of the validity of an arbitration agreement is obligatory prior to the recognition and enforcement of a relevant arbitration award. In this connection, Article 7(1) of the Arrangement stipulates that the court may refuse to enforce an arbitral award if the arbitration agreement was invalid.  In practice, however, there is controversy over whether a broad or strict interpretation should be adopted for invalid arbitration agreements and whether the case of failing to prove the existence of an arbitration agreement should be included.  In this case, the court looked beyond the literal meaning for the intent of the provision of the Agreement and ruled that the proof of existence of the arbitration agreement was a prerequisite for it to be valid, which falls within the scope of review of its validity.  Agreements that are invalid should cover those cases where their existence cannot be proved.