What is Jurisdiction?

Transcription

1 PHILIP YANG

2 What is Jurisdiction? Arbitration is consensual Arbitration clause normally covers more contents than an Exclusive jurisdiction clause. Jurisdictional disputes have close to do with law of contract.

3 Types of jurisdiction disputes (1) The existence of an arbitration agreement? (A) Whether the main contract exists? The dividing line between negotiation and a binding contract. Importance of knowing implied and express terms; condition precedent and condition subsequent; etc. Notwithstanding separability, if there was never an underlying contract, there would no arbitration agreement either. The loss of one is the loss of the other.

4 Types of jurisdiction disputes (continue) (B) Can arbitration agreement exist by incorporation the case of Charter-party Bills of Lading? The rules of incorporation: The contractual parties must know or having had the chance to know what has been incorporated. Incorporation of an earlier contract Parties are the same. The problem of C/P Bills of Lading.

5 Types of jurisdiction disputes (continue) (2) Scope of Arbitrator s jurisdiction or mandate Strict or liberal interpretation of Arbitration agreement or clause? Change for liberal and business-like interpretation in Fiona Trust Privalov (2007) UKHL 40. The presumption of One Stop Adjudication Tort; Crime, bribery, fraud, etc.

6 Types of jurisdiction disputes (continue) (3) The specific requirements or words in an arbitration agreement/clause? Institutional or ad hoc? Simply appointment or administered by HKIAC? If ad hoc, a brief arbitration notice would be valid protect time bar; if institutional, the HKIAC Rules 4.3 stipulated (a) to (i) requirements in the notice shall (must) be included to be deemed to have validly commenced the arbitration Arbitration seat or place? Say, Arbitration in Shanghai administered by SIAC? Number of arbitrators (SIAC award refused to enforce, Noble Resources International Pte v. Shanghai Good Credit International Trade Corp. Ltd.(2016) Hu 01 Xie Wai Ren No.1 (Shanghai Intermediate People s Court)

7 (4) Arbitrability Unlike scope of Arbitrator s jurisdiction or mandate, which involves interpretation of the Arbitration agreement to determine how wide (or narrow) is the scope. even the most widely drafted arbitration agreement will have to yield to arbitrability. Arbitrability is not strictly a jurisdictional issue of the arbitrator. It has to do with the law does not permit some disputes to be decided by the arbitrators, as a matter of public policy or public rights or interests of third parties. The trend of broadening arbitrability.

8 Types of jurisdiction disputes (continue) Arbitrators can decide in the civil context (damages to be awarded) in matters involving crime, bribery, corruption, fraud, etc. But not to convict or impose penalty on the party. Family disputes can be decided by arbitrators but not the custody of the child/children. IP, Competition, Insolvency matters.

9 Practical tips to parties in jurisdiction disputes As the party raising jurisdictional challenge: Beware to raise before Defence (or taking a step in proceedings), or else a waiver in law. Knowledge of the proper law of the contract (i.e. English law) to appreciate whether it is worth to raise a challenge (i.e. Existence of a contract? Fraud, unlawful duress, illegal; misrepresentation; etc., rendering the main contract null and void or voidable; Rules of interpretation/construction; etc.). In HK, if upheld by Arbitrators to have no jurisdiction (negative ruling), this is the end of the matter without freedom to appeal to court.

10 Practical tips to parties in jurisdiction disputes As the party facing jurisdictional challenge: Do not default in defence unless it is intended to dispute jurisdiction when the award is being enforced. But see in Dallah Real Estate and Tourism v. Ministry Religious Affairs of the Government of Pakistan (2010) USC 460 and in Government du Pakistan Ministere de Affairs Religieuses v. Dallah Real Estate (Case No. 09/28533) with opposite results. If Arbitrators made a positive ruling (having jurisdiction), this can be freely appealed to High Court, and with a re-trial (See Dallah Real Estate and Tourism v. Ministry Religious Affairs of the Government of Pakistan (2010) USC 460 at [26], [96]; Primetrade AG v. Ythan Ltd (2006) 1 Lloyd s Rep 457 at [62]), which is worth doing.