The number of civil appeal casesCACV 79/2011

 

The high court of the Hongkong Special Administrative Region

Appeal court

2011Article79Civil appeal No.

YesHigherCourtLitigation and arbitration architectureHCCT 2010Article41In case of appeal)

 

On the implementation of Xi'an Arbitration Commission a of arbitration award

And

On the "Arbitration Act" (article341Chapter) article2GGAnd40BPart of the problem

 

The parties to the

Gao Haiyan               First the plaintiff

Xie Heping               Second the complainant

And

         Jian Yi Holdings Limited             The first respondent

Xin Zijin Resource Development Co. Ltd.       The second respondent

 

The court hearingVice PresidentHon Tang,Appellate judgesFokAnd the judgeSakhrani

The hearing date:2011Years11Month2Day

The date of the decision:2011Years12Month2Day

 

Sentenced Judgment

Vice PresidentHon Tang:

Introduction

1Two, the complainant (husband and wife) in2010Years8Month2DaySaundersThe judge permits, executionXi'an Arbitration Commission to make the first and second of the respondentThe date for the2010Years6Month3DayThe2009Article2232No. the arbitration award (referred to as the "arbitration"), the ruling with the same manner and effect following the high court judgment:

"The verdict was announced the first and the second the complainant and respondent in the first2008Years7Month15Signed the agreement on the transfer of shares and the first and the second the complainant and the respondent in the first and second2008Years8Month27The share transfer agreement signed revocation";

2By date2010Years9Month16Today's hearing, the court allowed the first and the second respondent apply for revocationSaundersThe judge's decision to allow.The two respondentClaim: the complainant and the arbitrator and a Xi'an the Secretary General of the Arbitration CommissionPan Jun Xin (Pan Junxing)Hello, sir(Abbreviation"Pan")¹Collusion.

3,ReyesThe judge to2011Years3Month30On hearing the application. At the date of2011Years4Month12Japan's decision, he withdrewSaundersThe judge decided the enforcement of arbitral awards. He thinks, although not to the arbitration tribunal for the respondent to make any complaints, but they did not give up the power to do so². He further mentioned:

"102, ......Because of public policy³The reason, I shall here refuse to enforce the arbitration award."

                  

¹ Chan Choi HungStatement,2010Years9Month16Day, the16(2) section

²Decision No.85Section

³According to the "Arbitration Act" article40E(3Part (a)341Chapter)

 

4,ReyesThe judge explained:

"99And second, however, in support of a colored by prejudice award is wrong. To support such a decision, the consequences will be unable to see the justice, enforcement of the award will affect the court's sense of justice. As for what time can reference the public policy clause, can refer toLitigation and arbitration architectureHCCT 2008Article54Case No.A v. R(2009Years4Month30Day)."

5It is important to note, knowledgeable, the judge concluded that what it says about the fact that the minimalist versions based on (see paragraph42Section) and:

"52A minimalist version, does not constitute the essence of that based on prejudices.

53, ......In my opinion, the real risk of minimalist versions will make an impartial observer fears prejudice."

6This is the plaintiff appeals. The complainant byEdward ChanSir (SC),Laurence LiAnd Mr.Eric ChowOn behalf of mr.. The respondent byPatrick FungSir (SC) andCalvin CheukThe appearance of mr..

Background

7In this case, the background is complex and opaque. Most come from the unilateral assertion, should according to their own value to use.

8The transfer of shares, the share transfer agreement and the supplemental agreement (date respectively2008Years7Month15Day and2008Years8Month27) is a Japanese company calledBai Jun Tiancheng Co., Ltd.(referred to as "Bai Jun company")TheHongkong company, two the complainant is equality of shareholders in the company. While 100 Jun companies hold another Hongkong companyCITIC Holdings Limited(Hongkong) (hereinafter referred to as the "CITIC")50Shares. In addition50% owned by a Hongkong company, Angola Company Limited (Hongkong) (hereinafter referred to as "Angola") held by.

 

9According to the agreement, the transfer of shares, two the plaintiff agreed to transfer all the shares of the company held by its hundred Jun (hereinafter referred to as the "stock" Bai Jun companies) to the first respondent (Jian Yi Company

10The share transfer agreement, the1Article3The provisions of paragraph:

"3, the transfer price shall be negotiated. If no agreement is reached, the transfer price should be based on the first, second Appellants) actual investment in company's operation/Determine the amount of investment".

11The share transfer agreement, the6The provisions in Xi'an Arbitration Committee for arbitration.

12,According to the share transfer agreement, the second respondent (new funding resources) is appended to the transferee, such that the first respondent will be62Bai Jun% of the shares of the company, the second respondent will to38Bai Jun% of shares of the company.

13The company has been in Bai Jun, shares2008Years7Months and8The first and the second months to the respondent, the respondent in the first and second2008Years10On the transfer of shares to the New Asset Management Company Limited (referred to as "the new company") and the Far East Holdings Limited (referred to as "Far East Company")⁴.

14The transfer of shares, the supplementary agreement article2Paragraph is about 100 Jun company and Angola company is a Angola CITIC's interest litigation and disputes. There is the case in Hongkong and the mainland. It seems that these actions have been resolved⁵.

                  

⁴Superior courtHCA 1315/2009The case is composed of No.The first and second complaints in the2009Years7Month2Day mentioned, on the first and the second respondent (as the first and the second defendant),Wang Li(as the fourth defendant), and the new company and Far East Company (as the sixth and seventh defendants to return the shares). According to theWang LiIn theHCA 1315/2009Submit number in the case statement (in2009Years7Month9DayOn behalf of all the defendant):"12.(he) according toZhou Xue ShuanHello, sir(Abbreviation"Zhou")InstructionsWork for the new Zijin company.ZhouNot only is the new fundsThe shareholders of a company, but also Jian Yi Company

Shareholder.Wang LiIn the arbitration award (article96Page) is described asLiuSubordinates. Unless otherwise stated, references to the arbitration award for the translation of the.

⁵The arbitration award, the100Page. By the complainant and complaints.

 

Wei (ZengAbbreviation"Zeng")Angola is the company's shareholders. He is the respondent in these proceedings witnesses.

15Shaanxi Yulin, CITIC company and Industrial and Trading Company (referred to as "Le Le,") established Le Bao Mining Company Limited (referred to as "Chang Le Bao company"), Le Bao company owns and operates a joint venture coal mine near Yulin. There is evidence that in the joint venture, CITIC need investment of RMB4970Million yuan investment company, le2130Million yuan, they were holding Le Fort70% and30% of the shares or equity. On this basis, Bai Jun company shares represent35Le Bao company equity%⁶.

16,Xintian (ZhangZhang Xintian)Abbreviation.Zhang") isGeneral manager of company of Le fort.ZhangIn the arbitration and the first and the second respondent's affairsPlay a role.

17The share transfer agreement, signed supplementary agreement and the transfer of shares, the first and second complaints per capita detained in Yulin. They are from2008Years5Month22The day was held for about6Month. According to the arbitration award, it is the plaintiffIn the2008AndZhangItThe dispute Chang Le Fort mine or the management of the company's results, allegedly LEDZhangAnd two other peopleSlight injury⁷The first and second, and led to the complainant in detention.

18, the complainant inHCA 1315/2009Claims submitted, in the case of the statement, aLiu Jian Shen (Abbreviation("Liu")Liu Jianshen):

"5, ......The past is now still isXian Kaiyuan Holding Company Limited(Xi'an Kaiyuan holding group (Limited by Share Ltd) is a company listed on the Shenzhen stock exchange) control,Xian

                  

⁶The arbitration award, the53Page.

⁷The arbitration award, the74Page.

 

Yizhiliu Group(Xi'an a Liu Jituan) president and control, the National People 's Congress, as well as in the people's Republic of China Shaanxi province influential people."

19The first and second, the complainant claimed:

"19, (their) is poor conditions of detention. Deterioration in their health status and (second claimants) life in danger. They and their families feel extremely anxious, want to get any influential people to help them obtain the release."

This leads to the supplementary agreement signed with the Liu Jianshen contact and the agreement on the transfer of shares, transfer of shares. Look for this reason, the first and the second the complainant in without being charged to2008Years11Month release⁸.

20, inHCA 1315In case of defense, the defendant admits:

"7(2)...... Liu Jianshen is now, the past is Jian Yi, Xin Zijin company, the new company and the Far East Company in charge of. However.LiuDid not participate in the day-to-day management of the company. In particular, before the procedure began Liu Jianshen was not involved in the transfer of the two share a hundred Jun company."

21,Wang LiIn itsHCA1315/2009Case second statement said:

"13, Liu JianshenIt controls the Jian Yi and Xin ZijinCompany......"⁹

22The transfer of shares, share transfer agreement and the supplementary agreement shall be governed by the laws of people's Republic of china.

23The share transfer agreement, "article5The provisions:

"Fifth of the contract modification and termination

1,"Contract law" stipulates China contract alteration and termination of the contract to lift the matter;"The translation is:

                   

⁸ Superior courtHCA 1315/2009Case No.D752Article41SectionAssertion; andD770Article27Some arguments. However, in the eyes of the respondent, the complainant was released because they can pay the damages (RMB600Million yuan, amount by the respondent) to the wounded.HCA 1315/2009In case anArticle27And28Section.

⁹The arbitration award, the96Page said: "Jian Yi and Xin Zijin company actually by (Liu Jianshen) control......".

24, "the people's Republic of China Contract Law" article54The provisions:

"The contract, one party is entitled to petition the people's court or an arbitration institution to modify or revoke:

(a) for a major misunderstanding;

(two) at the conclusion of the contract unconscionability.

A party to fraud, coercion, or position of vulnerability, so that the other party to enter into a contract against its true intention under the contract, the injured party is entitled to petition the people's court or an arbitration institution to modify or revoke."

25, through2009Years7Month9The summons, the first and the second respondent applyHCA 1315/2009The case for No.Of Xi'an Arbitration Committee for arbitration after,2009Years7And confirm the validity of arbitration on the respondent to the Arbitration Commission for Xi'an requirements on the share transfer agreement and transfer of shares of the supplemental agreement. The arbitration committee in Xi'an2009Years7Month17Japan accepts the application.2009Years 8On 24Day,The complainantCounterclaimRequirementRevokeThe agreement,TheReason.

"......Signing and Jian Yi and Xin Zijin company such agreement is fishing and there exists obvious injustice

 

Flat, and new additional Zijin company as the counterclaim defendant......."¹⁰

26, the arbitration tribunal shall consist ofJiang Ping(the presiding arbitrator),Zhou Jian(nominated by the complainant) andLiu Chuntian(nominated by the respondent).Lan YongqiangOn behalf of the complainant,Li TaoOn behalf of the respondent to appear in court.

27The arbitration award on2010Years6Month3Make. It supports the complainant's claim. The arbitral award Chinese original length59Page, a certified translation of the full-length111Page. For the sake of convenience, unless it is necessary to check the Chinese original, I were treated by various Chinese documents certified translation. Sometimes in the know say what the original condition, and use relatively easier.

28The court of arbitration, the court is not correct or its decision to publish any comments. In fact, "fishing" and its implied meaning "take away by force or trickery"¹¹, may not correspond to the concept in our law. We focus on whether we should refuse to carry out the decision, if it has been demonstrated that:

"......The execution of the arbitral award will be contrary to public policy". "The Arbitration Ordinance" article40E(3Part......."

29Like the arbitration award, the12Page notes, the complainant alleged:

"......Bai Jun company value much higher than the share transfer agreement 'actual investment amount'. Between the two values is about 10 times. ......"

On the other hand, the respondent argued:

                   

¹⁰The arbitration award, the88Page.

¹¹Can be translated as "by force or deception to win"

 

 "...... Not related to the transfer price of mining right value of Le Fort, and in this case......"¹²

30, the complainant to submit in the arbitration evidence inside, have an assessment report gives the value of the company "Le Fort exceeds RMB17Billion yuan, its equity35% value of more than RMB6Billion yuan" ¹³.

31Despite the opposition, the respondent, the arbitrator is still based on the "arbitration rules" article33The provisions of article appointed independent assessors. The arbitration award article105Page mentioned in:

ShaanxiFigureJudicial accounting and surveyors and ShaanxiQin DiMining right appraisal and assessment company, sell the supplementary agreement on the date of equity, the assessment results obtained are the mine's value for the renminbi1712024000Element.The arbitration tribunal believes that, despite the company's asset value is not equal to the value of the shares of the company, but its impact on the stock value obviously."

32In the implementation, "(agreement) background¹⁴"Mention of arbitral awards, in2008Years2Month, Bai Jun company in Hongkong has begun to Angola companyHCA 1987/2005No. action, and claims of Angola company failed to inject the necessary funds according to the cooperation agreement.2008Years3Month31Day, Angola company (as CITIC company shareholders) andCITIC company directorsNg Chi KongIn YulinThe Municipal Intermediate People's Court of the first and second complainant Le Fort misappropriation of company funds filed a civil lawsuit. However, the first and the second the plaintiff won the lawsuit and won the final judgment. And then in the2008Years7Month17Day, Changle industrial civil lawsuit, claiming that Bai Jun, invalid capital contribution. Allah, and Le Bao is the procedure of the third party. Changle industrial and trade in the first case, but the case is under appeal process.

                    

¹²The arbitration award, the63Page.

¹³The arbitration award, the53Page.

¹⁴The arbitration award, the72Page.

 

33Arbitral awards, then referred to the people's Procuratorate of Yuyang District in Yulin City2008Years11Month21Notice issued on not to prosecute, the first and second complaints were released according to the notice.

34, submitted to the Arbitration Court on behalf of the first plaintiff evidence including called the2Groups of evidence. Chinese version which has such a few words:

"1, the signing of the transfer agreement, Gao Haiyan is likely to be at risk for criminal punishment. In civil law the so-called 'fishing' objectively 'danger';2The high petrel, actual participation in family and the agent signed the transfer agreement aims to 'Save', and 'Save' to pay compensation to the victim, and the Shaanxi National People's Congress Liu Jianshen clear the relevant departments' rescue 'eager, because regardless of cost and consequences and signed the unfair assignment agreement as excusable, which has been repeatedly verified from Wang Li saying: the first is Gao Lin find Wang Li offer loans, and later Gao Haiying, Jian in package evolved into signed the transfer agreement;3, built holdings in Yi looks, is to swap agreement signed 'save as' the prerequisite. "¹⁵

35The translation is:

"... The above evidence was to prove that 1) when the Transfer Agreement was executed, Gao was in the danger of being sentenced, the 'precarious position in ' exploitation 'of other person' s precarious position 'as stated in the Civil Law was objectively present; 2) Gao' s relatives and agents who actually took part in the execution of the Transfer Agreement aimed to 'save persons'. Which meant to pay compensations to victims, and to communicate with the relevant departments through Liu Jianshen, a representative of the National People' s Congress in Shaanxi province. It was understandable and excusable to sign a manifestly unfair Transfer Agreement at all cost in order to 'save persons' this can be proved several; times by Wang Li' s statement: firstly, Gao Lin proposed to borrow from Wang Li; subsequently, Gao Haiying and Bao Jian turned the borrowing to executing a Transfer Agreement; 3) from Keeneye 's point of view, execution of the Transfer Agreement was the condition precedent for ' s Aving persons' "¹⁶

"The evidence6The authenticity and legality of not being questioned, challenged is confirmed by correlation problem. Hold different views of the plaintiff and the defendant proved the evidence problem."

                                     

¹⁵The arbitration award,27

¹⁶The arbitration award,51

 

36The respondent, deny the existence of any stress or they once saidLiuCan promote the release of the first and second complaints, and said first and second complainant:

"......There has been a lawyer and can get from lawyer suggested clearly, they release is not possible becauseLiu Jian ShenInfluence of the people's Procuratorate said specific personnel produces."¹⁷

37In addition to the complainant, support the counterclaim, the arbitration award also pointed out, the respondent did not put forward a counterclaim request return they may have to pay about the transfer of shares of Bai Jun company or any payment related:

"III, on Jian Yi Xin Zijin grid companies pay RMB1Thousands of3Million yuan for the share transfer price and compensation

From the evidence submitted by the parties, the RMB6Million yuan wasGao HaiyingDescription become involved inXieAndGaoIn criminal cases the money compensation to the victim. There are few about 100 Jun company litigation law in Hongkong costs. There are two did not explain the mainland law legal fees payment reasons. Therefore, the amount cannot be confirmed for share transfer price

However,Xie AndGaoBeDuring the period of detention, Jian Yi and Xin Zijin company provides financial assistance to their families, so that they can compensate victims of criminal cases and finally released. In addition, the Jian Yi and Xin Zijin company achieved 100 Jun company to pay Hongkong Bai Jun case litigation costs, and the specifiedWang LiAndLu YingTo carry out certain operations and management of the company, the arbitral tribunal considers, based on the principle of fairness,Xie AndGaoDeal with Jian Yi and Xin Zijin company make certain economic compensation. Because according to the actual situation of the case, Jian Yi and Xin Zijin company did not put forward the request for arbitration toXie AndGaoEconomic compensation and the share transfer agreement if cancelledSpecific compensation numberIf you justWell, the relevant parties have no dispute on this issue. But according to the law, Jian Yi and Xin Zijin company in the share transfer agreement was

                      

¹⁷The arbitration award, the77Page.

 

Cancellation shall have the right to get compensation. The Arbitration Court pointed out,Xie AndGaoIn the court of arbitration first hearing in the mediation procedure proposed to Jian Yi and Xin ZijinCompanyPaymentRMB3Tens of millions of dollars of mediation and arbitration court, also consider all should be coordinated, cooperative and in agreement on the transfer of shares after the cancellation to back shares must pay the cost of. Therefore, the court of arbitration for adviceXie AndGaoShould first pay RMB5The economic compensation of 10 million yuan to build Yi and Xin Zijin company, to end the dispute between the two sides. These recommendations are based on the principles of fair and reasonable, not binding is not included in the arbitration."

38The arbitral award is made, the respondent to Xi'an, Shaanxi intermediate people's Court (referred to as the "Xi'an court") put forward the application for cancellation of an award. Put forward4As a reason to support¹⁸. The following second reasons in especially, should be pay attention to:

"4Xi'an Arbitration Committee, Secretary longPan Jun XinHandling the caseArbitration. In the2010Years4Month,Pan Jun XinArrange the arbitratorZhou JianInform shareholders of the company (Angola one of the most important people in this case) to xi'an. Company shareholder in Angola Shangri-La Hotel in Xi'an high tech Zone held a feast to entertainPan Jun XinAndZhou Jian.PanAndZhouTell company shareholder in Angola to discuss the result came out, the agreement would not be cancelled and Jian Yi and Xin Zijin limited company will compensate the defendant2Billion5Million yuan. Then, because the people behind the clear request to cancel the contract,Pan Jun XinAgainThe arbitration court to cancel the case handling transfer agreement.

Pan Jun XinNot the case, the arbitratorHe is not authorized, the investigation. However, in order to control and manipulate the case, when the arbitration tribunal in theJiang PingTo discuss the case home in Beijing,He went toJiang PingHome to discuss this case.Pan Jun XinControl and manipulation of the case has been a serious violation of laws and arbitration rules."

                     

¹⁸ Refer to the arbitration court appointed assessor and/Or consider the evaluation of complaints. Complaints were rejected. The court ruled in Xi'an14Page. It may be noted that, for not to contactZengInstead of other more appropriate staff complaints. In Zeng WeiAnd Zhang Xintian to Xi'an courtThe testimony of a witness or their oral evidence in court in Xi'an nor any such complaints. OnceIn itsOral evidence said: "I only do the mediation work".2010Years9Month20Daily conversation typing this article7Page. On the other hand, Zhang in the oral evidence said: "I know the situation, but I am not the case the parties".2010Years9Month20Daily conversation typing this article8Page. Translated into Chinese is: "I understand the situation, but I am not the case the parties".

 

39The court in its determination in Xi'an, said:

"V, a committee of the Secretary General to participate in mediation in this case is a violation of the arbitration rules and whether or not he manipulated the case: according to the" arbitration rules "Xi'an Arbitration Committee of the37The provisions of article, 'the mediation may be presided over by the court or the chief arbitrator. All the parties for approval, the relevant units or individuals may be invited as a mediator or mediation 'assistance. Committee of the Secretary General on the case of mediation in accordance with the above rules. Jian Yi and Xin Zijin company supplies to the court, the evidence is not sufficient to prove committee secretary general manipulation case award. Therefore, as a reason to withdraw Jian Yi and Xin Zijin company to submit the application can not be established, the court shall not support.

Summarizing above, Jian Yi and Xin Zijin company for the cancellation of the arbitration award all reasons are not established, and did not get the support of the court. According to "the people's Republic of China Arbitration Law" article70And the "PRC Civil Procedure Law" article258Article,..."

These proceedings

40According to the Arbitration Ordinance ","40E(3The provisions of part), the arbitration award is rejected in the implementation of the Hongkong.

41The judge said, knowledgeable:

"5Arbitration, after two sessions, the first in the2009Years12Month21Day, the second in2010Years5Month31Day. The respondent the alleged cause anxiety to the bias occurs between two sessions, in2010Years3Month27Day Xi'an Shangri-La Hotel dinner.

6According to the public policy, in deciding whether to refuse enforcement of arbitral awards, I must determine the facts, events are led to prejudice any substantive concerns, as well as the respondent no complaints in the second session of the trial process3Month27Whether there is the fact that its give up any rights complaints of bias.

7The arbitration award, if I found by prejudice or obviously unfair, there is a problem needs to be determined. The arbitral award is made, the respondent to appeal to Xi'an Intermediate Court, the court of arbitration, including the biased behavior

 

A variety of reasons, for cancellation of the award.2010Years10Month19Day, Xi'an court rejected the respondent's appeal. Therefore, in front of me the question is, whether the respondent because Xi'an court decision by filing a lawsuit, prejudice to the court."

42The judge also thinks, knowledgeable:

"22, parties to the2010Years3Month27In the disputed Xi'an Shangri-La and shortly after that happened. But at least the following events without controversy:-

(1) after the first trial, the court of arbitration members decided to recommend the parties pay RMB to the plaintiff by the respondent2Billion5Tens of millions of dollars in settlement cases. The arbitration court appointedPan Junxin(Xi'an Arbitration Committee Secretary General),Zhou Jian(an arbitrator) has recommended that the liaison parties. AssignPanAndZhouBecause they are in Xi'an, andJiang PingAndLiu Chuntian(the other two arbitrators) is located in Beijing.

(2)PanThe office has recommended that the liaison representative plaintiff solicitor actingKang Ming.

(3)PanAndZhouContact was Wei, in Xi'an Shangri-La Hotel to meet with him at dinner.ZengAngola used to be the company's shareholders. Contact was because he believed to be a friendly relationship with the respondent. During the arbitration process, once through a mutual acquaintance trying to contactPan. Once described himself as the respondent'a person related to'(a person). ButPanInitially refused this request. When the arbitration court of RMB2Billion5Tens of millions of dollars of advice,PanRemember once requirements and haveEDescription of himself. ThenPanToLi TaoFor once the contact telephone number.

(4) dinner at Xi'an Shangri-La Hotel arePanAnd, onceZhou Jian.PanTell the court of arbitration of the renminbi was2Billion5Tens of millions of dollars of advice, and to the respondent "to do the work".

(5) the respondent refused to pay the RMB to the complainant2Billion5Million yuan.

(6) the complainant subsequently informed the court of arbitration the complainant not prepared by RMB2Billion5Tens of millions of dollars and the respondent to resolve disputes"

43, although had learned judge provides evidence and the evidence, beyond the simple version, but a learned judge said:

 

 "33OnceTheA lot of evidence, including the24To27Duan Hedi31Section, are modified to a minimalist. Although in the respondent on arbitration appeal to the court of Xi'an submitted evidence, but he had not mentioned in my testimony before a very important part in the process (e.g., No.24To27Duan Hedi31In the evidence).

34, in these cases, as senior counselEdward ChanSir (to represent the complainant) argued, I cannot recognize had evidence reliable, because had evidence beyond a minimalist version. I noticed that the complainant admitted minimalist version is correct, because the version of the truth isPanAndZhouTell Lan Yongqiang lawyer. In order to in my hearing under the case, blue made a statement statementPanAndZhouToHe made a promise to a minimalist version.

35, have been submitted on the2010Years4MonthMaTo inform or after the arbitral award is made byZhouInform the evidence, have no to Xi'an court referred to these things, I also can not determine the reliability of material. In any case, the evidence is basicallyMaAndZhouHybrid representations and rumors. I can't take this material as any important evidence.

36Part III, the judgment of objective based on the discussion, I consider only occurs in Xi'an Shangri-La Hotel fact minimalist version that (if any)."

44, SCPatrick FungHello, sirThe learned judge mistakes is to assert the minimalist versions of no dispute. But more importantly, he said the learned judge error is not accepted once aPanAndZhouTo inform him that the arbitration court has decided that the "results" evidence at the Shangri-La Hotel for dinner¹⁹. The "results" is that the share transfer agreement effectively, but the respondent to pay the RMB to the complainant2Billion5Million yuan as compensation.

45,FungGentleman claimed learned judge is wrong, because the learned judge thought had no in Xi'an court proceedings mentioned in Xi'an Shangri-La meetingPanTell him the arbitration tribunal has decided the results.Fung

                    

¹⁹According toLan Yongqiang(the plaintiff's lawyer said the mainland),PanDenied that he had toldZengThe court of arbitration results.Lan YongqiangThe first statement, the7Page, the27(4) section.

 

Sir is mainly based on the judgment of the35-36Section. However, from these paragraphs can be clearly seen, learned judge dismissed the evidence and the minimalist version is not used for any one procedure in Xi'an in have not been mentioned, and the learned judge said:

"33, ...... onceReferred to an important part of his testimony in front of me (for example, when the24To27Duan He31In the evidence).[My emphasis]

46This is why, learned judge:

"34, ...... Can not be identified had evidence reliable, because once the evidence beyond a minimalist version......."

47I don't believe, knowledgeable judges ignored onceOnce toldXi'an courtPanTell him the court of arbitration has been the result of facts in Shangri-La meeting.

48Cognizance, minimalist, learned judge according to the evidence and the respondent submitted evidence to submit the complaint by the representative, from which he has the right to get the parties to reach a consensus conclusion.

Article40EPart

49, No.40EAt present, is the first44Part of an indivisible part of. Article44Part including denial or the implementation of agreements award. Authoritative precedent in Hongkong isHongkong court of Final AppealHKCFAR 111Case No.Hebei Import & Export Corp v. Polytek Engineering Co Ltd 1999 2In this case, also with the mainland decision regarding²⁰.

                     

²⁰Non permanent judgeAnthony MasonJazzHebeiCase133Said: "" arbitration rules "article45Provisions, a party who knows or should know the arbitration rules are not followed but did not raise any objections, should be regarded as a waiver of right to object. Article45Provides an important principle, it is not limited to Chinese law, namely the arbitration the parties wish to violate the rules of arbitration objection, should be put forward as soon as possible and not like found no violation of arbitration rules as to the arbitration proceedings, but be found up to arbitration before use, such a situation proved to be a matter of expediency."

 

50A judge, veryAnthony MasonThe Jazz in his judgment (by the chief judgeLi The permanent judgesChingAndBokharyAgree)139Said:

"However, the purpose of the agreement is to encourage the recognition and enforcement of international commercial arbitration in the contract agreement, and a unified standard for the arbitration agreement review and enforcement of arbitration award compliance (Scherk v. Alberto-Culver CoCase(1974) 417 U.S. 506,Imperial Ethiopian Government v. Baruch-Foster CorpCase (1976) 535 F. 2d 334 at p.335). In order to ensure that no excessive intervention to achieve this goal, the court execution cases fifth, especially the fifth one2(B), relating to public policy has been established. Article fifth2(BA phrase)'Contrary to the public policy of the country'Generally accepted means' contrary to the basic concept of the morality and justice '(Parsons & Whittemore Overseas Co. Inc. V Societe General De L 'Industrie Du Papier (PAKTA) Case(1974) 508 F 2D 969 P.974(the agreement phrase is equivalent to "the most fundamental morality and justice'Reference resourcesA.J. Van Den Berg,The New York Convention of 1958 , (Kluwer, 1981Case No.376The page also referenceRenusagar Power Co. Ltd. V General Electric Co (Yearbook comm. Arbitration XX (1995)Case No.681Ye Hedi697-702Page)).

The next question is the two issue of the respondent complaints (so-called refused to hearing and collusion with the chief arbitrator) is contrary to the basic concept of morality and justice of the Hongkong. In this regard, the parties have the opportunity to express and impartial and independent court by the free private influence or effect of judgment in the case, are the basis of Hongkong justice and moral concepts."

51The permanent judgesLittonIn another judgment118Said:

"Appeared in" Regulations "S.44(3The phrase)Public policyIs a multidimensional concept. The principle of this concept is covered, the court according to the effectiveness of comity should admit foreign arbitration court decisions, and put them into effect, unless to do so would violate basic notions of morality and justice. When the facts alleged become supervision procedure under the jurisdiction of the theme and challenges, this challenge failed, before to conclude that there must be a very strong case as a reference."

 

Waiver²¹

52Xi'an, arbitration committee arbitration rules (Xi'an rule) rule fifth: the party knows or ought to know the will, the arbitration tribunal, the other party and its relevant personnel did not properly followed the rules of any of the terms, but also to participate or to continue to participate in arbitration activities, a waiver of right to object to the. Arbitration rules of Xi'an fifth rules in the effect, and in the case of the Hebei45A similar.

53,Anthony MasonThe judge stated in its judgment, in the following circumstances, the court should refuse to assist:

"...... Evidence from the prosecution is not willing to abide by the rules of arbitration of the public policy, but did not timely objection, in the hope of misconduct may be corrected when objections.

Whether the respondent's behavior is described as an estoppel, or in violation of the principle of honesty and credit, or simply considered as a violation of the rules of arbitration shall be immediately presented does not comply with the principle of the point, not to the case." (P138)

54, inWebsterAndBuhlerTheHandbook of ICC Arbitration Commentary, Precedents, Materials (2nd Edition)A Book (Arbitration Handbook: International Chamber of Commerce review, precedent and materials, Second Edition),172Page footer stated as follows:

"In many, if not most of the legal system of a country, not dispute will lead to the abandonment of the right."²²

55On this point,Reyes JThe judge made a true statement, as follows:

"81Arbitration a party, if not willing to abide by the relevant rules of arbitration, it should act quickly, and should not continue the arbitration proceedings, and hope for the future and challenge."

                     

²¹Respondent behavior is called the waiver, but this behavior from the strict sense can be called a waiver, the meaning is not important.

²²The footnote then listed in France, Switzerland and the United Kingdom (to quote Baer (UK) Ltd. v. Bayfield estate development limited case) and America examples, to prove that "even if the arbitrator bias, fundamentally shaken the arbitration fairness", still constitute a waiver.

 

SeeHKLRD665Hebei import and Export Corporation& PolytekEngineering Co. ltd.,690b(Anthony MasonJudge.

56After the meeting, in Xi'an Shangri-La Hotel, the respondent in the2010Years5Month13To the court of arbitration submitted a supplement (but not to the service), in this note, the respondent has not presented the share transfer agreement is unfair, also did not put forward the share transfer agreement was not reflected the true meaning, but to make the following conclusions:

"6The arbitration tribunal shall be rejectedXieAndGaoThe counter claim. The effectiveness of our company is willing to transfer of shares and agreed to the arbitration tribunal mediation. But consideringXieAndGaoCharacter, once the money they will play the gangster. The price we pay our sincere hope that the arbitration tribunal mediation scheme proposed is not more than6000Million yuan. We think that the amount for playing karate means applicants has been very generous, they midnight will wake up with a smile! We don't know who to help the applicant to file a lawsuit based on, we are willing to pay all costs incurred during this period. In this year2Month5Day afternoon,Xie HepingIn a law firm in Hongkong claimed the Xi'an Arbitration Court case to, he has spent700Million yuan, we are also willing to pay."

57, in2010Years5Month31The arbitration tribunal day hearing before a session.

58,Reyes JThe judge that the waiver does not exist. His statement as follows:

"84The applicant, think, continue to participate in the arbitration without objection to Shangri-La Hotel happen, it shall be regarded as the respondent has given up the right of dissent.

85I cannot accept this view.

86, asPatrick FungThe lawyer said (the respondent party lawyers), after obtaining had to information, the respondent in a dilemma.

87, if they disagree, asserting the existence of bias, they will bear the risk of confrontation of the arbitration tribunal, the tribunal of the respondent hostility.

 

In the objection and the arbitration tribunal indeed are biased towards the case, their objection will be rejected and lose all.

88According to the arbitration rules of the Arbitration Commission, Xi'an, the chairman of the Arbitration Commission has the power to handle the arbitrator appointed objection. This right has been delegated to the Secretary General of the arbitration committee of Xi'an exercise, that isPan. Then there existsPanRisk in dealing with this problem are biased towards the,PanThe event participants or Shangri-La Hotel.

89, in hindsight, the respondent selection is an awkward compromise. They fill the statement questioned the integrity and credibility, and trying toPanAnd a week of2Billion5000Million scheme to6000Million plus court costs.

90Therefore, although the respondent, the solutions of the problems are not appropriate, I don't think they submit supplement and then continue the arbitration practice represents a waiver.

91, I still think an objective third people should be used "pudding proof method". Before the final ruling, the mediation behavior whether bias is anyone's guess. Only when the final ruling, in combination with the Shangri-La Hotel happened, to determine the behavior really are biased towards."

59As for the first case, the judge's point of view, I don't think in the respondent's case, before making the arbitration award, there exist no actual or apparent favouritism or not concerns about the fair. Indeed, before the judge according to theFungThe lawyer explained the sentence summary86And87Section demonstrates another conclusion. The respondent to obtain a satisfactory conclusion but fear that, if the objection will confront with the arbitration tribunal, which will lead to unsatisfactory or not too satisfactory results.

60Before the judge, the lack of the objection as "an awkward compromise" (No.89Section). On this point, I do not agree with this kind of qualitative. Indeed, the respondent in their supplement to the applicant's character was questioned,

 

But it is not for the arbitration tribunal orPanInstead of actual or apparent injustice or partiality.