10036_27_f_1多媒体课件.ppt.ppt

国际商事仲裁实验教学 王晓川 教授 目录 英国海港公司案 扁豆仲裁案 钢材质量争议仲裁案 履约保证金争议仲裁案 ABB公司与BLYB啤酒大麦购销合同争议案 赔期届满之后的索赔案 履约先后案例 延迟交付劣质产品争议案 吹沙填土工程争议案 迟延交货争议案 The Independence of Arbitration Clauses英国海港公司案 英国海港公司案 Harbour Assurance Co (UK) Ltd v. Kansa General International Insurance Abstract: Ps were an English insurance and reinsurance company and Ds were Finnish insurance and reinsurance companies. The latter were part of a Finnish reinsurance pool which wrote London reinsurance business in 1980-82. By a quota share obligatory retrocession agreement Ps agreed to reinsure Ds for 1980-82. The contract contained an arbitration clause, covering any differences or disputes arising from the agreement. 英国海港公司案 As Ds were not authorised by the Department of Trade and Industry, Ps alleged that the insurance and reinsurance contracts were illegal. Ps argued that a dispute as to whether the contract was void ab initio was not arbitrable (relying on dicta in Heyman v. Darwins). Ps sought rulings on whether the arbitration clause was separable from the contract and wide enough to cover the illegality issue. Catchphrases separability of arbitration clause whether arbitration clause effective whether arbitrators can determine initial validity of contract 英国海港公司案 Judge: Steyn, J. 英国海港公司案 (1) the issue as to separability only arises where the challenge is directed at the contract, rather than the validity of the arbitration agreement itself; (2) the cases established that an arbitrator could still hear disputes where a contract is terminated for breach, repudiation, or frustration, or avoided for fraud, misrepresentation, undue influence or duress; 英国海港公司案 (3) in the absence of authority, an arbitration agreement (not itself directly impeached) is capable of surviving the invalidity of the contract, as they are separate agreements (4) however, the court was bound by Taylor (David) Son v. Barnett Trading Co. to hold that an issue of initial illegality of the contract is always beyond