中国商事仲裁制度的特色及其发展the characteristics and development.ppt

2001年1月外贸合同中，有仲裁条款规定在被申请人所在地/国的仲裁机构申请仲裁； An arbitration clause was included in the Sales Contract of Jan. 2001, stating that any dispute arising from or in connection with the sale contract between seller and buyer should be submitted to the arbitration institution located in the place\country of respondent. 新疆已交货，但法公司不付款，原因是新疆违反独家代理合同造成其严重损失； The Chinese company had delivered goods, However, the French company refused to make the payment of 2 million EU$ for goods for the reason that the Chinese company breached the Exclusive Agency Contract which led to huge loss of the French company. * * 新疆在法提起仲裁，法公司反请求； The Chinese company initiated an arbitration in France and the French party counterclaimed. 新疆抗辩，反诉不在仲裁范围。 The Chinese company defended that the counterclaim was beyond the arbitration scope. * 如何理解“与合同有关的”意思，即独家代理合同是否属于与争议有关的范围． How to construe “Any dispute arising from or in connection with sales contract” ？ i.e. whether the Exclusive Agency falls into the scope of “in connection with sales contract” * * 一种意见认为无关，理由: Opinion A: irrelevant, because: 两个协议相互独立 two contracts are independent from each other 外贸合同是独家代理中的一个具体的合同，具体的小合同不括大合同的内容，反之即可. The sales contract is a concrete contract. A concrete and subordinate contract shall not cover the entire contents of the fundamental contract. However, the fundamental contracts covers all the concrete and subordinate contracts. * * 另一种意见则是：中方违反独家代理协议是造成本案争议的直接原因，属于相关的 Opinion B: the present dispute was directly resulted from the breach of the Exclusive Agency Contract by the Chinese party. Therefore, the Exclusive Agency Contract is connected. 法律上胜 justified by legal rules 诚信上输 unjustified by moral rules 不道德的，但没违法 immoral, however, lawful Chinese company is immoral winner * Exclusive Agency Contract Sales contract (there is arbitration clause) * 九、通过仲裁协议解决商事纠纷应注意的几个问题 Several Notes to use arbitration as a settlement of comm