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SICC業務發展部高級主管:國際商事法庭的興起是對“顛覆者”的顛覆嗎?

來源: Laurence Wong 日期:2018.11.28 人氣:24 

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2018年11月3日,以“國際商事訴訟與多元化糾紛解決機制”為主題的第三屆“前海法智論壇”在深圳市麒麟山莊順利召開。藍?,F代法律將陸續分享嘉賓們的精彩演講,以饗讀者。以下是新加坡國際商事法庭業務發展部高級主管王勞倫斯(Laurence Wong)在本次論壇“議題一:國際商事審判的最新發展”環節中主題演講內容。

  • 議題環節:國際商事審判的最新發展

  • 發言嘉賓:王勞倫斯(Laurence Wong)新加坡國際商事法庭業務發展部高級主管


今天,我想先提一個問題,國際商事法庭的興起是對“顛覆者”的顛覆嗎?在這里,“顛覆者”是指國際仲裁。容我強調,這是一個問題,并非聲明。

《紐約公約》已經生效60周年,國際仲裁已被證明是解決國際商事糾紛的有效形式。之所以產生國際仲裁,是因為歷史上法院在解決國際商事爭議時遇到了許多問題?!都~約公約》在發起之初,法院需要花費大量的時間來解決爭議。有時,法官對部分爭議涉及的技術性問題不了解,需要涉技術領域的專業人士擔任審裁人員。

但現在,我們見證著國際商事法庭的崛起。隨著亞洲貿易、商業、投資和金融的蓬勃發展,將會產生兩個問題:首先,出現越來越多的爭端;其次,也是更為重要的問題,出現的爭端從本質上變得越來越復雜。由于這種日益增加的復雜性,當事人追求更高效的爭端解決機制和方法。當事人需要且積極尋找可信賴的中立機構來解決這些爭議,以及爭端解決方式的新選擇。問題是,這些爭端能夠通過國際商事法庭進行解決嗎?

在本次前海法智論壇上,我們討論的是國際商事訴訟與ADR。如今,從歷史的角度上看,ADR代表的是“替代性爭議解決方式”(Alternative Dispute Resolution);但我建議,ADR實際上代表的是“合適的爭議解決”方式(Appropriate Dispute Resolution)。這是因為解決國際商事爭議的途徑不止一種。選擇適當的爭議解決途徑,無論通過調解、仲裁或訴訟,都取決于爭議的情況和性質。

現在讓我來介紹新加坡國際商事法庭(SICC)的基本情況。SICC是為解決跨境商事糾紛而建立,其中包括由外國法律管轄的商事糾紛。SICC為外國當事人尤其是亞洲當事人設立,適合傾向通過法庭解決爭議的當事人。在本次演講的最后,我將展示當事人選擇國際訴訟而非國際仲裁進行爭議解決的三個重要原因。關于SICC,最關鍵的一點是,SICC構建了國際認可的良好爭議解決框架,這個框架基于國際商法以及國際最佳實踐的實質原則進行構建。國際商法,大家都非常熟悉,是指導法院工作的規則;而國際最佳實踐則是成立SICC時的關鍵考慮因素,它考慮并吸收了企業、當事人以及律師在國際仲裁中的青睞做法。根據《2018年國際仲裁報告》顯示,人們不愿意選擇國際仲裁排名前三的原因如下:

1 成本問題。國際仲裁的成本高昂,且隨著時間的推移還會不停增加;

2 在仲裁的過程中缺乏有效的制裁措施。在法院訴訟中,并不會遇到關于申請制裁措施的問題;但在仲裁中,情況恰好相反。有時,當事人更希望能夠向法院申請禁令;

3 與第三方缺乏緊密、有力的聯系。法院比仲裁能更加有效的調整當事人與第三方之間的關系。

因此,對于那些需要在多合同情況下將多方當事人聚在一起的糾紛處理者來說,這是一個非常重要的因素。此外,仲裁還存在爭議解決速度較緩慢的特征,而法院可以更有效地解決問題。

接下來,我為大家分析一下多合同或者多當事人的情況,在這種情況下,個人以及公司都是混合的。比如現在有三家公司涉及爭議,即使能讓這三家公司在“背靠背”仲裁條款上走到一起,但在這種情況下不可避免涉及到個人,而個人有時無法出席仲裁庭。因此,當事人可能最終面臨多個爭議解決平臺、多個聽證會,甚至可能出現當事人的法律顧問作為仲裁聽證會的證人,轉身在法庭上面臨當事人起訴的情況。在這種情況下大家可以思考一下,是選擇訴訟,還是選擇仲裁更好呢?

關于判決的執行。執行法院判決有三種方式:第一是國家間簽訂的協議;第二是海牙《選擇法院協議公約》,同時也很高興能看到越來越多的國家加入了這個公約;第三個是軟法的應用。我們常常會遺忘這個方法,而事實上利用軟法來執行判決是在《紐約公約》簽署之前就已經存在了的,對此我將作進一步闡述。

上圖對比分析了新加坡國際商事法庭和仲裁的區別。大家可以注意到第四行,這個區別與當事人的利益有很大的聯系。對于當事人而言,有時是否存在上訴渠道是一件非常重要的事情。法院解決爭議時允許當事人上訴,但是仲裁裁決卻是一裁終局。圖表中的第五行指出了,在法院訴訟中可以追加第三人和其他相關方,而在仲裁程序中卻不能。最后同樣重要的一點,在國際商事法庭尤其是SICC中,設有公開判決書系統,而且還提供非常清晰的判決依據;而在很多情況下,仲裁裁決都是保密的,除非該裁決被帶到法院申請撤銷。除此之外,公眾并不清楚仲裁裁決背后的判決理由。然而在法庭上,判決是公開的,法官們甚至提出了明確的判決理由,以便在未來更容易地對類似爭端進行判決。在訴訟過程中,當事人實際上可以進入調解程序,而不需要再經歷整個訴訟或仲裁程序。這樣一來,通過公開判例就可以節省時間和成本。

最后,讓我來回答我一開始提出的問題:國際商事法庭的興起是對“顛覆者”的顛覆嗎?答案:“絕對不是”。不同的爭議解決平臺都有其適用的時間點和情況。對于當事人來說,尤其是對需要公開透明的程序、上訴渠道,以及進一步追加第三方或者相關方的當事人來說,考慮進行國際訴訟是比較適當的做法;而對于傾向要求爭議解決過程具有保密性,在一次聽證會后就有最終結果的當事人,便可以選擇國際仲裁。綜上,ADR將會是“合適的爭議解決方式”,且將由當事人根據其自身的需求決定。

In this session, I have put a question on my title slide for you to consider. It is whether the rise of international commercial courts is disrupting the disruptor? The disruptor being international arbitration. This is a question, and not a statement, I stress.

It was mentioned earlier that this year is the 60th anniversary of the New York Convention, and the fact that international arbitration has proven to be a very effective forum for resolving international commercial disputes. International arbitration arose because historically there were issues with resolving international commercial disputes in the courts. At the time when the New York Convention was launched, dispute resolution in that courts took a long time and at times, the judges could not understand the technicalities involved in certain disputes, and there was a need for adjudicators who were subject matter experts.

But now, we are witnessing the rise of international commercial courts. If you look at the first box, with the continued growth of trade, business, investment and finance in Asia, two things will happen. Firstly, there will be more disputes. But secondly, and more importantly, those disputes are more complex in nature. Due to this increasing complexity, parties demand effective dispute resolution services. Parties require and look for trusted neutral venues to resolve those disputes, and new options for dispute resolution. The question is, can this be through the international commercial courts?

And here’s where we look at this topic in the Legal Intelligence Forum that talks about international commercial litigation and ADR. Now, historically, we know that ADR stands for Alternative Dispute Resolution, but I would like to propose that ADR actually stands for Appropriate Dispute Resolution. This is because there is more than one way to resolve international commercial disputes. Appropriate dispute resolution depends on the circumstances and the nature of that dispute – whether through mediation, arbitration or litigation.

I give you the prospect of the SICC. It has been structured as a court for cross-border commercial disputes, including those governed by foreign law. It is a court for foreign parties, particularly those in Asia. And it is for parties that prefer to have their disputes resolved in courts. I shall give you three reasons at the end of this speech why parties want to consider going for international litigation rather than arbitration. The last point on this slide is a key one – that at the end of the day, the SICC is a court with an internationally-accepted framework on resolving disputes based on substantive principles of international commercial law as well as international best practices. Now international commercial law we are familiar with, that’s what a court of law should do. International best practices were a key consideration in the formation of the SICC. It took into account practices that businesses, parties, and lawyers liked in international arbitration. This slide is from the 2018 Queen Mary/White & Case Survey on international arbitration. Look at the top three characteristics that respondents did not like about international arbitration. First is the cost. Cost of international arbitration are high, and we all know that the cost is escalating over time. The second one, interestingly, is the lack of effective sanctions during the arbitral process. In litigation, in a court of law, you would not have issues in applying for such sanctions, which you might face in arbitration. Some times, parties would like that they are able to seek injunctions from the court. And the third consideration is the lack of power in relation to the third parties. This is an important aspect that a court of law is able to address more effectively than in international arbitration. So for disputants who require to bring together multiple parties in multi-contract situations, this is a strong consideration for going to an an international commercial court. The next point is ‘Lack of speed’ in arbitration, which courts can address more effectively.

I need to skip through the next few slides very quickly. This is just a very quick example of what I mean about multi-party, multi-contract situations, where you have both a mixture of corporations as well as individuals. If you think about it – even if you can bring the three corporations together on back-to-back arbitration clauses, sometimes you have individuals involved, and these individuals at times cannot be brought into an arbitral tribunal. So you may still end up with multiple platforms, multiple hearings where the consultant is a witness in an arbitral hearing and you then turn around and sue him in a court under tort! So I will leave you with that thought for now.

I would not touch on the next few slides and stop on enforcement, even though it has been mentioned by the speakers before. I will just say that there are three methods of enforcing a court judgment. From the left would be bilateral treaties that countries will have with each other. In the center, as was mentioned by James, is The Hague Convention on Choice of Court Agreements. And it’s good to see more and more countries coming on deck. On the right-hand side is the application of soft law, which many times we have forgotten that this was the method even before the New York Convention came about. The ability for a money judgment from one court to be recognized by another court and enforced. Chief Justice Michael Hwang has covered this in great detail, so I shall elaborate further.

I have a table here on the differences between the SICC – that’s an international commercial court – and arbitration. There are various differences. The one that I want to bring to your attention is on the fourth line. Again, where parties are concerned, sometimes it is important to have an avenue of an appeal. And we know that this is something that within courts you can have. But when you have an arbitral award, it is final and it is a one-off thing. On the fifth line, I would like to remind you again about the ability to join third and related parties in a court of law, whilst you don’t have that within an arbitration. And the last one is also just as important. In the international commercial court, especially in SICC, a system in place for publications of judgments, and very clear grounds of decision; arbitral awards, as you know, are confidential, until it’s brought to court in an application to set aside an arbitral award. But other than that, you do not understand or it is not public knowledge what went on behind the granting of a particular award. Whereas in a court of law, the judgments are public knowledge. The judges even raise clear grounds of decisions, so that going forward in the future, it will be easier to adjudicate a similar dispute. And when I talk about adjudicating, you can actually move into a process of mediation, rather than having to go through an entire court process or an arbitral process again. So that time and costs can be saved with that level of precedents, if I may call it that.

Finally, as the Standing International Forum of Commercial Courts has been addressed by the speakers before me, I shall not spend too much time on it. What is important is the convergence of the various commercial courts around the world to promote best practices and further the rule of law. At the last meeting, there were 37 courts from 28 countries and jurisdictions, and they are all coming together to share best practices and work together to keep pace with rapid commercial change.

So I will conclude by answering the question that I had asked at the beginning; are the international commercial courts disrupting the disruptor? The answer is definitely not. There is a time and a place for different dispute resolution forums. And for parties, especially those who require transparency and published judgments, who like an avenue of appeal, and further need to be able to bring together third and related parties, it is appropriate to consider international litigation, whereas parties who prefer confidentiality, who prefer the fact that after one hearing, there’s finality – they could choose international arbitration. So at the end of the day, again, in summary, ADR would be Appropriate Dispute Resolution – and for parties to decide. With that, I thank you very much!


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