公共政策和可仲裁性

时间：2022-05-21 百科知识版权反馈

【摘要】：可见，该批货物符合进境检验检疫要求，不在禁止入境的货物之列。因此，执行香港国际仲裁中心的仲裁裁决并不违反社会公共利益。后双方产生争议，遂进行仲裁，仲裁依国际棉花协会规则进行。仲裁庭裁决Odil赔偿ICT的损失。ICT请求巴西最高法院承认该裁决。法院驳回了被告的所有抗辩，承认裁决的裁定。原告还称仲裁员没有接受被告提出的强制合并其他当事人的申请违反了公共政策。

专题十　公共政策和可仲裁性

中国公共政策

舟山中海粮油工业有限公司申请不予执行仲裁裁决案(2009年，中国最高人民法院)

英国公共政策

2008 FOLIO 52，159(2008年，英国高等法院)

巴西公共政策

International Cotton Trading Limited v.Odil Pereira Campos Filho(2007年，巴西高等法院)

西班牙公共政策

GIL STAUFFER Colectivo de Empresarios de Mudanzas S.L.v.Do1a Paula(2008年，西班牙马德里上诉法院)

No.43/2008(2008年，西班牙马德里上诉法院)

印度公共政策

Venture Global Engineering v.Satyam Computer Services Ltd.(2008年，印度最高法院)

奥地利公共政策

No.5 Ob 272/07x(2008年，奥地利最高法院)

Majiken Hofmann v.Republic of Austria，the Supreme Court(2008年，奥地利最高法院)

可仲裁性

NCR Corporation v.Korala Associates Ltd.(2008年，美国上诉法院)

争议

Sport Hawk v.New York Islanders Hockey Club(2008年，加拿大安大略高等法院)

不可分割事项

Patel v.Kanbay International Inc.(2008年，加拿大安大略高等法院)

可分割事项

Hq Network Systems Inc.v.Hq do Brasil S/c Ltda.(2008年，巴西圣保罗法院)

律师费用

Jean Estate of Tung Jean and Peter Wong v.Wires Jolley LLP(2008年，加拿大安大略高等法院)

税务事项

The Republic of Ecuador v.Occidental Exploration and Production Company(2007年，英国上诉法院)

新加坡公共政策

Dongwoo Mann＆Humml v.Mann＆Hummel Gmbh(2008年，新加坡高等法院)

中国公共政策

舟山中海粮油工业有限公司

申请不予执行仲裁裁决案

(2009年，中国最高人民法院)

最高人民法院

关于舟山中海粮油工业有限公司申请不予执行

香港国际仲裁中心仲裁裁决一案的请示复函

2009年3月18日　　［2009］民四他字第2号

浙江省高级人民法院:

你院［2007］浙执他字第4号《关于舟山中海粮油工业有限公司申请不予执行香港国际仲裁中心仲裁裁决一案的请示报告》收悉，经研究，答复如下:

本案因来宝资源有限公司(以下简称来宝公司)申请执行香港国际仲裁中心所做的仲裁裁决，舟山中海粮油工业有限公司(以下简称中粮公司)提出抗辩不予执行而提起诉讼。你院经审查后倾向性意见认为，执行本案仲裁裁决既有损行政命令的权威，又有损社会公众的健康，从而以违反社会公共利益为由，决定不予执行仲裁裁决。

从你院请示报告所陈述的事实可以看出，2004年5月10日，国家质检总局发布［2004］322号特急警示通报，决定从即日起暂停来宝公司及其他三家巴西供货商从巴西向我国出口大豆。但该特急警示通报明确指出，已启运在途的大豆，符合进境检验检疫要求的准予入境。本案中，特急警示通报发出前，案涉货物已经装船，系为启运在途货物。同年6月23日，国家质检总局终止了该进口禁令，恢复来宝公司等供货商向中国出口的资格。来宝公司于同年7月取得了大豆转基因生物安全证书，中粮公司也取得了大豆进口许可证。可见，该批货物符合进境检验检疫要求，不在禁止入境的货物之列。此外，并无证据表明案涉货物会带来严重的安全卫生问题，也不存在有损公众健康的事实。因此，执行香港国际仲裁中心的仲裁裁决并不违反社会公共利益。根据《最高人民法院关于内地与香港特别行政区相互执行仲裁裁决的安排》的规定，香港国际仲裁中心的仲裁裁决应予执行。

此复

英国公共政策

2008 FOLIO 52，159

(2008年，英国高等法院)

在本案中，法院认定，仲裁裁决表面上并没有违反英国的公共政策，因此依据1996年《仲裁法》第68条第2款第g项，不存在对仲裁裁决合法性异议的理由。如果合同的实施对实施国国内的公共政策构成违反，这样的合同在英国将不会得到执行。在本案中，仲裁庭有充分的材料证明依据利比亚法合同是合法的，并没有材料表明在获得裁决中存在勾结或恶意。无论是协议还是依据它作出的仲裁裁决都没有与英国的公共政策相违背。

巴西公共政策

International Cotton Trading Limited v.

Odil Pereira Campos Filho

(2007年，巴西高等法院)

International Cotton Trading Limited(ICT)和Odil Pereira Campos Filho签订了一份买卖合同，约定将300吨棉花运往英国。后双方产生争议，遂进行仲裁，仲裁依国际棉花协会规则进行。仲裁庭裁决Odil赔偿ICT的损失。ICT请求巴西最高法院承认该裁决。被告抗辩称:没有仲裁条款;裁决违反了巴西的公共政策;原告违约。

法院驳回了被告的所有抗辩，承认裁决的裁定。法院认为，存在仲裁条款，仲裁条款本身能启动仲裁;与合同有关的争议不在承认裁决的程序中予以讨论;裁决并没有违反巴西的公共政策>

西班牙公共政策

GIL STAUFFER Colectivo de Empresarios de

Mudanzas S.L.v.Do1a Paula

(2008年，西班牙马德里上诉法院)

原告申请的撤销仲裁庭裁决，称依据西班牙《仲裁法》第41.1条第f项应该撤销仲裁裁决，理由是它违反了公共政策。原告还称仲裁员没有接受被告提出的强制合并其他当事人的申请违反了公共政策。

法院认为原告的请求是没有根据的。原告在它的请求中指出哪些当事人应该作为被告加入仲裁程序。不将一个当事人加入仲裁程序不会构成对公共政策的违反，不将第三方并入仲裁程序的惟一后果是第三方当事人不会受到裁决的约束，是否违反了公共政策应该首先决定是否违反了正当程序。

No.43/2008

(2008年，西班牙马德里上诉法院)

在本案当中，法院认为现场查验是仲裁员审理争议的关键，仲裁员虽然承认这涉及相关的证据但没有实施这种查验。因此法院认为，仲裁员没有保障原告陈述案件的权利，仲裁裁决才违反了公共政策。

印度公共政策

Venture Global Engineering v.

Satyam Computer Services Ltd.

(2008年，印度最高法院)

被告在原告所在地密歇根法院请求执行裁决。原告向对被告有管辖权的印度法院提起了诉讼，要求撤销裁决。

法院认定它对撤销外国裁决有管辖权。法院称在印度进行的仲裁，考虑到合资协议与印度的密切联系，原告不会被剥夺在印度法院对仲裁裁决提出异议的权利。原告有权受印度公共政策保护。合资协议中的法律选择条款，“无论在协议中发生什么争议，股东应该按照印度公司法履行”，排除了被告向除了印度法院的其他任何法院申请执行依合资协议作出的仲裁裁决。

判决摘录

［13］According to Mr．K．K．Venugopal，paragraphs 26 and 27 start by dealing with the arguments of Mr．Sen who argued that Part I is not applicable to foreign awards．He further pointed out that it is only in the sentence starting at the bottom of para 26 that the phrase“it must immediately be clarified”that the finding of the Court is rendered．That finding is to the effect that an express or implied agreement of parties can exclude the applicability of Part I．He further pointed out that the finding specifically states that，“But if not so excluded，the provisions of Part I will also apply to all‘foreign awards’．”This exception which is carved out，based on agreement of the parties．By omitting to provide that Part I will not apply to international commercial arbitrations which take place outside India the effect would be that Part I would also apply to international commercial arbitrations held out of India．But by not specifically providing that the provisions of Part I apply to international commercial arbitrations held out of India，the intention of the legislature appears to be to allow parties to provide by agreement that Part I or any provision therein will not apply．Thus in respect of arbitrations which take place outside India even the non-derogable provisions of Part I can be excluded．Such an agreement may be express or implied．He further pointed out the very fact that the judgment holds that it would be open to the parties to exclude the application of the provisions of Part I by express or implied agreement，would mean that otherwise the whole of Part I would apply．In any event，according to him，to apply Section 34 to foreign international awards would not be inconsistent with Section 48 of the Act，or any other provision of Part II as a situation may arise，where，even in respect of properties situate in India and where an award would be invalid if opposed to the public policy of India，merely because the judgment-debtor resides abroad，the award can be enforced against properties in India through personal compliance of the judgment-debtor and by holding out the threat of contempt as is being sought to be done in the present case．In such an event，the judgment-debtor cannot be deprived of his right under Section 34 to invoke the public policy of India，to set aside the award．He very much relied on the judgment of this Court in Oil＆Natural Gas Corporation Ltd．vs．Saw Pipes Ltd．(2003)5 SCC 705 wherein particularly，in paragraphs 30 and 31，the public policy of India has been defined to include-

(a)the fundamental policy of India;or

(b)the interests of India;or

(c)justice or morality;or

(d)in addition，if it is patently illegal．He pointed out that this extended definition of public policy can be by-passed by taking the award to a foreign country for enforcement．In such circumstances，according to him，there is nothing inconsistent between Section 48 which deals with enforcement and Section 34 which deals with a challenge to the Award．He also relied on a decision of the Division Bench of the Calcutta High Court in Pratabmull Rameshwar vs．K．C．Sethia Ltd．，AIR 1960 Calcutta 702．In paragraphs 45 and 63，the Calcutta High Court while dealing with Arbitration Act of 1940 sets out the reasoning in support of a challenge being permissible in India to a foreign award．

［14］In order to find out an answer to the first and prime issue and whether the decision in Bhatia International(supra)is an answer to the same，let us go into the details regarding the suit filed by the appellant as well as the relevant provisions of the Act．The appellant VGE filed O．S．No．80 of 2006 on the file of the Ist Additional District Court，Secunderabad，for a declaration that the Award dated 3．4．2006 is invalid，unenforceable and to set aside the same．Section 5 of the Act makes it clear that in matters governed by Part I，no judicial authority shall intervene except where so provided．Section 5 which falls in Part I，specifies that no judicial authority shall intervene except where so provided．The Scheme of the Act is such that the general provisions of Part I，including Section 5，will apply to all Chapters or Parts of the Act．Section 2(5)which falls in Part I，specifies that this part shall apply to all arbitrations and to all proceedings relating thereto．It is useful to refer Section 45 which is in part II of the Act which starts with non obstante clause namely，Notwithstanding anything contained in Part I or in Code of Civil Procedure Section 52 in Chapter I of Part II of the Act provides that“Chapter II of this Part shall not apply in relation to foreign awards to which this Chapter applies．”As rightly pointed out，the said section does not exclude the applicability of Part I of the Act to such awards．

［15］Part II of the Act speaks about the enforcement of certain foreign awards．Section 48 speaks about conditions for enforcement of foreign awards．Section 48(1)(e)read with Section 48(3)of the Act specify that an action to set aside the Award would lie to the competent authority．Mr．Nariman，after taking us through the relevant provisions of Chapter I Part II submitted that Section 48(1)(e)read with Section 48(3)of the Act specifies that an action to set aside a foreign award within the meaning of Section 44 of the Act would lie to the“competent authority of the country in which，or under the law of which，that award was made”．According to him，the phrase“the country under the law of which，that award was made”refers to the country of the curial law of arbitration，in the extremely rare situation where the parties choose a curial law other than the law of the country of the seat of arbitration．He further pointed out that therefore such a challenge would lie only to the competent Court of the country in which the foreign award was made．He also submitted that the said principle is recognized internationally by Courts in US and UK as well as by several High Courts in India．The US decisions which support/recognize the above principle are:

①International Standard Electric Corp．vs．Bridas Sociedad Anonima Petrolera，Industrial Y Comercial，745 F．supp．172

②M＆C Corporation vs．ERWIN BEHR GmbH＆Co．，KG，a foreign corporation，87 F．3d 844

③Yusuf Ahmed Alghanim＆Sons vs．Toys“R”US．INC．Thr．(HK)Ltd．126 F．3d 15

④Karaha Bodas Co．L．L．C．vs．Perusahaan Pertambangan Minyakdan Gas Bumi Negara 364 F．3d 274(5)C v．D(2007)EWHC 1541

［16］Apart from the above US decisions，Mr．R．F．Nariman，pointed out that all the Indian High Courts except the Gujarat High Court in Nirma Ltd．vs．Lurgi Energie Und Entsorgung GMBH，Germany，AIR 2003 Gujarat 145 have taken this consistent view in the following judgments:

(a)Bombay Gas Company Limited vs．Mark Victor Mascarenhas＆Ors．，1998 1 LJ 977

(b)Inventa Fischer Gmbh＆Co．，K．G．vs．Polygenta Technologies Ltd．，2005(2)Bom C．R．364

(c)Trusuns Chemical Industry Ltd．vs．Tata International Ltd．AIR 2004 Gujarat．274

(d)Bharat Aluminium Co．Ltd．vs．Kaiser Aluminium Technical Services，AIR 2005 Chhatisgarh 21

(e)Bulk Trading SA vs．Dalmia Cement(Bharat)Limited，(2006)1 Arb．LR 38(Delhi)

［17］On close scrutiny of the materials and the dictum laid down in three-Judge Bench decision in Bhatia International(supra)，we agree with the contention of Mr．K．K．Venugopal and hold that paragraphs 32 and 35 of the Bhatia International(supra) make it clear that the provisions of Part I of the Act would apply to all arbitrations including international commercial arbitrations and to all proceedings relating thereto．We further hold that where such arbitration is held in India，the provisions of Part I would compulsorily apply and parties are free to deviate to the extent permitted by the provisions of Part I．It is also clear that even in the case of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement，express or implied，exclude all or any of its provisions．We are also of the view that such an interpretation does not lead to any conflict between any of the provisions of the Act and there is no lacuna as such．The matter，therefore，is concluded by the three-Judge Bench decision in Bhatia International(supra)．

奥地利公共政策

No.5 Ob 272/07x

(2008年，奥地利最高法院)

本案中，法院认为，不能因为每一个违法行为，就将仲裁裁决撤销。仲裁裁决只有在违反了强制法或者损害了奥地利法律体系的基本原则时，奥地利法才可以撤销裁决。

Majiken Hofmann v.Republic of Austria，

the Supreme Court

(2008年，奥地利最高法院)

原告向奥地利法院提起诉讼请求撤销裁决。一审法院和上诉法院都支持了裁决。最高法院驳回了原告的诉求，认为原告的观点是为审查裁决中法律解释的正确性。最高院称仲裁裁决不能因为违反法律包括违反强制规则而被提起异议。即使确保仲裁裁决不违反公共政策的审查，也不必然要求对法律和事实是否得到适当解释进行审查。依据奥地利《民事诉讼法》第595条第1段，一方只有在仲裁裁决违反了奥地利法律的基本价值时才可以撤销裁决。

可仲裁性

NCR Corporation v.Korala Associates Ltd.

(2008年，美国上诉法院)

俄亥俄州南区法院认为所述争议应通过判决而非仲裁解决。随后，原告提起了上诉，要求将与被告之间的争议提交仲裁。

在上诉中，第六巡回法院指出存在可仲裁性的假定，但针对每一个诉求，它必须决定诉求是否能够不援引合同中的仲裁条款就能被解决。在不援引仲裁协议就能解决争议的情形下启动仲裁是不恰当的，除非当事人有其他的意愿。本案仅在涉及原告的版权、非法进口以及不公平竞争等诉求时才能启动仲裁，而原告的恶意干扰和不公平竞争是不能仲裁的，因为它们涉及到与第三人的协议，而非本案所涉许可协议。

争议

Sport Hawk v.New York Islanders Hockey Club

(2008年，加拿大安大略高等法院)

双方之间的合同包含仲裁条款，规定当事人产生的与合同有关任何争议应依据纽约法在纽约提交仲裁。原告称不存在仲裁条款中所指的“争议”。法院依据布莱克法律词典解释了“争议”:“冲突或争议，特别是其导致特定诉求产生。”依据这个定义，法院认为当事人之间明显存在着关于合同下金钱的争议。如果属于仲裁协议范围下的争议被提交到法院，法院应中止诉讼并要当事人提交仲裁。

判决摘录

THE ISSUES

［7］The Plaintiff's position is that that the Arbitration Agreement is not engaged because there is no“dispute”within the meaning of paragraph 5.09 of the agreement. Counsel argued that the defendant had not advised of the reason that payment had not been made for the services rendered so there was no dispute between the parties.It is the position of the Plaintiffs that there is no obligation on them to proceed to arbitration，as the requirement to do so has not been triggered by a dispute.The Plaintiffs wish to proceed with the Ontario action.

［8］In argument，counsel for the Plaintiffs emphasized that the defendant had not filed its Statement of Defence，thus the Plaintiffs did not know why payment had not been made under the agreement and there was no“dispute”.In my view，there is no merit to this argument.Black's Law Dictionary defines“dispute”as“a conflict or controversy，especially one that has given rise to a particular lawsuit”.It is patently obvious there is a“dispute”between the parties:the defendant has not paid the plaintiff monies that are allegedly due and owing under an agreement for services rendered.The Plaintiff obviously does not agree that it is not entitled to payment so it has issued a Statement of Claim in Ontario.Lawsuits are about disputes or disagreements between parties.

［9］Both parties signed the Operating Services Agreement which sets out the terms of the contract.One of the terms that both parties agreed to was that the agreement was to be construed according to the laws of the state of New York.Another term was that“any dispute between the parties hereto in connection with this Agreement shall be referred by the parties to arbitration in New York in accordance with the provisions of the applicable law as defined in Section 5.05 hereof.”(Emphasis mine).It is clear that the parties contemplated that there might be a disagreement or a dispute between them arising out of the performance of the contract and they specifically determined that as opposed to proceeding with litigation，the matter would be resolved by way of arbitration.Similarly，given that one of the Plaintiffs is an Ontario company and the defendant is an American limited partnership，the issue of the law that applies was dealt with in the agreement and it was determined that the applicable law would be that of the state of New York.

［10］For reasons set out above，I reject the argument that there is no“dispute”between the parties so the arbitration requirement is not engaged.There is no suggestion that the agreement is void.In my view，I need not go beyond the terms of the contract between the 2 parties which clearly sets out the mechanism for resolving disputes.I am mindful of the many policy considerations behind holding parties to the terms of the contract they agreed to.The language of the International Commercial Arbitration Act，R.S.O.1990 is mandatory that if a matter is the subject of an arbitration agreement and action is brought before the court，the court shall refer the parties to arbitration.In the Court of Appeal case of Mantini v.Smith Lyons LLP 2003 CanLII 22736(ON CA)，(2003)，228 D.L.R.(4th) 214(C.A.)，Justice Feldman noted that if a claim is one which must be decided by an arbitrator under the terms of the agreement，then under s.7(1)of the Arbitration Act，the court is required to stay the action and refer the claims to arbitration.

［11］Given my decision that the terms of the Operating Services Agreement apply，there is no need for me to determine the issue of jurisdiction and further，there is insufficient evidence before me to make such a determination in any event.I need not deal with the Plaintiff's motion to validate service of the Statement of Claim under the circumstances.

［12］This court orders that the within action is stayed and the parties shall proceed to arbitration in New York in accordance with Section 5.09 of the Operating Services Agreement.If the parties cannot agree on costs，written submissions may be made within 20 days of the release of my decision.

不可分割事项

Patel v.Kanbay International Inc.

(2008年，加拿大安大略高等法院)

仲裁协议如管辖当事人在某些问题上的争议，但此类争议不能与仲裁协议无法管辖的事项合理分割开，则此类仲裁协议无法执行。

判决摘录

(c)The Arbitration Issue

［15］Is there sufficient reason why the dispute should not be referred to arbitration?In my respectful view，there is，on the basis of the following:

(1)The plaintiff argues and I agree，that the Arbitration Act，1991，(the“Act”)contemplates that，in some instances，it is not appropriate to deal with issues raised in a claim separately.Section 7(1)of the Act states that if a party to an arbitration agreement commences a proceeding regarding a matter to be submitted to arbitration，the court shall，on the other party's motion，stay the proceeding.However，pursuant to section 7(5)，the Court may stay the proceeding with respect to those matters under the auspices of the arbitration agreement and continue with respect to other matters，if it finds that the agreement deals with some matters and it is reasonable to separate the matters dealt with in the agreement from the other matters.This leaves it open to find that，in some circumstances，it is not reasonable to separate the said matters.Indeed，in McCulloch v.Peat Marwick Thorne，［1991］A.J.No.1062(Alta.Q.B.)，the Court found that even though the parties'relationship as to certain issues was governed by an arbitration clause，the matters should not be separated in order to avoid a multiplicity of proceedings，unnecessary costs，inconvenience，and the possibility of inconsistent results.Those concerns and the delay that will undoubtedly occur by holding proceedings in both Illinois and Canada，pertain as well to this case.

(2)The specific allegations in the impugned paragraphs relate to purported representations made to the plaintiff to induce him to accept employment.In contrast，the arbitration clause in the Shareholders Agreement generally deals with claims，disagreements，disputes，or controversies，that may arise from the transactions that relate to the Shareholders Agreement itself.In my view，the crux of the plaintiff's claim is not the“making”of the Shareholders Agreement but rather what representations were made to the plaintiff，if any，to induce him to accept the defendant's offer of employment;and how they should be valued.The core of the plaintiff's action relates to his claims for wrongful dismissal and negligent misrepresentation and not to any alleged breaches of the Shareholders Agreement or to claims under it.

(3)Pursuant to section 6.2 of the Agreement，in the event of a default，the corporation or shareholders“have the right”to bring the matter to arbitration.This contemplates that the parties have an option to proceed by arbitration，though as noted previously，section 8.10 is mandatory.It may well be that，in such a situation，the contra proferentum rule applies;and of course，the plaintiff has elected to proceed through the Ontario court system.

(4)A close reading of the remedies outlined in section 6.2 of the Shareholders Agreement discloses that they relate specifically to shareholder disputes which do not capture the employment situation that we find here，even in relation to the shares.For example，the section contemplates an order for specific performance by the“defaulting shareholder”of his obligations under the Agreement.

(5)The valuation of the shares pertain，in my view，to the purported representations that allegedly induced the plaintiff to enter into both the employment and the Shareholders Agreement on the same day.This reflects an issue of liability prior to a determination of damages，if any.In these circumstances，I find that it would not be reasonable to divide the issues between Canada and Illinois;or to send the impugned matters for arbitration.

可分割事项

Hq Network Systems Inc.v.Hq do Brasil S/c Ltda.

(2008年，巴西圣保罗法院)

被告称合同中含有仲裁条款，故巴西法院没有审理该案的管辖权。原告则主张争议中的焦点问题并不是属于仲裁条款的范围，因此巴西法院应该有审理该案的管辖权。

圣保罗上诉法院认为，合同中当事人将某些问题排除在仲裁之外，故该相关问题是不能仲裁的，法院有审理该案的管辖权。

律师费用

Jean Estate of Tung Jean and Peter Wong v.

Wires Jolley LLP

(2008年，加拿大安大略高等法院)

本案涉及律师费用。被告依据国际商事仲裁法以及费用合同中的仲裁条款发出了仲裁通知。原告Peter Wong依据律师法向法院提起了诉讼。

法院承认，原则上在存在仲裁条款的情形下，无论该条款是否有效，是否能被执行都应该由仲裁庭裁断。然而，法院认为自己有权力决定律师费用协议的执行力，并认为本案中这种协议是无法执行的。法院区分了律师客户关系与私人商业争议。因为律师垄断提供法律服务，并且律师在协商时处于更为优势的地位，因此在法院监督职业垄断时需保护公共利益。保证费用协议公平合理超越了当事人的自由意志。

税务事项

The Republic of Ecuador v.Occidental

Exploration and Production Company

(2007年，英国上诉法院)

在本案中，法院认为，仲裁员对于与美国和厄瓜多尔BIT相关的税务事项有管辖权。

判决摘录

The judge spelled that out in detail at［103］to［108］.We agree with the judge's conclusions in those paragraphs.It is sufficient for us to quote only［107］and［108］with which we agree:

［107］The dispute between Ecuador and OEPC that was before the Tribunal was whether，in the circumstances，Ecuador's decision that OEPC was not entitled to have a refund of VAT was a breach of Ecuador's obligations under Articles II and III of the BIT.That dispute involved a matter of taxation，ie the VAT payments.But in my view，the dispute also involved a matter of taxation that“had reference to”the“performance”of the“obligations of the Contract”.

［108］I have reached this conclusion for three particular reasons.First，the matter of the right to a VAT refund or not had reference to the obligations of OEPC to do all that was necessary to exploit the oil in Block 15，including the obligation to build all systems needed for that exploitation，because the VAT was paid in respect of purchases made in pursuance of that obligation of OEPC.Secondly，the question of a VAT refund had reference to the performance of OEPC's contractual obligation to pay all taxes according to Ecuador's laws.The dispute was whether that contractual obligation was concluded on the assumption or understanding that there would be a refund of VAT paid.Thirdly，the VAT refund question had reference to the underlying assumptions of the parties as to the“economy”of the Contract which formed the basis of the bargain contained in the Contract's terms:was the assumption that VAT would be repaid or not? The underlying assumptions of the parties as to the“economy”of the contract［were］fundamental to how the Contract terms were to be observed and enforced.

新加坡公共政策

Dongwoo Mann＆Humml v.Mann＆

Hummel Gmbh

(2008年，新加坡高等法院)

原告称故意蔑视仲裁庭的命令应该被认定为违反了审理地最基本的道德和公正，不遵循披露义务将会与大多数国家的公共政策不一致。

法院认为，公共政策的范围很窄，仅仅支持仲裁裁决会明显伤害公共利益或完全挑衅常理和大众时才适用。法院指出“公共政策”这个词包含基本的法律原则和实体和程序方面的正义。裁决是否违背了公共政策的一种情形是仲裁裁决是否是通过欺诈获得的。一方当事人必须证明故意隐瞒文件和裁决有利于胜诉方存在着因果联系。另一种撤销裁决的情形是仲裁裁决是通过违背公共政策获得的。在不披露的情形下，文件必须是由仲裁中知道的一方故意保留，导致获得有利于自己的裁决。

判决摘录

Conflict with Public Policy

［130］Dongwoo tried to set aside the award on the further ground that it was in conflict with public policy，under Article 34(2)(b)(ii)of the Model Law，which states:

Article 34.Application for setting aside as exclusive recourse against arbitral award

(2)An arbitral award may be set aside by the court specified in Article 6 only if:

...

(b)the court finds that:

...

(ii)the award is in conflict with the public policy of this State.

［131］In PT Asuransi Jasa Indonesia(Persero)v.Dexia Bank SA［2007］1 SLR 597(“PT Asuransi Jasa Indonesia(Persero)”)，the Court of Appeal explained what would constitute a conflict with public policy(at［57］and［59］):

［57］...The legislative policy under the Act is to minimise curial intervention in international arbitrations.Errors of law or fact made in an arbitral decision，per se，are final and binding on the parties and may not be appealed against or set aside by a court except in the situations prescribed under s 24 of the Act and Art 34 of the Model Law....In the present context，errors of law or fact，per se，do not engage the public policy of Singapore under Art 34(2)(b)(ii)of the Model Law when they cannot be set aside under Art 34(2)(a)(iii)of the Model Law.

［59］Although the concept of public policy of the State is not defined in the Act or the Model Law，the general consensus of judicial and expert opinion is that public policy under the Act encompasses a narrow scope.In our view，it should only operate in instances where the upholding of an arbitral award would“shock the conscience”(see Downer Connect(［58］supra)at［136］)，or is“clearly injurious to the public good or...wholly offensive to the ordinary reasonable and fully informed member of the public.”(see Deutsche Schachbau v Shell International Petroleum Co.Ltd.［1987］2 Lloyds'Rep 246 at 254，per Sir John Donaldson MR)，or where it violates the forum's most basic notion of morality and justice:see Parsons＆Whittemore Overseas Inc.v. Societe Generale de L'Industrie du Papier(RAKTA)［1974］USCA2 836;508 F 2d，969(2nd Cir，1974)at 974.This would be consistent with the concept of public policy that can be ascertained from the preparatory materials to the Model Law.As was highlighted in the Commission Report(A/40/17)，at para 297(referred to in A Guide to the UNCITRAL Model Law on International Commercial Arbitration:Legislative History and Commentary by Howard M Holtzmann and Joseph E Neuhaus(Kluwer，1989)at 914):

In discussing the term“public policy”，it was understood that it was not equivalent to the political stance or international policies of a State but comprised the fundamental notions and principles of justice...It was understood that the term“public policy”，which was used in the 1958 New York Convention and many other treaties，covered fundamental principles of law and justice in substantive as well as procedural respects. Thus，instances such as corruption，bribery or fraud and similar serious cases would constitute a ground for setting aside.

［Emphasis Added］

［132］In Profilati Italia SRL v.Paine Webber Inc.［2001］1 Lloyd's Rep 715(“Profilati”)，Moore-Bick J made the following observations in relation to the argument that non-disclosure of material documents constituted a breach of public policy in the context of s 68 of the English Arbitration Act 1996(at［17］，［19］and［26］):

［17］...where the successful party is said to have procured the award in a way which is contrary to public policy it will normally be necessary to satisfy the Court that some form of reprehensible or unconscionable conduct on his part has contributed in a substantial way to obtaining an award in his favour.Moreover，I do not think that the Court should be quick to interfere under this section［ie，s 68(2)(g)of the Arbitration Act 1996］.In those cases in which s.68 has so far been considered the Court has emphasized that it is intended to operate only in extreme cases.

［19］Where an important document which ought to have been disclosed is deliberately withheld and as a result the party withholding it has obtained an award in his favour the Court may well consider that he procured that award in a manner contrary to public policy.After all，such conduct is not far removed from fraud...

［26］Even if there had been a deliberate failure to give disclosure of the two documents in question it would still be necessary for Profilati to satisfy the Court that it had suffered substantial injustice as a result.

［Emphasis Added］

Section 68 of the English Arbitration Act 1996 provides as follows:

(1)A party to arbitral proceedings may...apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal，the proceedings or the award.

...

(2)Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant.

...

(g)the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy.

［133］In my view，what was stated in［19］(quoted above)in Profilati(［132］supra)should not be read in the absolute sense without any qualifications.If there is a good reason for the intentional non-disclosure of an important document(which of course must not be a fictitious reason)，then it cannot be said that the resulting deliberate non-disclosure is akin to fraudulent conduct.

［134］Recently，in Elektrim SA v.Vivendi Universal SA［2007］1 Lloyd's Rep 693(“Elektrim”)，Aikens J，endorsing Profilati(［132］supra)，opined at［81］-［87］:

［81］In my view the strict approach to the construction of the words“obtained by fraud”that I have adopted must also be applied in relation to the disclosure of documents in an arbitration.If a party to the arbitration is ordered to produce a document(or a class of documents)that is relevant to the arbitration and the party，through its directors，its employees or its lawyers，in the knowledge that the document exists，decides deliberately to conceal it，with the intention of inducing the tribunal and the other side into the belief that the document does not exist，then that must be a“fraud”for the purposes of section 68(2)(g).However，because an allegation of fraud is being asserted，the accuser will have to demonstrate its case to a high standard of proof.

［82］But an award will only be“obtained by fraud”if the party which has deliberately concealed the document has，as a consequence of that concealment，obtained an award in its favour.The party relying on section 68(2)(g)must therefore also prove a causative link between the deliberate concealment of the document and the decision in the award in favour of the other，successful，party.

［83］If there has been a failure to disclose a document as a result of either negligence，or an error of judgment，concerning the interpretation of an order for production or the scope of the obligation to search for a document following an order of the tribunal，that is not“fraud”for the purposes of the paragraph.In this regard I respectfully agree with the comments of Moore-Bick J in the Profilati case at para 19，although those comments were made in relation to the words“procured contrary to public policy”in the section.

...

［85］Neither side sought to argue that the position would be any different if the phrase“procured contrary to public policy”is applied to the facts of this case.In the Profilati case，the allegation was that a party to an arbitration had wrongly failed to disclose two material documents and that this failure had led to an award being made in favour of one party that would have been made in favour of the other party had the documents been disclosed.It was not alleged that the two documents were deliberately withheld by either the party concerned or its solicitors.However，it was argued that if a document is wrongfully withheld as a result of either negligence or an error of judgment，and it is demonstrated that the award is different in consequence，then the award has been“procured contrary to public policy”within section 68(2)(g).

［86］Moore-Bick J did not accept this argument.He concluded that，in the context of disclosure，documents had to be deliberately withheld to the knowledge of a party to the arbitration(or its solicitors)，before it could be said that the award had been procured contrary to public policy.He said that normally it would have to be shown that there had been some“reprehensible or unconscionable conduct”by the party concerned，that had contributed in a substantial way to obtaining an award in that party's favour:see para 17.

［87］I respectfully agree with that analysis.Thus，at least in the context of allegations of perjury and deliberate concealment of relevant documents，the phrase“an award procured contrary to public policy”goes wider than the phrase“an award obtained by fraud”for the purposes of section 68(2)(g).

［Emphasis Added］

［135］Dongwoo asserted that the award was procured in such a way that it was contrary to public policy，ie，M+H had wrongly failed to disclose the documents which related to the CCV oil separators，which might have supported Dongwoo's case in relation to whether there were breaches of the TATLA and might have allowed Dongwoo's counsel to make submissions or introduce evidence which would not be made in the same way or force if the documents were disclosed，and，to that extent，the award was improperly procured as the tribunal was effectively misled.

［136］Dong further asserted that M+H knew for a fact that the documents were relevant and had admitted that it deliberately withheld the documents on the pretext of confidentiality.M+H took advantage of its pretext of confidentiality by disclosing the documents solely to the tribunal，hoping to influence its decision.The disclosure only to the tribunal but not to it had never been consented to by Dongwoo and Dongwoo had maintained its objections throughout.Substantial prejudice was caused to Dongwoo as it was likely that the documents might have impacted the minds of the tribunal.Justice was not seen to be done.Dongwoo had no way of knowing how the documents influenced the tribunal not just on the issue of confidentiality，but also the decision on whether there was a breach and whether this was a material breach and so forth.If the documents had been disclosed，it would enable Dongwoo to cross-examine more pointedly and to demonstrate that the evidence of M+H's witness was false，and this would have resulted in Dongwoo persuading the tribunal to reach an opposite conclusion.More questions could also have been put to M+H's witnesses.

［137］In coming to its decision on the award as to whether adverse inference should be drawn against M+H，Dongwoo submitted that the tribunal failed to appreciate the real motive for M+H's non-disclosure and the fact that in the light of the confidentiality undertaking provided by Dongwoo and its own findings in the 1st Ruling that such documents were relevant and material.It was incumbent on M+H to produce such documents in compliance with the 1st Ruling.However，M+H flagrantly disregarded the tribunal's discovery orders and deliberately withheld documents. Dongwoo argued that the deliberate flouting of the tribunal's directions must be taken to violate the forum's most basic notion of morality and justice.Dongwoo's case was hindered by the non-production of the documents，and it could not fairly present its case in relation to a key issue in the arbitration.Not only did Dongwoo suffer injustice as it was deprived of an opportunity of presenting its case，it also did not know how the documents(disclosed to the tribunal but not to Dongwoo)had influenced the tribunal's substantive decision.M+H's conduct“effectively misled”the tribunal.Dongwoo strenuously argued that it had therefore resulted in an award that was in conflict with public policy.Dongwoo contended that it was generally accepted that such noncompliance with discovery obligations would be inconsistent with the public policy of most countries.

［138］However，Dongwoo did not dispute(see［137］of its submissions)that mere non-compliance with a tribunal's order for production of documents per se would not necessarily lead to the setting aside of the award on the basis of the award being contrary to public policy，according to the principles in Profilati(［132］supra). However，Dongwoo placed reliance，inter alia，on Profilati(［132］supra)and Elektrim(［134］supra)to submit that the situation would be different if the party had deliberately flouted discovery orders，or deliberately withheld an important document.

［139］I carefully examined whether M+H in reality believed that it did not have any good reason not to disclose the documents，whether it invented a reason not to disclose，and whether M+H did intentionally mislead or commit a fraud on the tribunal by concealing an important key document(including even its existence)which if disclosed would have been so unfavourable that the tribunal would not have decided the award in the way it did.I trawled through the evidence to find whether there was any mala fides involved.Was the motive for the deliberate non-disclosure to prevent a document with some damning evidence from surfacing at all costs and without any good reason at all，in order to mislead the tribunal into coming to a wrong conclusion in its favour?If so，then this sort of despicable and reprehensible conduct of the party smacks of total bad faith and destroys the whole basis for a fair arbitration of the dispute.Such conduct of the party is tantamount to committing a fraud on the tribunal，which will not be countenanced as it undermines the entire foundation of a fair arbitration.When parties resort to arbitration，it goes with saying that they expect the tribunal to resolve their dispute properly，fairly and justly in accordance with the law and the institutional or agreed rules governing that arbitration.Parties embark on the arbitral process with a common fundamental understanding and with trust that(a)no party will use any underhanded tactics to fool the tribunal into coming to a result in its favour;(b)no party will bribe the tribunal into giving a decision in its favour or do anything to corrupt or subvert or compromise the professional integrity，impartiality and independence of the tribunal;(c)no party will fabricate evidence in support of its case;and(d)no party will do anything that will“violate and undermine the forum's most basic notion of morality and justice”.If so，then I will be minded to set aside the award on the grounds of public policy as upholding such an award will certainly“shock the conscience”and will be“clearly injurious to the public good or wholly offensive to the ordinary reasonable and fully informed member of the public”.

［140］The question before me is whether such features as those mentioned above do exist in the conduct of M+H in the arbitration?I think whatever Dongwoo had attempted to paint as misconduct on the part of M+H were so far removed from those that would ground a setting aside based on public policy that they could be said to be as different as that between“chalk”and“cheese”.

［141］From the available evidence，M+H appeared to me to have honestly believed that it had a good reason not to disclose the documents because it was covered by a confidentiality agreement with a third party.Its acts of disclosing both the existence and the contents of the documents(ie.，the design standard drawings of the CCV oil separator)to the tribunal but only disclosing the existence of the documents(but not their contents)to Dongwoo seemed to me to be the very opposite behaviour of a party who had something very damning to hide.The last thing I would expect a party who had something very damning to hide would be to show everything to the very tribunal which was going to decide the matter.Why would M+H even want to disclose the existence of the allegedly damning documents to Dongwoo and even take the further step of showing their entire contents to the tribunal if those documents should not see the light of day at all?

［142］The more likely inference would be that M+H genuinely believed that the documents were covered by the confidentiality agreement and they were entitled not to disclose them as they were irrelevant and outside the scope of the TATLA，which then led to their conduct in making full disclosure of the documents to the tribunal in the hope that the tribunal would rule in its favour，which the tribunal did not when it refused to modify the 1st Ruling for discovery and gave its brief reasons for doing so.In my judgment，M+H's motivation and behaviour were more characteristic of someone who was not trying to hide any smoking gun so to speak，but who was unable to make disclosure due to a confidentiality agreement and who was hoping to persuade the tribunal that that was the case by disclosing only the documents to the tribunal.

［143］As there are indeed some arbitral and court procedures in which the tribunal or the court，as the case may be，can itself decide the“threshold question”of discovery without the other party having sight of the documents(see［82］to［87］)，it would not，in my opinion，be fair to pin any mala fides on the part of M+H when it similarly made full and frank disclosure of the contents of the documents only to the tribunal and requested the tribunal to determine that“threshold question”objectively based on what the tribunal could see for itself.In any event，M+H failed to persuade the tribunal to modify the discovery order during the discovery stage of the proceedings. So this act did not in reality result in any substantial prejudice or injustice to Dongwoo，or for that matter any prejudice or injustice at all.The documents were ordered to be produced by M+H subject to certain confidentiality undertakings from Dongwoo.Since the confidentiality undertakings were in fact provided by Dongwoo，M+H was therefore obliged to make discovery of those documents.But at the arbitration hearing itself，M+ H decided to risk having an adverse inference drawn against it when it refused to produce the documents in contravention of the discovery order of the tribunal.The tribunal made it absolutely clear that that question of adverse inference would be considered and the parties would have the opportunity to submit on it if no production of the documents was made.Intentionally or deliberately taking of that risk by M+H in itself as part of the adversarial process was not something that I would regard as belonging to the category of reprehensible or unconscionable conduct(given the circumstances that M+H was in)，that would shock the conscience and would warrant setting aside the award on the basis that it would be contrary to public policy for me to uphold it.

［144］After carefully considering the matter，I did not regard the whole conduct of M+H in the arbitration as having come within those sort of behaviour or conduct that I alluded to earlier that would justify a setting aside based on public policy.It would be wrong in my view to set aside the award on the ground of public policy if all that could be shown，at the highest，was perhaps that M+H or the tribunal had only made an honest mistake，be it a procedural lapse or otherwise.

［145］A deliberate refusal to comply with a discovery order is not per se a contravention of public policy because the adversarial procedure in arbitration admits of the possible sanction of an adverse inference being drawn against the party that does not produce the document in question in compliance with an order.The tribunal will of course consider all the relevant facts and circumstances，and the submissions by the parties before the tribunal decides whether or not to draw an adverse inference for the non-production.Dongwoo also had the liberty to apply to the High Court to compel production of the documents under s 13 and 14 of the IAA，if it was not content with merely arguing on the question of adverse inference and if it desperately needed the production by M+H of those documents for its inspection so that it could properly argue the point on drawing an adverse inference.However，Dongwoo chose not to do so.

［146］Further，the present case was not one where a party hides even the existence of the damning document and then dishonestly denies its very existence so that the opposing party does not even have the chance to submit that an adverse inference ought to be drawn for non-production.M+H in fact disclosed the existence of the documents but gave reasons why it could not disclose them.Here，Dongwoo had the full opportunity to submit that an adverse inference ought to be drawn，but it failed to persuade the tribunal to draw the adverse inference.The tribunal examined the other evidence before it，considered the submissions of the parties and rightfully exercised its fact finding and decision making powers not to draw the adverse inference as it was entitled to do so.It would appear to me that the tribunal was doing nothing more than exercising its normal fact finding powers to determine whether or not an adverse inference ought to be drawn.

［147］A high standard of proof is required for an allegation of fraudulent，unconscionable or similar reprehensible conduct against another party，who is said to have thereby secured the award by fraudulent or unconscionable means.The requisite standard of proof was not met in this case.As such，I did not think Dongwoo succeeded in proving that this was a case where upholding the award would“shock the conscience”，or would be“clearly injurious to the public good”or“wholly offensive to the ordinary and reasonable fully informed member of the public”，or would“violate the forum's most basic notion of morality and justice”.Dongwoo failed to convince me that the tests laid down in PT Asuransi Jasa Indonesia(Persero)(［131］supra)were satisfied，and，for these reasons，I could not agree with Dongwoo's argument that the award ought to be set aside on the ground that it was in conflict with the public policy of Singapore.

联合国《国际商事仲裁示范法》第34条(申请撤销作为对仲裁裁决惟一的追诉)

(1)只有按照本条第(2)和第(3)款的规定申请撤销，才可以对仲裁裁决向法院追诉。

(2)仲裁裁决仅在下列情况下才可以被第6条规定的法院撤销:

(A)提出申请的当事一方提出证据证明:

(a)第7条所指仲裁协议之当事人有某种无行为能力情形;或根据当事各方所同意遵守的法律，或未指明何种法律，则根据本国法律，该协议是无效的;或

(b)提出申请的当事一方未接获有关委任仲裁员或仲裁程序之适当通知，或因他故致其不能陈述案件;或

(c)裁决所处理之争议非为提交仲裁之标的或不在其条款之列，或裁决载有关于交付仲裁范围以外事项之决定，但交付仲裁事项之决定可与未交付仲裁事项之决定划分时，仅可撤销对未交付仲裁事项所作决定之部分裁决;或

(d)仲裁庭的组成或仲裁程序与当事各方的协议不一致，除非此种协议与当事各方不能背离之本法规定相抵触，或当事各方无此协议时，与本法不符;或

(B)法院认定:

(a)根据本国的法律，争议事项不能通过仲裁解决;或

(b)该裁决与本国的公共政策相抵触。

(3)当事人不得在收到裁决书之日起3个月后申请撤销裁决，或如已根据第33条提出请求，则从该请求被仲裁庭处理完毕之日起3个月后不得申请撤销。