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【Abstract】 Recognition and enforcement for inter-regional arbitration in China is becoming more and more important. Macau Arrangement came on stage after Hong Kong Arrangement, so it lessons from Hong Kong Arrangement successful experience, and improve the deficiency of Hong Kong Arrangement.
【Key Word】 Hong Kong ArrangementMacau Arrangementinter-regional arbitration
【中图分类号】D912.1 【文献标识码】A 【文章编号】1009-8585(2011)05-0-03
1 Introduction
Arbitration has come to play an increasingly important role in the People's Republic of China. With closer economic and trade relations with mainland, Hong Kong and Macau, enjoy a special arbitration relationship with the People's Republic of China (PRC). The authority of mainland lined to treated Hong Kong and Macau arbitrations as foreign-related arbitrations, while actually inter-regional arbitrations may be more appropriated, because of the parallel effective legal systems.
Before "the Arrangement between the Mainland and the Hong Kong SAR on Reciprocal Recognition and Enforcement of Arbitration Awards"(1999), there was no legal framework on arbitration between mainland and Hong Kong. Similar to Hong Kong, the Arrangement between the Mainland and the Macau SAR on Reciprocal Recognition and Enforcement of Arbitration Awards came on 2008. And the Macau Arrangement absorbed the advantages of Hong Kong Arrangement and added some adaptations on conditions and procedures of recognition and enforcement to make it reasonable.
2 Conditions and proceedings of inter-regional arbitration in Hong Kong Arrangement
The conditions and proceedings, in Hong Kong Arrangement, are mostly similar to those in the New York Convention. But the review is limited to procedure, paying efforts to review neither the verification of the facts nor the applicable law.
2.1 Conditions:
There existed two kinds of situations of refusing reorganization and enforcement, except these two kinds of situations, the arbitration awards should be granted reorganization and enforcement. The first kind is five classes of cases which must be established on evidences provided by parties. Another kind situation is that the courts have the power to initiate examination to the award, and can do some discretion on judging the nature of arbitral of the dispute and the application of the “public policy”.
2.2 Jurisdiction:
If apply for the enforcement of an award in the mainland, the court, which has jurisdiction, is either the intermediate courts in the respondent locality or the one in the property locality. Only one court can the applicant apply to. If the duty property is insufficient to cover the award, while the applicant have the right to apply to the other court. And the just court enjoyed the jurisdiction of the application of the reorganization and enforcement of an arbitration award in HK especially referred to the High Court of Hong Kong SAR.
2.3 Duration:
The duration to put forward application in HK Arrangement is regulated as follows: “During July, 1, 1997 to the effective date of this arrangement, legal persons or other organizations applicants hadn’t put forward the application for some reasons could apply in 6 months after the effective date, if the applicants are natural persons, the application can be done in 1 year after the effective date.” The applications refused after July, 1, 1997 but prior to the effective date of this arrangement, can be applied again.
3 Adaptations of Macau arrangement
3.1 Scope of the courts which have jurisdiction on execution application
In Hong Kong Arrangement, if either party fails to fulfill arbitral awards made in mainland China or Hong Kong, the other party can apply for the relevant courts, which is in respondent locality or the place property situated. While the Macau Arrangement added the competence of the habitual residence court, according with rules on domicile and habitual residence in modern private international law and our domestic law. In this way, the Macau Arrangement expand the scope of the courts for choose only find to resolve the passive conflict of the single domicile.
3.2 Level of the trial court
Either the Hong Kong Arrangement or the Macau Arrangement appointed the intermediate courts in mainland court accept the enforcement of the arbitral award. Even though writing in the Hong Kong Arrangement only express enforcement instead of enforcement and recognition, we still can consider that both recognition and enforcement of the arbitral award made in the HK or Macau SAD should be hold in intermediate court in mainland China. In Hong Kong, the court receiving the arbitral award made in mainland is the Supreme Court of Hong Kong SAD.
However, in Macau, the court differs on different action, intermediate courts have authority to recognition and primary courts have authority to enforcement. The authority of intermediate courts can avoid the liberty on examining of the validity of the awards and push the practice of the enforcement. Due to the more prudence of recognition than of enforcement, the leading tenet is that the Macau model consistent with the mainland model, following the main preference to mutual recognizing arbitral awards to push enforcement.
There are three reasons for this difference:First, Hong Kong and Macau doesn’t belong to the same legal system. Second, the court systems in the two districts differ far away. Last, Hong Kong Arrangement came out early than Macau Arrangement.
3.3 The expanding option range of application courts
According to the Macau Arrangement 3 article, “The respondent's domicile、habitual residence or the place where his property is located respectively In the mainland and the Macau SDR, The applicant may put a court in either side to applying for recognition and enforcement. If the parties apply to both side courts, courts should review according with law. If the court recognized the application, it can take some implementing measures, such as detention and freeze of the execution property. The arbitration locality court should execute discharge in advance; the court in the other side can take measure to liquidate the unsatisfied part, when it receive the certification on unsatisfied liquidated creditor from the arbitration locality court. However, the total volume of the property executed by the two courts must not exceed the amount of the property cited in the award”. If the places all in mainland rather respectively in the mainland and he Macau SDR, parties only can apply to the intermediate court in one of them rather than apply to all of them at the same time.
This arrangement totally poles apart from Hong Kong practice that refuses parties respectively applying to relevant courts in both sides; only when the property located in one side is insufficient to discharge, can parties apply to the other side court for enforcement. Macau Arrangement accounting for parties’ benefits, adopted a more reasonable and more human on way increasing the possibility of repeat examine and the workload to the court to ensure parties’ interests to the hilt.
3.4 Writs the court required
Besides the petition, award and arbitral agreement, Macau Arrangement also require identification paper, the reference or identification and date of the application arbitration award and conciliation statement.
3.5 Not recognize and execution
Macau Arrangement regulate separately, there five conditions cannot be recognition: and the regulations on procedures、arbitral matters、the constitution of arbitral tribunal are similar with Hong Kong Arrangement. However, with “Under the execution place law, the matters in disputes cannot be solved in arbitration, and then the award cannot be recognized and enforced.” Macau Arrangement has separate provision between recognition and enforcement, in addition to the above conditions.
3.6 The reservation of public order
Same with Hong Kong Arrangement, Macau Arrangement have contents on the reservation of public order, however, Macau Arrangement add the violation of basic principles to the reservation of public order. Besides public order and social public interests, it is the Macau Arrangement that most clearly has the violation of basic principles currently contained the reservation of public order in currently judicial circle.
4 Relative improvement and progress of Macau Arrangement
4.1 Suspension of execution
In Macau Arrangement, one party apply to courts for enforcement, while the other party apply to court for repealing the award, if the respondent tender guarantee and applying for suspension of execution, the court can decide to suspend execution. This more agile model of great significance in practice offer more procedures for courts in settling disputes like this.
4.2 Property preservation
This is the greatest light spot in Macau Arrangement. The appeal of building property preservation regulations never disappeared, national legislation always have margin on weather parties can put forward the property preservation before or after applying for enforcement. Even the latest “explanation on some application issues of arbitration law of the People’s Republic of China” also had no provisions for this margin, which easily lead lag in judicial practice cannot offer efficient and timely protection to parties’ interest.
5 Conclusion
Compared Hong Kong Arrangement, the Macau Arrangement is more abundant and superior, especially including privations on property preservation. Hong Kong Arrangement have no regulations on property preservation, even Hong Kong law have relating regulations, before the court judge enforcing the award, Hong Kong law have no clear provisions on whether parties can apply for property preservation, so the arrangement is a big progress not only for enforcement of awards but for national legislations relating arbitral.
Because property preservation often existed in urgency situations, if take effective measures were not be taken in time, the other party very likely transfer and disperse property. The set in Macau Arrangement is second to none and brighten everyone’s eyes in this way to guarantee effective realization of the parties’ lawful rights and interests, preventing debtor surreptitiously withdrawn funds, transfer-in asset for evading of loans, making arbitral award a dead letter. What’s more, allowing applicant’s property preservation have is instructive to completing our arbitration property preservation system and give a big push to development of arbitral undertakings.
Reference
[1]Kathryn Sanger, Beatriz Segorbe, Jill Niu, Arbitration in Greater China: Hong Kong, Macau and Taiwan, JOURNAL OF INTERNATIONAL ARBITRATION,651,671,Vol. 24,Number 3 (2007).
[2]Arrangement between the Mainland and the Macau SAR on Reciprocal Recognition and Enforcement of Arbitration Awards.
[3]Arrangement between the Mainland and the Hong Kong SAR on Reciprocal Recognition and Enforcement of Arbitration Awards Arrangement.
[4]Xiaoyang Zhang, Arbitration in China: A Legal Overview, Murdoch University Electronic Journal of Law, 1999, Vol. 6, Number 3 (1999).
【Key Word】 Hong Kong ArrangementMacau Arrangementinter-regional arbitration
【中图分类号】D912.1 【文献标识码】A 【文章编号】1009-8585(2011)05-0-03
1 Introduction
Arbitration has come to play an increasingly important role in the People's Republic of China. With closer economic and trade relations with mainland, Hong Kong and Macau, enjoy a special arbitration relationship with the People's Republic of China (PRC). The authority of mainland lined to treated Hong Kong and Macau arbitrations as foreign-related arbitrations, while actually inter-regional arbitrations may be more appropriated, because of the parallel effective legal systems.
Before "the Arrangement between the Mainland and the Hong Kong SAR on Reciprocal Recognition and Enforcement of Arbitration Awards"(1999), there was no legal framework on arbitration between mainland and Hong Kong. Similar to Hong Kong, the Arrangement between the Mainland and the Macau SAR on Reciprocal Recognition and Enforcement of Arbitration Awards came on 2008. And the Macau Arrangement absorbed the advantages of Hong Kong Arrangement and added some adaptations on conditions and procedures of recognition and enforcement to make it reasonable.
2 Conditions and proceedings of inter-regional arbitration in Hong Kong Arrangement
The conditions and proceedings, in Hong Kong Arrangement, are mostly similar to those in the New York Convention. But the review is limited to procedure, paying efforts to review neither the verification of the facts nor the applicable law.
2.1 Conditions:
There existed two kinds of situations of refusing reorganization and enforcement, except these two kinds of situations, the arbitration awards should be granted reorganization and enforcement. The first kind is five classes of cases which must be established on evidences provided by parties. Another kind situation is that the courts have the power to initiate examination to the award, and can do some discretion on judging the nature of arbitral of the dispute and the application of the “public policy”.
2.2 Jurisdiction:
If apply for the enforcement of an award in the mainland, the court, which has jurisdiction, is either the intermediate courts in the respondent locality or the one in the property locality. Only one court can the applicant apply to. If the duty property is insufficient to cover the award, while the applicant have the right to apply to the other court. And the just court enjoyed the jurisdiction of the application of the reorganization and enforcement of an arbitration award in HK especially referred to the High Court of Hong Kong SAR.
2.3 Duration:
The duration to put forward application in HK Arrangement is regulated as follows: “During July, 1, 1997 to the effective date of this arrangement, legal persons or other organizations applicants hadn’t put forward the application for some reasons could apply in 6 months after the effective date, if the applicants are natural persons, the application can be done in 1 year after the effective date.” The applications refused after July, 1, 1997 but prior to the effective date of this arrangement, can be applied again.
3 Adaptations of Macau arrangement
3.1 Scope of the courts which have jurisdiction on execution application
In Hong Kong Arrangement, if either party fails to fulfill arbitral awards made in mainland China or Hong Kong, the other party can apply for the relevant courts, which is in respondent locality or the place property situated. While the Macau Arrangement added the competence of the habitual residence court, according with rules on domicile and habitual residence in modern private international law and our domestic law. In this way, the Macau Arrangement expand the scope of the courts for choose only find to resolve the passive conflict of the single domicile.
3.2 Level of the trial court
Either the Hong Kong Arrangement or the Macau Arrangement appointed the intermediate courts in mainland court accept the enforcement of the arbitral award. Even though writing in the Hong Kong Arrangement only express enforcement instead of enforcement and recognition, we still can consider that both recognition and enforcement of the arbitral award made in the HK or Macau SAD should be hold in intermediate court in mainland China. In Hong Kong, the court receiving the arbitral award made in mainland is the Supreme Court of Hong Kong SAD.
However, in Macau, the court differs on different action, intermediate courts have authority to recognition and primary courts have authority to enforcement. The authority of intermediate courts can avoid the liberty on examining of the validity of the awards and push the practice of the enforcement. Due to the more prudence of recognition than of enforcement, the leading tenet is that the Macau model consistent with the mainland model, following the main preference to mutual recognizing arbitral awards to push enforcement.
There are three reasons for this difference:First, Hong Kong and Macau doesn’t belong to the same legal system. Second, the court systems in the two districts differ far away. Last, Hong Kong Arrangement came out early than Macau Arrangement.
3.3 The expanding option range of application courts
According to the Macau Arrangement 3 article, “The respondent's domicile、habitual residence or the place where his property is located respectively In the mainland and the Macau SDR, The applicant may put a court in either side to applying for recognition and enforcement. If the parties apply to both side courts, courts should review according with law. If the court recognized the application, it can take some implementing measures, such as detention and freeze of the execution property. The arbitration locality court should execute discharge in advance; the court in the other side can take measure to liquidate the unsatisfied part, when it receive the certification on unsatisfied liquidated creditor from the arbitration locality court. However, the total volume of the property executed by the two courts must not exceed the amount of the property cited in the award”. If the places all in mainland rather respectively in the mainland and he Macau SDR, parties only can apply to the intermediate court in one of them rather than apply to all of them at the same time.
This arrangement totally poles apart from Hong Kong practice that refuses parties respectively applying to relevant courts in both sides; only when the property located in one side is insufficient to discharge, can parties apply to the other side court for enforcement. Macau Arrangement accounting for parties’ benefits, adopted a more reasonable and more human on way increasing the possibility of repeat examine and the workload to the court to ensure parties’ interests to the hilt.
3.4 Writs the court required
Besides the petition, award and arbitral agreement, Macau Arrangement also require identification paper, the reference or identification and date of the application arbitration award and conciliation statement.
3.5 Not recognize and execution
Macau Arrangement regulate separately, there five conditions cannot be recognition: and the regulations on procedures、arbitral matters、the constitution of arbitral tribunal are similar with Hong Kong Arrangement. However, with “Under the execution place law, the matters in disputes cannot be solved in arbitration, and then the award cannot be recognized and enforced.” Macau Arrangement has separate provision between recognition and enforcement, in addition to the above conditions.
3.6 The reservation of public order
Same with Hong Kong Arrangement, Macau Arrangement have contents on the reservation of public order, however, Macau Arrangement add the violation of basic principles to the reservation of public order. Besides public order and social public interests, it is the Macau Arrangement that most clearly has the violation of basic principles currently contained the reservation of public order in currently judicial circle.
4 Relative improvement and progress of Macau Arrangement
4.1 Suspension of execution
In Macau Arrangement, one party apply to courts for enforcement, while the other party apply to court for repealing the award, if the respondent tender guarantee and applying for suspension of execution, the court can decide to suspend execution. This more agile model of great significance in practice offer more procedures for courts in settling disputes like this.
4.2 Property preservation
This is the greatest light spot in Macau Arrangement. The appeal of building property preservation regulations never disappeared, national legislation always have margin on weather parties can put forward the property preservation before or after applying for enforcement. Even the latest “explanation on some application issues of arbitration law of the People’s Republic of China” also had no provisions for this margin, which easily lead lag in judicial practice cannot offer efficient and timely protection to parties’ interest.
5 Conclusion
Compared Hong Kong Arrangement, the Macau Arrangement is more abundant and superior, especially including privations on property preservation. Hong Kong Arrangement have no regulations on property preservation, even Hong Kong law have relating regulations, before the court judge enforcing the award, Hong Kong law have no clear provisions on whether parties can apply for property preservation, so the arrangement is a big progress not only for enforcement of awards but for national legislations relating arbitral.
Because property preservation often existed in urgency situations, if take effective measures were not be taken in time, the other party very likely transfer and disperse property. The set in Macau Arrangement is second to none and brighten everyone’s eyes in this way to guarantee effective realization of the parties’ lawful rights and interests, preventing debtor surreptitiously withdrawn funds, transfer-in asset for evading of loans, making arbitral award a dead letter. What’s more, allowing applicant’s property preservation have is instructive to completing our arbitration property preservation system and give a big push to development of arbitral undertakings.
Reference
[1]Kathryn Sanger, Beatriz Segorbe, Jill Niu, Arbitration in Greater China: Hong Kong, Macau and Taiwan, JOURNAL OF INTERNATIONAL ARBITRATION,651,671,Vol. 24,Number 3 (2007).
[2]Arrangement between the Mainland and the Macau SAR on Reciprocal Recognition and Enforcement of Arbitration Awards.
[3]Arrangement between the Mainland and the Hong Kong SAR on Reciprocal Recognition and Enforcement of Arbitration Awards Arrangement.
[4]Xiaoyang Zhang, Arbitration in China: A Legal Overview, Murdoch University Electronic Journal of Law, 1999, Vol. 6, Number 3 (1999).