英国高等法院提供有用参考:在实体审理阶段可否对法律问题的上诉标准进行重新审查?

发布人:事务部管理员 发布时间:2018-07-24 来源:

 

Agile Holdings Corp v Essar Shipping Ltd一案阐明了法院在案情审理阶段可以对准许上诉(根据1996年《英国仲裁法》第69条对裁决的法律问题提出上诉)的决定进行重新审查的情形。


判决请见:

http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Comm/2018/1055.html&query=EWHC+1055


法律规定

《英国仲裁法》第69条规定了当事人可以就法律问题对裁决提出上诉的有限情形。在提出上诉之前,法院必须准许上诉。根据第69(3)条,法院仅在认为符合下列条件时准许上诉:

a) 法律问题的决定将实质性地影响一方或多方当事人的权利,

b) 法律问题是仲裁庭经请求作出决定的,

c) 根据裁决书中认定的事实:

    i. 仲裁庭对法律问题的决定明显错误,或

    ii. 问题具有普遍的公共重要性,仲裁庭对此作出的决定至少存在重大疑问,         以及

d) 尽管当事人约定通过仲裁解决争议,但在任何情况下由法院对该问题进行判决是公正和适当的。


本案焦点:

为第69(b)法律问题是否为仲裁庭先前经请求作出决定的问题。

法院曾经考虑过这个规定。在The Ocean Crown案中,一方当事人试图辩称,因为已经准许上诉,审理上诉的法院必须接受仲裁庭是经请求对特定法律问题作出决定的事实。法院不同意上述观点并认为,考虑是否准许上诉的法官的职责不同于审理上诉的法官,后者可以做出与前者不同的决定。


案件事实

本案与一份租船合同有关,涉及从突尼斯途经特立尼达前往印度的航程,用于运送一批直接还原铁(一种高反应性和可燃材料)。Agile Holdings Corporation为船舶所有人,即申请人和诉讼程序中的上诉人。Essar Shipping Ltd为承租人,即被申请人和被上诉人。双方依据NYPE 46格式签订合同。

在通过传送带装载货物的过程中,传送带着火。尽管如此,管货人员(supercargo)检查了货舱并建议继续装货。货物在整个装载过程中持续燃烧。申请人提出仲裁,要求仲裁庭宣布,被申请人作为承租人有义务就其对货物利益可能产生的任何责任向申请人作出赔偿。


争议在于,因装载货物引起的索赔责任是否100%由船舶承租人(被申请人)承担,或者应与船舶所有人(申请人)共同承担。答案取决于标准格式的《保赔协会内部土产格式协议》 第8条是否添加了措辞,能达到由船长(因而由船舶所有人)负责货物装卸的效果。仲裁庭发并没有添加这类措辞,但该条款相当于一项“类似修正”,因此责任应当在双方当事人之间共同承担。


双方争论观点


被申请人认为上诉许可不应授予因为短语“船长须对货物装卸负责的类似修正”的范围并非请求仲裁庭作出决定的事项。在此基础上,上诉不涉及因裁决引发的法律问题或仲裁庭经请求作出决定的问题,因此第69条的条件尚未满足。


申请人对此提出异议。在许可阶段,法官Popplewell同意申请人的观点并授予上诉许可,认为仲裁庭考虑了该问题。

在实体审查阶段,被上诉人(被申请人)请求重新审理该问题,并再次提出其最初的意见,即仲裁庭未经请求对类似修正进行审议。


判决

Waksman QC为上诉法官。该法官考虑了Popplewell法官准许上诉的理由。他将第69条中的阈值问题分为最终在许可阶段确定的问题(即决定是否实质性地影响一方或多方当事人的权利,问题是否具有普遍的公共重要性,以及法院对该问题进行判决是否公平和适当),和在处理上诉基本问题的是非曲直时可以重新审议的问题,因其与上诉基本问题的是非曲直有关(即仲裁庭的决定是否“明显错误”或者“至少存在重大疑问”)。


法官说明道,是否存在法律问题以及该问题是否为仲裁庭经请求作出决定的问题会更加微妙。然而,他得出结论认为,虽然法院可以在案情审理阶段重新审查这些问题,但针对这些问题授予许可的法官所作出的裁定,至少应当给与相当的重视。该法官继续表示, 当“(a)该决定是在开庭审理之后作出,而不仅仅为书面审理,和/或(b)授予许可的法官与上诉法院的法官,所面对的材料相同或实质上相同,因而上诉法院实际上只是经请求对最初的决定进行事后评价”时,重视程度将有所增加。HHJ Waksman QC指出如下事实,即就法律问题是否提出并经仲裁庭作出决定,Popplewell法官审查了4份独立书面意见;Popplewell法官在仲裁审理阶段提及双方当事人的开庭结案陈词;两位法官面对的材料没有实质差异。因此,HHJ Waksman QC认为其不应急于得出不同结论,也缺乏这样做的根据。


HHJ Waksman QC未表示应绝对禁止上诉法院就仲裁庭是否已考虑法律问题作出决定。因此,为防止其做法有误,该法官就本案中仲裁庭是否已经考虑过法律问题作出裁定。通过参阅仲裁结案陈词的笔录,他认为上诉中的法律问题在仲裁庭中已经发生并得以处理。


评论


Agile Holdings v Essar案的判决对于法院如何在实体审查阶段重审第69(3)条的某些上诉要件提供了有用的指引。该判决阐明在考虑实体问题时,法院不能对某些问题(即第69(3)条第(a)款、第(c)(ii)款和第(d)款中的问题)进行重新审查。虽然法院可以重新审查仲裁庭是否经请求就上诉所依据的法律问题作出决定,但授予许可的法官所作出的认定将被给予高度重视,特别是在当事人有重要机会(无论是以书面形式或口头方式)对争议事项进行辩论的情况下,以及在两位法官有机会接触类似材料的情况下。

因此,对于仲裁庭是否经请求就上诉实体审查阶段围绕的特定法律事项作出决定的问题,虽然当事人可能希翼对该问题重新审查,但这不太可能成为成功驳回上诉特别有用的方法。

 

【英文原文】


English High Court provides useful guidance on whether test for appeal on a point of law can be revisited at the substantive stage


By WilliamJones 

The case of Agile Holdings Corp v Essar Shipping Ltd[1] clarifies the circumstances in which the court can revisit the decision to grant leave to appeal an award on a point of law under section 69 of the UK Arbitration Act 1996 (“AA“) at the merits stage.


The law


Section 69 of the UK provides narrow grounds on which a party can appeal an award on a point of law. Before an appeal can be brought, the court must grant leave to appeal (s.69(2)). Under section 69(3), the court may only grant such leave if it is satisfied:

a) that the determination of the question of law will substantially affect the rights of one or more parties,

b) that the question of law is one which the tribunal was asked to determine,

c) that, on the basis of the findings of fact in the award:

i. the decision of the tribunal on the question of law is obviously wrong, or

ii. question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and

d) that, despite the arbitration agreement, it is just and proper in all circumstances for the court to determine the question.


The case at hand focused on section 69(b): whether the question of law is one that the tribunal had previously been asked to determine.

The court had considered this provision previously. In The Ocean Crown[2] one party sought to argue that because leave to appeal had been given, the court hearing the appeal was bound to accept that the tribunal had been asked to determine a particular question of law. The court disagreed. The task of the judge considering the grant of leave is different from the task of the judge hearing the appeal, and it is open to the latter to differ from the former on this point.


Facts


The case related to a charterparty involving a trip from Tunisia to India via Trinidad for the delivery of a consignment of direct reduced iron (a highly reactive and combustible material). The Claimant owner of the vessel, and the Appellant in the court proceedings was Agile Holdings Corporation. Essar Shipping Ltd was the Defendant Charterer and Respondent. The parties contracted on the NYPE 46 form.

In the course of loading the consignment by means of a conveyor belt, the belt caught fire. Notwithstanding this, the supercargo inspected the holds and advised that loading could continue. The cargo remained on fire throughout the journey. The Claimant commenced arbitration seeking a declaration that the Respondent was obliged as charterer to indemnify the Claimant against any liability it might be found to have to the cargo interests.

The dispute related to whether the liability of a claim arising out of the handling of cargo lay 100 percent with the charterer of the vessel (the Respondent) or should be split equally with the owner (the Claimant). The answer depended on whether wording had been added to clause 8 of the standard form Inter-Club New York Produce Exchange Agreement having the effect that the Master (and therefore the owner) was responsible for cargo handling. The tribunal found the words had not been added, but that the clause amounted to a “similar amendment” and that accordingly liability should be split equally between the parties.


Arguments


The Claimant sought permission to appeal.

The Defendant argued that leave to appeal should not be granted because the scope of the phrase “similar amendment making the master responsible for cargo handling” was not something which the tribunal had been asked to determine. On this basis, the appeal did not involve a question of law arising out of the award or one which the tribunal was asked to determine, and therefore the conditions in section 69 were not met.

The Claimant disputed this. The judge at the permission stage, Popplewell J, agreed with the Claimant and granted leave to appeal, holding that the point had been considered by the tribunal.

At the substantive stage, the defendant sought to re-open the issue and re-argue its original submission that the arbitration had not been asked to consider similar amendments.


Decision

His Honour Judge Waksman QC was the appeal judge. He considered the reasons Popplewell J had given for granting leave to appeal. He categorised the threshold questions in section 69 into questions that are determined finally at the permission stage(namely whether the determination would substantially affect the rights of one or more parties, whether the question is one of general public importance and whether it is just and proper for the court to determine the question), and those that obviously may be revisited when dealing with the merits of the underlying question for appeal as they relate to the merits of the underlying question for appeal (namely whether the decision of the tribunal was “obviously wrong” or “at least open to serious doubt”).

He explained that the issue of whether there is a question of law and whether it is one that the tribunal has been asked to determine is more nuanced. However, he concluded that while the court can revisit these issues at the merits stage, it should “at the very least give considerable weight to the decision by the Judge granting permission on those points“. He continued that the weight increases where: “(a) the decision was made not merely on paper but after an oral hearing and/or (b) the materials before the Judge granting permission were the same or substantially the same as those before the appeal court so that the appeal court is in effect being asked simply to second-guess the original decision.” Pointing to the fact that Popplewell J had reviewed four separate sets of written submissions on the issue of whether the question had arisen for determination by the tribunal, that Popplewell J had made reference to the oral closing submissions of the parties in the arbitration hearing, and the materials before the two judges were not significantly different, HHJ Waksman QC found he should be slow to reach a different conclusion, and could see no basis for doing so.

HHJ Waksman QC did not suggest there should be an absolute bar against the appeal court determining whether the question of law had been considered by the tribunal. Therefore, in case his approach was wrong, he ruled on whether the question of law had been considered by the tribunal in this case. He concluded that the question of law on appeal had arisen before the tribunal by reference to the transcript of the closing submissions in the arbitration.


Comment


The decision in Agile Holdings v Essar provides useful guidance on how the court may revisit certain elements of the gateway to appeal in section 69(3) at the substantive stage. It makes clear that certain issues (namely those in sections 69(3)(a), (c)(ii) and (d)) cannot be re-examined by the court when considering the substantive issue. While the court can re-consider whether the tribunal was asked to determine the question of law on which the appeal is based, considerable weight will be given to the findings of the judge who granted leave, particularly where the parties had a significant opportunity (whether in writing or orally) to argue the point in question, and where the two judges have access to similar materials.

Accordingly, while a party may wish to re-open the question of whether the tribunal has been asked to determine the particular issue of law on which the appeal centres at the substantive stage, this is unlikely to prove a particularly useful tool in resisting such an appeal.

[1] [2018] EWHC 1055 (Comm)

[2] [2011] 1 Lloyd’s Rep 468


来源: 临时仲裁ADA,不代表本会意见

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