At 9:30 am on December 20, 2013, the representative of the Asia-Pacific Office of the Hague Conference on Private International Law, the former Judge of the Hong Kong High Court, and the expert of Asian International Commercial Arbitration, Professor An Anmou, gave a lecture on Hong Kong's commercial arbitration practice involving Mainland at Wuhan University School of Law room323. The lecture was hosted by Professor Guo Yujun of the Institute of International Law. More than 40 people including teacher Qiao Xiongbing, Xu Xiang and Liang Wenwen, as well as doctoral students and postgraduates, attended the lecture.
Prof. Rui expressed his sincere gratitude to Wuhan University for hosting the 2013 International Lawsuit on the International Law of the Hague International Private Law in The Hague. The lecture is divided into two major themes: “Sovereign immunity and Crown immunity and international commercial arbitration”, “Recognition and Enforcement of International Commercial Arbitration Awards of Mainland China in Hong Kong”.
On the first theme of the lecture, Professor Rui introduced through the “Congo King” case and the “Hua Tianlun” case, expounding the issues related to state immunity and royal immunity. In the case of the “Congo King” case, the judge of the first instance court held that it is not necessary to consider whether China’s position of absolute or relative immunity is adopted in this case, because the acts involved in this case are not commercial activities, and only the state has the right to conclude infrastructure construction with other foreign companies. The contract itself is a sovereign act, so the Congo King enjoys immunity and the court does not have jurisdiction. At the appeal stage, the judges of the Court of Appeal held that Hong Kong adopted a relatively exempted attitude, overturning the first-instance judgment and enforcing the arbitral award against Congo. At the final stage, the judge finally adopted the opinion of the Office of the Ministry of Foreign Affairs in Hong Kong. He believed that although China signed the United Nations Convention on Jurisdictional Immunities of States and Their Property for Relative Exemption, it did not ultimately endow its domestic law effect, and China itself remains an absolute exemption and a state of exemption as a diplomatic matter, Hong Kong should be consistent with the mainland. Therefore, the Court of Final Appeal finally found that it had no jurisdiction over Congo, and maintained the first-instance judgment. The case is very controversial in Hong Kong. Some judges believe that the Hong Kong courts themselves should remain independent, and Professor Rui believes that this view is not convincing. According to the Hong Kong Basic Law, if there is a dispute in foreign affairs, the Hong Kong courts should request the National People's Congress to interpret the law, and the National People's Congress has clearly stated that China's position of absolute immunity should be followed by Hong Kong courts. In this case, it should be noted that some people think that the absolute exemption position adopted by the Chinese party in the "Congo" case will lead to the fact that arbitration of the parties that have entered into the contract with the state-owned enterprises to choose a regional exemption will eventually make Hong Kong an abandoned object for arbitration. This is actually a misunderstanding of the "Congo King" case: the state exemption is for foreign countries, and state-owned enterprises cannot claim exemption in Hong Kong. Therefore, the "Congo King" case itself will not affect the arbitration of state-owned enterprises in Hong Kong.
As for the royal exemption, as early as 1997, Hong Kong, like the United Kingdom, had royal exemptions under the Royal Exemption Act. After Hong Kong's return to China in 1997, the issue was unresolved. In the "Hua Tianlun" case, the court held that the Guangdong Provincial Salvage Bureau enjoyed royal immunity. Some commentators said that Hong Kong has become an abandoned object in the choice of arbitration after the case. This is also a misunderstanding of the case: the judgment in this case distinguishes between government entities and state-owned companies. The royal exemption cannot be applied to state-owned enterprises but the government entity of non-independent personality, the defendant, Guangdong Provincial Salvage Bureau, is a state institution and does not have an independent legal personality. In Chapter 6 of the Hong Kong Arbitration Ordinance, the central government is subject to arbitration regulations. Even in special circumstances, state-owned enterprises enjoy royal exemptions in accordance with common law rules, the common law rules also give way to written Hong Kong arbitration regulations. Therefore, it does not affect the arbitration of state-owned enterprises.
On the second theme of the lecture, Professor Rui focused on the case of Gao HaiRui. The core point of the case is whether the arbitrator’s mediation proposal when the arbitrator and the party’s friends instead of the party himself ate at Shangri-La’s meal constitute “bias”, thus violating Hong Kong’s public policy and causing the arbitral award not to be enforced. The Xi'an court held that there was no "bias" of the arbitrator in this case, and the court of first instance in Hong Kong held that the arbitrator could not guarantee the equal treatment of the parties after the mediation failed because of the participation in the mediation work. Therefore, the ruling violated the public policy and could not be implemented. The Hong Kong Court of Appeals held that "doing work" is a Chinese-style statement and does not mean "bias". Moreover, the Hong Kong courts should not make a judgment that is contrary to the mainland court and ultimately enforce the arbitral award. Professor Rui believes that this case actually reflects the cultural differences between the mainland and Hong Kong, but in international commercial arbitration, both parties should maintain an international perspective, that is, to maintain consistency and certainty with the international commercial arbitration system. On the issue of “bias”, “highest international standards” should be adopted and implementation should be strictly followed rather than just local customs. For arbitral awards, the court should not hold too friendly supportive attitude, after all, it is responsible for ensuring the credibility of international commercial arbitration.
In the questioning session, Professor Rui made inspiring response to the questions raised by the teachers and classmates. On the issue of mediation and arbitration in Hong Kong, Professor Rui said that Hong Kong allows the same person to act as a mediator and arbitrator. If the parties choose to continue arbitration after the mediation fails and approve the mediator to continue to act as an arbitrator, the mediator will be converted into an arbitrator. At this time, he should review the information obtained when he acts as a mediator. If the information may affect the outcome of the arbitration, he should disclose the information to the other party. Mediation and arbitration can reduce the huge cost of general arbitration, and it will save time and reduce costs that the mediator continues to act as an arbitrator. However, many arbitrators in Hong Kong refuse to act as mediators because it is very easy to cause bias and sometimes the information obtained may be confidential and should not be disclosed to the other party. Contrary to mainland China and Hong Kong, mediation and arbitration are common in the mainland, which is exactly the differences between the two places. On the issue of power confrontation between the court and the arbitration, Professor Rui pointed out that it is difficult to demarcate between the two, but it is necessary to draw a line. Due to the interaction between the two, the court can give legal, certain and consistent institutional support for the arbitral award. The court should strictly follow the provisions of the New York Convention when reviewing the arbitral award. In the future, the court may focus more on jurisdiction review rather than public policy violations in the review of the arbitral award.. Professor Rui said when talking about future arbitration trends, perhaps a code of conduct is essential. His latest book is intended to provide guidelines for lawyers, parties and arbitrators to arbitrate in arbitration in an efficient and meaningful way. For example, lawyers should not advocate fraud or seek too many expert witnesses to testify when there is insufficient evidence, because the arbitral tribunal spends a lot of time on non-important facts, which not only is disadvantageous for the correct referee, but also bring a huge burden for the parties. On the issue of the applicable law of the arbitration agreement, Professor Guo Yujun pointed out that the Law on the Application of the Law on Foreign-related Civil Relations in the Mainland and its judicial interpretation have specific provisions on the applicable law of the arbitration agreement. Professor Rui pointed out that Hong Kong has not yet made specific provisions on the applicable law on the arbitration agreement. If specific provisions are made, it may be better to have a provision. It is recommended that the parties make a choice in the arbitration law when entering into an arbitration agreement. After all, the clear applicable law chosen by the parties is better than the arbitral tribunal's discretion, especially if they may apply inappropriate law.
Finally, Professor Guo Yujun commented on this lecture. She pointed out that Professor Rui’s lecture today is very inspiring for future academic research and practical work, providing us with questions and directions for future research, and it is helpful for students to broaden their horizons and find their own research interests. The lecture ended in a warm applause.
