合同和保函的准据法问题（英国案例）

更新时间：2017-11-08 14:03:13  张振安 临时仲裁ADA 编辑：lianluobu  点击次数：1885次

某雇主与一伙承包商就巴拿马运河的扩建合同产生多起纠纷，这些纠纷分别被提交ICC仲裁（仲裁地为迈阿密），合同准据法为巴拿马法。当事人分别签订了6份以该雇主为受益人的预付款保函。这些承包商认为，因雇主违反了主合同，根据巴拿马法雇主兑现保函，承包商向ICC其中一个仲裁庭请求限制雇主执行保函时。仲裁庭驳回了该请求，原因是这些保函应适用英国法院的专属管辖。

雇主随即请求英国法院作出简易判决批准执行担保，承包商们则根据《1996年仲裁法》第9条和案例管理惯例向法院请求中止诉讼程序并等待仲裁结果，因其认为将有待仲裁解决的事项提交诉讼是毫无意义的。

《1996年仲裁法》第9条规定，如果当事人已经约定将诉讼程序“涉及的事项”提交仲裁解决，那么该诉讼程序将被中止。承包商认为保函应根据主合同（准据法为巴拿马法）的规定和ICC仲裁的事项到期即付。

裁定

法院将第9条适用于本案时认为，诉讼涉及的“事项”应当是根据保函提起的索赔（受英国法律的约束及英国法院的专属管辖），而不是因违反合同而提起的合同索赔（当事人已约定提交仲裁解决）。因此，法院裁定承包商无权根据第9条中止诉讼。

对于承包商申请中止程序的另一个理由，即认为恰当的案件管理要求先对仲裁中的合同索赔作出裁定，法院驳回了该论点并认为承包商根本没有给出令人信服的理由。

对于雇主提出的通过简易判决来执行保函的请求，法院予以驳回并认为其没有判决的直接权利，因为该保函并不是见索即付保函。

评论

本案所采取的做法反映了一个事实，即当事人已一致同意保函是独立的合同承诺，受完全独立的法律制度约束。虽然这种安排并不寻常，但同意该安排的当事人应当认识到，在约定由不同的法律和纠纷解决机制对相关交易进行调整时，往往也伴随着裁决不一致或时间表发生冲突的风险。采用同一种方案解决所有的纠纷可以避免这种复杂性，但这种谈判很难达成，尤其是因为该做法并非总能与当事人的利益相符。

【英文版】

Beware Conflicting Governing law provisions in Contracts and Guarantees

Disputes between an employer and a consortium of contractors in a contract for the expansion of the Panama Canal became the subject of several ICC arbitrations seated in Miami. The contract was subject to Panamanian law. Separately, the parties had entered into six advance payment guarantees of which the employer was beneficiary. The contractors argued that because of the employers’ breach of the main contract, as a matter of Panamanian law they could not call on the guarantees. They used this argumentin an application to one of the ICC tribunals for an order restraining the employer from enforcing the guarantees. The tribunal rejected the application on the basis that the guarantees were subject to exclusive jurisdiction of the English courts.

The employer then applied to the English courts for summary judgment to enforce the guarantees and the contractors responded by applying for a stay of those proceedings pending the outcome of the arbitrations, relying on section 9 of the Arbitration Act 1996 and case management grounds arguing that it made no sense to litigate matters that were to be decided in the arbitrations.

Section 9 provides that litigation will be stayed if it is “in respect of a matter” which the parties have agreed to refer to arbitration. The contractor argued that the guarantees were due and payable under the main contract governed by Panamanian law and the subject of the ICC arbitrations.

Decision

In applying section 9 to the litigation, the court considered that the “matter” in question in the litigation was a claim under guarantees, which were subject to English law and exclusive English jurisdiction. It was not the contractual claims for breaches of the contract, which matters the parties had agreed to refer to arbitration. Accordingly, the court decided that the contractors were not entitled to a stay under section 9.

As to the contractors’ application for a stay of the proceedings on grounds that proper case management required the contractual claims in the arbitrations to be decided first, the court rejected this argument on grounds that the contractor had simply not made out a compelling case.

As to the employers’ application for summary judgment to enforce the guarantees, the court refused that as it decided that there was no immediate right to judgment, as the guarantees were not payable on demand.

Comment

The approach taken in this case reflected the factt hat the parties had agreed that the guarantees were stand-alone contractual commitments governed by a completely separate legal regime. That is not an unusual arrangement but parties agreeing to that type of arrangement should appreciate that, by agreeing to related transactions being governed by different laws and dispute resolution mechanisms, there is a real risk of inconsistent decisions and conflicting timetables. These complexities can be avoided by linking all disputes to the same resolution scheme but that may not be negotiable, not least because it is not always in both parties’ interests to do so.