仲裁通知送达当事人的代理人即为有效送达（英国案例）

更新时间：2017-11-21 11:15:06  张振安 临时仲裁ADA 编辑：lianluobu  点击次数：1827次

《每周更新》（WeeklyUpdate 19/16）曾报道了该案的一审判决。仲裁程序的被申请人任命了一名仲裁员并向某个人（蔡先生）发送了仲裁通知。这位蔡先生并非另一方当事人（即仲裁申请人）的雇员，但一直以来都在处理涉案合同问题（是申请人的主要联络人），且其公司与申请人有着密切的关系。在仲裁庭作出了有利于被申请人的裁决后，申请人根据《1996仲裁法》第72条向法院提出申请，声称仲裁庭组成不适当。Eder法官认为，即使在雇员或代理人已获得宽泛的一般授权以代表其雇主／当事人的情况下，授权范围通常也不（不应超过）包括对接收仲裁通知送达的授权。事实上，蔡先生对于送达的接收并无任何默示性实际授权或表见授权。上诉法院现已支持上诉请求并驳回了上述判决。

上诉法院认为，“作为背景和事实问题，我们理解这种授权（对传票送达的接收）需要经过仔细审查，但对于合适的当然也是罕见的案件，若认为这种案件中在法律上不存在任何默示性的实际授权，这种观点无法接受”。本案中，申请人与蔡先生的关系是“值得注意的”，并且申请人“显然已满足于这种完全的被动性。”既然蔡先生负责处理申请人合同的所有方面，他就具有接收仲裁通知的默示性实际授权。

另外，蔡先生也有接收送达的表见授权。申请人给被申请人的外观表象是蔡先生将为任何目的对争议进行处理，包括接收通知。因此，申请人以行为表明蔡先生已经获得了授权。

评论：鉴于本案极不寻常的事实，上诉法院的判决似乎很明智。法官总结道，没有有效的送达通知导致如此不幸的后果，即参与仲裁程序的当事人以及获得有利裁决的当事人已经把时间和金钱浪费在从未有效启动的仲裁程序上。

【英文版】

Sino Channel v Dana Shipping: Court of Appeal rules that arbitration notice was effectively served when served on agent of a party

The first instance decision in this case was reported in Weekly Update 19/16. The defendant appointed an arbitrator and emailed a notice of the arbitration to an individual (Mr Cai), who was not an employee of the other party to the purported arbitration (the claimant in this action). However, Mr Cai had been handling the contract in question (and was the main contact point for the claimant) and there was a close relationship between his company and the claimant. After an award was handed down in favour of the defendant, the claimant applied to court pursuant to section 72 of the Arbitration Act 1996 for a declaration that the tribunal had not been properly constituted. Eder J held that even where an employee or agent has a wide general authority to act on behalf of his employer/principal, such authority does not (without more) generally include an authority to accept service of a notice of arbitration. On the facts, Mr Cai did not have any implied actual authority or ostensible authority to accept service. The Court of Appeal has now allowed the appeal from that decision.

The Court of Appeal held that "As a matter of context and fact, we understand that authority to accept service of originating process requires close scrutiny but are unable to accept that there is no room as a matter of law for implied actual authority in a suitable and, no doubt,rare case". Here, the relationship between the claimant and Mr Cai had been "remarkable" and the claimant had been "apparently content with complete passivity". Since it was Mr Cai's business to deal with all aspects of the contract with the claimant, he had implied actual authority to receive the notice of arbitration.

Furthermore, there was also ostensible authority for Mr Cai to accept service. The appearance given to the defendant was that Mr Cai was to be dealt with for all purposes, including receipt of the notice. Accordingly, there had been a representation by conduct from the claimant that he had such authority.

COMMENT: The Court of Appeal's decision here seems a sensible one, given the highly unusual facts of the case. The judge's conclusion that there had been no valid service of a notice of arbitration had had the unfortunate effect that the party which participated in arbitral proceedings and obtained an award in its favour had wasted time and money pursuing an arbitration which was said to have never been validly commenced.