2018年3月13日，英国上诉法院在Allianz Insurance and Sirius International Insurance Corporation v Tonicstar Limited（ [2018] EWCA Civ 434）中驳回英国高院的裁定,裁定被申请人选定的仲裁员满足仲裁协议规定的仲裁员资质规定。本案件的争议焦点：有英国保险和再保险“法律”经验的英国大律师（QC）是否满足仲裁条款规定的“保险和再保险经验”（“experience of insurance and reinsurance”）。

判决请见: http://www.bailii.org/ew/cases/EWCA/Civ/2018/434.html

 “除非当事人另行规定，仲裁庭将由不少于10年保险和再保险经验的人士组成。”

“Unless the parties otherwise agree the arbitration tribunal shall consist of persons with not less than ten years’ experience of insurance and reinsurance.”

被申请人选择了Schaff QC大律师为仲裁员，申请人则根据英国仲裁法第24条规定，以不符合仲裁协议规定的资质为由要求法院解除该名仲裁员，认为尽管该名仲裁员有10多年的保险和再保险法律经验，但是并非“保险和再保险”经验。

一审法院根据“Company X v Company Y”案例，同意解除该名仲裁员的请求，理由如下：

“(i) the wording of the arbitration clause was not altered when the JELC（the Joint Excess Loss Committee）produced a new addition of the clauses (ii) the decision must have been fairly well-known in the reinsurance market and therefore formed part of the relevant background and (iii) that decision had stood unchallenged for 17 years.”

但是一审法官认为如果不是受制于判例，他会作出该仲裁员（有10多年的保险和再保险法律工作经验）符合合同地15.5条的仲裁员资质规定。

Teare J said that, uninhibited by authority, he mightwell have decided that Mr Schaff – who, as is common ground, has considerablymore than 10 years' experience of acting as counsel in insurance andreinsurance cases ­– satisfies the qualification requirement in clause 15.5 ofthe JELC Clauses.

上诉法院首先对仲裁协议仲裁员资质规定进行了解释，在此基础上作出裁定。

（1）仲裁条款的解释

上诉法院认为：仲裁协议的的规定并没有要求仲裁员必须有保险和再保险“行业“（industry）经验，事实上，条款并没有对经验（experience）进行任何限制。

（2）推翻先例

•  先例可以被推翻

This court is not under the same constraint as a judge of first instance who should generally follow an earlier decision of a court of coordinate jurisdiction unless there is a powerful reason for not doing so: see Willers v Joyce [2016] UKSC 44, para 9. Nevertheless,where the meaning of a clause in a standard form of agreement has been interpreted by a court, later courts may think it right to adhere to the interpretation previously adopted even if, had they been deciding the question for the first time, they would have taken a different view. 

• 两个理由可以推翻先例

One is that the earlier decision may form part of the relevant background against which the parties have contracted. As Clarke LJsaid in Sunport Shipping Ltd v Tryg Baltica International (UK) Ltd (The Kleovoulos of Rhodes) [2003] EWCA Civ 12; [2003] 1 Lloyd's Rep 138, para 38:

"Where a contract has been professionally drawn, as in the case of the Institute Clauses, the draftsman is certain to have in mind decisions of the courts on earlier editions of the clause. Such decisions are part of the context or background circumstances against which the particular contract falls to be construed. If the draftsman chooses to adopt the same words as previously construed by the courts, it seems to me to be likely that, other things being equal, he intends that the words should continue to have the same meaning."

A second, related reason for adhering to an established interpretation is the value of certainty in commercial law. Lord Denning MR made this point in The Annefield [1971] P 168 at 183, when he said:

"Once a court has put a construction on commercial documents in standard form, commercial men act upon it. It should be followed in all subsequent cases. If the business community is not satisfied with the decision, they should alter the form."

In Pioneer Shipping Ltd v BTP Tioxide Ltd(The Nema) (No 2) [1982] AC 724 at 737, Lord Diplock said:

"It is only if parties to commercial contracts can rely upon a uniform construction being given to standard terms that they can prudently incorporate them in their contracts without the need for detailed negotiation or discussion."

• 推翻先例

The fact, however, that Company X v Company Y has stood for 17 years should not, in my opinion, dissuade this court from holding that it was wrongly decided for either of these reasons. In the first place, as Teare J himself recognised in para 10 of his judgment, the particular contract which the court has to construe in this case was made in February 2001, only some seven months after Company X v Company Y was decided.In English law contracts are interpreted on the basis that their meaning is to be ascertained as at the date when the contract was made and does not subsequently change. The fact that the wording of clause 15.5 was not altered when a new edition of the JELC Clauses was issued in 2003 is therefore irrelevant in deciding what the words of the clause as used in this contract mean. Nor do I think it realistic, in circumstances where the case was not reported and there is no evidence that it had been mentioned in any text book or other publication by February 2001, to regard the decision in Company X v Company Y as forming part of the background reasonably available to the partiesat the time of contracting.

Even if the contract hadbeen made much more recently, my conclusion would have been the same.Consideration of the background, including the legal background, against whichthe parties have contracted may inform what the words of the contract wouldreasonably be understood to mean and help to resolve ambiguity. But contextmust not be used to impose on the text a meaning which it cannot reasonablybear. In any case the assumption that court decisions have been taken intoaccount when drafting or updating standard clauses should not be carried toofar. Such an assumption deserves greater weight where a decision has beenwidely published than in a case such as this where the decision in question hasnever been reported and has merely been cited in two of the many books whichcomment on the relevant area of the law.

I also do not consider thatthe desirability of promoting certainty provides a good reason to upholdMorison J's decision. One aspect of legal certainty is consistency, butcertainty is also enhanced if contractual language is interpreted in accordancewith its natural meaning. If the meaning of a clause appears tolerably clear –as clause 15.5 of the JELC Clauses in my view does – a commercial party shouldbe able to rely on that meaning without having to scour legal textbooks inorder to find out whether the clause has been given a different and unnaturalmeaning by a court.

In any case, while certaintyis an important value in commerce, so too is the ability of the legal system tocorrect error, and contracting parties may be taken to know that a decision ofa court of first instance is not immutable and is capable of being overruled.The value of certainty is greatest where the members of a trade can be expectedto rely on the determination of a point which is otherwise unclear. Such casesepitomise Lord Mansfield's famous dictum that "it is of more consequencethat a rule should be certain than whether the rule be established one way orthe other; because speculators in trade then know which ground to goupon": Vallejo v Wheeler (1774) 1 Cowp 143, 153. But if a decision is notone on which significant reliance is likely to be placed or if the consequencesof such reliance are unlikely to be significant, the importance of certainty isdiminished. And if a decision is untenable, it should not in any case beallowed to stand.

I am sceptical whether manyparties who have incorporated the JELC Clauses into their contracts since CompanyX v Company Y have been aware of the decision and have contracted on theunderstanding that, unless agreed otherwise, the choice of arbitrators would belimited to people within the industry. Moreover, in so far as any did, I findit hard to see that such parties can be said to have suffered any significantdetriment if the range of persons eligible for appointment turns out to bewider than they expected and includes an experienced QC. This is not thereforea type of case in which overruling a long-standing decision is calculated tocause injustice to parties who have acted in reliance on it. Even if it were, adecision of a lower court ought not to be upheld by an appellate court if theappeal court is satisfied that the decision is plainly wrong. In Re SpectrumPlus Ltd [2005] UKHL 41, [2005] 2 AC 680, the House of Lordsoverruled a decision which had for many years been relied on by banks and othercommercial lenders when formulating and using standard forms of charges on bookdebts. Lord Hope said (at para 64):

"This is not one of those cases where thereare respectable arguments either way. With regret, the conclusion has to bethat it is not possible to defend the decision on any rational basis. It is notenough to say that it has stood for more than 25 years."

In the same way, in my view, the decisionin Company X v Company Y cannot be defended and should now be overruled.

（1）仲裁条款内容需要明确，不能有任何歧义，例如本案件就涉及到这个问题，关于“保险和再保险”经验，与保险和再保险“法律”经验存在歧义；

（2）本案件涉及到的再保险合同条款已经于2018年进行了修改，将来就没有歧义了，新版条款为：

"The Arbitrators shall be persons (including those who have retired) with not less than 10 years' experience of insurance or reinsurance within the industry or as lawyers or other professional advisors serving the industry."