严谨地仲裁条款的重要性
在最近的Bio-Chem Technology (HK) Ltd 诉 Rich Leaf International (HK) Ltd, HCA 476/2017一案中，香港法院一审准予了被告中止诉讼的申请，理由是，该争议应提交仲裁，并驳回了原告简易判决申请。原告基于如下两个理由反对被告的中止申请，即
（1）该请求不属于仲裁条款约定的仲裁事项；及／或
（2）被告已经废弃或弃用仲裁条款（abandoned or waived reliance on the arbitration clause.）
请求是否属于仲裁条款约定的仲裁事项
仲裁条款
原告与被告的争议是基于双方多个销售合同，合同中的仲裁条款如下：
“All disputes in connection with this contract of the execution thereofshall be settled by negotiation. In case no settlement can be reached the casein dispute shall then be submitted for arbitration in accordance with the HongKong Arbitration ordinance and with arbitration to take place in Hong Kong….”
“与本合同执行有关的一切争议应由双方协商解决。如果双方不能达成协议，则应提交按照香港仲裁条例仲裁，仲裁地点在香港…”
原告主张
原告主张，仲裁条款仅限于与执行合同有关的争议，原告的请求是一种债务，只有在向被告交付产品也就是合同履行之后才到期。该主张基于对仲裁条款的限制性理解，特别是在第1行中使用了“of”一词来缩小争议范围，使其仅涉及到与合同履行有关的争议。
被告主张
单词“of”是一个印刷错误，应该理解为“或”，这才是一个标准仲裁条款或合同其他部分更常见的用词。为支持这一主张，被告指出了在仲裁条款与本合同其他部分存在的很多其他印刷错误。这些错误是原告起草时生成的，被告表示，原告不应可以依赖于对这些错误的利用；根据疑义利益解释原则（contra proferentem rule –是指如合同条款模糊，对其的最终解读是以逆草拟人利益为准的规则），任何文稿或歧义，应解读为不利于原告的意思；
“履行合同”均仅指合同的履行情况。被告的付款义务产生于合同，显然与合同的履行有关，因此属于仲裁条款的范围；
其作为理性的商业人士应被认为有意将任何因他们关系产生的争议交由同一仲裁庭决定，采纳原告如下解释是完全不合理的，即原告认为与装运有关的履行受仲裁条款管辖，而与履行支付义务有关的争议却不适用仲裁条款。
The Court agreed with the Defendant that the disputes fell within theambit of the Arbitration Clause. The Court said that the parties clearlyintended the Arbitration Clause to apply to disputes between them arising outof their relationship under the contracts in question, and the contraryinterpretation flew in the face of commercial sense.
法院观点
法院同意被告的意见，认为争议属于仲裁条款的范围。法院认为，双方有意将仲裁条款适用于双方之间因争议合同关系而产生的纠纷是很明确的，而相反的解释则是有悖于商业意义的。
被告已经废弃或弃用仲裁条款
原告主张
原告依据被告的一封答复原告律师函的回函（中文文字），其中被告提到了争议解决的方式。经认证过的该函英语翻译已被提供给了法院，其中包括了一句话“…我们公司认为通过法律手段作出的裁决是最好的争议解决方式。”原告对该部分的翻译持强烈反对意见，并认为它特别向法院提到：“…我们公司还认为，诉诸法院的法律程序是解决纠纷的最佳途径”。
“… our company also considers that resort to legal process in court isthe best way to resolve the dispute”.
翻译人员被交叉询问，并提供了证据证明，当她第一次被要求证明该函的翻译时，他被提供了分别由原告和被告准备的不同版本的翻译，并且为有助于法院而提供其自己版本的翻译，该版本翻译在很大程度上采用了她认为更可取的被告翻译的语法和风格。当她收到参加交叉询问的通知时，她要求获得背景材料以作准备，并认为焦点是中文汉字，并向法院提供了该句可替换性的正式翻译，这已由她所依据的两本主要词典证实，即：
“ …, in that case, our company also considers resorting to a lawcourt/tribunal will be the best means to resolve the present dispute.”
“…在该情况下，我们公司也认为向法院／仲裁庭寻求救济将会是解决当前争议最好的方式。”
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公堂 = Law court; tribunal
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公堂＝法院；仲裁庭
原告为支持其如下观点，即形成当事人和／或其律师之间部分往来通讯的中文汉字（该翻译有争议）已被正确地翻译为相当于弃权的解释，原告依据了关于弃权的一个非常知名的判例，Investors Compensation Scheme Ltd v West BromwichBuilding Society [1998] 1 WLR 896，在该案中：
“Interpretation is the ascertainment of the meaning which the documentwould convey to a reasonable person having all the background knowledge whichwould reasonably have been available to the parties in the situation in whichthey were at the time of the contract.”
“解释是指文件将向一个通情达理的人传达的含义，而这些人已充分知悉了背景情况，而这些背景情况在合同签订时是可被当事人合理知晓的。”
法院观点
法院注意到上述句子是以用词“在合同签订时”结尾，因为该案特别关于合同条款的解释。这个判例并不适用于由非专业人士起草的函件（如本案），法院认为，尤其在本案中，合同签订时，被告是处在情绪性（非理性）状态中的。
法院认为被告已成功地初步证明了在表面上双方是存在有效仲裁条款的，并且不存在明确终止该条款的约定，因此诉讼程序应被中止以支持仲裁。
评论
1. 仲裁条款的重要性
本案是关于特别谨慎起草仲裁条款之重要性的一个有用提示，以确保正确的字是用来反映当事人的真实意图，它不包括任何印刷错误。它还表明，在庭上对仲裁条款所作任何翻译之准确性的重要性以及确保翻译人员获得充分的相关信息的重要性。在本案中，翻译人员不知道当事人可能依附于的特定汉字的重要性，这构成了原告提交的之一意见的依据，即被告已放弃或弃用仲裁条款。
2.当事人需要注意合同条款
有争议时，当事人特别需要注意往来邮件的内容，并注意是否与合同条款规定相一致，本案件就是涉及到争议解决问题的邮件，涉及到可能的弃权或者对仲裁条跨的事后修改的问题，稍有不慎，轻则产生异议，导致诉累，重则导致仲裁条款被实质性变更，改变争议解决方法，导致更多更为严重的问题。
3. 管辖权异议之诉
还应注意到，一旦法院查明存在表面初步有效的仲裁条款，即会为支持仲裁准予中止诉讼。之后原告可根据仲裁条例第34条对仲裁员提起管辖异议。仲裁员可以将这种异议作为初步问题进行裁决或在关于实体问题的裁决书中予以裁决。如果仲裁员在关于初步问题的裁决中认为其具有管辖权，则任何一方可在收到该裁决通知后30天内，请求法院最终决定是否存在有效的仲裁条款，而该决定不仅仅是基于表面依据。
[英文原文]
Draft Arbitration Clauses with care!
ByJustin Yuen, Deacons
In the recent case of Bio-Chem Technology (HK) Ltd v Rich Leaf International (HK) Ltd, HCA 476/2017, Hong Kong’s Court of First Instance granted the Defendant’s application to stay the proceedings on the basis that the dispute should be submitted to arbitration and dismissed the Plaintiff’s application for summary judgment. The Plaintiff had opposed the Defendant’s application for a stay on two grounds, namely:-
(1) the claim was outside theambit of the arbitration clause; and /or
(2) the Defendant had abandoned or waived reliance on the arbitration clause.
Was the Claim outside the ambit of the Arbitration Clause?
The Plaintiff’s action against the Defendant was for goods sold and delivered under various contracts between the parties. The Arbitration Clause in the contracts stated as follows:
“All disputes in connection with this contract of the execution thereof shall be settled by negotiation. In caseno settlement can be reached the case in dispute shall then be submitted for arbitration in accordance with the Hong Kong Arbitration ordinance and with arbitration to take place in Hong Kong….”
The Plaintiff argued that the Arbitration Clause was limited to disputesin connection with the execution of the contract and that the Plaintiff’s claimwas a debt, which only became due and payable after execution of the contract,by delivery of the products to the Defendant. That argument relied on arestrictive reading of the Arbitration Clause and, in particular, the use ofthe word “of” in line 1, to narrow the scope of disputes covered to thoseconnected to execution only.
The Defendant argued that:-
• the word “of” was a typographical error and should read“or”, which would be the more usual formulation in a standard arbitrationclause. In support of that argument, the Defendant pointed to a number of othertypographical errors in both the Arbitration Clause and in other parts of thecontract. These errors were the product of the Plaintiff’s drafting, the Defendant said, and thePlaintiff should not be able to rely on them to its advantage; under the contraproferentem rule any draft or ambiguity should be construed againstthe Plaintiff;
• in any event, the words “contract of the executionthereof” simply referred to the performance of the contracts. TheDefendant’s payment duty arose out of the contracts and was clearly a matterrelating to the performance of the contracts and therefore within the ambit ofthe Arbitration Clause; and
• as rational businessmen are presumed to have intended anydispute arising out of their relationship to be decided by the same tribunal,it made no sense to adopt the Plaintiff’s interpretation that performance inrelation to shipment was governed by the Arbitration Clause whilst disputesregarding performance as they relate to payment were not.
The Court agreed with the Defendant that the disputes fell within theambit of the Arbitration Clause. The Court said that the parties clearlyintended the Arbitration Clause to apply to disputes between them arising outof their relationship under the contracts in question, and the contraryinterpretation flew in the face of commercial sense.
Had the Defendant abandoned/waived reliance on the Arbitration Clause?
The Plaintiff relied on a letter (written in Chinese) from the Defendantin reply to a letter from the Plaintiff’s solicitors, in which the Defendantreferred to the method of resolving the dispute. Certified English translationsof the letter were provided to the Court, which included a sentence saying “…ourcompany considers that adjudication by legal means is the best way to resolvethe dispute.” The Plaintiff took issue with this part of the translationand argued that it made specific reference to a court of law, namely: “… ourcompany also considers that resort to legal process in court is the best way toresolve the dispute”.
The translator was cross-examined and gave evidence that when she hadfirst been asked to certify the translation of the letter, she had been givendifferent versions of translations prepared by the Plaintiff and Defendantrespectively and that with a desire to be helpful to the Court had produced aversion of her own, which largely adopted the syntax and style of theDefendant’s translation, which she considered preferable. When she received thenotice to attend for cross-examination she asked for the background materialsto prepare herself, understood that the focus was the Chinese characters andproduced to the Court an alternative formal translation of the sentence, whichwas confirmed by two leading dictionaries on which she placed reliance, namely:
“ …, in that case, ourcompany also considers resorting to a law court/tribunal will be the best meansto resolve the present dispute.”
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公堂 = Law court; tribunal
In support of its argument that the Chinese characters (the translationof which it disputed) which formed part of an exchange of correspondence betweenthe parties and/or their solicitors, properly translated amounted to a waiver,the Plaintiff relied on the well-known authority in respect of waiver, InvestorsCompensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896,where it was said:
“Interpretation is theascertainment of the meaning which the document would convey to a reasonableperson having all the background knowledge which would reasonably have beenavailable to the parties in the situation in which they were at the time of thecontract.”
However, the Court noted that the above sentence ended with the words “atthe time of the contract” since that case was specifically about theinterpretation of contractual terms. This was not applicable to letters writtenby laymen (as in the present case), the Court said, especially when as here,the Defendant was in an emotional state.
The Court held that the Defendant had succeeded in showing that, primafacie, a valid arbitration clause existed between the parties and thatthere was no unequivocal agreement to terminate it and that the proceedingsshould be stayed in favour of arbitration.
Comment
This case is a useful reminder of the importance of taking extreme carewhen drafting arbitration clauses, to ensure that the correct words are used toreflect the parties’ true intentions and that it does not include anytypographical errors. It also shows the importance of the accuracy of anytranslation of an arbitration clause that is before the court and of ensuringthat translators are given sufficient relevant information. Here, thetranslator had been given no idea of the significance the parties might attachto the particular Chinese characters which formed the basis for one of thePlaintiff’s submissions that the Defendant had abandoned/waived reliance on theArbitration Clause.
One should also note that once the Courthas found that there is, prima facie, a valid arbitration clause, a stayin favour of arbitration will be granted. It is then up to the plaintiff toapply to challenge the jurisdiction of the arbitrator in the arbitrationpursuant to section 34 of the Arbitration Ordinance. The arbitrator may rule onsuch challenge either as a preliminary question or in an award on the merits.If the arbitrator rules as a preliminary question that he has jurisdiction, anyparty may request, within 30 days after having received notice of that ruling,the Court to finally decide on whether there is a valid arbitrationclause, not only on a prima facie basis.
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