How to prove that the other party has concealed enough evidence to affect the impartiality of the award, so as to cancel the arbitration award?

2022-06-03 0 By

The author | Li Shu Tang Qinglin Yuan Hui from: method of special guest empire tip: where the Numbers indicate the “source” or “from” are reproduced from the media, and the original source all peer originator.The content shared is the author’s personal opinion and is only for readers’ reference. It does not mean that the commercial arbitration is final, but after the arbitration is won, it does not mean that the winning result is final and may still be overturned by the judicial review process.We have noted that in recent years, there have been an increasing number of cases applying for cancellation of arbitral awards, refusal to enforce arbitral awards and confirmation of the validity of arbitration agreements, and the disputes have become more complicated.Beijing YunTing commercial arbitration law firm team combined with many years of accumulation of practical experience and research, especially on the basis of summarizing a large number of successful experience, the comprehensive combed the courts across the country in recent years, thousands of arbitration judicial review of the case the referee, in view of the high incidence of hot and difficult problem in the practice, typed carding analysis form manuscript (forthcoming),And through the “French Empire” public account to push more than 100 books and articles, for readers.According to Item (5) of Paragraph 1, Article 58 of the Arbitration Law, “The parties may apply to the intermediate people’s court in the place where the arbitration commission is located for cancellation of the award if they provide evidence to prove that the award involves one of the following circumstances: (5) the other party conceals evidence sufficient to affect the impartiality of the award;However, in practice, it is difficult to determine that the other party conceals the evidence that can affect the project award.This article shares a case to analyze which case belongs to the other party concealing evidence and the arbitration award should be revoked for readers’ reference.The ruling purview is that one party is at fault in the performance of the contract, and it should provide evidence to prove that its performance of obligations is in accordance with the agreement. However, the evidence it should provide in the arbitration procedure has not been submitted, which is the evidence that can affect the impartiality of the arbitration award, and the arbitration award should be cancelled.I. FAW Fuwei Company and Aitair Company have signed Equipment Sales Contract, Technology Agreement and Supplementary Agreement for Pure Water Equipment Transformation Contract on the system transformation of pure water equipment.Ii. If any dispute arises during the performance of the following Agreement, Altrel Company applies for arbitration to Changchun Arbitration Commission and requests FAW Fuwei Company to pay the payment for goods and liquidated damages.In the arbitration process, FAW Fuwei company made a counterclaim, requesting Aitrel company to pay liquidated damages and compensate for losses.The Changchun Arbitration Commission made the award No. 1136, which partially supported both parties’ claims for arbitration and counterclaims.Among them, the Changchun Arbitration Commission did not support FAW Fuwei’s claim for compensation.Iii. On June 17, 2020, FAW Fuwei Applied to Changchun Intermediate People’s Court for revoking the Award No. 1136 made by Changchun Arbitration Commission.The reasons are as follows: 1. The respondent conceals enough evidence to affect the impartiality of the award;2. The arbitral tribunal has perverted the law in its award.Iv. Changchun Intermediate People’s Court supported faW Fuwei’s application and ruled to cancel the Long Arbitration Award No. 1136 made by Changchun Arbitration Commission.Article 58, Paragraph 1 (5) of the Arbitration Law stipulates that “if the parties present evidence to prove that the award involves one of the following circumstances, they may apply to the intermediate people’s court in the place where the arbitration commission is located for cancellation of the award.”In this case, both parties dispute the performance of the agreement signed by the pure water equipment system transformation.Arbitration,@ Lyle company conceals the product assembly drawing, product installation instructions, the shipping list and quality certificate (certificate), the process flow diagram, the process equipment installation drawing, installation and debugging work record, the electrical control diagram and layout, the activated carbon tank plane surface figure “, “equipment operation instruction handbook”, the equipment usedThe above documents have a significant impact on the arbitral tribunal’s determination of facts and application of law, and will affect the arbitral tribunal’s determination of the rights and responsibilities of the parties.Altrel company has the obligation to prove, but failed to submit the above documents, resulting in an unfair arbitral award made by the arbitration tribunal.Therefore, when FAW Fuwei Applied for cancellation of the arbitration award, Changchun Intermediate People’s Court supported its application and ruled to cancel the Award No. 1136 of Changzhong Arbitration Made by Changchun Arbitration Commission.The professional lawyer team of Tang Qinglin and Li Shu in Beijing Yunting Law Firm has dealt with and analyzed a large number of legal issues involved in this paper and has rich practical experience.At the same time, he also summarized his experience in handling cases and published “Yunting Legal Practice Book series”, from which this article is extracted.The authors of this book are all professional lawyers fighting in the front line of Beijing Yunting Law Firm, with profound theoretical foundation and rich practical experience.The topic selection and writing style of this book are mainly based on the analysis of actual cases, trying to start from the needs of practice, to seek the most direct solutions to the difficult and complicated legal problems often encountered in practice.1. To prove that the other party concealed evidence that could affect the impartiality of the award actually involves the issue of burden of proof and the holding of evidence.If the parties have evidence sufficient to affect the impartiality of the award but fail to submit it in the arbitration process, it will affect the determination of facts and the application of law of the arbitration tribunal, and the arbitral award is not fair, and the arbitral award should be revoked.2. It should be noted that not all the evidence not submitted by the other party can be used as grounds for revoking the arbitration award. Only the evidence hidden by the other party is essential to the determination of the facts of the case and the application of the law, which can affect the impartiality of the arbitration award, can be used as grounds for revoking the arbitration award.(China is not a country of case law, and the cases cited and analyzed in this paper are not guiding cases and have no binding force on the trial and adjudication of similar cases.At the same time, it is particularly important to note that in judicial practice, the details of each case vary greatly, so it is necessary not to directly cite the judgment view in this paper.Beijing YunTing lawyer at carding and research on different cases of judicial documents, aims at providing a more readers with different research Angle, viewing Angle and does not mean that Beijing YunTing lawyer at the recognition and support for this case the referee views, does not mean the court, when dealing with similar cases to the referee rules such as necessary shall be quoted or reference.)Article 58 The parties may apply to the intermediate people’s court at the place where the arbitration commission is located for cancellation of the award if they provide evidence proving that the award involves any of the following circumstances:(2) The matters awarded are outside the scope of the arbitration agreement or the arbitration commission has no power to arbitrate;(3) The composition of the arbitration tribunal or the arbitration procedure violates the legal procedure;(4) The evidence on which the award is based is forged;(5) the other party conceals evidence which is sufficient to affect the impartiality of the award;(6) the arbitrators have demanded or accepted bribes, committed malpractices for personal gain or perverted the law in the arbitration of the case.The people’s court shall rule to cancel an award if, after examination by a collegial panel, it verifies that the award falls under any of the circumstances prescribed in the preceding paragraph.If the people’s court determines that the award violates the social and public interests, it shall order its cancellation.Article 59 If a party applies for cancellation of an award, such application shall be made within six months from the date of receipt of the award.Article 60 The people’s court shall, within two months from the date of accepting the application for cancellation of an award, make an order to cancel the award or reject the application.The court made the following judgment on this issue in the “Court’s Opinion” part of the ruling: Changchun Intermediate People’s Court held during the hearing that there was evidence in the evidence that the respondent claimed by the applicant did not submit in the arbitration procedure that would affect the determination of the basic facts of the case by the arbitration tribunal.Given that both parties involved in the process of contract disputes have occurred, problems affect normal operation after installation, if there is no evidence to product flow chart of general layout and installation etc, affect the fact determination and the applicable law of the arbitration tribunal, the supplementary agreement signed in the process of implementation, the respondent party at fault in the process of contract,It shall provide evidence to prove that its performance of obligations meets the conditions of final acceptance. However, the respondent has not submitted the evidence that should be provided in the arbitration proceedings, which conforms to the provisions of Item 5, Paragraph 1, Article 58 of the Arbitration Law of the People’s Republic of China “where the other party conceals evidence sufficient to affect the impartiality of the award”.Case source changchun faw rich d gaoxin automotive accessies co., LTD and changchun @ Lyle request to withdraw the arbitration civil verdict from the environmental protection equipment co., LTD. Read the following for the author to retrieve in writing of the other five cases, corresponding to five for concealing evidence led to the cancellation of the arbitration award, for readers reference.Case 1:The Karamay Intermediate People’s Court held that, based on the evidence submitted by both parties in the arbitration process and the evidence obtained by the arbitration tribunal,The testimony of Wang Hong, the accountant of Kuitun Lida Real Estate Development Co., LTD., the original accounting voucher and the bank’s payment “Business Receipt” are consistent with the original accounting voucher submitted by the applicant Kuitun West Construction Co., LTD.Can prove that involved 1.8 million yuan of kuytun JieJia trade co., LTD., generation of an outsider kuytun rieter real estate development co., LTD., west to kuytun construction limited liability company to pay the payment for goods, kuytun JieJia trade co., LTD., the arbitration claims and the evidence and the parties at the request and in the process of arbitration evidence submitted by the other under the condition of obvious conflict,The duty and obligation to provide further evidence to substantiate their claims.Kuitun Jiejia Trading Co., LTD., as a legally established legal person with capacity for civil rights and civil conduct, shall have a complete and true financial system, accounting vouchers and account books in accordance with the relevant provisions of the Accounting Law of the People’s Republic of China.Kuytun JieJia trade co., LTD., received an outsider kuytun rieter real estate development co., LTD., pay of 1.8 million yuan, after the west to kuytun construction co., LTD pay 1.8 million yuan, the payment is the nature of the generation of payment, the payment or advance payment, kuytun JieJia trade co., LTD., in the process of the arbitration shall be submitted to its original accounting vouchers and books,For justice, the arbitration tribunal kuytun JieJia trade co., LTD., the original accounting vouchers and books by its own control, is the nature of the 1.8 million yuan the most direct, objective and real evidence, its not submitted in the arbitration proceedings, shall be deemed to hide the evidence enough to affect the impartiality of the award, the arbitration award shall be revoked in accordance with the law.Case 2:Qingdao urban development group co., LTD., Qingdao DongSheng comprehensive real estate development companies, such as civil verdict that Qingdao then, in the case of arbitration, the applicant did not submit all the demolition of the building of information as well as to collect relevant evidence of resettlement replacement fee, can be identified in this case in the process of arbitration, the respondent to hide the evidence enough to affect the impartiality of the award.The arbitration award should be set aside.In conclusion, there are some improper arbitration procedures in the Award No. 294 of Qing Arbitration Zi (2012) issued by Qingdao Arbitration Commission, which should be revoked according to law.Case 3:Zhao Jiwei and Chengde Summer Resort Management Office applied for the Cancellation of the Arbitration Award in the Special Procedure Civil Award. Chengde Intermediate Court held that the case was a dispute over the lease agreement. The applicant and the respondent had signed several Agreements on the Operation of Rehe Cold Drinks Commercial Booth from 2007 to 2015.But the respondent to the arbitration tribunal only provides the jehol cold drink stall operating agreement in 2015, before the two sides signed the agreement does not provide, which the arbitration tribunal cannot be accurately identified from 2007 to 2015, more than contract signed by both parties of inner link, the contracting purpose, lead to the arbitration commission according to the year 2007 and 2015 only two copies of the lease agreement to rule;Because the respondent conceals evidence sufficient to affect the impartiality of the award, it constitutes a legal situation for revoking the arbitration award;Therefore, the reason for the application for cancellation of the arbitration award is established and supported by the court.Case 4:Changzhou Wujin District People’s Court held that on October 25, 2016, Changzhou Wujin District People’s Court made (2016) Su 0412 No. 5702 civil judgment in the beginning of the Republic of China, which stated that Kehao Company stated in the trial,Li Zhongwei borrowed the company’s qualifications to build a sub-cloth factory project.In possession of the judgment, KHO did not submit it to the tribunal, thus concealing evidence that could affect the impartiality of the award.To sum up, the court supports the claim of revocation of the arbitration award made by Kangzi Cloth Factory.Case 5: the branch of China life insurance co., LTD. Jilin province and Xu Chunfeng apply for revocation of the arbitration ruling of first instance civil verdict matsubara think then, according to the arbitration law of the People’s Republic of China article 58 about “in the event the evidence to prove that ruling in any of the following circumstances, can apply to the seat of the arbitration commission of the intermediate people’s court for cancellation of an award:(5) If the other party conceals evidence that can affect the impartiality of the award, the people’s court shall cancel the arbitration award. During the arbitration, the parties to the dispute are obliged to truthfully state the facts to the arbitration tribunal and provide relevant evidence that can affect the impartiality of the award.During the arbitration of this case, Xu chunfeng denied that he had ever visited Qianguo County Hospital and concealed the original gastroscopy report and pathological report issued by Qianguo County Hospital, which were enough to affect the fair ruling of the arbitration tribunal.