摘要(Abstract)：
I.STATUS QUO OF PRE-ARBITRATION PRESERVATION IN MACAO A.Meaning of Pre-arbitration Preservation in Macao Macao legislators did not define the pre-arbitration preservation.In this paper,the pre-arbitration preservation is understood as the procedures and measures temporarily taken before the establishment of the arbitral tribunal,with the aim of avoiding the arbitral award becoming an unrealistic decision or
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作者(Author): 赖建国;Ma Jing;
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参考文献(References)：
- 1 CANDIDA DA SILVA ANTUNES PIRES&ALVARO ANTONIO MANGAS ABREU DANTAS,MACAO ARBITRATION JUSTICE:INTERNAL VOLUNTARY ARBITRATION,ANNOTATION OF DECREE-LAW NO.29/96/M OF JUNE 11,at 130(Ye Xunsheng trans.,Center of Legal and Judicial Training,2012).The Civil Procedure Code of Macao contains a list of preventive measures(procedimento cautelare).According to the understanding of this paper,the pre-arbitration preservation corresponds to the pre-litigation preservation.The pre-litigation preservation includes pre-litigation preventive proceedings and pre-litigation preventive measures.
- 2 THE WEBSITE OF MACAO COURTS,at http://www.court.gov.mo(Last visited on October 25,2017).The Appeal Case No.477/2013 points out that:at the end of 2011,the arbitral tribunal was composed of arbitrators appointed respectively by the Macau Cable Television Company Limited and the government of the Special Administrative Region,as well as a chairman elected by both parties.At the end of 2012,the arbitral tribunal rendered the award on the franchising contract between the Macau Cable Television Company Limited and the government of the Special Administrative Region,ruling that the defendant should compensate the plaintiff two hundred million pataca for its long-term non-performance of the exclusion contract.The defendant refused to accept the award and brought an action to the administrative court.
- 3 Under the arbitration system of Macao,different types of arbitration can be found:institutional arbitration and non-institutional arbitration,civil and commercial arbitration and administrative arbitration,and voluntary arbitration and necessary arbitration.This paper will focus on the civil and commercial institutional arbitration provided by the Macao basic law of arbitration,and if necessary non-institutional arbitration will be taken into account.
- 4 LAI KIN-KUOK,A COMPARATIVE STUDY ON NEW CIVIL PROCEDURE OF MSAR AND MAINLAND CHINA,at234-235(Peking University Press,2015).
- 5 HUANG JIN,A NEW ATTEMPT TO SOLVE CIVIL AND COMMERCIAL DISPUTES IN MACAO:ESTABLISHMENT OF LOCAL ARBITRATION SYSTEM,at http://www.procedurallaw.cn/zh/node/4343(Last visited on October 25,2017).
- 6 Article 24,paragraph 2 of the internal arbitration law of Macao provides that,“the claimant of the interim measures must begin the necessary proceedings to constitute the tribunal,within the term provided in the civil procedural law to propose the judicial court action that validates the interim measure”.
- 7 Article 334 of the Civil Procedure Code of Macao provides that,“first,the preventive measures lapse in the following cases:a)If the applicant does not bring the action on which the measure depends within 30 days from the date receiving the notice of the ruling which has ordered the preventive measure,without the prejudice to the application of paragraph 2;second,if the respondent has not been heard before the order is issued to take preventive measure,the deadline for the period to bring the action on which the measure depends is 10 days after the applicant receives the notification that the respondent has been notified of the matter as provided by article 330,paragraph 5”.
- 8 The general preventive measure is contained in articles 326-337 of the Civil Procedure Code of Macao;the special preventive measure is contained in articles 338-368 of the same code,including seven categories,and the commonly mentioned are the suspension of enforcement of corporate resolution,arrest and injunction of new project.
- 9 THE 312TH MEETING,at http://www.uncitral.org/pdf/english/travaux/arbitration/ml-arb/312meeting-e.pdf(Last visited on March8,2017),page 429 shows that“50.The CHAIRMAN said that a Model Law could not go into details of that nature”.
- 10 CANDIDA DA SILVA ANTUNES PIRES&ALVARO ANTONIO MANGAS ABREU DANTAS,supra note 1,130-131.
- 11 Article 24,paragraph 2 of the internal arbitration law of Macao.
- 12 This is the information disclosed by the representative of the Singapore Arbitration Institution at the First China-ASEAN Commercial Arbitration Cooperation Forum held in Haikou,Hainan Province,in September 2016.
- 13 The general preventive measure is a basic procedure,and the requirement for preservation discussed here also applies to this procedure.
- 14 KUOK KIN-HONG&LAI KIN-KUOK,A DECLARATORY ACTION IN CIVIL PROCEDURAL LAW,at http://www.umac.mo/fll/doc/BLDB311%20Civil%20Procedural%20Law%20I_25082015.pdf.(Last visited on January 1,2017).In accordance with the provisions of article 353 of the Civil Procedure Codeof Macao,there are still requirements concerning the arrest“to be reduced to a reasonable scope”.And for another specific preventive measure,suspension of corporate resolution,the principle of proportionality shall still be supplementarily applied.
- 15 GARY B.BORN,INTERNATIONAL ARBITRATION:LAW AND PRACTICE,at 276-277(Bai Lin,Chen Fuyong&Li Tingjie trans.,Zheng Ruoye et al.ed.,The Commercial Press,2015).
- 16 CANDIDA DA SILVA ANTUNES PIRES&ALVARO ANTONIO MANGAS ABREU DANTAS,supranote 1,167.
- 17 Id.,46-47,49,52.As to the regulation on the arbitration objectives,see article 2 of the Decree-Law.The doctrine of this book also concerns,in page 51,whether it is necessary for the arbitrators to decide on those types of preventive measures that need to be registered.But this paper concerns whether it is necessary to exclude the jurisdiction of the arbitral tribunal in the future on the preventive measure of arrest of property.
- 18 The author has the honour to share the analysis of Xu Zhiming,Vice President of the Zhuhai Court of International Arbitration on this issue.The Portugal-Macao doctrine also points out that it was unwise to even indirectly restrain the third parties who are not the parties to the agreement.
- 19 A summary of the relevant meetings of the representatives of States on the legislative intent of article 9 of the Model Law(which corresponds directly to article 24,paragraph 1)is contained in pages 428-429 of the documents of the 312th Meeting of the UNCITRAL,at http://www.uncitral.org/uncitral/zh/uncitral_texts/arbitration/1985Model_arbitration_travaux.html(Last visited on March 28,2017).
- 20 UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION(1985),WITH AMENDMENTS AS ADOPTED IN 2006,at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html(Last visited on May 5,2017).
- 21 WANG MEILI&SONG QIUCHAN,THEORY ON THE PARTNERSHIP BETWEEN COURTS AND ARBITRAL TRIBUNAL,at http://www.docin.com/p-611543451.html(Last visited on May 7,2017).
- 22 QIAN CHENG,ON THE ASCRIPTION OF THE DECISION-MAKING POWER ON INTERIM ARBITRATION PREVENTIVE MEASURESG,at http://www.xmac.org.cn/stu_view.aspx?newsCateid=107&Newsld=168&TID=&Open1=&Open=&Open1=&CateID=0&showCateID=0&CateID1=107(Last visited on April 4,2017).
- 23 THE SUMMARY OF MEETINGS,esp.pages 428-429 of the 312th Meeting and pages 443-444 of the 316th Meeting,at http://www.uncitral.org/uncitral/zh/uncitral_texts/arbitration/1985Model_arbitration_travaux.html(Last visited on January 5,2017).
- 24 CIARB,INTERNATIONAL ARBITRATION PRACTICE GUIDELINE,at 2-3,at http://www.ciarb.org/docs/default-source/ciarbdocuments/guidance-and-ethics/practice-guidelines-protocols-and-rules(Last visited on May l,2017).“Emergency arbitrators have substantially the same powers and responsibilities in relation to the grant of interim measures as the regular tribunal,even though they are appointed solely for the emergency application”.
- 25 ARBITRATION(AMENDMENT)BILL OF 2013,page 2,at http://www.legco.gov.hk/yr12-13/chinese/bc/bc102/general/bc102.htm(Last visited on May 1,2017)
- 26 LAI KIN-KUOK,INTERNATIONAL ENCYCLOPEDIA OF LAWS:CIVIL PROCEDURE LAW OF MACAO,at https://www.kluwerlawonline.com/toc.php?area=&mode=bypub&level=6&values=Looseleafs~~IEL+Civil+Procedure~National+Monographs~Macao(Last visited on January 21,2017).
- 27 LAI KIN-KUOK,COMPARATIVE STUDY OF THE NEW CIVIL PROCEDURAL PRESERVATION SYSTEM BETWEEN MACAO SAR AND MAINLAND CHINA,at 350-351(Macao Administrative and Civil Service Bureau,2013).
- 28 Article 26,paragraph 2 of the internal arbitration law of Macao allows the parties to stipulate the period of rendering arbitral award.
- 29 In fact,questions on enforceability also exist in non-institutional arbitration and interim arbitration.For instance,what procedure and what form should be adopted for arbitration rulings on preventive measures to enable the judge accept and enforce them.
- 30 SONG XIXIAN,REFLECTION ON THE STATUS QUO AND PERFECTION OF MUTUAL RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS BETWEEN MAINLAND AND MACAO,at http://www.ipm.edu.mo/cntfiles/upload/docs/research/common/lcountry_2systems/2013_4/19.pdf(Last visited on March 1,2017).
- 31 For instance,article 326,paragraph 3 of the Civil Procedure Code of Macao expressly provides that,“court shall take measures not specifically requested by the claimant”;article 24,paragraph 3 of the internal arbitration law of Macao expressly provides that,“unless otherwise agreed by the parties,the arbitral tribunal may,upon request of either party,order them to take such interim measure of protection as the arbitral tribunal may consider necessary in respect ofthe subject-matter ofthe dispute or may require either party to provide appropriate security”.
- 32 Consultation Paper:Reform of Law of Arbitration in Hong Kong and Draft of Arbitration Bill,as well as arbitration law and regulations contained on the website of the Department of Justice of Hong Kong,at http://www.legco.gov.hk/yr08-09/chinese/bc/bc59/papers/bc590728cb2-2261-2-c.pdf(Last visited on June 10,2017).
- 33 The author wants to express his sincere gratitude to Dr.Jose,Director of Research Institute,Macao Legal Affairs Bureau for his support,which enables him to deepen his survey into arbitral institution,and receive generous help from directors of Huanyu China-ASEAN Legal Cooperation Center,Hainan Arbitration Commission and Zhuhai International Court of Arbitration,and deliberate guidance from experienced lawyers and arbitrators of Voluntary Arbitration Center of Macao World Trade Center and Legal Promotion Association of Macao.The magistrates also offered precious advice.Here,the author would like to show his gratitude to all of them again.
