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THE UNDERSIGNED, DULY AUTHORIZED,
Convened under the auspices of the Economic Commission for Europe of the United Nations.
Having noted that on 10th June 1958 at the United Nations Conference on International Commercial Arbitration has been signed in New York a Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
Desirous of promoting the development of European trade by, as far as possible, removing certain difficulties that may impede the organization and operation of international commercial arbitration in relations between physical or legal persons of different European countries,
Have agreed on the following provisions:
Convened under the auspices of the Economic Commission for Europe of the United Nations.
Having noted that on 10th June 1958 at the United Nations Conference on International Commercial Arbitration has been signed in New York a Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
Desirous of promoting the development of European trade by, as far as possible, removing certain difficulties that may impede the organization and operation of international commercial arbitration in relations between physical or legal persons of different European countries,
Have agreed on the following provisions:
Article I Scope of the Convention
1. This Convention shall apply:
(a) to arbitration agreements concluded for the purpose of settling disputes arising from international trade between physical or legal persons having, when concluding the agreement, their habitual place of residence or their seat in different Contracting States;
(b) to arbitral procedures and awards based on agreements referred to in paragraph 1(a) above.
2. For the purpose of this Convention,
(a) the term: "arbitration agreement" shall mean either an arbitral clause in a contract or an arbitration agreement, the contract or arbitration agreement being signed by the parties, or contained in an exchange of letters, telegrams, or in a communication by teleprinter and, in relations between States whose laws do not require that an arbitration agreement be made in writing, any arbitration agreement concluded in the form authorized by these laws;
(b) the term "arbitration" shall mean not only settlement by arbitrators appointed for each case ( ad hoc arbitration) but also by permanent arbitral institutions;
(c) the term "seat" shall mean the place of the situation of the establishment that has made the arbitration agreement.
1. This Convention shall apply:
(a) to arbitration agreements concluded for the purpose of settling disputes arising from international trade between physical or legal persons having, when concluding the agreement, their habitual place of residence or their seat in different Contracting States;
(b) to arbitral procedures and awards based on agreements referred to in paragraph 1(a) above.
2. For the purpose of this Convention,
(a) the term: "arbitration agreement" shall mean either an arbitral clause in a contract or an arbitration agreement, the contract or arbitration agreement being signed by the parties, or contained in an exchange of letters, telegrams, or in a communication by teleprinter and, in relations between States whose laws do not require that an arbitration agreement be made in writing, any arbitration agreement concluded in the form authorized by these laws;
(b) the term "arbitration" shall mean not only settlement by arbitrators appointed for each case ( ad hoc arbitration) but also by permanent arbitral institutions;
(c) the term "seat" shall mean the place of the situation of the establishment that has made the arbitration agreement.
第一條 〔公約的范圍〕
(一)本公約適用于:
1、自然人或法人為解決其相互間在國際貿易中發生的爭議而締結的仲裁協議,但以簽訂協議時,該自然人或法人的常住地或所在地在各締約國家中為限。
2、根據本條第一款第一項所述協議而進行的仲裁程序和作出的裁決。
(二)在本公約中:
1、“仲裁協議”一詞既指合同中的仲裁條款,也指仲裁協議;該合同或仲裁協議,是指經當事人簽訂的,或包括在當事人交換的書信和電報中或電傳通訊中的。如在法律并不要求仲裁協議必須以書面形式簽訂的國家,則指依該國法律所許可的形式訂立的一切仲裁協議。
2、“仲裁”一詞不僅指為每個案件指定仲裁員解決爭議(臨時仲裁),而且指由常設仲裁機構解決爭議。
3、“所在地”一詞是指簽訂仲裁協議的企業所在的地方。
(一)本公約適用于:
1、自然人或法人為解決其相互間在國際貿易中發生的爭議而締結的仲裁協議,但以簽訂協議時,該自然人或法人的常住地或所在地在各締約國家中為限。
2、根據本條第一款第一項所述協議而進行的仲裁程序和作出的裁決。
(二)在本公約中:
1、“仲裁協議”一詞既指合同中的仲裁條款,也指仲裁協議;該合同或仲裁協議,是指經當事人簽訂的,或包括在當事人交換的書信和電報中或電傳通訊中的。如在法律并不要求仲裁協議必須以書面形式簽訂的國家,則指依該國法律所許可的形式訂立的一切仲裁協議。
2、“仲裁”一詞不僅指為每個案件指定仲裁員解決爭議(臨時仲裁),而且指由常設仲裁機構解決爭議。
3、“所在地”一詞是指簽訂仲裁協議的企業所在的地方。
Article II Right of Legal Persons of Public Law to Resort to Arbitration
1. In cases referred to in Article I, paragraph 1, of this Convention, legal persons considered by the law which is applicable to them as "legal persons of public law" have the right to conclude valid arbitration agreements.
2. On signing, ratifying or acceding to this Convention any State shall be entitled to declare that it limits the above faculty to such conditions as may be stated in its declaration.
1. In cases referred to in Article I, paragraph 1, of this Convention, legal persons considered by the law which is applicable to them as "legal persons of public law" have the right to conclude valid arbitration agreements.
2. On signing, ratifying or acceding to this Convention any State shall be entitled to declare that it limits the above faculty to such conditions as may be stated in its declaration.
Article IV Organization of the Arbitration
1. The parties to an arbitration agreement shall be free to submit their disputes:
(a) to a permanent arbitral institution; in this case, the arbitration proceedings shall be held in conformity with the rules of the said institution;
(b) to an ad hoc arbitral procedure; in this case, they shall be free inter alia
(i) to appoint arbitrators or to establish means for their appointment in the event of an actual dispute;
(ii) to determine the place of arbitration; and
(iii) to lay down the procedure to be followed by the arbitrators.
2. Where the parties have agreed to submit any disputes to an ad hoc arbitration, and where within thirty days of the notification of the request for arbitration to the respondent one of the parties fails to appoint his arbitrator, the latter shall, unless otherwise provided, be appointed at the request of the other party by the President of the competent Chamber of Commerce of the country of the defaulting party's habitual place of residence or seat at the time of the introduction of the request for arbitration. This paragraph shall also apply to the replacement of the arbitrator(s) appointed by one of the parties or by the President of the Chamber of Commerce above referred to.
3. Where the parties have agreed to submit any disputes to an ad hoc arbitration by one or more arbitrators and the arbitration agreement contains no indication regarding the organization of the arbitration, as mentioned in paragraph 1 of this Article, the necessary steps shall be taken by the arbitrator(s) already appointed, unless the parties are able to agree thereon and without prejudice to the case referred to in paragraph 2 above. Where the parties cannot agree on the appointment of the sole arbitrator or where the arbitrators appointed cannot agree on the measures to be taken, the claimant shall apply for the necessary action, where the place of arbitration has been agreed upon by the parties, at his option to the Presidentof the Chamber of Commerce of the place of arbitration agreed upon or to the President of the competent Chamber of Commerce of the respondent's habitual place of residence or seat at the time of the introduction of the request for arbitration. Where such a place has not been agreed upon, the claimant shall be entitled at his option to apply for the necessary action either to the President of the competent Chamber of Commerce of the country of the respondent's habitual place of residence or seat at the time of the
introduction of the request for arbitration, or to the Special Committee whose composition and procedure are specified in the Annex to this Convention. Where the claimant fails to exercise the rights given to him under this paragraph the respondent or the arbitrator(s) shall be entitled to do so.
4. When seized of a request the President or the Special Committee shall be entitled as need be:
(a) to appoint the sole arbitrator, presiding arbitrator, umpire, or referee;
(b) to replace the arbitrator(s) appointed under any procedure other than that referred to in paragraph 2 above;
(c) to determine the place of arbitration, provided that the arbitrator(s) may fix another place of arbitration;
(d) to establish directly or by reference to the rules and statutes of a permanent arbitral institution the rules of procedure to be followed by the arbitrator(s), provided that the arbitrators have not established these rules themselves in the absence of any agreement thereon between the parties.
5. Where the parties have agreed to submit their disputes to a permanent arbitral institution without determining the institution in question and cannot agree thereon, the claimant may request the determination of such institution in conformity with the procedure referred to in paragraph 3 above.
6. Where the arbitration agreement does not specify the mode of arbitration (arbitration by a permanent arbitral institution or an ad hoc arbitration) to which the parties have agreed to submit their dispute, and where the parties cannot agree thereon, the claimant shall be entitled to have recourse in this case to the procedure referred to in paragraph 3 to determine the question. The President of the competent Chamber of Commerce or the Special Committee, shall be entitled either to refer the parties to a permanent arbitral institution or to request the parties to appoint their arbitrator within such time-limits as the President of the competent Chamber of Commerce or the Special Committee may have fixed and to agree within such time-limits on the necessary measures for the functioning of the arbitration. In the latter case, the provisions of paragraphs 2, 3 and 4 of this Article shall apply.
7. Where within a period of sixty days from the moment when he was requested to fulfil one of the functions set out in paragraphs 2, 3, 4, 5 and 6 of this Article, the President of the Chamber of Commerce designated by virtue of these paragraphs has not fulfilled one of these functions, the party requesting shall be entitled to ask the Special Committee to do so.
1. The parties to an arbitration agreement shall be free to submit their disputes:
(a) to a permanent arbitral institution; in this case, the arbitration proceedings shall be held in conformity with the rules of the said institution;
(b) to an ad hoc arbitral procedure; in this case, they shall be free inter alia
(i) to appoint arbitrators or to establish means for their appointment in the event of an actual dispute;
(ii) to determine the place of arbitration; and
(iii) to lay down the procedure to be followed by the arbitrators.
2. Where the parties have agreed to submit any disputes to an ad hoc arbitration, and where within thirty days of the notification of the request for arbitration to the respondent one of the parties fails to appoint his arbitrator, the latter shall, unless otherwise provided, be appointed at the request of the other party by the President of the competent Chamber of Commerce of the country of the defaulting party's habitual place of residence or seat at the time of the introduction of the request for arbitration. This paragraph shall also apply to the replacement of the arbitrator(s) appointed by one of the parties or by the President of the Chamber of Commerce above referred to.
3. Where the parties have agreed to submit any disputes to an ad hoc arbitration by one or more arbitrators and the arbitration agreement contains no indication regarding the organization of the arbitration, as mentioned in paragraph 1 of this Article, the necessary steps shall be taken by the arbitrator(s) already appointed, unless the parties are able to agree thereon and without prejudice to the case referred to in paragraph 2 above. Where the parties cannot agree on the appointment of the sole arbitrator or where the arbitrators appointed cannot agree on the measures to be taken, the claimant shall apply for the necessary action, where the place of arbitration has been agreed upon by the parties, at his option to the Presidentof the Chamber of Commerce of the place of arbitration agreed upon or to the President of the competent Chamber of Commerce of the respondent's habitual place of residence or seat at the time of the introduction of the request for arbitration. Where such a place has not been agreed upon, the claimant shall be entitled at his option to apply for the necessary action either to the President of the competent Chamber of Commerce of the country of the respondent's habitual place of residence or seat at the time of the
introduction of the request for arbitration, or to the Special Committee whose composition and procedure are specified in the Annex to this Convention. Where the claimant fails to exercise the rights given to him under this paragraph the respondent or the arbitrator(s) shall be entitled to do so.
4. When seized of a request the President or the Special Committee shall be entitled as need be:
(a) to appoint the sole arbitrator, presiding arbitrator, umpire, or referee;
(b) to replace the arbitrator(s) appointed under any procedure other than that referred to in paragraph 2 above;
(c) to determine the place of arbitration, provided that the arbitrator(s) may fix another place of arbitration;
(d) to establish directly or by reference to the rules and statutes of a permanent arbitral institution the rules of procedure to be followed by the arbitrator(s), provided that the arbitrators have not established these rules themselves in the absence of any agreement thereon between the parties.
5. Where the parties have agreed to submit their disputes to a permanent arbitral institution without determining the institution in question and cannot agree thereon, the claimant may request the determination of such institution in conformity with the procedure referred to in paragraph 3 above.
6. Where the arbitration agreement does not specify the mode of arbitration (arbitration by a permanent arbitral institution or an ad hoc arbitration) to which the parties have agreed to submit their dispute, and where the parties cannot agree thereon, the claimant shall be entitled to have recourse in this case to the procedure referred to in paragraph 3 to determine the question. The President of the competent Chamber of Commerce or the Special Committee, shall be entitled either to refer the parties to a permanent arbitral institution or to request the parties to appoint their arbitrator within such time-limits as the President of the competent Chamber of Commerce or the Special Committee may have fixed and to agree within such time-limits on the necessary measures for the functioning of the arbitration. In the latter case, the provisions of paragraphs 2, 3 and 4 of this Article shall apply.
7. Where within a period of sixty days from the moment when he was requested to fulfil one of the functions set out in paragraphs 2, 3, 4, 5 and 6 of this Article, the President of the Chamber of Commerce designated by virtue of these paragraphs has not fulfilled one of these functions, the party requesting shall be entitled to ask the Special Committee to do so.
第四條 〔仲裁組織〕
(一)仲裁協議的當事人,可自行決定將其爭議提交于:
1、常設仲裁機構;在這種情況下,仲裁程序應按該機構的規則進行;
2、臨時仲裁;在這種情況下,當事人自行決定:
甲、指派仲裁員,或者確定如果發生爭議時指派仲裁員的方法;
乙、確定仲裁地點;
丙、規定仲裁員遵循的程序。
(二)當事人已協議一致把爭議提交臨時仲裁,在申請仲裁的通知書送達被訴人后的三十天內,如當事人一方沒有指派仲裁員,無其他規定時,依另一方當事人的請求,仲裁員即由未指派仲裁員的一方當事人在提請仲裁時的常住地或所在地的國家主管商會會長指定之。本款規定也適用于由一方當事人所指派的或由上述商會會長所指派的仲裁員的更換。
(三)當事人已協議一致將爭議提交由一名或數名仲裁員進行臨時仲裁,但仲裁協議中沒有規定如本條第一款所規定的仲裁組織,除當事人能就此取得協議并不違反上述第二款規定外,業已指派的仲裁員(們)即應采取必要的步驟。如果當事人未能就指派獨任仲裁員達成協議,或者被指派的數名仲裁員未能就采取的措施達成協議時,申訴人可自由選擇向協議同意的仲裁地(如果當事人就仲裁地點達成了協議)的商會會長或者向被訴人在提請仲裁時的常住地或所在地的主管商會會長,請求采取必要的行動。如果沒有就仲裁地點達成協議,申訴人有權選擇向被訴人在提請仲裁時的常住地或所在地的國家的主管商會會長,或者向專門委員會(其機構和程序見本公約附件規定),請求采取必要的行動。如果申訴人沒有行使本款賦予的權利,被訴人或者仲裁員(們)有權如此辦理。
(四)專門委員會會長接受請求后,如果需要,有以下權力:
1、指派獨任仲裁員、主任仲裁員、首席仲裁員或鑒定人;
2、在本條第二款規定外的其他任何程序,更換原指派的仲裁員;
3、如仲裁員可以確定另一仲裁地點時,確定仲裁地點;
4、直接制定或者參考常設仲裁機構的規則和章程制定仲裁員(們)遵循的程序規則,假如當事人之間沒有此項協議,而仲裁員也沒有制定這項規則的話。
(五)如果當事人協議一致將其爭議提交常設仲裁機構,但沒有選定這一機構,也未能就此達成協議,申訴人可按上述第三款規定的程序,請求確定這一機構。
(六)如果當事人協議一致將其爭議提交仲裁,但仲裁協議沒有對仲裁方式(由常設仲裁機構仲裁可依臨時仲裁程序仲裁)作出規定,當事人也未能對此達成協議,申訴人有權就此案件,按上述第三款規定的程序,以決定之。主管商會的會長或專門委員會,有權令當事人向常設仲裁機構提出申請,或者要求當事人在主管商會會長或專門委員會所規定的期限內指定仲裁員,并協商仲裁活動的必要措施。后一種情況,可適用本條第二、三、四款的規定。
(七)依據本條第二至第六款規定被委以職責的商會會長,在接受完成上述各款規定中的一項活動的請求后的六十天內,沒有完成此項活動時,提出請求的當事人有權要求專門委員會完成這項活動。
(一)仲裁協議的當事人,可自行決定將其爭議提交于:
1、常設仲裁機構;在這種情況下,仲裁程序應按該機構的規則進行;
2、臨時仲裁;在這種情況下,當事人自行決定:
甲、指派仲裁員,或者確定如果發生爭議時指派仲裁員的方法;
乙、確定仲裁地點;
丙、規定仲裁員遵循的程序。
(二)當事人已協議一致把爭議提交臨時仲裁,在申請仲裁的通知書送達被訴人后的三十天內,如當事人一方沒有指派仲裁員,無其他規定時,依另一方當事人的請求,仲裁員即由未指派仲裁員的一方當事人在提請仲裁時的常住地或所在地的國家主管商會會長指定之。本款規定也適用于由一方當事人所指派的或由上述商會會長所指派的仲裁員的更換。
(三)當事人已協議一致將爭議提交由一名或數名仲裁員進行臨時仲裁,但仲裁協議中沒有規定如本條第一款所規定的仲裁組織,除當事人能就此取得協議并不違反上述第二款規定外,業已指派的仲裁員(們)即應采取必要的步驟。如果當事人未能就指派獨任仲裁員達成協議,或者被指派的數名仲裁員未能就采取的措施達成協議時,申訴人可自由選擇向協議同意的仲裁地(如果當事人就仲裁地點達成了協議)的商會會長或者向被訴人在提請仲裁時的常住地或所在地的主管商會會長,請求采取必要的行動。如果沒有就仲裁地點達成協議,申訴人有權選擇向被訴人在提請仲裁時的常住地或所在地的國家的主管商會會長,或者向專門委員會(其機構和程序見本公約附件規定),請求采取必要的行動。如果申訴人沒有行使本款賦予的權利,被訴人或者仲裁員(們)有權如此辦理。
(四)專門委員會會長接受請求后,如果需要,有以下權力:
1、指派獨任仲裁員、主任仲裁員、首席仲裁員或鑒定人;
2、在本條第二款規定外的其他任何程序,更換原指派的仲裁員;
3、如仲裁員可以確定另一仲裁地點時,確定仲裁地點;
4、直接制定或者參考常設仲裁機構的規則和章程制定仲裁員(們)遵循的程序規則,假如當事人之間沒有此項協議,而仲裁員也沒有制定這項規則的話。
(五)如果當事人協議一致將其爭議提交常設仲裁機構,但沒有選定這一機構,也未能就此達成協議,申訴人可按上述第三款規定的程序,請求確定這一機構。
(六)如果當事人協議一致將其爭議提交仲裁,但仲裁協議沒有對仲裁方式(由常設仲裁機構仲裁可依臨時仲裁程序仲裁)作出規定,當事人也未能對此達成協議,申訴人有權就此案件,按上述第三款規定的程序,以決定之。主管商會的會長或專門委員會,有權令當事人向常設仲裁機構提出申請,或者要求當事人在主管商會會長或專門委員會所規定的期限內指定仲裁員,并協商仲裁活動的必要措施。后一種情況,可適用本條第二、三、四款的規定。
(七)依據本條第二至第六款規定被委以職責的商會會長,在接受完成上述各款規定中的一項活動的請求后的六十天內,沒有完成此項活動時,提出請求的當事人有權要求專門委員會完成這項活動。
Article V Plea as to Arbitral Jurisdiction
1. The party which intends to raise a plea as to the arbitrator's jurisdiction based on the fact that the arbitration agreement was either non-existent or null and void or had lapsed shall do so during the arbitration proceedings, not later than the delivery of its statement of claim or defence relating to the substance of the dispute; those based on the fact that an arbitrator has exceeded his terms of reference shall be raised during the arbitration proceedings as soon as the question on which the arbitrator is alleged to have no jurisdiction is raised during the arbitral procedure. Where the delay in raising the plea is due to a cause which the arbitrator deems justified, the arbitrator shall declare the plea admissible.
2. Pleas to the jurisdiction referred to in paragraph 1 above that have not been raised during the time-limits there referred to, may not be entered either during a subsequent stage of the arbitral proceedings where they are pleas left to the sole discretion of the parties under the law applicable by the arbitrator, or during subsequent court proceedings concerning the substance or the enforcement of the award where such pleas are left to the discretion of the parties under the rule of conflict of the court seized of the substance of the dispute or the enforcement of the award. The arbitrator's decision on the delay in raising the plea, will, however, be subject to judicial control.
3. Subject to any subsequent judicial control provided for under the lex fori , the arbitrator whose jurisdiction is called in question shall be entitled to proceed with the arbitration, to rule on his own jurisdiction and to decide upon the existence or the validity of the arbitration agreement or of the contract of which the agreement forms part.
1. The party which intends to raise a plea as to the arbitrator's jurisdiction based on the fact that the arbitration agreement was either non-existent or null and void or had lapsed shall do so during the arbitration proceedings, not later than the delivery of its statement of claim or defence relating to the substance of the dispute; those based on the fact that an arbitrator has exceeded his terms of reference shall be raised during the arbitration proceedings as soon as the question on which the arbitrator is alleged to have no jurisdiction is raised during the arbitral procedure. Where the delay in raising the plea is due to a cause which the arbitrator deems justified, the arbitrator shall declare the plea admissible.
2. Pleas to the jurisdiction referred to in paragraph 1 above that have not been raised during the time-limits there referred to, may not be entered either during a subsequent stage of the arbitral proceedings where they are pleas left to the sole discretion of the parties under the law applicable by the arbitrator, or during subsequent court proceedings concerning the substance or the enforcement of the award where such pleas are left to the discretion of the parties under the rule of conflict of the court seized of the substance of the dispute or the enforcement of the award. The arbitrator's decision on the delay in raising the plea, will, however, be subject to judicial control.
3. Subject to any subsequent judicial control provided for under the lex fori , the arbitrator whose jurisdiction is called in question shall be entitled to proceed with the arbitration, to rule on his own jurisdiction and to decide upon the existence or the validity of the arbitration agreement or of the contract of which the agreement forms part.
第五條 〔關于仲裁管轄權的抗辯〕
(一)當事人根據不存在仲裁協議、或仲裁協議無效、或已失效等事實,對仲裁員的管轄權提出抗辯時,此項抗辯應在發出仲裁請求書或提出爭議實體答辯之前的期間提出;基于仲裁員超越其職權范圍的事實提出抗辯,應在仲裁員被認定無管轄權的問題在仲裁程序中發生后,立即提出之。抗辯延遲提出時,仲裁員如認為其延遲有正當理由應即宣布準許其抗辯。
(二)上述第一款對管轄權的抗辯,如未在上述期限內提出,隨后既不能在仲裁的下一階段提出(在此階段,這種抗辯,依仲裁員所適用的法律,只能由當事人自行決定),也不能在以后對裁決的實質或執行進行審理或在訴訟中提出(在法院程序中,這種抗辯只能由當事人依審理裁決的實質或執行的法院的沖突規則決定)。仲裁員對不按時提出抗辯的裁決,須受司法監督。
(三)管轄權有問題的仲裁員,有權繼續進行仲裁,并對自己的管轄權作出決定,并能決定仲裁協議或者包括此協議在內的合同是否存在或有無效力,但應受仲裁地法所規定的以后的司法監督。
(一)當事人根據不存在仲裁協議、或仲裁協議無效、或已失效等事實,對仲裁員的管轄權提出抗辯時,此項抗辯應在發出仲裁請求書或提出爭議實體答辯之前的期間提出;基于仲裁員超越其職權范圍的事實提出抗辯,應在仲裁員被認定無管轄權的問題在仲裁程序中發生后,立即提出之。抗辯延遲提出時,仲裁員如認為其延遲有正當理由應即宣布準許其抗辯。
(二)上述第一款對管轄權的抗辯,如未在上述期限內提出,隨后既不能在仲裁的下一階段提出(在此階段,這種抗辯,依仲裁員所適用的法律,只能由當事人自行決定),也不能在以后對裁決的實質或執行進行審理或在訴訟中提出(在法院程序中,這種抗辯只能由當事人依審理裁決的實質或執行的法院的沖突規則決定)。仲裁員對不按時提出抗辯的裁決,須受司法監督。
(三)管轄權有問題的仲裁員,有權繼續進行仲裁,并對自己的管轄權作出決定,并能決定仲裁協議或者包括此協議在內的合同是否存在或有無效力,但應受仲裁地法所規定的以后的司法監督。
Article VI Jurisdiction of Courts of Law
1. A plea as to the jurisdiction of the court made before the court seized by either party to the arbitration agreement, on the basis of the fact that an arbitration agreement exists shall, under penalty of estoppel,be presented by the respondent before or at the same time as the presentation of his substantial defence, depending upon whether the law of the court seized regards this plea as one of procedure or of substance.
2. In taking a decision concerning the existence or the validity of an arbitration agreement, courts of Contracting States shall examine the validity of such agreement with reference to the capacity of the parties, under the law applicable to them, and with reference to other questions.
(a) under the law to which the parties have subjected their arbitration agreement;
(b) failing any indication thereon, under the law of the country in which the award is to be made;
(c) failing any indication as to the law to which the parties have subjected the agreement, and where at the time when the question is raised in court the country in which the award is to be made cannot be determined, under the competent law by virtue of the rules of conflict of the court seized of the dispute.
The courts may also refuse recognition of the arbitration agreement if under the law of their country thedispute is not capable of settlement by arbitration.
3. Where either party to an arbitration agreement has initiated arbitration proceedings before any resort is had to a court, courts of Contracting States subsequently asked to deal with the same subject-matter between the same parties or with the question whether the arbitration agreement was non-existent or null and void or had lapsed, shall stay their ruling on the arbitrator's jurisdiction until the arbitral award is made, unless they have good and substantial reasons to the contrary.
4. A request for interim measures or measures of conservation addressed to a judicial authority shall not be deemed incompatible with the arbitration agreement, or regarded as a submission of the substance of the case to the court.
1. A plea as to the jurisdiction of the court made before the court seized by either party to the arbitration agreement, on the basis of the fact that an arbitration agreement exists shall, under penalty of estoppel,be presented by the respondent before or at the same time as the presentation of his substantial defence, depending upon whether the law of the court seized regards this plea as one of procedure or of substance.
2. In taking a decision concerning the existence or the validity of an arbitration agreement, courts of Contracting States shall examine the validity of such agreement with reference to the capacity of the parties, under the law applicable to them, and with reference to other questions.
(a) under the law to which the parties have subjected their arbitration agreement;
(b) failing any indication thereon, under the law of the country in which the award is to be made;
(c) failing any indication as to the law to which the parties have subjected the agreement, and where at the time when the question is raised in court the country in which the award is to be made cannot be determined, under the competent law by virtue of the rules of conflict of the court seized of the dispute.
The courts may also refuse recognition of the arbitration agreement if under the law of their country thedispute is not capable of settlement by arbitration.
3. Where either party to an arbitration agreement has initiated arbitration proceedings before any resort is had to a court, courts of Contracting States subsequently asked to deal with the same subject-matter between the same parties or with the question whether the arbitration agreement was non-existent or null and void or had lapsed, shall stay their ruling on the arbitrator's jurisdiction until the arbitral award is made, unless they have good and substantial reasons to the contrary.
4. A request for interim measures or measures of conservation addressed to a judicial authority shall not be deemed incompatible with the arbitration agreement, or regarded as a submission of the substance of the case to the court.
第六條 〔法院管轄權〕
(一)依據存在仲裁協議這一事實,仲裁協議的一方當事人向法院就該法院無管轄權提出的抗辯,應該根據該法院的法律認為該抗辯是程序上的還是實質性的,而后決定,該抗辯必須在被訴人提出他的實質性答辯之前提出(否則應受關于禁反言的處罰)
(二)締約國的法院在作出關于仲裁協議是否存在或有效的決定時,應從各方面審查這一協議的有效性。關于雙方當事人的能力,根據適用于他們的法律,至于其他問題,則應:
1、根據當事人的仲裁協議所依據的法律;
2、如未就此點確定時,根據裁決地的國家的法律;
3、如無當事人的仲裁協議所依據的法律,而在向法院提出問題時,還不能確定將在哪一國作出裁決,就根據受理爭議的法院的沖突規則所決定的法律。
如果按照法院地國家的法律,該爭議是不能通過仲裁解決的,法院也可拒絕承認仲裁協議。
(三)如仲裁協議一方當事人在向法院起訴之前,已經提請仲裁,締約國的法院以后在審理該當事人間的同一事項,或審理該仲裁協議是否存在或無效、或已失效等問題時,在仲裁裁決作出之前,應停止對仲裁員的管轄權作出裁決,有正當而真實的相反理由者除外。
(四)向司法當局請求臨時處分或保全處分,不應看作同仲裁協議不相一致,也不應看作是就案件實質問題向法院提出申訴。
(一)依據存在仲裁協議這一事實,仲裁協議的一方當事人向法院就該法院無管轄權提出的抗辯,應該根據該法院的法律認為該抗辯是程序上的還是實質性的,而后決定,該抗辯必須在被訴人提出他的實質性答辯之前提出(否則應受關于禁反言的處罰)
(二)締約國的法院在作出關于仲裁協議是否存在或有效的決定時,應從各方面審查這一協議的有效性。關于雙方當事人的能力,根據適用于他們的法律,至于其他問題,則應:
1、根據當事人的仲裁協議所依據的法律;
2、如未就此點確定時,根據裁決地的國家的法律;
3、如無當事人的仲裁協議所依據的法律,而在向法院提出問題時,還不能確定將在哪一國作出裁決,就根據受理爭議的法院的沖突規則所決定的法律。
如果按照法院地國家的法律,該爭議是不能通過仲裁解決的,法院也可拒絕承認仲裁協議。
(三)如仲裁協議一方當事人在向法院起訴之前,已經提請仲裁,締約國的法院以后在審理該當事人間的同一事項,或審理該仲裁協議是否存在或無效、或已失效等問題時,在仲裁裁決作出之前,應停止對仲裁員的管轄權作出裁決,有正當而真實的相反理由者除外。
(四)向司法當局請求臨時處分或保全處分,不應看作同仲裁協議不相一致,也不應看作是就案件實質問題向法院提出申訴。
Article VII Applicable Law
1. The parties shall be free to determine, by agreement, the law to be applied by the arbitrators to the substance of the dispute. Failing any indication by the parties as to the applicable law, the arbitrators shall apply the proper law under the rule of conflict that the arbitrators deem applicable. In both cases the arbitrators shall take account of the terms of the contract and trade usages.
2. The arbitrators shall act as amiables compositeurs if the parties so decide and if they may do so under the law applicable to the arbitration.
1. The parties shall be free to determine, by agreement, the law to be applied by the arbitrators to the substance of the dispute. Failing any indication by the parties as to the applicable law, the arbitrators shall apply the proper law under the rule of conflict that the arbitrators deem applicable. In both cases the arbitrators shall take account of the terms of the contract and trade usages.
2. The arbitrators shall act as amiables compositeurs if the parties so decide and if they may do so under the law applicable to the arbitration.
Article VIII Reasons for the Award
The parties shall be presumed to have agreed that reasons shall be given for the award unless they
(a) either expressly declare that reasons shall not be given; or
(b) have assented to an arbitral procedure under which it is not customary to give reasons for awards, provided that in this case neither party requests before the end of the hearing, or if there has not been a hearing then before the making of the award, that reasons be given.
The parties shall be presumed to have agreed that reasons shall be given for the award unless they
(a) either expressly declare that reasons shall not be given; or
(b) have assented to an arbitral procedure under which it is not customary to give reasons for awards, provided that in this case neither party requests before the end of the hearing, or if there has not been a hearing then before the making of the award, that reasons be given.
Article IX Setting Aside of the Arbitral Award
1. The setting aside in a Contracting State of an arbitral award covered by this Convention shall only constitute a ground for the refusal of recognition or enforcement in another Contracting State where such setting aside took place in a State in which, or under the law of which, the award has been made and for one of the following reasons:
(a) the parties to the arbitration agreement were under the law applicable to them, under some incapacityor the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made, or
(b) the party requesting the setting aside of the award was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
(c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration need not be set aside;
(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or failing such agreement, with the provisions of Article IV of this Convention.
2. In relations between Contracting States that are also parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10th June 1958, paragraph 1 of this Article limits the application of Article V (1) (e) of the New York Convention solely to the cases of setting aside set out under paragraph 1 above.
1. The setting aside in a Contracting State of an arbitral award covered by this Convention shall only constitute a ground for the refusal of recognition or enforcement in another Contracting State where such setting aside took place in a State in which, or under the law of which, the award has been made and for one of the following reasons:
(a) the parties to the arbitration agreement were under the law applicable to them, under some incapacityor the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made, or
(b) the party requesting the setting aside of the award was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
(c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration need not be set aside;
(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or failing such agreement, with the provisions of Article IV of this Convention.
2. In relations between Contracting States that are also parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10th June 1958, paragraph 1 of this Article limits the application of Article V (1) (e) of the New York Convention solely to the cases of setting aside set out under paragraph 1 above.
第九條 〔仲裁裁決的撤銷〕
(一)一締約國撤銷按本公約作出的仲裁裁決,只有在下列情況下,才構成另一締約國拒絕承認和執行裁決的理由。即裁決是由在該國或按該國法律作出裁決的國家撤銷的,并且具有下述理由之一:
1、仲裁協議的當事人,按對其適用的法律規定,是無能力人;或者按當事人所依據的法律,協議是無效的,如協議中未規定此項法律,依裁決地國家的法律規定,這項協議無效;
2、請求撤銷裁決的當事人,沒有得到關于仲裁員任命或仲裁程序的正式通知,或者有其他理由未能出席仲裁;
3、裁決涉及到仲裁申請中沒有提及的或不屬于仲裁申請項目的一種爭議,或者裁決中包含了超出仲裁申請范圍的裁決事項;如果仲裁申請范圍內的裁決事項可以同仲裁申請范圍外的裁決事項分開,則申請范圍內的裁決事項可以不予撤銷;
4、仲裁機構的組成和仲裁程序不是按照當事人的協議辦理的,或者如無此項協議,不是按照本公約第四條的規定辦理的。
(二)締約國同時是一九五八年六月十日關于承認和執行外國仲裁裁決的紐約公約的參加國時,在締約國的關系中,本條第一款對紐約公約第五條第一款第五項,僅在按本條第一款規定撤銷裁決的情況下,予以限制。
(一)一締約國撤銷按本公約作出的仲裁裁決,只有在下列情況下,才構成另一締約國拒絕承認和執行裁決的理由。即裁決是由在該國或按該國法律作出裁決的國家撤銷的,并且具有下述理由之一:
1、仲裁協議的當事人,按對其適用的法律規定,是無能力人;或者按當事人所依據的法律,協議是無效的,如協議中未規定此項法律,依裁決地國家的法律規定,這項協議無效;
2、請求撤銷裁決的當事人,沒有得到關于仲裁員任命或仲裁程序的正式通知,或者有其他理由未能出席仲裁;
3、裁決涉及到仲裁申請中沒有提及的或不屬于仲裁申請項目的一種爭議,或者裁決中包含了超出仲裁申請范圍的裁決事項;如果仲裁申請范圍內的裁決事項可以同仲裁申請范圍外的裁決事項分開,則申請范圍內的裁決事項可以不予撤銷;
4、仲裁機構的組成和仲裁程序不是按照當事人的協議辦理的,或者如無此項協議,不是按照本公約第四條的規定辦理的。
(二)締約國同時是一九五八年六月十日關于承認和執行外國仲裁裁決的紐約公約的參加國時,在締約國的關系中,本條第一款對紐約公約第五條第一款第五項,僅在按本條第一款規定撤銷裁決的情況下,予以限制。
Article X Final Clauses
1. This Convention is open for signature or accession by countries members of the Economic Commission for Europe and countries admitted to the Commission in a consultative capacity under paragraph 8 of the Commission's terms of reference.
2. Such countries as may participate in certain activities of the Economic Commission for Europe in accordance with paragraph 11 of the Commission's terms of reference may become Contracting Parties to thisConvention by acceding thereto after its entry into force.
3. The Convention shall be open for signature until 31 December 1961 inclusive. Thereafter, it shall be open for accession.
4. This Convention shall be ratified.
5. Ratification or accession shall be effected by the deposit of an instrument with the Secretary-General of the United Nations.
6. When signing, ratifying or acceding to this Convention, the Contracting Parties shall communicate to the Secretary-General of the United Nations a list of the Chambers of Commerce or other institutions in their country who will exercise the functions conferred by virtue of Article IV of this Convention on Presidents of the competent Chambers of Commerce.
7. The provisions of the present Convention shall not affect the validity of multi-lateral or bilateral agreements concerning arbitration entered into by Contracting States.
8. This Convention shall come into force on the ninetieth day after five of the countries referred to in paragraph 1 above have deposited their instruments of ratification or accession. For any country ratifying or acceding to it later this Convention shall enter into force on the ninetieth day after the said country has deposited its instrument of ratification or accession.
9. Any Contracting Party may denounce this Convention by so notifying the Secretary-General of the United Nations. Denunciation shall take effect twelve months after the date of receipt by the Secretary-General of the notification of denunciation.
10. If, after the entry into force of this Convention, the number of Contracting Parties is reduced, as a result of denunciations, to less than five, the Convention shall cease to be in force from the date on which the last of such denunciations takes effect.
11. The Secretary-General of the United Nations shall notify the countries referred to in paragraph 1, andthe countries which have become Contracting Parties under paragraph 2 above, of
(a) declarations made under Article II, paragraph 2;
(b) ratifications and accessions under paragraphs 1 and 2 above;
(c) communications received in pursuance of paragraph 6 above;
(d) the dates of entry into force of this Convention in accordance with paragraph 8 above;
(e) denunciations under paragraph 9 above;
(f) the termination of this Convention in accordance with paragraph 10 above.
12. After 31 December 1961, the original of this Convention shall be deposited with the Secretary-General of the United Nations, who shall transmit certified true copies to each of the countries mentioned in paragraphs 1 and 2 above.
1. This Convention is open for signature or accession by countries members of the Economic Commission for Europe and countries admitted to the Commission in a consultative capacity under paragraph 8 of the Commission's terms of reference.
2. Such countries as may participate in certain activities of the Economic Commission for Europe in accordance with paragraph 11 of the Commission's terms of reference may become Contracting Parties to thisConvention by acceding thereto after its entry into force.
3. The Convention shall be open for signature until 31 December 1961 inclusive. Thereafter, it shall be open for accession.
4. This Convention shall be ratified.
5. Ratification or accession shall be effected by the deposit of an instrument with the Secretary-General of the United Nations.
6. When signing, ratifying or acceding to this Convention, the Contracting Parties shall communicate to the Secretary-General of the United Nations a list of the Chambers of Commerce or other institutions in their country who will exercise the functions conferred by virtue of Article IV of this Convention on Presidents of the competent Chambers of Commerce.
7. The provisions of the present Convention shall not affect the validity of multi-lateral or bilateral agreements concerning arbitration entered into by Contracting States.
8. This Convention shall come into force on the ninetieth day after five of the countries referred to in paragraph 1 above have deposited their instruments of ratification or accession. For any country ratifying or acceding to it later this Convention shall enter into force on the ninetieth day after the said country has deposited its instrument of ratification or accession.
9. Any Contracting Party may denounce this Convention by so notifying the Secretary-General of the United Nations. Denunciation shall take effect twelve months after the date of receipt by the Secretary-General of the notification of denunciation.
10. If, after the entry into force of this Convention, the number of Contracting Parties is reduced, as a result of denunciations, to less than five, the Convention shall cease to be in force from the date on which the last of such denunciations takes effect.
11. The Secretary-General of the United Nations shall notify the countries referred to in paragraph 1, andthe countries which have become Contracting Parties under paragraph 2 above, of
(a) declarations made under Article II, paragraph 2;
(b) ratifications and accessions under paragraphs 1 and 2 above;
(c) communications received in pursuance of paragraph 6 above;
(d) the dates of entry into force of this Convention in accordance with paragraph 8 above;
(e) denunciations under paragraph 9 above;
(f) the termination of this Convention in accordance with paragraph 10 above.
12. After 31 December 1961, the original of this Convention shall be deposited with the Secretary-General of the United Nations, who shall transmit certified true copies to each of the countries mentioned in paragraphs 1 and 2 above.
第十條 〔最后條款〕
（一）凡歐洲經濟委員會成員國家，均可簽署或加入本公約，依該委員會規章第八條被承認為該委員會咨詢機構的國家也可簽署或加入本公約。
（二）凡按歐洲經濟委員會規章第十一條規定，可以參加該委員會一定活動的國家，在本公約生效后，也可以加入本公約，成為本公約的締約國。
（三）本公約在一九六一年十二月三十一日以前，公開接受國家簽署。在這以后，公開接受加入。
（四）本公約應經批準。
（五）批準或加入，將在向聯合國秘書長交存文件后生效。
（六）締約國在簽署、批準或加入本公約時，應向聯合國秘書長報送一份關于他們國家內商會或其他能履行本公約第四條所規定的商會會長職責的其他機構的名單。
（七）本公約的規定不影響本公約締約國之間締結的其他多邊或雙邊協定的效力。
（八）本公約在有本條第一款所述五個國家交存其批準或加入的文件后的第九十天起開始生效。若有的國家嗣后批準或加入，本公約將自該國交存其批準或加入的文件后的第九十天起，開始對該國生效。
（九）任一締約國可以通知聯合國秘書長，退出本公約。退出自秘書長收到退出通知之日起一年后生效。
（十）本公約如在生效之后，由于有國家退出，締約國減少到五國以下時，將從最后退出公約的國家的退出生效之日起，本公約停止生效。
（十一）聯合國秘書長應將下列事項通知本條第一款所述國家，以及按本條第二款規定成為締約國的國家:
1、按本公約第二條第二款規定提出的聲明;
2、按本條第一款第二款規定提出的批準或加入;
3、按本條第六款執行時報送來的名單;
4、按本條第八款規定本公約開始生效的日期;
5、按本條第九款規定的退出;
6、按本條第十款規定本公約的停止生效。
（十二）一九六一年十二月三十一日以后，本公約原本將交存于聯合國秘書長處，并由聯合國秘書長把證明無誤的副本，分送給本條第一款第二款的各個國家。
（一）凡歐洲經濟委員會成員國家，均可簽署或加入本公約，依該委員會規章第八條被承認為該委員會咨詢機構的國家也可簽署或加入本公約。
（二）凡按歐洲經濟委員會規章第十一條規定，可以參加該委員會一定活動的國家，在本公約生效后，也可以加入本公約，成為本公約的締約國。
（三）本公約在一九六一年十二月三十一日以前，公開接受國家簽署。在這以后，公開接受加入。
（四）本公約應經批準。
（五）批準或加入，將在向聯合國秘書長交存文件后生效。
（六）締約國在簽署、批準或加入本公約時，應向聯合國秘書長報送一份關于他們國家內商會或其他能履行本公約第四條所規定的商會會長職責的其他機構的名單。
（七）本公約的規定不影響本公約締約國之間締結的其他多邊或雙邊協定的效力。
（八）本公約在有本條第一款所述五個國家交存其批準或加入的文件后的第九十天起開始生效。若有的國家嗣后批準或加入，本公約將自該國交存其批準或加入的文件后的第九十天起，開始對該國生效。
（九）任一締約國可以通知聯合國秘書長，退出本公約。退出自秘書長收到退出通知之日起一年后生效。
（十）本公約如在生效之后，由于有國家退出，締約國減少到五國以下時，將從最后退出公約的國家的退出生效之日起，本公約停止生效。
（十一）聯合國秘書長應將下列事項通知本條第一款所述國家，以及按本條第二款規定成為締約國的國家:
1、按本公約第二條第二款規定提出的聲明;
2、按本條第一款第二款規定提出的批準或加入;
3、按本條第六款執行時報送來的名單;
4、按本條第八款規定本公約開始生效的日期;
5、按本條第九款規定的退出;
6、按本條第十款規定本公約的停止生效。
（十二）一九六一年十二月三十一日以后，本公約原本將交存于聯合國秘書長處，并由聯合國秘書長把證明無誤的副本，分送給本條第一款第二款的各個國家。
