发布时间： Wed Nov 15 09:36:39 CST 2017 供稿人：黄瑞
国际商事仲裁案件中被申请人不答辩的情形时有发生。因开庭是昂贵的资源花费，如何运用程序令保障开庭审理效果，是值得关注的问题。笔者拟结合北京仲裁委员会 / 北京国际仲裁中心（北仲）的一宗国际商事仲裁案例，作简要讨论。
涉案合同为大宗矿产买卖合同，申请人为香港注册经营公司，被申请人为内地注册经营公司。仲裁请求为买卖合同欠款及利息损失。被申请人收到案件通知后，委托了代理律师，未提交任何答辩意见或证据材料。
该案适用国际商事仲裁普通程序审理。本案首席仲裁员为某知名香港籍国际仲裁员，笔者同为仲裁庭成员。针对上述情形，仲裁庭决定运用庭前程序令。
被申请人不答辩即开庭的问题。被申请人代理律师表示将出席庭审，但和解的可能性不大。此种情形下如果安排开庭，可能存在问题：第一，被申请人开庭时首次提出答辩意见，还可能提交证据材料，形成开庭突袭，使对方没有合理准备时间，造成对申请人的不公平。第二，如果申请人拒绝当庭对被申请人的观点和材料进行回应，要求延后或另行安排开庭，则造成发生额外费用和时间支出。第三，仲裁庭在庭前仅看到仲裁申请材料，不能大概知晓双方的争议事项从而有针对性地进行庭审准备。
庭前程序令的目的。仲裁庭采用庭前程序令，具体目的有二：一为促使双方当事人在庭前充分披露相关证据材料，证明案件事实及争议和主张的依据；二为充分告知双方当事人相关风险及后果，避免当事人因误解而错失或滥用程序权利。
两次庭前程序令。仲裁庭首次发出的程序令，要求双方当事人补充提交全部相关证据材料，按时书面质证；要求被申请人在截止期限内提交书面答辩意见和可能的仲裁反请求，并给予申请人针对可能的反请求的答辩机会。此后，申请人补充了证据材料，被申请人未提交任何材料。针对该种情形，仲裁庭随即再次发出程序令，明确指出：“仲裁庭希望提请被申请人注意以下两点：
（ 1 ）如果被申请人在开庭时只是准备口头陈述其立场或者反驳申请人的争议摘要DISPUTE DIGEST23 CBLJ ⁄ OCTOBER 2017 | 2017 年 10 月仲裁申请，而不准备提交任何相应的证据来证明口头陈述，那么，该口头陈述不大可能被采信；（ 2 ）如果被申请人在开庭时除了口头陈述，还会提交证据材料加以证明。那么，从程序公平的角度考虑，如果申请人反对这些证据材料被接受，那么仲裁庭将不会接受该些证据材料。除非被申请人能够证明在开庭时提交的证据材料只是在开庭的时候才能取得，而无法更早取得。”该程序令旨在使被申请人毫无歧义地知晓违反程序令的后果，并据此作出程序上的适度宽延，要求“如果被申请人有任何书面意见或证据材料，请在收到本通知后的七日内提交。仲裁庭将会在该七日的最后宽限期届满后继续推进仲裁程序。”
尊重当事人对程序权利的决定权。上述二次程序令发出后，被申请人依然未提交任何材料。鉴于仲裁庭已经“仁至义尽”地充分说明后果并给予程序宽限，为公平对待双方当事人并高效推进程序，仲裁庭随即安排开庭。被申请人在庭审中口头提出超过仲裁时效的答辩意见。仲裁庭注意到，申请人当庭发表否定性回应意见和详细依据。申请人就被申请人当庭首次答辩观点进行实体性反驳，属于其程序决定权的选择，仲裁庭予以尊重，在当次开庭中听取双方就此形成争议焦点的意见，并限定庭后仅就争议事项补充证据及发表意见。仲裁庭在开庭前，以两次程序令促使当事人充分披露证据，保障开庭效率。审理过程中，尊重当事人的程序决定权。经仲裁庭和北仲的共同努力，该案在庭后仅 30 天即高效作出裁决。仲裁庭在开庭前，以两次程序令促使当事人充分披露证据，保障开庭效率
It is not unusual to encounter a respondent reluctant or refusing to make a defence in an international arbitration.It deserves a discussion on the application of procedural measures for promoting efficiency of a hearing, as a hearing is very expensive. The author will present an international arbitral case of the Beijing Arbitration Commission/Beijing International
Arbitration Centre (BAC).
The dispute arose from a purchase contract for minerals between a Hong Kong company (the applicant) and a mainland company (the respondent). The applicant filed an arbitration claim against the respondent, requesting compensation for overdue debt and the loss of interest. The respondent, while receiving the arbitration notice and appointing its counsel for this case, did not submit any defence or relevant evidence material.
In accordance with the BAC arbitration rules, the ordinary procedure was applied and the arbitration tribunal (AT) comprised three arbitrators. An eminent international arbitrator based in Hong Kong was appointed as presiding arbitrator, while the author was one of the co-arbitrators. In considering the above-mentioned situation,the AT decided to issue a pre-hearing procedural order.
PRE-HEARING PROCEDURAL ORDER
Problems regarding hearing without respondent’s defence. In this case, the respondent’s counsel declared that they would attend the arbitral hearing and they had no intention of reaching any settlement with the applicant. Under this situation,if a hearing is arranged, problems faced may include the following:
1. It may be unfair for the applicant, since the respondent would be very likely to submit its defence and evidence very close to or even during the hearing, giving the applicant no time to prepare if it is required to provide answers during a hearing, resulting in an “ambush”.
2. It might delay the hearing or generate another hearing. The applicant would probably decline to respond to issues and evidence brought into the trial by the respondent in a prearranged hearing,and thus require a longer hearing or another hearing session, causing extra cost and time.
3. Without necessary information from both parties, the AT would have no general idea of what the parties were arguing about, or take necessary preparation for an efficient hearing beforehand.
Purpose of the pre-hearing procedural order. The reasons for the AT to make a pre-hearing procedural order are: (1) To push both parties to disclose evidence before the hearing, supporting factual issues and legal basis; and (2) to inform both parties about relevant risks and consequences,to avoid losing or abusing procedural rights due to misunderstandings.
Two pre-hearing procedural orders.In this case, the AT issued procedural order No. 1 requiring: (1) both of the parties to submit documents and other material on which they wished to rely as evidence, and to examine the other party’s materials in documentary forms in time accordingly; (2) the respondent to submit defence opinions in writing and, if any, counterclaims ahead of the deadline, allowing the applicant enough time to prepare a defence to potential counterclaims made by the respondent.The applicant then submitted supplementary evidence material, whereas the respondent still did not hand in any documents and evidence material.
In considering this situation, the AT issued another procedural order clearly indicating that the arbitral AT would like to draw the respondent’s attention to the following issues:
1. If the respondent merely relies on oral statements to show its stance and defence against the applicant without submitting evidence to support the statements before a hearing, those statements will not easily be accepted by the AT.
2. If the respondent does not submit evidence to support its oral statements until at the hearing, in considering the procedural fairness and the applicant raising objection, then the AT will not accept the evidence unless the respondent can prove that the evidence in question was only acquired at that time and was not available earlier.
The aim of this order was to inform the respondent about the consequences of disobeying the procedural order, but also to allow some extension. The order thus required that “should the respondent want to submit any written forms of opinion and evidence, please do so within seven days of receiving the notice. The AT will continue the arbitral proceeding after the expiry.”
Respecting procedure discretion of the parties. After issuing these two orders, the respondent still did not submit any material.Given that the AT had already clearly explained the consequences that might result from the respondent’s reluctance to co-operate, and allowed an extension of time for the respondent, in order to treat the parties fairly and process the dispute with efficiency, the AT then determined to open the hearing session.
The respondent, however, presented a defence based on the ground of periods of prescription (statute of limitations) during the hearing. As the AT noted,the applicant rebutted the defence with detailed legal bases and analysis, without any procedural objection. It was within the applicant’s discretion to respond to the respondent’s defence in the hearing session. The AT respected the applicant’s discretion. In the hearing, after allowing both parties to present their case, the AT then narrowed down their contentions, requiring both parties to only hand in material relevant to those contentions after that hearing session.
In this case, the AT had issued two procedural orders offering both parties opportunities to disclose evidence, ensuring the effectiveness and efficiency of the arbitral hearing. In the hearing, the AT respected the rights of both parties regarding procedural matters. The AT then made the award in 30 days after closing the hearing,with assistance from the BAC.
作者：中国通用咨询投资有限公司原总法律顾问、北京仲裁委员会 / 北京国际仲裁中心仲裁员黄瑞。
北仲仲裁秘书杨睿对英文内容亦有贡献
Audrey Huang is a former general counsel of China General Consulting & Investment,and also serves as an arbitrator at Beijing Arbitration Commission/Beijing International Arbitration Centre (BAC/BIAC). BAC/BIAC’s case manager Yang Rui also contributed to this article.
