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CHINA PR 52
First Intermediate People’s Court, Shanghai, 29 June 2022, (2020) Hu 0104 Min Zhong No. 3346
(Dragan Kokotovic v. Shanghai Ju Sports Football Club Co., ... Read more
First Intermediate People’s Court, Shanghai, 29 June 2022, (2020) Hu 0104 Min Zhong No. 3346
(Dragan Kokotovic v. Shanghai Ju Sports Football Club Co., Ltd.)
CHINA PR 52
The Court held that a decision rendered by the Players’ Status Committee (PSC) of the international football association FIFA in respect of the termination of a professional coaching work contract was not an award within the meaning of Art. I of the New York Convention. It also found that the arbitration clause in the agreement between the parties did not exclude its jurisdiction. While it was valid under Swiss law, the lex arbitri chosen by the parties, it was inapplicable because it provided for arbitration if the FIFA did not have jurisdiction, and, in the present case, the FIFA PSC had accepted the dispute and issued a decision.
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
The court discusses the application of the Convention to awards rendered by permanent arbitral bodies (as opposed to ad hoc awards).
The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.