Full title: 49 existing court cases on invalidness of arbitration agreement - The arbitration agreement beyond the scope of arbitration is invalid (11)
Case 39. The investment promotion agreement has the dual attributes of an administrative contract and a civil contract, and is not within the jurisdiction of the arbitration committee. The arbitration clause in the agreement should be invalid.
Case name: Baowei Group Co., Ltd., Pingyin County People's Government, etc. applied for confirmation of the validity of the arbitration agreement
Case number: (2020) Lu 01 Min Te 222
Reason for decision: The applicant Baowei Group is a limited company registered in the Hong Kong Special Administrative Region. This case is a case involving Hong Kong to apply for confirmation of the validity of the arbitration agreement. According to Article 18 of the Law of the China on the Application of Laws in Foreign related Civil Relations and Article 13 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Arbitration Judicial Review Cases, According to Article 16 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Arbitration Law of the China, the mainland law of the China should be applied to the confirmation of the validity of the arbitration agreement in this case.
Article 2 of the Arbitration Law of the China stipulates that contract disputes and other property rights disputes between citizens, legal persons and other organizations that are equal subjects may be arbitrated. Article 3 stipulates: "The following disputes cannot be arbitrated: (2) Administrative disputes that should be handled by administrative organs according to law." Article 17 stipulates: "In any of the following circumstances, the arbitration agreement shall be invalid: (1) The agreed arbitration matters exceed the scope of arbitration prescribed by law." In this case, Pingyin County County Government The "Pingyin Asia International Shoe City Project Cooperation Agreement" signed by the former Management Committee of Pingyin Industrial Park in Shandong and Baowei Group is an investment cooperation agreement that aims to accelerate regional economic development, fully leverage government functions in project planning, land transfer, and other aspects to agree on the rights and obligations of both parties in the process of attracting investment. The agreed content includes both project construction approval, land transfer, and compensation for expropriation; The planning of industrial parks and new rural communities, preferential policies and financial support, coordination of administrative functional departments to handle procedures, etc., also include liability for breach of contract, and have the dual attributes of administrative contracts and civil contracts. The arbitration agreement stipulated in this agreement is invalid.
Case 40. The agreement involved in the case belongs to the scope of administrative litigation, and if the arbitration clause stipulated in the agreement exceeds the arbitration scope stipulated by law, it should be deemed invalid.
Case name: Shandong Fuxiang Group Co., Ltd. and the People's Government of Fei County, Linyi City, Shandong Province applied for confirmation of the validity of the arbitration agreement
Case number: (2019) Lu 13 Min Te 136
Reason for adjudication: According to Article 2 of the Arbitration Law of the China, "Contract disputes and other property rights disputes between citizens, legal persons and other organizations with equal subjects may be arbitrated", the arbitration institutions accept disputes between equal subjects, and disputes arising from administrative agreements do not fall within the scope of arbitration institutions. According to the content of the "Franchise Agreement" involved in the case, it can be determined that this agreement was signed by the People's Government of Feixian County, Shandong Province (hereinafter referred to as "Feixian County People's Government") to fulfill administrative functions such as improving urban infrastructure, regulating urban household waste treatment, and strengthening market-oriented operation of urban household waste treatment. Shandong Fuxiang Group Co., Ltd. (hereinafter referred to as "Fuxiang Company") was granted the franchise rights to the urban household waste treatment plant in Feixian County. The content of this agreement reflects to varying degrees the position of the People's Government of Fei County as an administrative management agency in exercising administrative management powers over the involved projects; As a licensed operator of the involved project, Fuxiang Company not only enjoys contractual rights and fulfills contractual obligations, but also submits to the management and supervision of administrative authorities according to the agreement. The signing subject, purpose, and content of the franchise agreement in question all conform to the characteristics of administrative agreements and should be recognized as administrative agreements rather than civil and commercial contracts. Therefore, the disputes arising from the franchise agreement in question do not fall within the scope of arbitration institutions.
Although the Franchise Agreement involved in the case was signed in 2012, the time for Fuxiang Company to file an administrative lawsuit and the time for Feixian People's Government to file an arbitration is 2019, that is, the dispute between the two parties occurred after the implementation of the current Administrative Procedure Law of the China, and the relevant provisions of the current Administrative Procedure Law of the China apply to this case. According to Item 11, Paragraph 1, Article 12 of the Administrative Procedure Law of the China, the dispute between the two parties in this case is caused by whether to terminate the Franchise Agreement involved in the case and the consequences of the termination, which falls within the scope of administrative litigation.
In summary, the dispute between the parties involved in this case falls within the scope of administrative litigation. Although both parties have an arbitration clause, the arbitration clause exceeds the scope of arbitration stipulated by law and should be deemed invalid.