在Perkins Engines Company Limited v Mohammed Samih Hussein Ghaddar & Ghaddar Machinery Co. S.A.L [2018] EWHC 1500 (Comm)一案中，英国法院被要求针对在黎巴嫩提起的诉讼程序签发一份禁诉令。双方之间的相关争议解决条款规定英国法院对英国与黎巴嫩之间存在的“相互执行程序”具有管辖权，否则，争议将提交仲裁。法院认为上述措辞的一般和自然含义要求英国与黎巴嫩之间存在促进相互执行判决的双边或多边协议。因不存在此种协议，因此针对被申请人在黎巴嫩提起的诉讼程序，应准予签发禁诉令。

背景

英国的申请人和黎巴嫩的被申请人签订了一份在黎巴嫩分销汽油和柴油发动机的协议。该协议包含如下争议解决协议：

“This Agreement shall be deemed to be an agreement made in England and shall be read and construed and take effect in all respects in accordance with the Laws of England and the Parties hereby submit to the jurisdiction of the English Courts.

“本协议应当视为在英国签订，依据英国法理解、解释并在各方面发生效力，双方当事人受英国法院管辖。

To the extent there is no reciprocal enforcement procedures between the United Kingdom and the country in which the Distributor is located, the Parties agree to submit any dispute arising between them that cannot amicably be settled to arbitration. The arbitration shall be held in London, England …”

在英国与经销商所在国之间没有相互执行程序的情况下，双方当事人同意将未能友好解决的争议提交仲裁解决。仲裁应在伦敦进行……”

申请人声称被申请人违反协议在叙利亚进行销售，因此要求终止协议。被申请人依据黎巴嫩法律在黎巴嫩向申请人提起诉讼，该法律规定商业代表在其委托人非法终止代理协议时有权获得损害赔偿。同时，申请人向被申请人发送仲裁通知，目的是将争议提交英国仲裁。被告未参加仲裁。

申请人请求针对黎巴嫩的诉讼程序签发禁诉令，声称该诉讼违反了双方的仲裁协议。

裁定

禁诉申请的焦点在于“在英国与黎巴嫩之间没有相互执行程序的情况下”的含义。

申请人主张上述措辞的一般和自然含义要求英国和黎巴嫩之间存在促进相互执行判决的多边或双边协议。原告特别强调条款中以下措辞的使用（1）“之间”，因只有条约才能存在于国家之间；（2）“英国”，不同于英格兰（在条款的其他地方使用），英国不是一个司法管辖区，而是一个可以缔结条约的国家。

此外，申请人还主张，将“相互执行程序”解释为国际条约为双方提供一个准确、快捷且简单的方法，以确定其是否有义务仲裁或诉讼，并依据国际条约保证他们有明确的仲裁执行权。在合同订立时黎巴嫩不是《纽约公约》的缔约国，该事实并不重要，因为该公约可以在被申请人资产所在地的其他国家适用。这种解释方法与商业共识和合理性保持一致。

被申请人随后主张，条款仅要求两个国家之间有互惠程序，以确保在一个国家作出的判决可在另一个国家执行。被申请人认为这是英格兰普通法执行规则下的情况，也是一个黎巴嫩法律问题。他们还认为，一个剥夺当事人在其当地法院请求赔偿这一重要司法权利作为仲裁交换的条款必须明确且正当。该条款中没有提到“条约”，对条款的这种解释是对实际用语的“掩饰”。

法院采用FIiona Trust案确立的争议解决条款的解释规则（即法院应当通过查明理性商人的合理商业期待以实现商业目的），认为申请人的解释忠于措辞的一般和自然含义，而且与商业共识一致。

因为英国与黎巴嫩之间缺乏在黎巴嫩强制执行英国判决的条约，反之亦然。法院因此认为两国不存在“相互执行程序”，并就黎巴嫩诉讼程序授予临时禁诉令以支持仲裁协议。

评论

在解释“相互执行程序”要求各国通过双边或多边判决执行条约在国家之间达成协议时，法院设定了一个很高的门槛。在这种情况下，允许执行国外判决的各国国内程序的有效性都被认为不够充分。无论如何，根据事实，法官认为依据国内程序可能没有可用的执行互惠。

这一裁定可能具有更广泛的影响，尤其在英国脱欧的背景下。英国脱欧后已表明其有意继续履行从属于欧盟协议的《布鲁塞尔重建法规》中的安排，且无论如何将签署《关于承认和执行外国判决的海牙公约》（欧盟已是缔约方）。许多企业正考虑拟定“英国脱欧条款”，其中规定若根据约定的互惠制度，判决可在欧盟执行，则英国法院具有管辖权，否则，在英国的仲裁被指定为备用。 该判决对起草此类条款时应考虑的原则提供了一些指引。但是，合同中的任何此类“脱欧防护（Brexit-proofing）”条款都需引起特别注意，例如，鉴于《海牙公约》规定的专属管辖条款的要求，并应寻求具体的法律意见。

【英文全文】

Absence of a bilateral or multilateral treaty for enforcement of judgments between UK and Lebanon leads to English Court issuing anti-suit injunction in favour of arbitration

In the case of Perkins Engines Company Limited v Mohammed Samih Hussein Ghaddar & Ghaddar Machinery Co. S.A.L [2018] EWHC 1500 (Comm) the English Court was asked to issue an anti-suit injunction against court proceedings brought in Lebanon. The relevant dispute resolution clause between the parties provided for English court jurisdiction to the extent that “reciprocal enforcement procedures” exist between the United Kingdom and Lebanon, failing which, disputes were to be submitted to arbitration. The Court found that the ordinary and natural meaning of the words required the existence of a multilateral/ bilateral treaty facilitating reciprocal enforcement of judgments in the United Kingdom and Lebanon. Since no such treaty existed, an anti-suit injunction should be granted against the Respondents in respect of proceedings they had brought in Lebanon.

Background

The UK Claimant and Lebanon-based Respondents entered into an Agreement for the distribution of gas and diesel engines in Lebanon. The Agreement contained a dispute resolution agreement which stated:

“This Agreement shall be deemed to be an agreement made in England and shall be read and construed and take effect in all respects in accordance with the Laws of England and the Parties hereby submit to the jurisdiction of the English Courts.

To the extent there is no reciprocal enforcement procedures between the United Kingdom and the country in which the Distributor is located, the Parties agree to submit any dispute arising between them that cannot amicably be settled to arbitration. The arbitration shall be held in London, England …”

The Claimant alleged that the Respondents had made sales into Syria in breach of the Agreement and therefore sought to terminate it. The Respondents commenced proceedings against the Claimant in Lebanon under a Lebanese law that entitles a commercial representative to damages where their principal has unlawfully terminated the representation agreement. Meanwhile, the Claimant sent a Notice of Arbitration to the Respondents purporting to refer the dispute to arbitration in England. The Respondents did not take part in the arbitration.

The Claimant sought an anti-suit injunction in respect of the Lebanese proceedings, alleging that it was commenced in breach of the arbitration agreement between the parties.

The Decision

The focus of the anti-suit application was on the meaning of the words “to the extent there is no reciprocal enforcement procedures between the United Kingdom and [Lebanon]”.

The Claimant contended that the ordinary and natural meaning of these words required the existence of a multilateral or bilateral treaty facilitating the reciprocal enforcement of judgments in the United Kingdom and Lebanon. The Claimant laid special emphasis on the use in the clause of the words (1) “between”, since only a treaty can exist between countries, and (2) “United Kingdom”,since the UK, unlike England (which is used elsewhere in the clause) is not a legal jurisdiction, but a country that can enter into a treaty. Further, it was contended by the Claimant that interpreting “reciprocal enforcement procedures” to mean international treaties provided the parties with a certain, speedy and simple means to determine whether they are obliged to arbitrate or litigate, and guaranteed them clear enforcement rights prescribed by an international treaty.  The fact that Lebanon was not party to the New York Convention at the time of entry into the contract was not significant since it would have applied in many other countries where the Defendant had assets. This approach would be consistent with business common sense and reasonableness.

The Respondents, in turn, claimed that the clause merely required reciprocity of procedures in both countries that would ensure that judgments delivered in one country would be enforceable in another. They argued that this was the case under the common law enforcement rules in England, and also as a matter of Lebanese law. It was also argued that a clause ousting a party’s important judicial right to sue for compensation in their local courts in exchange for arbitration needed to be clear and justified. The term “treaty” was mentioned nowhere in the clause and interpreting it into the clause would be a “gloss” over the actual text.

The court adopted the rules of interpretation in the context of dispute resolution provisions laid down in Fiona Trust   (i.e. that the court should give effect to the commercial purpose by ascertaining the reasonable commercial expectation of rational businessmen) and held that the Claimant’s interpretation was true to the ordinary and natural meaning of the words and also was consistent with commercial common sense.

Since no treaty for enforcing English judgments in Lebanon and vice versa existed between the UK and Lebanon it was held that there are no “reciprocal enforcement procedures” and an interim anti-suit injection was granted with respect to the Lebanese proceedings in support of the arbitration agreement.

Comment

In interpreting “reciprocal enforcement procedures” to require agreement at a state-to-state level by way of a bilateral or multilateral treaty for enforcement of judgments, the court has set a high threshold. The availability of domestic procedures within either country which would allow for the enforcement of foreign judgments were not considered sufficient in this context. In any event, on the facts the judge considered that there would likely have been no reciprocity of enforcement available under such domestic procedures.

This decision also has potentially wider implications, particularly in the context of Brexit. Post-Brexit, the UK has indicated its intention to continue arrangements akin to those under the Brussels Recast Regulation subject to EU agreement, and will in any event sign the Hague Convention on the Recognition and Enforcement of Foreign Judgments (to which the EU is already party). A number of businesses are considering “Brexit clauses” which provide for English court jurisdiction where judgments would be enforceable in the EU under an agreed reciprocal regime, failing which, English-seated arbitration is designated as the fallback. The judgment offers some guidance on the principles to consider when drafting such clauses. However, particular care is needed in any such “Brexit-proofing” of contracts, for example given the requirement of an exclusive jurisdiction clause under the Hague Convention, and specific legal advice should be sought.

By Andrew Cannon

来源： 临时仲裁ADA，不代表本会意见