Liu Youliang and ICBC Yueyang Branch and Baling Company have not reached an arbitration agreement and are not bound by the arbitration clause in the contract.
It embodies the principle of arbitration voluntariness and the arbitration agreement system.
The parties to the case do not constitute the “succession” of the contract arbitration clause stipulated in Article 8 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Arbitration Law of the People’s Republic of China, nor the change of the contract subject stipulated in Article 9 of the above interpretation.
(hereinafter referred to as Baling Company) signed the Decoration Project Construction Contract, and ICBC Yueyang Branch contracted the overall decoration and renovation of its office building to Baling Company, At the same time, in Article 15.11 of the contract, it is agreed that “in case of any dispute arising from this contract, both parties shall first resolve it through negotiation, and if the negotiation fails, apply to the Yueyang Arbitration Commission for arbitration.” On September 10, 2012, Baling Company signed the Internal Project Responsibility Contract with Liu Youliang, and Baling Company contracted the project content and warranty of the overall renovation and renovation of the office building of Yueyang Branch of ICBC to Liu Youliang in a lump sum manner, And collect certain management fees and relevant deposits.
The actual constructor applies for arbitration according to the arbitration agreement between the Employer and the Contractor.
Liu Youliang constructed in the name of Baling Company.
On December 22, 2017, the Yueyang Arbitration Commission made a ruling of YZDZ [2017] No.
Article 26 of the Interpretation of the Supreme People’s Court on the Legal Issues Applicable to the Trial of Construction Contract Disputes in 2004 stipulates that the actual constructor can claim rights for the defendant and the contract letting party is only responsible for the actual constructor within the scope of the project payment, but the above content only stipulates the actual constructor’s right of action against the contract letting party and the scope of the contract letting party’s responsibility, It shall not be regarded as the basis for the actual constructor to invoke the arbitration clause in the Decoration Project Construction Contract.
In this case, Article 15.11 of the Decoration Project Construction Contract signed between ICBC Yueyang Branch and Baling Company agreed that “in case of any dispute arising from this contract, both parties shall negotiate first, and if the negotiation fails, apply to Yueyang Arbitration Commission for arbitration”.
ICBC Yueyang Branch applied to the Intermediate People’s Court of Yueyang City, Hunan Province to cancel the arbitration award.
On August 7, 2017, ICBC Yueyang Branch raised an objection to the arbitration jurisdiction on the ground that it and Liu Youliang did not reach an arbitration agreement.
Unless otherwise agreed, Liu Youliang has no right to invoke the arbitration clause in the Decoration Project Construction Contract between ICBC Yueyang Branch and Baling Company to claim rights against the parties to the contract.
On August 8, 2017, the Yueyang Arbitration Commission rejected the objection to the arbitration jurisdiction of Yueyang Branch of ICBC by decision YZDZ [2017] No.
The court held that the arbitration agreement was the agreement reached by the parties to voluntarily submit all or specific disputes arising or likely to arise between them concerning specific legal disputes, whether contractual or non-contractual, to arbitration.
As ICBC Yueyang Branch failed to pay the project payment as agreed, Liu Youliang applied to Yueyang Arbitration Commission for arbitration as the respondent of ICBC Yueyang Branch on July 4, 2017.
Therefore, the dispute between ICBC Yueyang Branch and Baling Company arising from the settlement and payment of project funds shall be settled through arbitration.
However, as the actual constructor, Liu Youliang is not a party to the Decoration Project Construction Contract signed between ICBC Yueyang Branch and Baling Company.
01 Brief introduction of the case On August 30, 2012, Industrial and Commercial Bank of China Limited Yueyang Branch (hereinafter referred to as ICBC Yueyang Branch) and Hunan Baling Construction Co., Ltd.
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The arbitration agreement is the basis for the arbitration institution to obtain jurisdiction, and the basis for the legitimacy and legitimacy of arbitration.
After the arbitration institution makes the arbitration award, the Employer requests to cancel the arbitration award, and the people’s court shall support it.
8.
Baling Company, as the subject of the Decoration Project Construction Contract, still exists and assumes corresponding rights and obligations.
696, ruling that ICBC Yueyang Branch should pay the project price and liquidated damages due to Liu Youliang.
To sum up, there is no arbitration agreement between ICBC Yueyang Branch and Liu Youliang, and the Yueyang Arbitration Commission has no legal basis for settling the dispute between ICBC Yueyang Branch and Liu Youliang by arbitration based on Liu Youliang’s application.
On July 23, 2013, ICBC Yueyang Branch and Baling Company signed the Supplementary Contract for the Construction of Decoration and Installation Works, and ICBC Yueyang Branch contracted the relevant works of carbon fiber reinforcement, waterproofing, base course decoration, external screen pipeline renovation, indoor demolition and non-entry into the final account to Baling Company.
