Cayman Islands: 法院强制仲裁中止清盘程序

Last Updated: 22 April 2019
Article by Nick Dunne, Andrew Gibson and Xia Li

Most Read Contributor in Cayman Islands, May 2019

在最近的中国 CVS (开曼群岛) 控股公司案中,开曼群岛法院("法院")的 Kwarley J 就仲裁裁决执行法(1997年修订)("FAAEL")第4条规定的强制暂停仲裁是否适用于清盘程序提供了一些有帮助的澄清。


背景
2018年10月,日本公司Family Mart China Holding Co.,Ltd(以下简称"呈请人")根据《开曼群岛公司法》(2018年修订版)(以下简称"公司法")第92(e)条之规定,以公正和公平的理由,申请将中国CVS(开曼群岛)控股公司(以下简称"公司")清盘。另一种选择是,申请人要求Ting Chuan(开曼群岛)控股公司("Ting Chuan")根据《公司法》第95(3)条向申请人出售其在公司的股份。Ting Chuan于2018年11月作出回应,寻求驳回申请,或寻找其他替代方案,要求根据FAELA第4条和/或法院的固有管辖权驳回或暂停申请。

FAAEL第4条规定:"如仲裁协议的任何一方,或通过其提出索赔的任何人,通过或在其之下提出索赔的任何人就协议事项在任何法院对协议的任何其他当事人提起任何法律诉讼,诉讼的任何一方均可在应诉后的任何时间及在提交任何状书或在法律程序中采取任何其他步骤前,可向法院申请暂停诉讼。除非法院确信仲裁协议无法律效力、无效或不能履行,或事实上双方当事人之间就商定提交的事项没有任何争议时,否则应作出暂停诉讼的命令。"

决议
Kawaley J拒绝驳回该申请,但同意了Ting Chuan根据FAAEL第4条提出的暂停诉讼申请,允许呈请人在仲裁裁决后,有权继续起诉该申请。

由于Kawaley J发现在呈请书中提出的指控与已修订和重述的股东协议("SHA")中的主题有关,而协议中包括了一条范围广范的强制仲裁条款,因此批准暂停诉讼。呈请人指清盘申请的事项是不可仲裁的,因为只有法院才能给予相关的法定救济,Kawaley J驳回了此论点并澄清了基础争议是否可仲裁以及是否只有法院才能给予除清盘外的其他法定救济是不同的问题。尽管呈请人引用Cybernaut Growth Fund LP(未报导,2013年7月23日,Jones J)一案以支持"清算令、监管令和清算人任命/撤职令作为类别救济......属于开曼法院专属管辖权"的主张,Kawaley J接受了Ting Chuan的观点,即本案可以与Cybernaut一案事实区分,因为在Cybernaut一案中并没有寻求清盘令。由于呈请书中包括了明确可分割出被仲裁法院按仲裁协议范围而审议的事项,此诉讼可暂停。 如呈请人在仲裁中成功,其将可(如适用) (a) 申请要求法庭批准继续进行清盘程序及修改呈请书的内容; 及 (b) 根据仲裁决定向法庭申请相关的救济, 理据为仲裁法院的决定确认了对公司失去信心的程度足以支持清盘或其他救济。

结论
正如Kawaley J所确定,FAAEL第4条的目的是"实施强有力的法律政策,即合同各方同意将一系列争端专门提交仲裁,则应根据其合同协议进行仲裁。"在本案中,呈请人提出如当事人寻求的最终救济只能由法院批准,该等事项并不可被仲裁,但并没有提交任何案例支持此论点。

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