杨良宜国际仲裁中的证据处理.ppt

国际仲裁中的证据处理
杨良宜
争议解决针对的两个问题
Issue of Law (法律问题)
Issue of facts (事实问题)
法律问题
ISSUE OF LAW:
(i) Types of dispute (predominantly construction/ interpretation of contracts/documents).

Freedom of contract; Bingham J. in Pagnan SpA V. Feed Products Ltd (1987) 2 LLR 601: “The parties are to be regarded as masters of their own contractual fate.”
Lord Hobhouse in The “Star Sea”(2001 ) UKHL 1: “mercial and mercantile law of England … preferring the benefits of simplicity and certainty which flows from requiring those engaging merce to look after their own interests”.
法律问题(续)
Contractual obligations or promises are strict liability.
Limitation on freedom : (1) against public policy [Brown Jenkinson & Co. v. Percy Dalton (1957) 2 QB 621]; (2) Statutes [Hague Rules 1924/COGSO 1924/1971; Control of Exemption Clause Ordinance 1984; etc.]
法律问题(续)
English law does not recognize any general duty to act in good faith in the formation or performance of contracts – Walford v. Miles (1992) 2 AC 128.
No general duty to act in good faith in negotiation – Yeoman Row Management Ltd. v. Cobbe (2008) UKHL 55.
Pros and Cons to remain in negotiation.
法律问题(续)
Holman Construction Ltd. v. Delta Timber Co. Ltd. (1972) NZLR 1081; Box v. Midland Bank Ltd. (1979) 2 LLR 391; Yeoman Row Management Ltd. v. Cobbe (2008) UKHL 55.
Limitation in recoverable damages even if there is a cause of action (. tort) - Lord Scott in Yeoman Row: “But, unless the representation had e a term of the contract, no one, I think, would suggest the victim could claim to pensated for the loss of the expected profit. The tortuous damages recoverable for the deceit would be limited to consequential loss. How could the victim be entitled to a better result than if there were no contract at all ….”
法律问题(续)
Lord Steyn in “The Clifford Chance Millennium Lectures [2000]”: “Thus the continental systems recognize an overarching duty of good faith in the performance of contracts. mon law achieves similar results b