论外国商事仲裁中的律师送达

Study on the Layer's Service During Foreign Commercial Arbitrations

在外国商事仲裁开始前、仲裁进行的过程中及裁决申请执行时,基于当事人协议的约定、仲裁规则的规定或法院的授权等不同的原因,均可由律师送达相关的文书或通知。在英美法系的一些国家,律师的送达行为与仲裁员或仲裁机构、法院的送达行为具有同等效力。依据我国法律的规定,律师的送达行为属于私人行为,不具有司法权的性质。在仲裁开始前的律师送达行为,只要符合当事人合同约定即为有效送达;在仲裁进行过程中的律师送达行为,应依据仲裁所适用的规则对其效力进行判断;对在我国申请承认与执行程序中的律师送达行为,应依照我国法律之规定判断其效力。

Based on the agreement of the parties involved, the stipulation of arbitration rules or the authorization by the court,the relevant notices might be serviced by the lawyer before the arbitration, during the arbitration, and in applying for recognition and enforcement.In some countries of the Anglo-American law system,the lawyer’s service is supposed to have the same effect as the service of the arbitrator,the arbitral institution or the court.According to the Chinese laws,the lawyer’s service is defined as a personal act,which does not have the nature of j udicial power. The lawyer’s service to be performed before the arbitration should be valid as long as it accords with what the parties agree.During the arbitration,the effect of the lawyers’ service should be ascertained by the arbitral rules chosen by the parties involved.As to the validity of the lawyer’s service in the process of recognition and enforcement of foreign arbitral awards,it should be assessed in accordance with the provisions of the Chinese laws.