Beijing Kang Wei Pharmaceutical Consultation Centre Co. Ltd. v. Asia Medical Resources Development (Holdings) Limited

 

Cite as: Beijing Kang Wei Pharmaceutical Consultation Centre Co. Ltd. v. Asia Medical Resources Development (Holdings) Limited, The Supreme People’s Court (19 December 2012), in Fan Yang, Foreign-related Arbitration in China: Commentary and Cases, Part IV

Case identification

  • Date of Decision: 19 December 2012 

  • Court:

    • The Supreme People’s Court

    • The Higher People's Court of Beijing

  • Arbitral Tribunal:

    • N/A

  • Case number / Docket number:

    • No. 57 of the Fourth Civil Tribunal of the Supreme People’s Court [2012]

    • No. 352 of the Higher People’s Court of Beijing [2012]

Classification of issues present

  • Application of the New York Convention: No

  • Key PRC law provision(s) at issue: Articles 9 and 70 of <Arbitration Law of the People’s Republic of China>; Paragraph 1, Article 258 of the <Civil Procedure Law of the People’s Republic of China>

  • Case(s) cited: No. 32 of the Fourth Civil Tribunal of the Supreme People’s Court [2010]

Descriptors: Arbitral award; Finality of arbitral award; No review of substantive decisions; Disputes already decided in another arbitral award; Arbitrability; Public policy; Social public interest  

 

Beijing Kang Wei Pharmaceutical Consultation Centre Co. Ltd. v. Asia Medical Resources Development (Holdings) Limited 

An application to annul a foreign-related CIETAC Beijing arbitral award was refused. In its Report to the Supreme People’s Court, the Higher People's Court of Beijing was of the view that the arbitral award should be annulled on the ground that it dealt with an issue that had already been decided in another arbitration proceeding and that it violated the finality principle of arbitration. In its Reply, the Supreme People's Court disagreed and found that the disputes in the two arbitration proceedings were not the same; and that the current arbitral award should not be annulled. In particular, the Supreme People’s Court found that the lower courts had in effect improperly reviewed the merits of the substantive decision of the arbitral award in question.

Case text (English translation)

(19 December 2012 No. 57 of the Fourth Civil Tribunal of the Supreme People’s Court [2012])

 

The Higher People's Court of Beijing:

Your court’s <Request on instructions on Beijing The applicant Pharmaceutical Consultation Centre Co. Ltd.’s application to set aside an arbitral award rendered by the China International Economic and Trade Arbitration Commission> No. 352 of the Higher People’s Court of Beijing [2012], submission has been received. Upon deliberation, our reply is as follows:

This case is an application to set aside an arbitral award rendered by an arbitration institution in the People’s Republic of China, and so adjudication shall be made pursuant to Article 70 of the <Arbitration Law of the People’s Republic of China> and Paragraph 1, Article 258 of the <Civil Procedure Law of the People’s Republic of China>.

According to the facts stated in the Request on Instructions submitted by your court, the arbitration requests of Beijing Kang Wei’s, Pharmaceutical Consultation Centre Co. Ltd. in arbitration case No. 268 of the China International Economic and Trade Arbitration Commission (Arbitration case No. 268) were different from the applicant’s arbitration requests in this case. The disputes concerning the two arbitration cases were not the same. Pursuant to Paragraph 1, Article 9 of the <Arbitration Law of the People’s Republic of China> and Article 43 (8) of the <Arbitration Rules of the China International Economic and Trade Arbitration Commission> applicable to the determination of the arbitral award in question, the system of a single and final award shall be interpreted as “if a party applies for arbitration to an arbitration commission or institutes an action in a people‘s court regarding the same dispute after an arbitration award has been made, the arbitration commission or the people‘s court shall not accept the case.” Nevertheless, since the disputes to be arbitrated by the arbitration institution here were different from the previous Arbitration case No. 268, the arbitration institution’s acceptance of this case was therefore not in violation of the “single and final award” principle. Your court’s holding that the arbitral award in question’s confirmation of the effectiveness of the relevant contract, and the people’s court’s decision previously in force and the determination of Arbitral Award No. 268 was in violation of the “single and final award” principle and so shall be set aside is a de facto review of the correctness of the substantive outcome of the arbitral award in question. Therefore, the holding violated the principle that only procedural review is allowed and lacked legal basis.

Summarizing the above, your court’s holding that the arbitral award in question was in violation of the “single and final award” principle and so shall be set aside and is not established.

It is so replied.

Enclosed:

Request on instructions on Beijing Kang Wei Pharmaceutical Consultation Centre Co. Ltd.’s application to set aside an arbitral award rendered by the China International Economic and Trade Arbitration Commission

(16 November 2012 No. 352 of the Higher People’s Court of Beijing [2012])

 

The Supreme People’s Court:

 

The First Intermediate People’s Court of Beijing (First Intermediate Court) accepted Beijing The applicant Pharmaceutical Consultation Centre’s application to set aside Arbitral Award No. 0181 (Award No. 181) rendered by the China International Economic and Trade Arbitration Commission (CIETAC). The court proposed setting aside the Arbitral Award and requested our court’s instructions. Upon deliberation, our court hereby reports the followings:

 

I. The parties

Applicant: (Arbitration applicant): Beijing Kang Wei Pharmaceutical Consultation Centre Co. Ltd. Domicile: Room 701, Building No. 1, 9 Chegongzhuang Avenue (Desheng), Xicheng, Beijing.

Legal Representative: Wang Peizhou, Chairman of the company.

Respondent: (Arbitration Respondent): Asia Medical Resources Development (Holdings) Limited. Domicile: Tropic Isle Building, Road Town, Tortola, British Virgin Islands. Actual place of business: Room 2405, Universal Trade Centre, 3 Arbuthnot Road, Central, Hong Kong Special Administrative Region, the People’s Republic of China.

Legal Representative: Jiang Zhongyuan, Director of the company.

 

II. Reasons for setting aside the arbitral award and defence

(1) The application from Beijing Kang Wei Pharmaceutical Consultation Centre Co. Ltd. (The applicant)

The applicant, Beijing Kang Wei Pharmaceutical Consultation Centre Co. Ltd made an application requesting the setting aside of Award No. 181 by the CIETAC, due to disputes arising from the operation of Beijing International Medical Centre Co. Ltd. (Medical Centre) between the applicant and Asia Medical Resources Development (Holdings) Limited, the respondent, two arbitration applications had been made to the CIETAC. On 7 September 2006, the CIETAC rendered Arbitral Award No. 268 (No. 268 of the China International Economic and Trade Arbitration Commission) (Award No. 268), ruling that the Supplementary Agreement signed between the applicant and the respondent dated 23 December 1999 is valid and enforceable, and so the parties shall perform the agreement accordingly. The respondent shall pay the applicant contract profits in arrears (for the 6-month period between February to August 2003) amounting to RMB¥ 675,500.00. Subsequently due to the respondent’s default on other contracting payments, the applicant made another arbitration application based on the contents of the Award No. 268, demanding the respondent’s payment for the contracting fees incurred between 8 August 2003 and 7 November 2009. The CIETAC rendered Award No. 181, ruling that the Supplementary Agreement was ineffective. The commission dismissed the submission that the respondent shall pay other contract profits.

Pursuant to Article 9 of the <Arbitration Law of the People’s Republic of China>, a system of a single and final award shall be practiced for arbitration. If a party applies for arbitration to an arbitration commission or institutes an action in a people‘s court regarding the same dispute after an arbitration award has been made, the arbitration commission or the people‘s court shall not accept the case. In Award No. 268, the CIETAC clearly confirmed the validity and enforceability of the Supplementary Agreement, and the Award had been effective, having res judicata effect. Therefore, the issue concerning the effectiveness of the Supplementary Agreement shall not be examined again in Award No. 181. The CIETAC had no authority to make a ruling regarding the issue. The CIETAC’s contradictory ruling based on the same agreement and facts generated huge economic losses to the applicant, and so the applicant requested that the people’s court to set aside Award No. 181.

During trial in the First Intermediate Court, the applicant made the following supplementary submissions as to the grounds supporting setting aside of the Award. Firstly, the arbitration procedures were not in conformity with the arbitration rules. Article 43 of the Arbitration Rules of the CIETAC stipulates that the award shall be final and binding to the parties. Award No. 268, which confirmed the validity and enforceability of the Supplementary Agreement, had been legally effective. However, the CIETAC’s ruling that the Supplementary Agreement was ineffective should be considered a repeat trial over the issue of the effectiveness of the agreement, in violation of the regulations from the Arbitration Rules. Therefore the condition provided in Article 258 of the <Civil Procedure Law> that “the procedure for arbitration was not in conformity with the rules of arbitration” had been met; Secondly, Award No. 181 was in violation of the public interests of the society. Prior to the rendering of Award No. 181, in Judgment No. 245 of the Higher People’s Court of Beijing, the Higher People’s Court of Beijing had affirmed the legality and validity of the Supplementary Agreement and ruled that the agreement was currently effective. The ruling in Award No. 181 that the Supplementary Agreement was ineffective negated the court decision currently in force, damaging the judicial authority of the people’s courts, violating public interests. Therefore, Award No. 181 shall also be set aside pursuant to Paragraph 2, Article 258 of the <Civil Procedure Law>.

 

(2) The respondent’s defence submitted

From The respondent’s defence submitted it was argued that (1) Award No. 181 did not constitute situations where the arbitration institution has no authority over the dispute governed by the Chinese <Arbitration Law>, and so the CIETAC had jurisdiction over the case. The conditions supporting setting aside of arbitral awards provided in the <Arbitration Law> and <Civil Procedure Law> of People’s Republic of China did not exist in Award No. 181. (2) Award No. 181 and Award No. 268 did not constitute ne bis in idem, the applicant shall not make an application to set aside the foreign-related arbitral award relying on this ground. In addition, the ground is not a valid ground stipulated by the law. Since outstanding contracting fees claimed by the applicant in the two arbitration cases were incurred in different stages of the performance of the agreement on contract operation, the claims shall be regarded as different facts. Considering this argument, the two arbitration cases did not constitute ne bis in idem. During the hearing for Award No. 181, the respondent had submitted defence, relevant grounds and legal authorities to support its argument that the Supplementary Agreement was ineffective. The arbitral tribunal had made a correct decision holding that the agreement was ineffective pursuant to the relevant law and facts. In Award No. 268, the respondent’s did not notice the issue regarding the effectiveness of the agreement, and no confirmations had been made by the arbitral tribunal. The ruling in Award No. 181 concerning the effectiveness of the agreement shall not be undermined merely by considering a prior erroneous court judgment. The arbitral tribunal shall actively determine the effectiveness of the agreement in question. Its ruling on the effectiveness of the Supplementary Agreement different from the ruling in Award No. 268 yet in conformity with the relevant legal provisions was due to the arbitral tribunals’ difference in understanding of the relevant facts. The Award did not violate relevant legal regulations, and did not constitute ne bis in idem. Therefore, the court shall not interfere with the Award. Summarizing the above, regarding Award No. 181, the conditions supporting setting aside of arbitral awards had not been met. Therefore, the applicant’s application to set aside the award shall be dismissed.

The respondent submitted the following defence in response to the applicant’s supplementary submissions supporting its application to set aside the award, the system of a single and final award as stipulated in Article 9 of the <Arbitration Law> refers to the principle that if a party applies for arbitration regarding the same dispute, the arbitration commission or the people‘s court shall not accept the case. This provision is equivalent to the principle of ne bis in idem, which focuses on the same case containing identical facts, grounds and matter requested. This case did not fall under the definition of “same dispute” as stipulated in Article 9 of the <Arbitration Law>. For every case, the validity of the contract in dispute shall be determined. Prior judgments ruling that a contract is valid and effective do not necessary mean that the contract shall be valid and effective in all subsequent cases. The arbitral award was not in violation of public interests and the arbitration procedures did not violate the rules of arbitration. The two court judgments submitted by the applicant also failed to overrule the decisions made in Award No. 181. The confirmation of the validity of the agreement in the two judgments was also erroneous. This case shall be tried pursuant to the grounds for setting aside awards provided in Article 258 of the <Civil Procedure Law>.

 

III. Facts relevant to the case and awards

(1) Basic facts

In January 1993, a joint-venture contract was signed between Chinese Health Equipment Import and Export Co. Ltd. and International SOS Ltd. for the establishment of a medical centre. Each party would hold 50% of the shares of the joint venture. In April 1993, the medical centre was incorporated through industrial and commercial registration. The newly-formed enterprise was a Sino-foreign joint venture enterprise.

In June 1993, the original parties of the joint venture had transferred their shares to the parties in this case respectively. In July 1993, the transfer had been approved by the relevant authorities. On 23 December of the same year, the applicant and the respondent had concluded a Supplementary Agreement (the Contract in question), stipulating that the respondent shall be a joint-venture enterprise. The content of the Supplementary Agreement was as follows: (1) The applicant agrees that the respondent shall appoint New Pioneer (International) Medical Centres Limited to exercise 50% of the shareholding rights in the Medical Centre on behalf of the applicant; (2) The respondent agrees to pay the applicant annual guaranteed contracting profits amounting to RMB¥ 1,350,000.00. The respondent shall pay the applicant RMB¥ 337,500.00 quarterly. The respondent shall operate the Medical Centre starting from 8 November 1999 over a period of 5 years; (3) The parties agree that if the profit for the year is less than RMB¥ 2,700,000.00, no other profits will be paid to the applicant as it would receive the guaranteed profits amounting to RMB¥ 1,350,000.00. If the profit for the year is more than RMB¥ 2,700,000.00, the parties agree that 80% of the surplus shall be used for repaying the capital paid in advance (The respondent had made payments in advance for the purposes of the expansion, renovation and purchasing necessary medical equipment). The remaining 20% shall be divided pro rata based on the parties’ shareholding (each party has 50% shareholding).

The Supplementary Agreement was not submitted for approval.

 

(2) Relevant judgments from the court

In May 2003, the applicant nominated Tian Min to be chairman of the Medical Centre, and the respondent accepted the nomination. Subsequently the applicant demanded holding a meeting of the board of directors, yet the respondent suggested that a shareholder's meeting should be convened in advance to discuss matters regarding the contract. In April 1994, Tian Min, representing the Medical Centre, authorized the centre’s staff to alter the original corporate seal kept in the Bank of China. The relevant changes had not been registered by the new chairman, Tian Min appointed by the applicant.

On 8 September 1994, the respondent made an application to the First Intermediate Court requesting the retrieval of the company’s corporate seal and certificate. On 20 December 2004, the court held that the Supplementary Agreement reflected the parties' true intentions. Its contents did not violate the law and shall be considered valid and effective. Relying on these grounds, the court ordered the applicant to return the certificate and seal of the Medical Centre (Judgment No. 9869 of the First Intermediate People’s Court of Beijing [2004], property ownership dispute). The applicant filed an appeal against the judgment. On 22 July 2005, the Higher People's Court of Beijing made a decision upholding the original decision. It was also held in the final decision that the Supplementary Agreement was valid and effective (Judgment No. 245 of the Higher People's Court of Beijing [2005])

 

(3) The first Arbitral Award (Arbitral Award No. 268)

Due to the respondent’s failure to pay contractual profits since February 2003, the applicant initiated arbitration proceedings on 18 March 2005, demanding termination of the Supplementary Agreement and payment of contracting profits totalled RMB¥ 675,500.00. The respondent submitted that it had performed in accordance with the Supplementary Agreement, emphasizing that the court judgment in effect had confirmed the validity of the Supplementary Agreement. The purpose of the applicant’s arbitration application was to defeat the judgment in force, and so the application should be dismissed.

The arbitral tribunal rendered an award on 7 September 2006 ruling that the Supplementary Agreement is valid. Secondly, reasonable justifications exist for the failure to pay contracting fees during SARS, and so the conditions for termination had not been met. Thirdly, no decision had been made concerning extension of the contracting period, and therefore the duration of the Supplementary Agreement shall extend automatically. Fourthly, SARS did not amount to force majeure, the respondent shall pay the contracting fees but not interests as it did not breach the contract. The respondent shall pay the contracting fees amounting to RMB¥ 675,500.00. The requests concerning termination of the Supplementary Agreement and payment of interests were dismissed. The Arbitrators were Li Fan, Zhang Lixia and Wang Yongyuan)

 

(4) The Arbitral Award in question (Arbitral Award No. 181 application to set aside pending decision)

3 months after the rendering of Arbitral Award No. 268, the applicant made another application for arbitration. It submitted that the payment of the contracting profits for the period February to August 2003 had been enforced through Award No. 268. However, the subsequent contracting profits were still owed by the respondent. Therefore the applicant made an arbitration application demanding payment of contracting profits for the 17 quarters between August 2003 and November 2009 (Note: since the Medical Centre was operated the applicant for the period October 2003 and August 2005, contracting profits for the period were excluded. The agreement expired on November 2009). Details of the request are as follows, contracting profits for the 17 quarters (RMB¥ 5,730,000.00) overdue fees (RMB¥ 320,000.00) and interests (RMB¥ 1,100,000.00), totalled RMB¥ 7,160,000.00.

The respondent submitted that the provisions regarding guaranteed profits in the Supplementary Agreement violated Article 4 of the    <Law of the People's Republic of China on Chinese-Foreign Equity Joint Ventures> that “the parties shall share the profits, risks and losses in proportion to their respective contributions” and shall be null and void. Considering that the Supplementary Agreement had not been submitted for approval, pursuant to the <Regulations for Contracted Operation of Chinese-Foreign Equity Joint Ventures>, the contractor shall sign a contract with the joint venture. Contracts on contracting profit between partners of the venture are not permitted to sign. Therefore the Supplementary Agreement was ineffective. Considering that the applicant failed to perform annual audits and verify the medical certificates in accordance with the Supplementary Agreement, The respondent suffered losses from its contracting operations. Therefore, the respondent made a counterclaim requesting that the applicant shall pay the respondent losses arising from contracting operations for the period between September 2005 and August 2007 amounting to RMB¥ 2,820,000.00.

The arbitral tribunal rendered an award on 29 April 2011, ruling that the Supplementary Agreement had been established and shall be classified as a joint-venture agreement on an enterprise's contract operation. The approval of contract operation of joint-venture enterprises agreements on an enterprise's contract operation belong to administrative licensing approval. Considering that the Supplementary Agreement had not been submitted for approval, it was ineffective. Both parties were in fault concerning this matter.

The <Law of the People's Republic of China on Chinese-Foreign Equity Joint Ventures> provides that the parties of the joint-venture agreement shall share the profits, risks and losses in proportion to their respective contributions on the capital. The Supplementary Agreement’s provisions guaranteeing payments despite the profit for the year is below RMB¥ 2,700,000.00 was in violation of relevant principles of distribution of profits in Sino-foreign joint ventures. In addition, the matters subject to the contract operation agreement were not approved. Therefore, the applicant’s request claiming the guaranteed profits shall not be accepted. Since the claim had been enforced, the parties were deemed to have consented so, and thus the amount shall not be returned. Treatments as to the outstanding profits pursuant to the Joint-venture Agreement and the Articles of Association of the enterprise: According to the financial statements, the enterprise recorded losses between 2004 and mid-2009 (except net profit amounting to RMB¥ 500,000.00 for two years). Pursuant to the principle of no distribution of profits in case of losses, the request claiming guaranteed profits shall not be supported for the financial years which the enterprise recorded a loss. Pursuant to the Supplementary Agreement, the applicant has the right to receive profits not less than RMB¥ 1,350,000.00 if the profits of the company is less than RMB¥ 2,700,000.00. The Company Law also stipulates that shareholders may agree not to be distributed with dividends based on the percentages of the capital contributed. Therefore for the financial years which the enterprise recorded a profit, the applicant may receive profits amounting to RMB¥ 520,250.00 in accordance with the Supplementary Agreement.

Regarding the respondent’s counterclaim, under the respondent’s management between 2005 and 2008, expenses amounted to 86.38% of the Medical Centre’s income. The loss was directly related with the Medical Centre’s operation costs and expenses. No evidence support the argument that the incurrence of heavy losses was due to the respondent’s failure to operate caused by the applicant. Therefore, the counterclaim shall not be supported.

The respondent shall pay profits from the contracting operation amounting to RMB¥ 520,250.00. Other arbitration requests and counterclaims shall be dismissed. The Arbitrators were Tong Yizhong, Wang Jun and Cui Jianyuan)

 

IV. Provisional Decision

The provisional decision of the First Intermediate Court is as follows:

(1) The Applicable Law governing this case

The respondent is a foreign enterprise and so the arbitral award in question was deliberated by applying foreign-related arbitration procedures by the CIETAC. Therefore, this case shall be reviewed pursuant to Article 70 of the <Arbitration Law> and Article 258 of the <Civil Procedure Law>.

 

(2) Whether the applicant’s application to set aside the arbitral award is established

1. Opinions regarding the applicant’s submission that the arbitration procedures violated the Arbitration Rules

Article 9 of the <Arbitration Law> stipulates that “a system of a single and final award shall be practiced for arbitration”. Article 43(8) of the Arbitration Rules stipulates that the Award shall be final and binding to the parties. Therefore, the “single and final award” principle is the cornerstone of the arbitration system of China. Non-compliance of the “single and final award” principle is therefore a serious violation of the fundamental arbitration procedure.

Here, regarding the issue concerning the validity of the Supplementary Agreement, the CIETAC confirmed the Agreement’s validity in its prior Award No. 268. The Award had been effective. Concerning this ruling, the Award No. 181 in question was a new decision concerning the issue. Considering that the Arbitration Rules clearly stipulates the “single and final award” principle, Award No. 181 constituted a re-trial of the issue regarding the validity of the Supplementary Agreement and so was in violation of the principles, which satisfied the conditions for setting aside of arbitral awards due to the arbitration procedure of the award violated the rules of arbitration. Apart from that, in <Reply regarding the request on instructions concerning the non-recognition of a Japanese Commercial Arbitration Award (Award No. 07-11 (Tokyo)> No. 32 of the Fourth Civil Tribunal of the Supreme People’s Court [2010], the Supreme People’s Court affirmed these principles. Therefore, the application of the applicant was supported by legal and factual grounds and shall be supported by the court.

 

2. Opinions regarding the applicant’s submission that the Arbitral Award was in violation of the public interests of the society.

Public interests of the society refer to interests with the general public as the subject matter, which are related to the fundamental interests of the society, such as laws and morality. Violation of the public interests of the society shall be represented by conducts violating the fundamental systems and standards of the Chinese Law, the basic values of social and economic livelihood, the fundamental moral standards of China. The determination of whether the award was in violation of the public interests of the society requires scrutiny on the substantive arbitral award. The public interests principle shall be applied with care. The Arbitral Award in question did not constitute violation on of the public interests of the Chinese society. Therefore, insufficient evidence was submitted by the applicant in its application regarding this point and so its submission shall not be accepted.

 

3. Opinions regarding the applicant’s submission that the CIETAC was not empowered to arbitrate

Paragraph 1 (4), Article 258 of the <Civil Procedure Law> provides that “the matters dealt with by the award fall outside the scope of the arbitration agreement or which the arbitral organ was not empowered to arbitrate”. From the provision, “the matters dealt with by the award fall outside the scope of the arbitration agreement” and “not empowered to arbitrate” have been provided separately. Thus, the <Civil Procedure Law> defines “not empowered to arbitrate” narrowly, meaning that the matters in dispute are not arbitrable. Pursuant to Article 2 and 3 of the <Arbitration Law>, contractual disputes and other disputes over rights and interests in property between citizens, Legal persons and other organizations that are equal subjects may be arbitrated, while marital, adoption, guardianship, support and succession disputes and administrative disputes that shall be handled by administrative organs as prescribed by law may not be arbitrated. Here, the applicant’s submission that the CIETAC made a re-trial on the effectiveness of the Supplementary Agreement in Award No. 181, and so the committee was not empowered to arbitrate. Considering that Award No. 181 concerns the parties’ disputes on the performance of the Supplementary Agreement, the matters in dispute were arbitrable did not give rise to a situation where the tribunal was not empowered to arbitrate. Therefore, the applicant’s submission shall not be accepted.

Summarizing the above, considering that the arbitration procedure of award no. 181 violated the Arbitration Rules, the award shall be set aside.

The provisional decision of our court:

Upon review and deliberation, our court agrees with the First Intermediate Court's opinion setting aside the Arbitral Award in question, with the following reasons: Although pursuant to the stipulations in Article 89 of the <Circular of the Supreme People's Court on the Issuance of the "Minutes of 2nd National Foreign-related Commercial Maritime Trial Work Meeting"> issued by the Supreme People's Court dated 26 December 2005 that the parties’ failure to make an application for approval satisfied conditions deeming the Agreement in question null and void, the prior court judgments and Award No. 268 held that the Agreement in question was valid. Pursuant to Article 9 of the <Arbitration Law>, “a system of a single and final award shall be practiced for arbitration” and Article 43(8) of the <Arbitration Rules of the China International Economic and Trade Arbitration Commission> that “the award shall be final and binding to the parties”, our court therefore proposes to affirm the First Intermediate Court’s decision to set aside Award No. 181.

Please reply whether the above opinions are correct.