外国资本投资在意大利：解决争议

2016年12月15日

意大利

仲裁
诉讼

有一些地方适合进行仲裁，而一些地方需要避免。这篇文章的目的不是赞扬前者或者是批评后者，而是想要说明为何瑞士是一个仲裁地的极佳选择。

仲裁条款有时候会被称为 “午夜条款”。它们被称为“午夜条款”是因为它们往往是双方在试图敲定一份交易合同时谈判的最后条款。如果双方正在寻找一个好的争端解决机制或者在最后关头难以找到合适的折衷办法，那么在瑞士进行仲裁是一个很好的选择。为什么呢？接下来本文将介绍几个此举特别的优点。

第一点，瑞士在举办各种国际仲裁（包括特设的和机构的）上有悠久的传统。这个传统可以追溯到一百多年前。由于这些历史和经验，你将很容易接触到许多优秀的法律从业人员，包括律师和仲裁员。

第二点，瑞士在政治上是中立的，并且是许多国际组织（WTO世界贸易组织，WIPO国际知识产权组委会，IOC国际奥委会等）的所在地。这确保了瑞士对不同文化和价值观念的开放态度并且使其成为进行国际仲裁的好去处。

第三点，瑞士实体法为其用户提供了一个非常自由、明确和可预见的法律框架。因此，在瑞士进行的仲裁非常理想地结合了受利于瑞士实体法的法律选择条款。

第四点，很重要的是，瑞士提供了一个非常稳定的法律体系和一个优秀的法律框架。瑞士的国际仲裁法遵循一个有效的制度并且仅由18个非常简洁的条款组成。此外，瑞士司法机构在处理有关仲裁裁决的争议时采用非常友好的仲裁办法，并且只在特殊情况下加以干预。当只有一个争议时，这个争议会提交给瑞士最高法院——瑞士联邦最高法院。最高院不会审查判决的是非曲直，但是它将确保最基本的法律原则（公共政策）得到很好的执行。因此当事人不会有把争议提交州法院前的多步撤销诉讼成本。争议一般在六个月内会解决。

第五点，瑞士在旅行准入、酒店、安全、法庭报告和翻译需求方面都提供了重要的基础设施。

最后一点，在瑞士进行的仲裁给你提供了极大的灵活性。你可以采用所有主要仲裁机构的仲裁法，比如ICC国际商会、Swiss Chambers of Commerce瑞士商会、LCIA伦敦国际仲裁院、SCC斯德哥尔摩商会仲裁院、DIS德国仲裁机构、AAA美国仲裁协会、SIAC新加坡国际仲裁中心、HIAC休斯顿国际仲裁俱乐部、CIETAC中国国际经济贸易仲裁委员会或者采用特设规则，这将会为你的仲裁建立一个合适的基础。因为所有上述原因和更多其他原因，来自瑞士的仲裁裁决会有一个良好的声誉，并且在需要的情况下很容易在国际上被强制执行。

There is a number of dispute resolution mechanisms available for the disputes with the Chinese parties. Depending on bargaining power of the parties and few other circumstances, such as limitations of Chinese law, the dispute can be sometimes resolved outside of China. More frequently, however, the Sino-foreign disputes are resolved in China and this post offers a brief introduction to the methods available there .

As almost anything else in business, an optimal method for resolution of future disputes is worth of anticipating well in advance. Once there is a conflict, it is much more difficult for the parties to agree on the solution equally acceptable to both of them. There is a variety of options to choose from and each of them has its own advantages and disadvantages. Also, there is no “one size fits all” solution and each transaction as well as dispute should be approached individually. Of course, there is always is a default solution, which is going to state court in case the parties have not provided for any alternative mechanism, but this is not always the most optimal way to go.

Litigation

Chinese courts are commonly perceived by foreigners as rather undesirable scenario for dispute resolution. It is so due to the often mentioned problems, such as local protectionism of the Chinese courts or lack of their professionalism. However, in practice, this is not always true and especially the courts in the China’s well-developed regions, particularly in the biggest coastal cities are generally a safe harbor for disputes involving foreigners. The same holds true for the IP courts located in Beijing, Shanghai and Guangzhou. One needs to remember, however, that the jurisdiction of particular court depends on a number of factors, such as place of registration of the Chinese counterparty or place of performance of the contract and therefore, the Chinese top courts may not be the ones handling particular dispute in practice.

Arbitration

Arbitration is a common choice for foreign-related disputes in China. It happens so, because of a number of advantages of arbitration over litigation in such a context. To start with, China and the vast majority of the countries in the world are the parties to the New York Convention, which significantly streamlines the enforcement of foreign arbitral awards. There is no comparable treaty of that scale for the enforcement of state court judgements, what can cause practical problems if certain country does not have an agreement on judicial assistance with China and the enforcement of foreign court judgements is sought. Therefore, since the parties want money and not a piece of paper, the use of arbitration in the cross-border context can substantially improve the prospects for effective enforcement of arbitral award. Furthermore, in contrast to litigating in China, in arbitration English language can be used in proceeding and a party can be represented by a foreign counsel. In arbitration, the parties can also select arbitrators resolving their dispute and a foreign arbitrator is not an uncommon scenario in case of the Sino-foreign arbitration proceedings in China. The parties can also select a specific arbitration institution and rules applicable to the proceeding.

The China International Economic and Trade Arbitration Commission (CIETAC) and the Beijing Arbitration Commission (BAC) are one of the most frequently chosen arbitration institutions in China for the foreign-related disputes. Alternatively, if the circumstances of the case permit – the dispute can be taken outside of China and resolved, for instance, by the Hong Kong International Arbitration Centre (HKIAC) or the Singapore International Arbitration Centre (SIAC), which are fairly acceptable alternative choices for the Chinese parties.

Other options

One of the other methods popular in China is mediation. Mediation is typically faster, cheaper and increases the chances of preserving good relationship between the parties. However, one needs to remember that in order to mediate, the parties need to be willing to do so, since the role of mediator is to help the parties reach an agreement and not to ultimately decide their dispute. Furthermore, the product of mediation is a contract and so, the breach of mediation agreement typically equals to contractual breach.

One additional important tool frequently used in practice is engaging local lawyers for the purpose of negotiating with the Chinese party as soon as the dispute escalates. The lawyers can help the parties communicate and when the communication is impossible – they can prepare a document describing the claims and informing the Chinese party about the risk of undertaking further legal steps, such as staring court proceeding, what is made mainly for the purpose of brining the other party back to negotiation and finding a solution acceptable to both parties. This often helps save time and money, but it can be problematic if the other party ignores the actions of lawyer. Also, like in case of mediation, the problem lies in the enforcement of any agreement reached by the parties in the course of negotiation.

The main takeaways from this short post are the following:

Think about the dispute resolution mechanism in advance. There are quite many issues that need to be taken into consideration and there is no “one size fits all” solution. There might be the situations when going to the Chinese court makes perfect sense and there also might be the situations when it makes no sense at all. What is the best option for me in particular case? Which court can potentially have jurisdiction over my case? Does the country involved have a judicial assistance agreement with China for the purpose of enforcement? What should be the language of proceeding? Which arbitration institution to choose?
Think about hiring professionals right from the very beginning, preferably at the stage of negotiating and drafting agreements. Choosing an optimal solution for resolution of future disputes can help save a lot of time, money and energy. In case of dispute occurring already – act promptly. If the dispute escalates, think about what you can do to best preserve your rights. Should you apply for interim measures? Do you need to first negotiate before you can go for arbitration in case of multi-tier clauses? Which documents are needed to start the proceeding?

The author of this post is Monika Prusinowska.

General principles

There are a number of general contracting principles under Venezuelan contract law. These principles are mainly regulated by the Venezuelan Civil Code. General civil law principles like freedom to contract, capacity to contract, and formation are applicable under Venezuelan law. Contracts can be written or oral and, in general, no formal requirement for a contract to be enforceable and valid, the parties should however make sure that the signatories acting on behalf of another person or entity have authority to execute the contract.

Choice of Law and Jurisdiction

In general, the choice of foreign law by the parties as governing law for contracts is binding under Venezuelan law, provided that foreign law does not contrive essential principles of Venezuelan public policy. Collateral granted on assets located in Venezuela and other contracts relating to real estate located in Venezuela are governed by Venezuelan laws.

Choice of foreign jurisdiction is valid under Venezuela law. A foreign judgment rendered by a foreign court is enforceable in Venezuela, subject to obtaining a confirmatory judgment in Venezuela.

Such confirmatory judgment could be obtained from the Supreme Tribunal of Justice of the Republic in accordance with the provisions and conditions of the Venezuelan law on conflicts of laws, without a review of the merits of the foreign judgment, provided that: (a) the foreign judgment concerns matters of private civil or commercial law only; (b) the foreign judgment constitutes res judicata under the laws of the jurisdiction where it was rendered; (c) the foreign judgment does not relate to real property interests over real property located in Venezuela and the exclusive jurisdiction of Venezuelan courts over the matter has not been violated; (d) the foreign courts have jurisdiction over the matter pursuant to the general principles of jurisdiction of the Venezuelan Statute on Conflicts of Law (pursuant to such principles, a foreign court would have jurisdiction over Venezuelan entities if such entities submit to the jurisdiction of such foreign court, provided that the matter submitted to the foreign jurisdiction does not relate to real property located in Venezuela and does not contravene essential principles of Venezuelan public policy); (e) the defendant has been duly served of the proceedings, with sufficient time to appear in the proceedings, and has been generally granted with procedural guarantees that secure a reasonable possibility of defense; (f) the foreign judgment is not incompatible with a prior judgment that constitutes res judicata and no proceeding initiated prior to the rendering of the foreign judgment is pending before Venezuelan courts on the same subject matter among the same parties to litigation; and (g) the foreign judgment does not contravene the essential principles of Venezuelan public policy.

The submission by the parties of an agreement to arbitration in a country outside Venezuela would be binding in Venezuela. Venezuela is a party to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). Pursuant to the New York Convention, arbitral awards are enforceable in Venezuela without requiring a confirmatory judgment in Venezuela (exequatur) or a retrial or re-examination of the merits. However, the Venezuelan court in charge of enforcing the award can review the causes of nullity of awards contemplated in the New York Convention.

Enforcement

In practice, enforcement proceedings in Venezuela are generally lengthy, complex and cumbersome, and may be challenged (and therefore delayed) by the affected party on many legal grounds, and may be suspended or delayed. From our experience, an enforcement proceeding may take from several months to a few years, depending on the circumstances and complexity of the case.

In addition, a judgment or award for money issued by a foreign court or arbitration panel would likely be enforced in Venezuela only in bolivars at the then existing Cadivi exchange rate, and then the company receiving the bolivars would have difficulties in converting such bolivars into foreign currency as a result of the existing exchange controls.

In light of the above, counterparties of Venezuelan companies (whether public or private) generally take into account the assets of such companies located outside Venezuela as the real guarantee or support for the contractual obligations of such Venezuelan companies.

Contractual clauses allowing one party to unilaterally terminate a contract without judicial intervention in case of breach of the obligations of the other party may be unenforceable, unless the terminating party is the Venezuelan government or a Venezuelan state-owned company. As a general rule, termination for breach of the other party requires a declaration by the court or the arbitral tribunal (in case the contract contains an arbitration clause).

The author of this post is Fulvio Italiani

232/2016号法令提出了针对移居至意大利的税务居民的新型税务制度：

– 免除了所得税中意大利国外收入的部分

– 免除了继承税中意大利国外资产的部分

– 免除了房地产税中意大利国外资产的部分

– 只需支付10万欧元的替代税

主要特点：

2017年金融法中的所得税法提出了一条新规，即针对移居至意大利的税务居民制定了一条选择性税收制度。

新制度规定如下：

免除前五年的所有意大利国外收入所得税，除了由于出售满足一定要求参股¹的资本利得。（¹纳税人拥有达到一定数额要求的参股：若他持有至少2%拥有投票权的股份或5%上市公司资本；或至少20%拥有投票权的股份或25%非上市公司资本）。
免除IVIE（国外房地产税）和IVAFE（国外金融资产税）。
免除意大利国外资产的继承税。
每年只需支付10万欧元的替代税。

资格

根据意大利法律移居至意大利，并且在提交上述选择性税收优惠申请之前十年中的至少九年，没有出于税务目的居住在意大利的纳税人，有资格选择申请上述税收优惠。

如何申请

纳税人首先必须向意大利的税务机构提交一份裁定请求，以证明特别制度要求的存在。在得到意大利税务机关的肯定答复之后，纳税人有资格申请享受上述税务优惠政策。申请必须在“移居”发生的当年、纳税申报表的提交期限之内提交。纳税人必须向移居意大利前的最后（一个或多个）国家进行通知，意大利税务机构也会将相关信息传送给上述国家税务机构。

From 18 January 2017, the new European Regulation 655/2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters will enter into force.

The Regulation foresees in a procedure to seize bank accounts of your debtor in other EU Member States (except when your debtor is domiciled in United Kingdom or Denmark), without that the debtor is notified hereof. The debtor will only notice once the seizure is into force.

Such cross-border seizure can be obtained before the Courts of an EU Member State who would have jurisdiction on the merits of the case under the EU Regulation 1215/2012 (Brussels I bis).

The seizure can be requested before, during or even after the procedure on the merits of the case. The request has to be filed using a standard document.

To grant the request, the Court will have to examine 1) if there is urgency (periculum in mora) and 2) if there is on basis of the provided evidence enough reason to assume the Court will also decide in favor of the creditor in the proceedings concerning the merits of the case (fumus boni iuris). Although these principles are not unknown to national legislation, both will have to await the autonomous interpretation by the European Court of Justice.

The new EU Regulation 655/2014 is however not created to bully any unwilling debtor by filing preservation order after preservation order. The Regulation foresees 2 mechanisms to avoid such practices:

According to art. 12, the creditor can be required to provide a security when he has not obtained any judgment in favor yet;
The creditor will also receive a fixed delay in which he has to undertake a proceedings about the merits of the case.

The new European Regulation 665/2014 also foresees a mechanism where a creditor can request information about his debtor’s bank account(s) in a certain Member State.

Not unimportant, as the creditor needs to indicate the bank account number in his request for a transnational seizure (under Belgian national law, the indication of the name of the Bank would already be sufficient).

Art. 14 of the Regulation now foresees what one could call a bank account disclosure mechanism:

“Request for the obtaining of account information

Where the creditor has obtained in a Member State an enforceable judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim and the creditor has reasons to believe that the debtor holds one or more accounts with a bank in a specific Member State, but knows neither the name and/or address of the bank nor the IBAN, BIC or another bank number allowing the bank to be identified, he may request the court with which the application for the Preservation Order is lodged to request that the information authority of the Member State of enforcement obtain the information necessary to allow the bank or banks and the debtor’s account or accounts to be identified”.

In a few Member States (including Belgium), such disclosure mechanism is completely new. The Regulation leaves it up to the Member States how they will organize this new disclosure, by giving a few examples:

“Each Member State shall make available in its national law at least one of the following methods of obtaining the information referred to in paragraph 1:

(a) an obligation on all banks in its territory to disclose, upon request by the information authority, whether the debtor holds an account with them;

(b) access for the information authority to the relevant information where that information is held by public authorities or administrations in registers or otherwise;

(c) the possibility for its courts to oblige the debtor to disclose with which bank or banks in its territory he holds one or more accounts where such an obligation is accompanied by an in personam order by the court prohibiting the withdrawal or transfer by him of funds held in his account or accounts up to the amount to be preserved by the Preservation Order; or

(d) any other methods which are effective and efficient for the purposes of obtaining the relevant information, provided that they are not disproportionately costly or time-consuming.

Does this mean any creditor can just run to the Court and ask information?

No, some conditions apply:

the creditor needs to be in possession of an enforceable judgment;
there need to be reasons to believe the debtor holds bank accounts in this Member State.

Conclusion: it will be interesting to see how the Member States will apply this new mechanism. Whether it will be effective, will also depend on the interpretation of ‘reasons to believe the debtor holds bank accounts in this Member State’. This will probably be the key to the question if this will end the Pyrrhus decisions, where a creditor is accorded his claim but cannot find assets to seize.

The author of this post is David Diris.

意大利的商业纠纷可通过意大利法院得到有效解决（通过普通或简易程序）；或者在双方同意的情况下，通过仲裁解决。

法院进行初审需要约3至4年时间，二审需要约4至5年时间；而仲裁程序所需时间一般较短（约一年），它取决于双方约定条款情况以及当地的仲裁规则。

换言之，仲裁程序通常较快，尤其是当仲裁根据仲裁机构（例如米兰国际仲裁委员会）规则进行时。所以仲裁程序的费用高于法院程序的费用。

外国判决和国际仲裁裁决的强制执行

外国判决需要通过相应程序以在意大利得到承认和执行，程序取决于判决是否由欧盟成员国法院做出。

根据欧盟第1215/2012号条例、第44/2001号条例以及《布鲁塞尔公约》和《卢加诺二号公约》，由欧盟成员国做出的，或在该国强制执行的决定、判决或措施，若符合相应条件，则无需任何程序或强制声明，可自动在意大利司法管辖区得到承认。

对于由非欧盟成员国做出的判决，一系列涉及承认与执行民事案件判决的双边公约可作为法律依据。

意大利于1969年签署了关于承认和执行外国仲裁裁决的《纽约公约》（1958）。根据《纽约公约》条款规定下的意大利程序法，意大利承认外国仲裁裁决的约束力和强制性。

因此，若要在意大利执行外国仲裁裁决，则必须向另一方的注册地/居住地的上诉法院（若另一方注册地/居住地在意大利境内）或罗马上诉法院（若另一方注册地/居住地在意大利境外）备案。在此情况下，上诉法院只会监督裁决是否在形式上被执行，而不会涉及裁决中争议的内容。之后法院将颁布强制令，使仲裁裁决变成可强制执行的判决。