To the High People's Court of Tianjin Municipality:

This is to acknowledge our receipt of your Instruction Request on the Application Filed by Tianjin Xianda Hotel to Vacate the Arbitration Award "[2003] China Economic and Trade Arbitration Commission Tianjin Branch, Arbitration, No. 364" (Jin Gao Fa [2005] No. 74). After discussion, we reply as follows:

After the Tianjin Arbitration Commission made an Arbitration Award "[2003] China Economic and Trade Arbitration Commission Tianjin Branch, Arbitration, No. 364" according to the arbitration clause in the Cooperation-Type Joint Operation Contract concluded between Tianjin Xianda Hotel ("Xianda Hotel") and Dayi Energy Co., Ltd., Xianda Hotel filed an application with the people's court to vacate the arbitration award on the grounds that the arbitral tribunal violated the statutory procedure in arbitration proceedings due to its refusal to accept the evidence provided by Xianda Hotel and incorrectly determined the nature of legal relationship, and the award results harmed the public interest. This case was a commercial dispute case involving foreign elements, and the award made by the Tianjin Arbitration Commission for that dispute was an arbitration award involving foreign elements. According to the provisions on arbitration involving foreign elements in the Civil Procedure Law of the People's Republic of China and the Arbitration Law of the People's Republic of China, the people's court has no right to conduct examination on the determination and award on nature of the legal relationship in this case which were rendered by the arbitral tribunal. The Tianjin Arbitration Commission Arbitration Rules did not require that the arbitral tribunal must admit all the evidence submitted by one of the parties concerned. In addition, the Xianda Hotel failed to provide evidence to show that the unadmitted evidence had any material impact on the arbitration award. The tribunal's refusal to admit the evidence was not able to serve as a reason for which a violation of the law was involved in the tribunal's arbitration proceedings. According to the provisions of Article 70 of the Arbitration Law of the People's Republic of China and Article 260 of the Civil Procedure Law of the People's Republic of China, this case involved no circumstances under which an arbitration award should be vacated in accordance with the law, and the Xianda Hotel's application should thus be dismissed.

August 11, 2005

天津市高级人民法院：

你院津高法[2005]74号“关于天津先达大酒店申请撤销[2003]津仲裁字第364号仲裁裁决一案的请示”收悉。经研究，答复如下：

天津仲裁委员会依据天津先达大酒店（以下简称先达大酒店）与大一能量株式会社签订的《协作型联营合同》中的仲裁条款作出[2003]津仲裁字第364号仲裁裁决后，先达大酒店以仲裁庭拒绝接受其提供的证据，程序违法；法律关系定性错误；裁决结果危害公共利益等为由申请人民法院撤销该裁决。本案系涉外商事纠纷案件，天津仲裁委员会就该纠纷所作出的裁决属于涉外仲裁裁决。根据《中华人民共和国民事诉讼法》和《中华人民共和国仲裁法》关于涉外仲裁的规定，人民法院对仲裁庭就本案法律关系性质所作的认定和裁决结果无权进行审查。《天津仲裁委员会仲裁规则》没有要求仲裁庭必须接受一方当事人提交的全部证据材料，先达大酒店亦未举证证明被拒绝接受的证据对裁决结果存在任何实质性影响，仲裁庭拒绝接受证据材料本身不能作为仲裁程序违法的理由。根据《中华人民共和国仲裁法》第七十条、《中华人民共和国民事诉讼法》第二百六十条的规定，本案不存在依法应予撤销的情形，先达大酒店撤销仲裁裁决的申请应当予以驳回。

此复。

二○○五年八月十一日