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China / 07 August 2017 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / 乌鲁木齐淄华投资管理咨询有限公司 (Urumqi Zihua Investment Management Consulting Ltd) v. 潍坊新立克（集团）有限公司破产管理人 (WeiFangXinLiKe Ltd Bankrupt Manager) / (2017)最高法执监166号
Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 07 August 2017 Parties 乌鲁木齐淄华投资管理咨询有限公司 (Urumqi Zihua Investment Management Consulting Ltd) v. 潍坊新立克（集团）有限公司破产管理人 (WeiFangXinLiKe Ltd Bankrupt Manager) Case number (2017)最高法执监166号 Source http://wenshu.court.gov.cn (China Judgements Online)
Languages Chinese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5185&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 18 December 2015 Parties 赛奥尔航运有限公司 (Seoil Shipping Co Ltd) v. LMJ公司 (LMJ International Ltd) Case number (2015) 民申字第3170号 Applicable NYC Provisions III Source http://wenshu.court.gov.cn (China Judgements Online)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4329&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 26 May 2015 Parties 洋马发动机（上海）有限公司v. 厦门豪嘉利商贸发展有限公司 Case number (2015) 民四终字第15号 Applicable NYC Provisions II | II(3) Source http://wenshu.court.gov.cn (China Judgements Online)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4366&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 12 October 2010 Parties DMT Limited Company (DMT S.A.) v. Chaozhou City Huaye Packing Materials Co., Ltd. and Chaoan County Huaye Packing Materials Co., Ltd. Case number [2010] Min Si Ta Zi No. 51 ([2010] 民四他字第51号) Applicable NYC Provisions V | V(1)(e) | V(1)(d) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 144-152 (People's Court Press, Vol. 2, 2010).
Languages English Summary DMT Limited Company (DMT S.A.) (DMT) and Chaozhou City Huaye Packing Materials Co., Ltd. (Chaozhou City) entered into a sales contract, which provided that any disputes were to be submitted to the International Chamber of Commerce (ICC) for arbitration pursuant to the applicable rules and laws of Singapore. A dispute arose and DMT filed for an arbitration with the ICC on 19 August 2004. An award was issued in favour of DMT on 27 July 2007. An addendum to the award was issued by the tribunal on 19 November 2007 changing the name of the respondent in the arbitration, Chaoan County Huaye Packing Materials Co., Ltd. (Chaoan County), from “Chaozhou City Huaye Packing Materials Co., Ltd.” to “Chaoan County Huaye Packing Materials Co., Ltd.”. DMT then applied for recognition and enforcement of the award against Chaozhou City and Chaoan County with the Chaozhou Intermediate People’s Court. Chaozhou City challenged the application on the grounds that it was not a party subject to the dispute whereas Chaoan County objected, among other things, to the application on the basis that the appointment of the presiding arbitrator did not conform to the parties’ agreement or the arbitration rules and the arbitration proceedings were not in accordance with the arbitration rules. The Chaozhou Intermediate People’s Court opined that Chaozhou City was not a party to the dispute and thus the application should be rejected under Article V(1)(e) NYC with respect to Chaozhou City. The court also opined according to Article V(1)(d) NYC that the award should be refused recognition and enforcement as to Chaoan County on the basis that the appointment of the presiding arbitrator did not conform to the parties’ agreement or the arbitration rules. The Chaozhou Intermediate People’s Court reported its opinion to the Guangdong Higher People’s Court for review. The Guangdong Higher People’s Court confirmed that the award should not be recognised or enforced in relation to Chaozhou City. In particular the court opined, inter alia, that Chaozhou City was not a party to the dispute. With respect to Chaoan County, the court opined that there were no grounds for refusing recognition or enforcement of the award. The Guangdong Higher People’s Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court confirmed that the award should not be recognised and enforced against Chaozhou City as it was not a party to the dispute and that the award should be recognised and enforced against Chaoan County as the court opined that there were no grounds for refusal established by Chaoan County. The court opined that the NYC applied to the review of the award, but made no reference to any specific provision of the NYC in its opinion. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=871&opac_view=6 Attachment (2)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 29 June 2010 Parties Japanese Shin-Etsu Co., Ltd. v. Jiangsu Zhongtian Technology Corp. Case number [2010] Min Si Ta Zi No. 32 ([2010] 民四他字第32号) Applicable NYC Provisions V | V(1)(d) | V(2)(b) Source Guide on Foreign-related and Commercial Trial, pp. 122-143 (People's Court Press, Vol. 2, 2010).
Languages English Summary Japanese Shin-Etsu Co., Ltd. (Shin-Etsu) and Jiangsu Zhongtian Technology Corp. (Zhongtian) entered into a long-term sale and purchase agreement, which was governed by Japanese law and provided that any disputes arising out of or in relation to the parties’ agreement were to be submitted to arbitration according to the rules of the Japan Commercial Arbitration Association (JCAA) in Tokyo. The agreement also stipulated that awards would be final and binding on both parties. A dispute arose between the parties and Shin-Etsu filed an arbitration with the JCAA in Tokyo on 12 April 2004. On 23 February 2006, an award was rendered in favour Shin-Etsu, who then filed an application for recognition and enforcement of the award before the Nantong Intermediate People’s Court (referred to as Award No. 04-05). The court opined that the award should be refused recognition and enforcement according to Article V(1)(d) NYC since the arbitral proceedings did not conform to the arbitration rules as agreed upon by the parties. Shin-Etsu filed another arbitration under the parties’ agreement with the JCAA on 22 August 2007. An award was rendered in favour of Shin-Etsu on 8 September 2008 (referred to as Award 07-11), who then applied for recognition and enforcement of the award before the Nantong Intermediate People’s Court on 6 November 2008. Zhongtian challenged the application on the grounds that (i) the award should be refused recognition under Article V(1)(d) NYC since it had re-adjudicated a dispute already decided in Award No. 04-05 contrary to the arbitration agreement, the arbitration rules and the principle of finality of awards; (ii) the tribunal applied the principle of ex aequo et bono without the express authority as required under the arbitration rules; (iii) it was not permitted to present its case since the tribunal did not grant the use of interpreters; (iv) the tribunal did not grant time for responses to altered claims in accordance with the arbitration rules; and (v) Award No. 07-11 violated Chinese public policy. The Nantong Intermediate People’s Court opined that the award should be refused recognition. In particular, the court opined that, under Articles V(1)(d) and V(2)(b) NYC, respectively, the arbitration proceedings were not in accordance with the parties’ agreement, the applicable law and the arbitration rules and the award violated Chinese public policy since the award inappropriately criticised a Chinese court’s opinion refusing recognition and enforcement of Award No. 04-05. The Nantong Intermediate People’s Court reported its opinion to the Jiangsu Higher People’s Court for review. The Jiangsu Higher People’s Court confirmed, inter alia, that the application should not be recognised under Articles V(1)(d) and V(2)(b) NYC. In particular, the court opined that the award violated the arbitration rules, inappropriately commented on a decision of a Chinese court and prejudiced Chinese public policy. The Jiangsu Higher People’s Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court confirmed that the award should not be recognised. In particular, the court opined that under to Article V(1)(d) NYC the arbitral proceedings in connection with the award did not conform to the parties’ agreement. The court did not consider the issue of whether the award violated Chinese public policy. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=876&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 18 May 2010 Parties Tianrui Hotel Investment Co., Ltd. v. Hangzhou Yiju Hotel Management Co., Ltd. Case number [2010] Min Si Ta Zi No. 18 ([2010] 民四他字第18号) Applicable NYC Provisions V | V(2)(b) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 94-99 (People's Court Press, Vol. 1, 2010).
Languages English Summary Hangzhou Yiju Hotel Management Co., Ltd. (Yiju) entered into two agreements for the franchise of a hotel chain with Tianrui Hotel Investment Co., Ltd. (Tianrui). A related agreement was also entered into between Yiju and an affiliate of Tianrui, SuBoAiTe (Beijing) International Hotel Management Co., Ltd. (SuBoAiTe), which was registered in China. In the agreements between Yiju and Tianrui, any dispute between the parties was to be submitted for resolution by a sole-arbitrator according to the Arbitration Rules of the London Court of International Arbitration (LCIA). A dispute arose between the parties when Yiju failed to pay fees pursuant to the agreements. On 21 November 2007, Tianrui file an arbitration with the LCIA, which issued an award in favour of Tianrui on 5 December 2008. Tianrui then filed an application for enforcement of the award in accordance with Article 267 of the Civil Procedure Law of the People's Republic of China with the Hangzhou Intermediate People's Court. Yiju objected to the application on the basis that (i) the agreements concluded by Yiju with Tianrui and SuBoAiTe violated Chinese law as well as Chinese public policy, and (ii) the applicable arbitration agreement was invalid for failing to specify the arbitration institution and the place of arbitration. In addition, Yiju launched a separate action before the Hangzhou Intermediate People's Court against SuBoAiTe arguing that the agreement between the two of them was invalid. With respect to the application for enforcement, the Hangzhou Intermediate People's Court opined that the award should not be enforced according to Article V(2)(b) NYC since it would conflict with the court’s decision to invalidate the agreement between Yiju and SuBoAiTe in the separate action. The Hangzhou Intermediate People's Court reported its opinion to the Zhejiang Higher People's Court for review. The Zhejiang Higher People's Court confirmed that the award should not be enforced pursuant to Article V(2)(b) NYC. In particular, the court opined that Tianrui and SuBoAiTe had intentionally separated the agreements amongst the two of them in an effort to by-pass Chinese regulations on the admission of foreign companies in the franchise business in violation of Chinese public policy. The Zhejiang Higher People's Court reported its opinion to the Supreme People's Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People's Court opined that the award should be recognised. In particular, the court opined that there was no ground for refusing recognition under Article V(2)(b) NYC since there had been no violation of Chinese public policy. The court also opined that the dispute between Yiju and SuBoAiTe arose under a different legal relationship and whether the conclusion of that dispute was consistent with the award in the present application was not a ground for refusal provided under Article V NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=816&opac_view=6 Attachment (2)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 08 December 2009 Parties Aiduoladuo (Mongolia) Co., Ltd. v. Zhejiang Zhancheng Construction Group Co., Ltd. Case number [2009] Min Si Ta Zi No. 46 ([2009] 民 四 他 字 第 46 号) Applicable NYC Provisions V | IV | II | I | V(1)(b) | V(1)(a) | II(2) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 87-93 (People's Court Press, Vol. 1, 2010).
Languages English Summary Aiduoladuo (Mongolia) Co., Ltd. (Aiduoladuo) and Mongolia Yaojiang Co., Ltd. (Mongolia Yaojiang) entered into a construction contract. Zhejiang Zhancheng Construction Group Co., Ltd., formerly known as, Zhejiang Yaojiang Construction Group Co., Ltd. (Zhejiang Zhancheng) was a guarantor to the agreement. In the construction contract, any disputes were to be submitted for resolution either before a court or in arbitration and Mongolian law governed the agreement. A dispute arose between the parties when Mongolia Yaojiang refused to perform its obligations under the agreement. Aiduoladuo filed for arbitration against Mongolia Yaojiang before the Mongolia National Arbitration Court (MNAC); however, because Mongolia Yaojiang could not be located, Aiduoladuo re-filed its arbitration against Zhejiang Zhancheng. On 1 August 2007, an award was rendered in favour of Aiduoladuo, who then applied to the Shaoxing Intermediate People's Court for recognition and enforcement pursuant to Article IV NYC. Zhejiang Zhancheng objected to the application on the grounds that (i) it had been incorrectly identified as a party in the dispute, in particular because it had no factual or legal connection to Mongolia Yaojiang and that its company stamp (which appears in the construction contract) was made fraudulently, (ii) the arbitration agreement, providing for both litigation before courts and arbitration, was null and void because it was ambiguous and conflicted with itself and (iii) it did not have proper notice of the arbitration proceedings. The Shaoxing Intermediate People's Court opined that the award should not be recognised. In particular, the court opined, according to Article V(1)(b) NYC and Article 269 (now Article 267) of the Civil Procedure Law, that there was no evidence to show that Zhejiang Zhancheng had received proper notice of the arbitration proceedings. The Shaoxing Intermediate People's Court reported its opinion to the Zhejiang Higher People's Court for review. The Zhejiang Higher People's Court confirmed that the award should not be recognised. In particular, the Zhejiang Higher People's Court opined, according to Article V(1)(b) NYC, that Zhejiang Zhancheng did not have proper notice of the arbitration proceedings. Furthermore, the court opined that the arbitration agreement was invalid under Chinese law since it had provided for both parties could submit their disputes before the People's Courts and arbitration. The court did not address the issue concerning the alleged fraud regarding the application of Zhejiang Zhancheng's company stamp to the construction contract. The Zhejiang Higher People's Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People's Court confirmed that the award should not be recognised. In particular, the court opined that Article I NYC applied to the review of the award. Pursuant to Article V(1)(b) NYC, the court opined that Zhejiang Zhancheng did not have proper notice of the relevant arbitral notices. In addition, the court opined that there was no ground for refusal under Article V(1)(a) NYC as the arbitration clause in the present application was valid. With respect to the allegation that the company stamp in the construction agreement did not belong to Zhejiang Zhancheng, the court opined that if this could be proved, then the court could refuse recognition and enforcement of the award under Article II(2) NYC as there would be no written agreement between the parties. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=835&opac_view=6 Attachment (2)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 02 September 2009 Parties North American Foreign Trading Corporation v. Shenzhen Laiyingda Co., Ltd., Shenzhen Laiyingda Technology Co., Ltd., Shenzhen Cangping Import & Export Co., Ltd., Shenzhen Light Industry Import & Export Co., Ltd. Case number [2009] Min Si Ta Zi No. 30 ([2009] 民四他字第30号) Applicable NYC Provisions V | V(2)(a) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 87-92 (People's Court Press, Vol. 2, 2009).
Languages English Summary North American Foreign Trading Corporation (NAFTC) and Shenzhen Laiyingda Co., Ltd., Shenzhen Laiyingda Technology Co., Ltd., Shenzhen Cangping Import & Export Co., Ltd., Shenzhen Light Industry Import & Export Co., Ltd. (collectively, the respondents) entered into a cooperation agreement to which a letter agreement was also later attached. The letter agreement was governed by New York law and provided that any disputes were to be submitted to arbitration in New York under the auspices of the American Arbitration Association (AAA) in accordance with New York law. A dispute arose between the parties and NAFTC filed for arbitration with the International Centre for Dispute Resolution (ICDR) in October 2004. An award was rendered in favour of NAFTC on 4 October 2005. NAFTC then applied for recognition and enforcement of the award with the Shenzhen Intermediation People’s Court. The respondents challenged the application claiming, among other things, that the award should not be recognised or enforced under Article V(2)(a) NYC and Chinese law since the tribunal did not abide by the arbitration rules when it granted an extension of time to NAFTC during the proceedings. The Shenzhen Intermediate People’s Court opined that the award should be recognised and enforced. In particular, the court opined that there had been no violation of the arbitration rules by the tribunal and that none of the grounds for refusal provided under Articles V(1) and V(2) NYC had been identified. The court further opined that the award did not violate China’s public policy. The Shenzhen Intermediate People’s Court reported its opinion to the Guangdong Higher People’s Court for review. The Guangdong Higher People’s Court confirmed that the award be recognised and enforced. In particular, the court opined that the arbitral tribunal had not violated the relevant arbitration rules and there were no grounds for refusing recognition or enforcement under Articles V(1) and V(2) NYC. The Guangdong Higher People’s Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court confirmed that the award should be recognised and enforced. In particular, the court opined that the arbitration procedure in the present application had been in accordance with the applicable arbitration rules and that there were no grounds for refusing recognition or enforcement of the award under Article V NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=844&opac_view=6 Attachment (2)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 02 September 2009 Parties Wu Chunying v. Zhang Guiwen Case number [2009] Min Si Ta Zi No. 33 ([2009] 民四他字第33号) Applicable NYC Provisions V | V(2)(a) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 97-100 (People's Court Press, Vol. 2, 2009).
Languages English Summary Wu Chunying's husband and Zhang Guiwen entered into an agreement to incorporate a limited liability corporation in Mongolia. This agreement provided that any dispute arising under the contract would be submitted to arbitration with the Mongolian National Arbitration Court (MNAC). During the operation of the company the husband of Wu Chunying passed away. On 3 November 2006, Wu Chunying filed a request for arbitration with the MNAC seeking, among other things, determination her ability to succeed to her husband's 50% share in the corporation. The arbitral tribunal accepted her request and ruled, inter alia, that according to the Civil Code of Mongolia that Wu Chunying was the legal successor to all rights and properties owed to her husband in Mongolia. Wu Chunying applied for recognition and enforcement of the award before the Binzhou Intermediate People's Court. The court opined that the award should not recognised or enforced under Article V NYC and Article 3 of the Arbitration of the People's Republic of China. In particular, the court opined that Wu Chunying's right in the corporation as her husband's successor was a matter related to succession law. The Binzhou Intermediate People's Court’s opinion was reported to the Shandong Higher People's Court for review. The Shandong Higher People's Court opined that the award should not be recognised or enforced under Article V(2)(a) NYC since the award made a determination as to Wu Chunying's succession to her husband's share in the corporation, which was contrary to Article 3 of the Arbitration Law of the People's Republic of China, stating that matters of succession are not arbitrable. The Shandong Higher People Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People's Court confirmed that the award should not be recognised or enforced. In particular, the court opined that the award mainly concerned the succession of Wu Chunying to her husband's share in the corporation. Accordingly, the court opined that the award should not be recognised or enforced under Article V(2)(a) NYC and Article 3 of the Arbitration Law of the People's Republic of China. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=701&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 03 August 2009 Parties Concordia Trading B.V. v. Nantong Gangde Oil Co., Ltd. Case number [2009] 民四他字第22号 / [2009] MinSiTaZi No. 22 Applicable NYC Provisions I | II | IV | V | II(1) | II(2) | V(1)(b) | V(1)(a) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 75-86 (Vol. 2, 2009)
Languages English Summary On 13 January, 24 February and 1 March 2004, Concordia Trading B.V. (“Concordia”) and Nantong Gangde Oil Co., Ltd. (“Gangde”) entered into three sales contracts for the purchase of soya bean oil even though Concordia was the only party to actually sign and affix its company seal on the agreements. All three contracts contained an arbitration clause whereby any dispute would be submitted to arbitration in accordance with the arbitration rules of the Federation of Oils, Seeds and Fats Association (“FOSFA”) in London. A dispute arose between the parties and, on 15 October 2004, Concordia initiated arbitration under the auspices of FOSFA. On 24 March 2006, the arbitral tribunal rendered an award in favour of Concordia. Concordia then applied, on 4 August 2006, for recognition and enforcement of the award before the Nantong Intermediate People’s Court (南通市中级人民法院) when Gangde refused to comply with the award. Gangde challenged application for recognition and enforcement of the award on the grounds that (i) the parties had not agreed in writing to the terms of the agreements, including the applicable arbitration clauses, (ii) communications between the parties failed to provide sufficient evidence to demonstrate agreement in writing between the parties and (iii) the parties performed the contract according to Gangde’s proposal and not according to the agreements Concordia signed. The Nantong Intermediate People’s Court opined that the arbitral award should not be recognised or enforced. In particular, the court found that the parties did not have an arbitration agreement in writing within the requirements of Articles II(1), II(2) and IV(1)(b) NYC and that no communication between the parties or the parties’ actual performance was consistent with the agreements relied on by Concordia in the proceedings. The court reported its opinion to the Jiangsu Higher People’s Court (江苏省高级人民法院) for review. The Jiangsu Higher People’s Court confirmed that the award should not be recognised or enforced. In particular, the court found, with reference to Article V(1)(a) NYC, that the parties did not have an arbitration agreement in writing. The Jiangsu Higher People’s Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court confirmed that the arbitral award should not be recognised or enforced. In particular, the court observed that an arbitration agreement could not be implied under Articles II(1) and II(2) NYC. The court found that there was insufficient evidence to demonstrate that the parties had agreed in writing to the arbitration clauses in the parties’ three sales contracts. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1501&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 13 March 2009 Parties GRD Minproc Limited v. Shanghai Feilun Industrial Co., Case number [2008] Min Si Ta Zi No. 48 ([2008] 民四他字第2号) Applicable NYC Provisions V | V(2)(b) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 135-142 (People’s Court Press, Vol. 1, 2009)
Languages English Summary On 24 July 1994, Shanghai Foreign Trade Corporation, Warman International Co., Ltd. (“Warman”) and Shanghai Feilun Industrial Co., Ltd. (“Feilun”) entered into an agreement for the sale and purchase of equipment and material used for battery recycling. The parties’ agreement included an arbitration clause where any dispute arising from the performance of or relevant to the contract would be resolved by arbitration under the auspices of the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”), failing amicable negotiations. On 30 April 1995, GRD Minproc Limited (“GRD”) replaced Warman in the parties’ agreement. A dispute arose between the parties regarding the equipment’s effectiveness and Feilun filed an arbitration with the SCC on 21 January 2003. A final award was rendered in favour of GRD on 20 November 2006 dismissing Feilun’s claim and awarding costs to GRD. GRD then applied to the Shanghai No. 2 Intermediate People’s Court for recognition and enforcement of the award. Feilun opposed the application on the basis that (i) the arbitration agreement was invalid, (ii) the award was against China’s public order, (iii) GRD had bribed and stolen evidence, which violated Chinese public policy, (iv) GRD never submitted a counter-claim in respect of costs and as such the award dealt with a dispute beyond the arbitration claims, (v) the arbitral tribunal never conducted on-site inspections as indicated and (vi) the award never indicated the reasoning of the decision and did not demonstrate that the unsigned arbitrator participated in the decision. The Shanghai No. 2 Intermediate People’s Court held that the award should not be recognised or enforced. In particular, the court decided that the award contradicted the public interests of China under Article V(2)(b) NYC because it concerned equipment that was contrary to Chinese occupational health and safety regulations. The Shanghai No. 2 Intermediate People’s Court reported its opinion to the Shanghai Higher People’s Court for review. The Shanghai Higher People’s Court opined that the award should not be recognised or enforced under Article V(2) NYC since the award was contrary to Chinese public interest. The Shanghai Higher People’s Court reported its opinion the Supreme People’s Court （最高人民法院）for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court opined that the award should be recognised and enforced. In particular, the court decided that whether an arbitral award was fair and just on the merits is not the standard by which an award is deemed to have violated China’s public policy for purposes of recognition and enforcement under Article V(2)(b) NYC. In addition, the court found no other grounds for refusal under Article V NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1500&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 10 September 2008 Parties Japanese Shin-Etsu Chemical Co., Ltd. v. Tianjin Xinmao Co., Ltd. Case number [2008] Min Si Ta Zi No. 18 ([2008] 民四他字第18号) Applicable NYC Provisions V | V(1)(d) | V(1)(b) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 81-102 (People's Court Press, Vol. 2, 2008).
Languages English Summary On 26 February 2001, Tianjin Xinmao Co., Ltd. (Xinmao) (formerly known as, Tianjin Tiandatiancai Co. Ltd.) entered into a long-term sales agreement with Japanese Shin-Etsu Chemical Co., Ltd. (Shin-Etsu). The parties agreed that disputes arising from the contract would be settled through arbitration in Tokyo according to the rules of the Japan Commercial Arbitration Association (JCAA). A dispute arose between the parties and, in January 2005, Shin-Etsu filed an arbitration with the JCAA in Tokyo claiming that Xinmao should make payment of the contract price. On 6 September 2005, the arbitral tribunal rendered an award in favour of Shin-Etsu, who then applied for recognition and enforcement of the award before the Tianjin Higher People's Court. Xinmao objected to the application. The Tianjin Higher People's Court opined that the award should not be recognised or enforced. In particular, the court opined that (1) the tribunal had exceeded the time limit for rendering the award and did not inform Xinmao as to when it would issue its award, (2) the tribunal when receiving the request of Shin-Etsu on the modification of its claims did not invite Xinmao to comment, (3) the award was beyond the scope of the claims submitted for resolution, (4) the JCAA failed to provide the list of arbitrators to Xinmao, (5) the arbitration clause was invalid as the parties did not agree on a specific arbitration institution (e.g., the JCAA) and (6) the enforcement of the award would be contrary to the public policy of China. The Tianjin Higher People’s Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court confirmed that the award should not be recognised and enforced. In particular, the court opined that the award should be refused recognition and enforcement according to Articles V(1)(b) and V(1)(d) NYC since the arbitral tribunal had rendered an award beyond the time period prescribed in the JCAA rules and failed to notify Xinmao that the award would not be issued within the requisite time limit. Furthermore, the court opined that Xinmao was not notified by the tribunal of Shin-Etsu's modification of claims thereby depriving Xinmao of the right to present its case. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=745&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 06 August 2008 Parties China Shipping Development Co., Ltd Tramp Co. v. Anhui Technology Import & Export Co., Ltd. Case number [2008] Min Si Ta Zi No. 17 ([2008]民四他字第17号) Applicable NYC Provisions V | V(1)(d) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 71-80 (People's Court Press, Vol. 2, 2008).
Languages English Summary China Shipping Development Co., Ltd Tramp Co. (China Shipping) and Anhui Technology Import & Export Co., Ltd. (Anhui Technology) entered into a charter agreement, which included an arbitration clause where the place of arbitration would be Hong Kong and English law would apply to a dispute arising from the agreement. The charter agreement also referred the "GENCON charter party 1994", which provided that the English law would govern the agreement and that all disputes would be submitted to arbitration in London according to the English Arbitration Act. A dispute arose between the parties and China Shipping brought an arbitration and appointed an arbitrator. China Shipping sent a fax to Anhui Technology asking it to appoint another arbitrator, failing which the arbitrator it had appointed would preside as a sole-arbitrator. Anhui Technology did not reply to the fax and on 9 March 2006 the sole-arbitrator rendered an award in favour of China Shipping, who then applied for recognition of the award before the Wuhan Maritime Court. Anhui Technology challenged the application arguing (i) that the law applicable to the arbitration procedure was the law of Hong Kong, (ii) it did not receive notice of the arbitration and (iii) the appointment of the arbitrator did not conform to the applicable law (i.e., Hong Kong law). The Wuhan Maritime Court opined that the award should not be recognised or enforced. The court opined that applicable arbitration clause to the parties’ dispute was the one contained in the charter agreement, which selected Hong Kong as the place of arbitration. The court further opined, pursuant to Article V(1)(d) NYC, that the composition of the tribunal did not conform with the law of the place of arbitration (i.e., Hong Kong), which provides that the designation of a sole-arbitrator will be conducted by an appointing authority. The Wuhan Maritime Court reported its opinion to the Hubei Higher People's Court for review. The Hubei Higher People's Court confirmed that the award should not be recognised or enforced. The court opined, with reference to Article V(1)(d) NYC, that (1) the applicable arbitration clause was contained within the charter agreement, which had identified Hong Kong as the place of arbitration and not the one within the GENCON agreement, (2) the law applicable to the arbitration procedure should be the law of the place of arbitration (i.e., Hong Kong law) and English law applied to the merits of the arbitration, and (3) the composition of the tribunal did not conform to the laws of Hong Kong. The Hubei Higher People's Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People's Court confirmed that the award should not be recognised or enforced. In particular, the court opined, with reference to Article V(1)(d) NYC, that the appointment of the sole-arbitrator in the present application had violated a procedural requirement under Hong Kong’s Arbitration Ordinance and the UNCITRAL Model Law, which it had opined was applicable to both the arbitration procedure and the arbitration clause since the parties had not previously come to an agreement on which law would apply. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=588&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 02 June 2008 Parties Hemofarm DD, MAG International Trade Holding DD, Suram Media Ltd. v. Jinan Yongning Pharmaceutical Co. Ltd. Case number [2008] Min Si Ta Zi No. 11 ([2008] 民四他字第11 号) Applicable NYC Provisions V | V(2)(b) | V(2)(a) | V(1)(d) | V(1)(c) | V(1)(a) | V(1)(b) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 124-134 (People's Court Press, Vol. 1, 2009).
Languages English Summary Hemofarm DD (Hemofarm), MAG International Trade Holding DD (MAG), Suram Media Ltd. (Suram) and Jinan Yongning Pharmaceutical Co. Ltd. (Yongning) entered into a joint venture contract, which was subject to Chinese law and where any dispute related to the contract was to be resolved by arbitration under the arbitration rules of the International Chamber of Commerce (ICC). A dispute arose between Yongning and the joint venture company, Jinan Hemofarm Pharmaceutical Company Limited (Jinan-Hemofarm), regarding its tenancy with Jinan-Hemofarm, which Yongning submitted for resolution before the Jinan Intermediate People's Court on 6 August 2002. The court rejected jurisdictional challenges raised by the other parties to the joint venture agreement holding that Jinan-Hemofarm was not a party to the joint venture contract and thus the arbitration agreement did not apply. The court ruled in favour of Yongning in the actions it brought, including a property preservation measure. These rulings were upheld by the Shandong Higher People's Court. Hemofarm, MAG and Suram jointly filed an arbitration with the ICC against Yongning on 3 September 2004. An award in favour of Hemofarm, MAG and Suram was received by Yongning on 16 March 2007. Hemofarm, MAG and Suram then applied in September 2007 for recognition and enforcement of the award before the Jinan Intermediate People's Court. Yongning challenged the application on the grounds that (i) the award exceeded the scope of the submission to arbitration according to Article V(1)(b) NYC and Chinese law, (ii) the arbitral tribunal's ruling on Yongning's property preservation measure before Chinese courts exceeded the scope for arbitration under the arbitration agreement and Yongning was not afforded an opportunity to object under Article V(1)(b) and Article V(1)(d) NYC, (iii) the award addressed issues non-arbitrable under Chinese law, namely its ruling on the justification of Yongning's property preservation measure and (iv) recognition and enforcement of the award would violate Chinese public policy under Article V(2)(b) NYC. The Jinan Intermediate People's Court opined that the award should not be recognised or enforced. In particular, the court opined that (1) Yongning's preservation measure was outside the scope of the arbitration agreement, (2) the tribunal's consideration of the issuance of the preservation measure was not arbitrable since the enforcement of such measures is the duty of the People's Courts and (3) the tribunal's decision to ignore the Chinese court's rulings on Yongning's actions and application for a property preservation measure violated Chinese public policy. The Jinan Intermediate People’s Court reported its opinion to the Shandong Higher People’s Court for review. The Shandong Higher People’s Court confirmed that the award should not be recognised or enforced under Articles V(1)(c), V(2)(a) and V(2)(b) NYC. In particular, the court opined that the award had addressed issues outside the scope of the arbitration agreement. In addition, the court opined that the award had addressed issues that are not arbitrable under the applicable law, Chinese law, such as the legality of the property preservation measure, which it had opined as unrelated to a contractual or commercial relationship and thus inconsistent with China’s commercial reservation to the NYC. Furthermore, the court opined that the award had violated Chinese public policy by failing to respect the finality of the domestic court’s decision on Yongning’s property preservation measure. The Shandong Higher People’s Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court confirmed that the award should not be recognised or enforced. In particular, the court opined that, according to Article V(1)(c) and Article V(2)(b) NYC, (1) the award had decided matters beyond the scope of the arbitration under the arbitration agreement in the joint venture contract since the arbitration clause in that agreement had no binding force with respect to the dispute between Yongning and Jinan-Hemofarm as the dispute did not relate to the joint venture and (2) the arbitral tribunal had violated China’s judicial sovereignty and the jurisdiction of Chinese court when it arbitrated issues concerning the lease contract between Yongning and Jinan-Hemofarm when they had already been decided by Chinese courts. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=836&opac_view=6 Attachment (2)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 27 February 2008 Parties First Investment Corp. (Marshall Island) v. Fujian Mawei Shipbuilding Corp., Fujian Shipbuilding Corp. Case number [2007] 民四他字第35号 / [2007] MinSiTaZi No. 35 Applicable NYC Provisions V | V(1)(c) | V(1)(d) Languages English Summary On 15 September 2003, First Investment Corp. (Marshall Island) (“FIC”) and Fujian Mawei Shipbuilding Corp., Fujian Shipbuilding Corp. (“Fujian Mawei”) entered into an option agreement. Under the option agreement, FIC nominated eight other companies as signatories to a ship construction option agreement with Fujian Mawei. The original option agreement provided that any dispute would be submitted to arbitration in London. A dispute arose between the parties and an ad hoc arbitration was initiated under the original option agreement in London. An arbitral award was rendered in favour of FIC, who then applied for recognition and enforcement before the Xiamen Maritime Court (厦门海事法院). The Xiamen Maritime Court opined that the award should not be recognised or enforced. The court reported its opinion to the Fujian Higher People’s Court (福建省高级人民法院) for review. The Fujian Higher People’s Court confirmed that the arbitral award should not be recognised or enforced. In particular, the court found that (i) the composition of the arbitral tribunal was not in accordance with the parties’ arbitration agreement and the law of the seat of arbitration under Article V(1)(d) NYC, (ii) the arbitral award contained decisions on matters beyond the scope of the submission to arbitration under the arbitration clause in the original option agreement in accordance with Article V(1)(c) NYC since matters concerning the eight nominated companies was considered even though these companies were not parties to the option agreement, (iii) Fujian Mawei was not permitted to properly defend itself in the arbitration proceedings in accordance with Article V(1)(b) NYC and (iv) the arbitral tribunal permitted FIC to submit “without prejudice” documents into the proceeding contrary to the law of the seat – i.e., English law – under Article V(1)(d) NYC. The Fujian Higher People’s Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court confirmed that the arbitral award should not be recognised or enforced. In particular, the court found, with reference to Article V(1)(d) NYC, that the composition of the arbitral tribunal and arbitration procedure was not in accordance with the parties’ arbitration agreement as well as the law of the seat – i.e., English law. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1498&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 25 June 2007 Parties Bunge Agribusiness Singapore Pte. Ltd. v. Guangdong Fengyuan Food & Oil Group Company Ltd. Case number [2006] Min Si Ta Zi No. 41 (2006民四他字第41号) Applicable NYC Provisions V | V(1)(e) | V(1)(d) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 24-30 (People's Court Press, Vol. 2, 2007).
Languages English Summary On 4 March 2004, Bunge Agribusiness Singapore Pte. Ltd. and Guangdong Fengyuan Food & Oil Group Company Ltd. entered into an agreement for the sale of soybeans in which any dispute arising from the agreement would be settled by arbitration in London under the auspices of the Federation of Oils, Seeds and Fats Associations (FOSFA). The parties had also agreed that English law would apply to the arbitration agreement and the arbitration procedure. A dispute arose between the parties when Guangdong Fengyuan Food & Oil Group Company Ltd. failed to open a letter of credit in accordance with the agreement. On 10 August 2004, Bunge Agribusiness Singapore Pte. Ltd. filed for an arbitration with FOSFA. An arbitral award was rendered in favour of Bunge Agribusiness Singapore Pte. Ltd. on 19 July 2005, who then applied for recognition and enforcement of the award with the Yangjiang Intermediate People’s Court. The Yangjiang Intermediate People’s Court opined that the award should not be recognised or enforced. In particular, the court opined pursuant to Article V(1)(e) NYC that the award had not yet become binding on the parties since there was no evidence to show that Guangdong Fengyuan Food & Oil Group Company Ltd. had received the award in compliance with the Chinese Civil Procedure Law. The Yangjiang Intermediate People’s Court reported its opinion to the Guangzhou Higher People's Court for review. The Guangzhou Higher People's Court confirmed that the award should not be recognised or enforced. In particular, the court opined that the award had not yet become binding upon the parties under Article V(1)(e) NYC. The Guangzhou Higher People's Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People's Court confirmed that the award should be not be recognised or enforced. In particular, the court opined, pursuant to Article V(1)(d) NYC, that the tribunal had failed to comply with the arbitration rules agreed by the parties since it had failed to provide notification to Guangdong Fengyuan Food & Oil Group Company Ltd. in compliance with the FOSFA rules when it appointed a new arbitrator to replace the one originally appointed for Guangdong Fengyuan Food & Oil Group Company Ltd. in the proceeding. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=593&opac_view=6 Attachment (2)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 09 May 2007 Parties Bunge S.A. of Geneva Switzerland v. Shenzhen Light Industrial Products Bonded Trade Co. Case number [2006] 民四他字第47号 / [2006] MinSiTaZi No. 47 Applicable NYC Provisions IV | IV(1)(b) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 112-123 (People's Court Press, Vol. 1, 2007)
Languages English Summary On 6 May 2003, Bunge S.A. of Geneva Switzerland (“Bunge”) and Shenzhen Light Industrial Products Bonded Trade Co. (“Shenzhen Light”) entered into a contract of affreightment in which Shenzhen Light was to deliver goods from China to Brazil. The parties’ agreement provided that any disputes were to be submitted to arbitration in London applying English law before three arbitrators from the shipping industry. Each party was to appoint one arbitrator and the third was to be appointed jointly by the two party-appointed arbitrators. A dispute arose between the parties and arbitration was initiated. Bunge appointed an arbitrator but Shenzhen Light refused to appoint one. In accordance with English law, Bunge’s party-appointed arbitrator became the sole arbitrator in the dispute. On 25 November 2004, an award was rendered in favour of Bunge, who then applied for recognition and enforcement before the Guangzhou Maritime Court (广州海事法院). Shenzhen Light challenged the application on the grounds that (i) Bunge had not authenticated the original arbitration agreement or a duly certified copy thereof in accordance with Article IV(1)(b) NYC, (ii) it did not receive proper notice of the appointment of the arbitrator, (iii) the composition of the arbitral tribunal, including its number, qualification and seat was contrary to the arbitration agreement and (iv) the application for enforcement exceeded the required time limit under Chinese law. The Guangzhou Maritime Court opined that the award should be recognised but not enforced. In particular, the court dismissed three of Shenzhen Light’s objections, including its argument that the award should be refused recognition and enforcement under Article IV(1)(b) NYC, but sustained its challenge that the filing of the application for enforcement had exceeded the six-month time limit under Chinese law. The court reported its opinion to the Guangdong Higher People’s Court (广东省高级人民法院) for review. The Guangdong Higher People’s Court confirmed that the arbitral award should be recognised but not enforced. In particular, the court sustained Shenzhen Light’s objection that the application for enforcement had exceeded the six-month time limit under Chinese law. The Guangdong Higher People’s Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People’s Court. The Supreme People’s Court confirmed that the arbitral award should be recognised. As for the enforcement of the award, the court found, with reference to Article IV NYC, that the determination of whether an application for enforcement was filed within the required six-month time limit under Chinese law was calculated from the time the applicant received the duly authenticated original award or duly certified copy thereof. The court directed the Guangdong Higher People’s Court to identify the relevant date and make a decision on the timeliness of the application for enforcement on that basis according to Chinese law. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1497&opac_view=6
Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 10 January 2007 Parties Cosmos Marine Managements S.A. v. Tianjin Kaiqiang Trading Ltd. Case number [2006] Min Si Ta Zi No. 34 ([2006] 民四他字第34号) Applicable NYC Provisions V | V(1)(b) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 83-86 (People's Court Press, Vol. 1, 2007).
Languages English Summary On 28 December 2004, Cosmos Marine Managements S.A. (Cosmos) and Tianjin Kaiqiang Trading Ltd. (Tianjin Kaiqiang) entered into a charter-party agreement in which Tianjin Kaiqiang rented a vessel from Cosmos for the transportation of salt. The parties agreed in their contract to submit disputes to arbitration under the rules of the London Maritime Arbitrators Association (LMAA) if the amount in dispute did not exceed $50,000 USD. Where the amount in dispute exceeded $50,0000 USD, the parties would submit their dispute to arbitration in which two of the arbitrators were to be members of the Baltic Exchange, unless the parties agreed to submit the dispute for settlement before a sole-arbitrator. The parties also agreed that their contract would be governed by English law. A dispute arose when Tianjin Kaiqiang failed to pay for the rental of the vessel. Cosmos filed an arbitration and requested Tianjin Kaiqiang through e-mail to appoint an arbitrator in accordance with the English Arbitration Act 1996. When Tianjin Kaiqiang did not reply after a further request, Cosmos proceeded with the dispute before a sole-arbitrator. On 18 July 2005, an award was rendered in favour of Cosmos, who then applied to the Tianjin Maritime Court for recognition and enforcement of the award. Tianjin Kaiqiang objected to the application arguing that: (i) it never received notice of the arbitration or the appointment of the arbitrator; (ii) the evidence provided by Cosmos did not conform with the formal requirements under Chinese law and international conventions; and (iii) the evidence submitted by Cosmos did not support the qualification of the sole-arbitrator designated in the proceeding. Tianjin Maritime Court opined that the award should not be recognised and enforced. The Tianjin Maritime Court reported its opinion to the Tianjin Higher People's Court for review. The Tianjin Higher People's Court confirmed the lower court’s opinion. In particular, the court opined the award should not be recognised or enforced under Article V(1) NYC because Cosmos had failed to provide any proof that Tianjin Kaiqiang had in fact received notice of the appointment of the arbitrators in accordance with the English Arbitration Act 1996. The Tianjin Higher People's Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court confirmed that the award should not be recognised or enforced. In particular, the court opined that there was a ground for refusal under Article V(1)(b) NYC since Cosmos was not able to provide proof that Tianjin Kaiqiang had received notice and was informed of the appointment of arbitrators and the arbitration. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=693&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 14 December 2006 Parties Boertong Corp. (Group) v. Beijing Liantaichang Trade Co. Ltd. Case number [2006] Min Si Ta Zi No. 36 ([2006] 民四他字第36号) Applicable NYC Provisions V | V(1)(b) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 94-96 (People's Court Press, Vol. 1, 2007).
Languages English Summary On 7 August 2000, Boertong Corp. (Group) (Boertong) and Beijing Liantaichang Trade Co. Ltd. (Liantaichang) entered into a sales agency contract. The parties agreed in their contract that any dispute would be subject to the law of the Republic of Korea and that disputes would be submitted to arbitration in Seoul in accordance with the arbitration law recognised by the courts of the Republic of Korea and the arbitration rules of the Korean Commercial Arbitration Board (KCAB). In May 2005, Boertong filed an arbitration against Liantaichang for its failure to make full payment. On 26 August 2005, an award was rendered in favour of Boertong, who then filed an application for recognition and enforcement of the award before the Beijing No. 2 Intermediate People's Court. Liantaichang challenged the application on two grounds: (i) it did not have proper notice in accordance with Article V(1) NYC and Chinese law since it never received any notice or the arbitral award from the KCAB; and (ii) the KCAB's transmission of notices through the mail had been invalid under China's reservation, at the time, to the Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commerce (the Hague Service Convention). The Beijing No. 2 Intermediate People's Court opined that the application should be dismissed, in particular since China and Korea had concluded a treaty on mutual legal assistance in civil and commercial matters. The Beijing No. 2 Intermediate People's Court reported its opinion to the Beijing Higher People's Court for review. The Beijing Higher People's Court agreed with the lower court's opinion. In particular, the Beijing Higher People's Court opined that the award should not be recognised or enforced pursuant to Article V(1)(b) NYC because service was not in accordance with the treaty on mutual legal assistance in civil and commercial matters concluded by China and Korea. The Beijing Higher People's Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People's Court opined that the award should be recognised and enforced. In particular, the court opined that there was no ground for refusal under Article V(1)(b) NYC. It opined that the Hague Service Convention and the treaty between China and Korea on the Judicial Assistance in Civil and Commercial Affairs did not apply to the delivery of notices in arbitration and that proper delivery was subject to the arbitration rules. It further opined that Liantaichang had failed to support its contention that delivery of the notices was in violation of the arbitration rules. In addition, the court opined that Liantaichang did not receive the arbitration proceeding notices because it had failed to notify the KCAB of its address change. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=651&opac_view=6 Attachment (2)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 02 June 2006 Parties Hanjin Shipping Co., Ltd. v. Guangdong Fuhong Oil Co., Ltd. Case number [2005] Min Si Ta Zi No. 53 ([2005] 民四他字第53号) Applicable NYC Provisions IV | II | II(2) | IV(1) | II(1) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 75-82 (People's Court Press, Vol. 2, 2006).
Languages English Summary On 15 April 2004, Guangdong Fuhong Oil Co., Ltd. (Fuhong) entered into a sales contract with a third party company (Louis Dreyfus Asia Pte Ltd) for the purchase of Brazilian beans. Hanjin Shipping Co., Ltd. (Hanjin) was responsible for the transportation of the beans to which Fuhong held a bill of lading. A dispute arose over the quality of the beans delivered to Fuhong, who alleged that Hanjin was responsible for the defect and applied interim measures before the Guangzhou Maritime Court to seize the vessel transporting the beans. Fuhong then and commenced an action before the same court on 18 August 2004 alleging that Hanjin was responsible for the defect in the beans. On 15 September 2004, Hanjin initiated an ad hoc arbitration with a sole-arbitrator in London. The arbitration was brought on the basis of the bill of lading, which made reference to a charter-party agreement containing an arbitration clause. Fuhong challenged the proceeding by arguing that no arbitration agreement existed between the parties and that it had not participated in the arbitration. On 6 December 2004, the sole-arbitrator issued an award in favour of Hanjin, who then applied for recognition and enforcement of the award before the Guangzhou Maritime Court. Fuhong objected to the application contending, among other things, that (i) there was no written arbitration agreement between Hanjin and Fuhong and (ii) Hanjin was unable to furnish the original arbitration agreement or a certified copy thereof in accordance with Article IV NYC since there was no arbitration agreement between parties. The Guangzhou Maritime Court opined that the award should not be recognised or enforced according to Articles II(1), II(2) and IV(1) NYC. In particular, the court opined that Hanjin had failed to prove that the arbitration agreement it provided was the original arbitration agreement or a certified copy thereof and that the charter-party it provided was in fact the charter-party referred to in the bill of lading. The Guangzhou Maritime Court reported its opinion to the Guangdong Higher People's Court for review. The Guangdong Higher People's Court confirmed that the award should not be recognised or enforced. In particular, the court opined that Hanjin’s application did not satisfy Article IV(1) NYC since it could not prove that the charter-party it provided was the one referred to in the bill of lading. As such, the court opined that there was no written arbitration agreement between the parties, especially since Hanjin failed to provide an original or certified copy of the arbitration agreement. The Guangdong Higher People's Court reported its opinion to the Supreme People's Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court confirmed that the award should not be recognised or enforced. In particular, the court opined pursuant to Article II NYC that there was no written arbitration agreement between the parties, in particular since Hanjin could not show that the charter-party referred to in the bill of lading was in fact the one it provided as the basis of the arbitration. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=766&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 02 June 2006 Parties Hong Kong Charter Harvest Shipping Co., Ltd. v. China Sinotrans Shenyang Group Co. Case number [2006] 民四他字第12号 / [2006] MinSiTaZi No. 12 Applicable NYC Provisions V Source Guide on Foreign-related Commercial and Maritime Trial, pp. 89-93 (People's Court Press, Vol. 2, 2006)
Languages English Summary On 28 May 1993, Hong Kong Charter Harvest Shipping Co., Ltd. (“Charter Harvest”) executed a letter of intent with Mitrans Container Line Limited who had been acting on behalf of China Sinotrans Shenyang Group Co. (“Shenyang”). A dispute arose between the parties with respect to freight charges, demurrage, dead freight and detention damages and Charter Harvest placed a lien over the freight. The freight receiver applied to the Shanghai Maritime Court to detain the vessel containing the freight on the basis that Charter Harvest did not have the right to exercise a lien over the freight. Charter Harvest then submitted the dispute to arbitration in Hong Kong and appointed an arbitrator. The first arbitrator resigned and Charter Harvest re-designated another arbitrator. On 25 January 1997, an arbitral award was rendered in favour of Charter Harvest. On 22 July 1997, Charter Harvest applied to the Shenyang Intermediate People’s Court (沈阳市中级人民法院) for recognition and enforcement of the award. Shenyang challenged the application on the grounds that the parties had failed to agree to an arbitration clause in their agreement. The Shenyang Intermediate People’s Court opined that the award should be recognised and enforced. Shenyang applied to the Shenyang Intermediate People’s Court for re-examination of its decision. The Shenyang Intermediate People’s Court held that, in accordance with Articles V(1) and V(2) NYC, the arbitral award should be recognised and enforced. Shenyang appealed the decision to the Supreme People’s Court (最高人民法院). The Supreme People’s Court held that since the arbitral award related to a maritime arbitration rendered in Hong Kong the application for recognition and enforcement should (i) have been submitted to the special jurisdiction of a competent maritime court, (ii) should be reviewed under the Arrangement for Mutual Enforcement of Arbitration Awards between the Mainland and the Hong Kong Special Administrative Region (“Arrangement”) and (iii) should not have been reviewed before the Arrangement came into force. The application was then transferred to the Dalian Maritime Court (大连海事法院) for consideration on 13 June 2000. Shenyang challenged the application on the grounds that it did not enter into an arbitration agreement with Charter Harvest and did not receive proper notice of the designation of arbitrators. The Dalian Maritime Court opined that the arbitral award should not be recognised and enforced. In particular, the court found that there was not sufficient evidence to (i) prove that Shenyang had been notified of the re-designation of its arbitrator and the arbitration proceedings and (ii) demonstrate that the parties’ had properly agreed to the arbitration clause since neither party had signed nor affixed its seal on the agreement. The Dalian Maritime Court reported its opinion to the Liaoning Higher People’s Court (辽宁省高级人民法院) for review. The Liaoning Higher People’s Court confirmed that the award should not be recognised or enforced. In particular, the court opined that Shenyang had not been notified of the re-designation of Charter Harvest’s arbitrator and of the arbitration proceeding as well as the parties had not properly agreed to the arbitration clause. The Liaoning Higher People’s Court reported its opinion the Supreme People’s Court for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court confirmed that the award should not be recognised or enforced. In particular, the court found that Shenyang had not received proper notice of the re-designation of Charter Harvest’s arbitrator and the arbitration proceedings. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1495&opac_view=6
Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 03 March 2006 Parties TS Haimalu Co., Ltd. v. Daqing PoPeyes Food Co., Ltd. Case number [2005] Min Si Ta Zi No. 46 ([2005] 民 四 他 字 第 46 号) Applicable NYC Provisions V | V(1)(b) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 51-57 (People's Court Press, Vol. 1, 2006).
Languages English Summary TS Haimalu Co., Ltd. (Haimalu) and Daqing PoPeyes Food Co., Ltd. (PoPeyes) entered into a development and chain agreement, which was governed by Korean law. Under the agreement, disputes were to be submitted to arbitration and the arbitrators were to be selected by the Korean Commercial Arbitration Board (KCAB). A dispute arose between the parties and Haimalu filed for arbitration with the KCAB claiming that PoPeyes had failed to make payments under the agreement. An award was rendered in favour of Haimalu on 22 October 2004. Haimalu applied for recognition and enforcement of the award with the Harbin Intermediate People’s Court. PoPeyes challenged the application on the grounds that the award had violated the arbitration procedures when the arbitral tribunal did not abide by the provisions of the Treaty between the People’s Republic of China and the Republic of Korea on Judicial Assistance in Civil and Commercial Affairs (Treaty on Judicial Assistance), in particular when the notice of arbitration and the award were directly mailed to PoPeyes (instead of through the judicial organs designated) and were not served with Chinese translations as prescribed by the Treaty on Judicial Assistance. PoPeyese contended that based on these grounds the award should be refused recognition and enforcement under Article V NYC. Harbin Intermediate People’s Court opined that the award should not be recognised or enforced. In particular, the court opined that the arbitral body had not been chosen in the parties’ agreement and the arbitration notification was not delivered to the agreed address. Harbin Intermediate People’s Court reported its opinion to the Heilongjiang Higher People’s Court for review. The Heilongjiang Higher People’s Court came to two differing opinions as to the award’s recognition and enforcement. The majority of the court opined that service of the arbitration notice and award had been proper under the applicable law, Korean law, and the KCAB arbitration rules. On the other hand, the minority of the court opined that the KCAB should have respected the language customs of China and attached a Chinese translation when it served the notice and award. The minority opined that the award should be refused recognition and enforcement under Article V(1)(b) NYC. The Heilongjiang Higher People’s Court reported both opinions to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court opined that the award should be recognised and enforced. In particular, the court opined that there were no grounds for refusal under Article V(1) NYC. The court further opined, among other things, that the parties had selected the KCAB arbitration rules to govern the arbitration and that the arbitral tribunal had served notice of the arbitration and award according to the KCAB rules. Moreover, the court opined that even though the tribunal did not provide Chinese translations with the notice of arbitration and the award, there had been no violation of the arbitration law of Korea and the KCAB rules. Furthermore, the court opined that the Treaty on Judicial Assistance did not apply to arbitration matters. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=840&opac_view=6 Attachment (2)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 13 July 2005 Parties Mitsui Corporation (Japan) v. Hainan Textile Industry General Corporation Case number [2001] Min Si Ta Zi No. 12 ([2001] 民四他字12号) Applicable NYC Provisions V | V(1)(d) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 109-112 (People's Court Press, Vol. 2, 2005).
Languages English Summary Mitsui Corporation (Japan) (Mitsui) and Hainan Textile Industry General Corporation (Hainan Textile) entered into a repayment agreement concerning Japanese yuan. A dispute arose between the parties, which was submitted to arbitration under the rules of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). The SCC issued an award in favour of Mitsui, which was then submitted to the Haikou Intermediate People’s Court for recognition and enforcement. The Haikou Intermediate People’s Court opined that the award should not be recognised and enforced. The Haikou Intermediate People’s Court reported its opinion to the Hainan Higher People's Court for consideration. The Hainan Higher People's Court opined, among other things, that there were four issues concerning Mitsui’s application for recognition and enforcement: (1) the parties' agreement was invalid under the applicable law, Chinese law, since it required approval from a Chinese administrative body; (2) the arbitral tribunal violated due process under under Article V(1)(d) NYC by not appointing a Chinese law expert even though it had indicated that it would appoint such an expert, which Article 27 of the SCC rules permitted; (3) due process had also be violated when Mitsui's appointed Chinese law expert was permitted to attend the entire hearing and provided a legal opinion on Chinese law on behalf of Mitsui even though the expert was not a neutral expert or witness; (4) a previous Chinese decision in unrelated case had already rendered the type of debt, which was the subject of the arbitral award in the present application, unlawful. The court opined that the award should not be recognised and enforced under Article V(2) NYC since the award would conflict with the previous decision made by the court and would be contrary to the judicial authority and res judicata of the court decision, which were also contrary to Chinese public policy. The Hainan Higher People's Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People's Court opined that the award should not be refused recognition or enforcement. In the court’s opinion, the NYC was not addressed. The court opined that while the failure to seek the approval and register a foreign debt was a violation of compulsory regulation under Chinese administrative law, it did not necessarily constitute a violation of Chinese public policy. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=639&opac_view=6 Attachment (2)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 05 July 2004 Parties Weimao International (Hong Kong) Co. Ltd. v. Shanxi Tianli Industry Co. Case number [2004] Min Si Ta Zi No. 6 ([2004] 民四他字第6号) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 59-65 (People's Court Press, Vol. 3, 2004).
Languages English Summary On 15 June 1998, Weimao International (Hong Kong) Co. Ltd. (Weimao International) and Shanxi Tianli Industry Co. (Shanxi Tianli) entered into a sales contract for coke. The parties agreed that English law would govern the contract and that disputes would be submitted to arbitration in Hong Kong in accordance with the rules of the International Chamber of Commerce (ICC). A dispute arose between the parties and Weimao International filed an arbitration with the ICC. A sole-arbitrator was appointed by the ICC, who rendered an award in favour of Weimao International on 9 October 2001. Weimao International applied for enforcement of the arbitral award with the Taiyuan Intermediate People's Court. Shanxi Tianli objected to the application on the grounds that: (i) Weimao International had filed the application outside the required time limit under Chinese law; (ii) the documents submitted by Weimao International in support of its application were incomplete and thus the request was not valid; (iii) the arbitral award submitted to the Taiyuan Intermediate People's Court was not enforceable because it was notarised in Beijing and not Hong Kong; (iv) the constitution of the arbitral tribunal by the ICC did not conform with the parties' arbitration agreement, in particular the parties did not specify the arbitration institution (e.g., the ICC) in the agreement and thus an ad hoc arbitration should have been initiated; (v) the arbitration proceeding did not conform to the parties' arbitration agreement as the tribunal extended the time limit for rendering its award without a decision of the ICC court; and (vi) the arbtiral award violated Chinese public policy. The Taiyuan Intermediate People's Court opined, inter alia, that the award should not be recognised or enforced since the constitution of the tribunal conflicted with the arbitration agreement, Shanxi Tianli was denied an opportunity to fully present its counterclaims and the award breached Chinese public policy. The Taiyuan Intermediate People's Court reported its opinion to the Shanxi Higher People’s Court for review. The Shanxi Higher People’s Court confirmed that the award should not be recognised or enforced under Articles 3 and 4 of the Arrangements of the Supreme People's Court on Mutual Recognition and Execution of Arbitral Awards between Mainland and Hong Kong Special Administrative Region (Arrangement). In particular, the court opined that Weimao International's documents in support of its application for enforcement were incomplete and the award was unenforceable. The Shanxi Higher People’s Court reported its opinion to the Supreme People's Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court opined that the award should be recognised and enforced. In particular, the court opined that the NYC applied to the review of the award and not the Arrangement, which had been applied by the lower courts. The court opined that there were no grounds under the NYC for refusing recognition or enforcement. It opined that the failure to provide all documentation in support of the application for enforcement is not a basis for refusal so long as the application was made within the requisite time period. Furthermore, the court opined that the applicant-party should be permitted a reasonable time period to submit the outstanding documentation and failing such the People's Court could then consider refusing the application for enforcement. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=741&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 14 November 2003 Parties Hong Kong Heung Chun Cereal, Oil and Food Co., Ltd. v. Anhui Cereal, Oil and Food Import and Export Corp. Case number [2003] 民四他字第9 / [2003] MinSiTaZi No. 9 Source Guide on Foreign-related Commercial and Maritime Trial, pp. 36-40 (People's Court Press, Vol. 1, 2004)
Languages English Summary In October 1993, Hong Kong Heung Chun Cereal, Oil and Food Co., Ltd. (“Heung Chun”) entered into an agreement with Hainan Gaofurui Industrial Trading Company (“Hainan Gaofurui”) in the name of Anhui Cereal, Oil and Foodstuff Import and Export Co., Ltd. (“Anhui COFCO”) for the supply of peanuts. The agreement provided that any dispute would be referred to arbitration in Hong Kong. A dispute arose between the parties when Heung Chun did not receive the amount agreed to under the contract and filed for arbitration before the Hong Kong International Arbitration Centre (“HKIAC”) on 5 July 1994. Anhui COFCO filed a statement of defence arguing that it was not a party to the contract at issue in the arbitration and that its company stamp had been misappropriated without its consent. The arbitral tribunal held that Anhui COFCO had not sufficiently proven that it was not a party to the contract and rendered an arbitral award in favour of Heung Chun on 28 June 1997. On 1 December 1997, Heung Chun applied for recognition and enforcement of the arbitral award before the Anhui Hefei Intermediate People’s Court (安徽合肥市中级人民法院). On 10 December 1997, Anhui COFCO objected to the application for recognition and enforcement. The court issued a request to Anhui Higher People’s Court (安徽省高级人民法院) seeking guidance on the applicable law for consideration of an application for recognition and enforcement for an award rendered in Hong Kong. The Anhui Higher People’s Court reported the request to the Supreme People’s Court (最高人民法院). The Supreme People’s Court responded by indicating that since Hong Kong became a Special Administrative Region of China after 1 July 1997 arbitral awards rendered there should no longer be recognised and enforced according to the NYC. The court found that since there were no existing laws and regulations governing awards rendered in Hong Kong, the examination of arbitral awards for recognition and enforcement would resume after the promulgation of further laws and regulations. On 24 January 2000, the Supreme People’s Court promulgated the Arrangement for Mutual Enforcement of Arbitration Awards between the Mainland and Hong Kong Special Administrative Region (“Arrangement”). The Anhui Hefei Intermediate People’s Court opined that the award should not be recognised and enforced under the Arrangement since Anhui COFCO was not a party to the contract in the dispute. The Anhui Hefei Intermediate People’s Court reported its opinion to the Anhui Higher People’s Court for review. The Anhui Higher People’s Court confirmed that the award should not be recognised or enforced. In particular, the court opined that Anhui COFCO was not a party to the contract in dispute and that recognition and enforcement of the award would violate Chinese public interest under Article 7(3) of the Arrangement. The Anhui Higher People’s Court reported its opinion to the Supreme People’s Court for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court confirmed that the arbitral award should not be recognised or enforced. In particular, the court found that Anhui COFCO was not a party to the contract in dispute since Hainan Gaofurui had entered into the agreement with Heung Chun on behalf of Anhui COFCO without any express authorisation or subsequent approval. Accordingly, Hainan Gaofurui did not have the capacity to agree to any arbitration clause in the name of Anhui COFCO. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1492&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 12 November 2003 Parties Gerald Metals Inc. v. Wuhu Smelter & Refinery Co., Ltd. and Wuhu Hengxin Copper (Group) Inc. Case number [2003] Min Si Ta Zi No.12 ([2003]民四他字第12号) Applicable NYC Provisions V | V(1)(c) | V(1)(b) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 30-35 (People's Court Press, Vol. 1, 2004).
Languages English Summary Gerald Metals Inc. (GMI) and Wuhu Smeltery & Refinery Co., Ltd. (Wuhu Smelter) entered into an agreement for the sale of cooper. The parties' contract provided for arbitration in London according to the rules of the London Metal Exchange (LME). A dispute arose with regard to the delivery of the cooper. On 7 December 2001, GMI submitted a request for arbitration to the LME against Wuhu Smelter and another company, Wuhu Hengxin Copper (Group) Inc. (Wuhu Hengxin). On 23 May 2002, the tribunal rendered an award ordering both respondents, Wuhu Smelter and Wuhu Hengxin, to pay damages to GMI. GMI applied for recognition of the award on 19 November 2002 with the Anhui Higher People's Court. Wuhu Smelter challenged the application on the grounds that: (i) Wuhu Smeltery did not receive any notice regarding the appointment of arbitrators and the arbitration proceedings and as a result was not permitted to present its case and according to Article V(1)(b) NYC the award should not be recognised; (ii) GMI did not submit its application for recognition within the required time frame; and (iii) Wuhu Smeltery was not capable performing the award. Wuhu Hengxin challenged the application on the basis that it was not a party to the agreement and therefore did not consent to the LME arbitration. The Anhui Higher People's Court opined that the award should not be recognised according to Article V(1)(c) NYC. In particular, the court opined that the award was beyond the scope of the arbitration agreement because it identified Wuhu Hengxin, who was not a party to the agreement between GMI and Wuhu Smeltery, as one of the respondents and it was unclear as to whom the award was directed. The Anhui Higher People’s Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court opined that the award should not be recognised with respect to Wuhu Hengxin and that it should be recognised with respect to Wuhu Smeltery. Furthermore and with reference to Article V(1)(c) NYC, the court opined that the portion of the award that dealt specifically with Wuhu Smeltery's liability should be recognised whereas the portion of award where liability amongst the two respondents is indistinguishable should not be recognised. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=775&opac_view=6 Attachment (1)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 01 July 2003 Parties ED & F Man (Hong Kong) Co., Ltd. v. China National Sugar & Wines Group Corp. Case number [2003] Min Si Ta Zi No. 3 ([2003] 民四他字第3号) Applicable NYC Provisions V | V(2)(b) | V(2)(a) | V(1)(b) | V(1)(a) Source Guide on Foreign-related Commercial and Maritime Trial, pp. 12-17 (People's Court Press, Vol. 1, 2004).
Languages English Summary On 14 December 1994, ED & F Man (Hong Kong) Co., Ltd. (ED & F Man) and China National Sugar & Wines Group Corp. (China Sugar Corp.) entered into a futures contract where ED & F Man would sell raw sugar to China Sugar Corp. The parties' agreement provided that all disputes arising from the contract were to be settled by arbitration under the rules of the London Sugar Association (LSA). A dispute arose between the parties and ED & F Man filed for an arbitration with the LSA. An award was rendered in ED & F Man’s favour on 6 August 2001. ED & F Man then filed an application for recognition and enforcement before the Beijing No. 1 Intermediate People's Court on 22 January 2002. China Sugar Corp. challenged the application arguing, inter alia, that the award should be refused recognition and enforcement according to Articles V(1)(a)-V(1)(b) and V(2)(a)-V(2)(b) NYC and Chinese law. In particular, China Sugar Corp. argued, among other things, that: (i) it did not have legal capacity under Chinese law to enter into the arbitration agreement; (2) pursuant to Article V(2) NYC the award should not be recognised since the subject-matter of the dispute was not capable of settlement by arbitration under Chinese law because the futures agreement was in violation of Chinese compulsory law; (3) the award went beyond the scope of the submission to arbitration; (4) it was unable to argue its case adequately since the arbitral tribunal failed to conduct a thorough investigation of the alleged fraudulent conduct on the part of ED & F Man; and (5) recognition and enforcement of the award would be contrary to Chinese public policy. The Beijing Higher People's Court opined that the award should be refused recognition and enforcement under Article V(2)(b) NYC since the parties' future transaction contract violated Chinese rules concerning the prohibition of unlawful offshore future transactions and therefore was contrary to Chinese public policy. The Beijing Higher People's Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People's Court opined that there was no ground for refusing recognition or enforcement under the NYC. In particular, the court considered that there was no basis for refusal under Articles V(1) and V(2) NYC because, among other things, even if there had been a violation of a compulsory Chinese law that does not equate to contravening Chinese public policy. Accordingly, the court opined that the award should be recognised and enforced according to Article V NYC and Article 269 of the Civil Procedure Law of the People's Republic of China. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=638&opac_view=6 Attachment (2)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 12 June 2003 Parties Singapore Yideman Asian Co. (Asia) Pte. Ltd. v. Wuxi Huaxin Cocoa Food Corp. Case number [2001] Min Si Ta Zi No. 43 ([2001]民四他字第43号) Applicable NYC Provisions V Source Guide Foreign-related Commercial and Maritime Trial, pp. 97-107 (People's Court Press, Vol. 3, 2003).
Languages English Summary In January 1999, Singapore Yideman Asian Co. (Asia) Pte. Ltd. and Wuxi Huaxin Cocoa Food Corp. entered into negotiations for an agreement for the sale of cocoa from Singapore Yideman Asian Co. (Asia) Pte. Ltd. (Yideman) to Wuxi Huaxin Cocoa Food Corp. (Huaxin). After a number of exchanges, the parties did not reach an agreement in the end. A dispute arose between the parties and Yideman initiated an arbitration under the auspices of the Cocoa Association of London (CAL) against Huaxin. On 13 July 1999, an award was issued in favour of Yideman. Huaxin did not comply with the award and Yideman applied to the Wuxi Intermediate Court for recognition and enforcement of the award. The Wuxi Intermediate Court opined that there was no agreement between the two parties and thus the award should not be recognised or enforced. Pursuant to the Circular of the Supreme People's Court on Issues in the People's Courts' Handling of Foreign-related Arbitrations and Foreign Arbitrations (the Circular), the Wuxi Intermediate Court reported its opinion to the Jiangsu Higher People's Court for review. Before the Jiangsu Higher People's Court, a supplemental hearing was held where Huaxin challenged recognition and enforcement of the award by arguing that: (i) there was no arbitration agreement between the parties; and (ii) CAL had violated its arbitration rules, the English Arbitration Act of 1996, and the UNCITRAL Model Law with respect to the arbitration procedure. The Jiangsu Higher People's Court agreed with the lower court’s opinion, inter alia, there was no agreement between the parties and thus the award should be refused recognition and enforcement even though it found no ground under Articles V(1) or V(2) NYC for refusal. The Jiangsu Higher People's Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People's Court, in reviewing the Jiangsu Higher People's Court’s report, considered that there was no arbitration agreement and opined that the award should be refused recognition and enforcement according to Article 269 of the Chinese Civil Procedure Law and the NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=597&opac_view=6 Attachment (2)
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Country China Court China, 中华人民共和国最高人民法院 (Supreme People’s Court) Date 11 September 2001 Parties Aoetker Germany v. Sinotrans Nanjing Co., Ltd. Case number [2000] Jiao Ta Zi No.11 ([2000]交他字第11号) Applicable NYC Provisions V | V(1)(c) Source Guide and Study on China’s Foreign-related Commercial and Maritime Trials, pp. 133-142 (People's Court Press, Vol. 1, 2002)
Languages English Summary On 20 July 1995, Aoetker Germany (Aoetker) and Sinotrans Nanjing Co., Ltd. (Sinotrans) entered into a charter-party via their respective agents. The charter-party referred to two arbitration clauses: one provided for arbitration in London with English law as the applicable law and the other provided for arbitration in either London or New York. On 22 July 1995, Sinotrans, through its agent, notified Aoetker of its cancellation of the charter-party and then entered into another charter-party with another company. Aoetker filed for arbitration in London. Receiving no reply from Sinotrans, Aoetker proceeded to appoint a sole-arbitrator to hear the dispute, who then rendered an award in favour of Aoetker on 23 January 1998. Aoetker applied for recognition and enforcement of the award before the Wuhan Maritime Court on 21 July 1998. The Wuhan Maritime Court opined that the award should not recognised or enforced according to Article V(1)(c) NYC and 269 of the Civil Procedure Law of the People's Republic of China. In particular, the court opined that there was no arbitration agreement between the parties because, among other things, even if Sinotrans had agreed to the charter-party it did not agree to the arbitration clause, which was an independent agreement. In addition, the court opined that Sinotrans did not authorise its agent to consent to the arbitration clause and the behaviour of the agent did not give rise to apparent-agency and thus should not be responsible for it. The Wuhan Maritime Court reported its opinion to the Wuhan Higher People’s Court for review. The Wuhan Higher People’s Court confirmed the opinion of the lower court. The Wuhan Higher People’s Court reported its opinion to the Supreme People’s Court (最高人民法院) for review in accordance with the Notice of the Supreme People's Court on the Adjudication of the Relevant Issues About Foreign-related Arbitration and Foreign Arbitral Matters by the People's Court. The Supreme People’s Court opined that the award should be recognised and enforced according to Article 269 of the Civil Procedure Law of the People's Republic of China and the NYC. In particular, the court opined that there were no grounds for refusing recognition or enforcement in the present application. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=769&opac_view=6 Attachment (1)
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