![China / 14 November 2003 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Hong Kong Heung Chun Cereal, Oil and Food Co., Ltd. v. Anhui Cereal, Oil and Food Import and Export Corp. / [2003] 民四他字第9 / [2003] MinSiTaZi No. 9](./images/case-law.png)
China / 14 November 2003 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Hong Kong Heung Chun Cereal, Oil and Food Co., Ltd. v. Anhui Cereal, Oil and Food Import and Export Corp. / [2003] 民四他字第9 / [2003] MinSiTaZi No. 9
| 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. |
Attachment (1)
 Unofficial Translation Adobe Acrobat PDF |
