![China / 03 August 2009 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Concordia Trading B.V. v. Nantong Gangde Oil Co., Ltd. / [2009] 民四他字第22号 / [2009] MinSiTaZi No. 22](./images/case-law.png)
China / 03 August 2009 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Concordia Trading B.V. v. Nantong Gangde Oil Co., Ltd. / [2009] 民四他字第22号 / [2009] MinSiTaZi No. 22
| 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. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
