United Kingdom / 20 January 1999 / England and Wales, High Court / Minmetals Germany GmbH v. Ferco Steel Ltd
| Country | United Kingdom |
| Court | England and Wales, High Court |
| Date | 20 January 1999 |
| Parties | Minmetals Germany GmbH v. Ferco Steel Ltd |
| Applicable NYC Provisions | V |
| Source |
[1999] 1 All ER (Comm) 315 | online: DSPlaw |
| Languages | English |
| Summary | Ferco Steel Limited ("Ferco") contracted to sell steel channels to Minmetals Germany GmbH ("Minmetals") in China. Minmetals sold the steel channels to a sub-buyer. A dispute arose and Minmetals initiated arbitration pursuant to an arbitration clause in the contract before the China International Economic and Trade Arbitration Commission ("CIETAC"). The same tribunal had previously arbitrated a dispute between Minmetals and the sub-buyer, and referred to its award in that arbitration ("the sub-sale award") in its later award made in favour of Minmetals against Ferco. A Chinese court remitted the dispute to the tribunal on the basis that Ferco had not been afforded the opportunity to present its views concerning the sub-sale award. In the resumed arbitration proceeding, Ferco did not make any submissions on the tribunal's consideration of the sub-sale award. The second award maintained the first award. The Chinese court dismissed Ferco's subsequent application for revocation of the second award. Minmetals obtained leave to enforce both awards in the United Kingdom. Ferco resisted enforcement on various grounds. The High Court refused to set aside the order granting leave to enforce. In so ruling, it noted that the resisting party bears the burden of proof, citing sections 102(1) and 102(2) of the Arbitration Act 1996 (U.K.) ("the Act") (which directly incorporate and whose wording is equivalent to Articles IV(1) and IV(2) NYC). The Court held that Ferco had failed to establish any of its grounds for non-enforcement. First, Ferco's claim under section 103(2)(d) of the Act (which directly incorporates and whose wording is equivalent to Articles V(1)(c) NYC) failed. Second, Ferco had failed to establish inability to present its case under section 103(2)(c) of the Act (which directly incorporates and whose wording is equivalent to Article V(1)(b) NYC). The Court found that Ferco had failed to take the opportunity to present its case on the sub-sale award in the resumed arbitration proceeding. Third, Ferco had failed to establish the ground based on section 103(2)(e) (which directly incorporates and whose wording is equivalent to Article V(1)(d) NYC). While the tribunal had initially violated CIETAC rules by failing to give Ferco an opportunity to address the sub-sale award, it had done so in the resumed hearing. Fourth, Ferco had failed to make out any public policy ground under section 103(3) (which directly incorporates and whose wording is equivalent to Article V(2)(b) NYC). The Court noted that in situations where the supervisory court had refused to revoke the final award due to a procedural defect, public policy favoured enforcing NYC awards. |
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Attachment (1)
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