![China / 06 August 2008 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / China Shipping Development Co., Ltd Tramp Co. v. Anhui Technology Import & Export Co., Ltd. / [2008] Min Si Ta Zi No. 17 ([2008]民四他字第17号)](./images/case-law.png)
China / 06 August 2008 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / China Shipping Development Co., Ltd Tramp Co. v. Anhui Technology Import & Export Co., Ltd. / [2008] Min Si Ta Zi No. 17 ([2008]民四他字第17号)
| 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. |
Attachment (1)
 Original Language Adobe Acrobat PDF |
