![China / 14 December 2006 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Boertong Corp. (Group) v. Beijing Liantaichang Trade Co. Ltd. / [2006] Min Si Ta Zi No. 36 ([2006] 民四他字第36号)](./images/case-law.png)
China / 14 December 2006 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Boertong Corp. (Group) v. Beijing Liantaichang Trade Co. Ltd. / [2006] Min Si Ta Zi No. 36 ([2006] 民四他字第36号)
| 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. |
Attachment (2)
 Original Language Adobe Acrobat PDF |
Unofficial Translation Adobe Acrobat PDF |
