![China / 10 September 2008 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Japanese Shin-Etsu Chemical Co., Ltd. v. Tianjin Xinmao Co., Ltd. / [2008] Min Si Ta Zi No. 18 ([2008] 民四他字第18号)](./images/case-law.png)
China / 10 September 2008 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Japanese Shin-Etsu Chemical Co., Ltd. v. Tianjin Xinmao Co., Ltd. / [2008] Min Si Ta Zi No. 18 ([2008] 民四他字第18号)
| Country | China |
| Court | China, 中华人民共和国最高人民法院 (Supreme People’s Court) |
| Date | 10 September 2008 |
| Parties | Japanese Shin-Etsu Chemical Co., Ltd. v. Tianjin Xinmao Co., Ltd. |
| Case number | [2008] Min Si Ta Zi No. 18 ([2008] 民四他字第18号) |
| Applicable NYC Provisions | V | V(1)(d) | V(1)(b) |
| Source |
Guide on Foreign-related Commercial and Maritime Trial, pp. 81-102 (People's Court Press, Vol. 2, 2008). |
| Languages | English |
| Summary | On 26 February 2001, Tianjin Xinmao Co., Ltd. (Xinmao) (formerly known as, Tianjin Tiandatiancai Co. Ltd.) entered into a long-term sales agreement with Japanese Shin-Etsu Chemical Co., Ltd. (Shin-Etsu). The parties agreed that disputes arising from the contract would be settled through arbitration in Tokyo according to the rules of the Japan Commercial Arbitration Association (JCAA). A dispute arose between the parties and, in January 2005, Shin-Etsu filed an arbitration with the JCAA in Tokyo claiming that Xinmao should make payment of the contract price. On 6 September 2005, the arbitral tribunal rendered an award in favour of Shin-Etsu, who then applied for recognition and enforcement of the award before the Tianjin Higher People's Court. Xinmao objected to the application. The Tianjin Higher People's Court opined that the award should not be recognised or enforced. In particular, the court opined that (1) the tribunal had exceeded the time limit for rendering the award and did not inform Xinmao as to when it would issue its award, (2) the tribunal when receiving the request of Shin-Etsu on the modification of its claims did not invite Xinmao to comment, (3) the award was beyond the scope of the claims submitted for resolution, (4) the JCAA failed to provide the list of arbitrators to Xinmao, (5) the arbitration clause was invalid as the parties did not agree on a specific arbitration institution (e.g., the JCAA) and (6) the enforcement of the award would be contrary to the public policy of China. The Tianjin 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 and enforced. In particular, the court opined that the award should be refused recognition and enforcement according to Articles V(1)(b) and V(1)(d) NYC since the arbitral tribunal had rendered an award beyond the time period prescribed in the JCAA rules and failed to notify Xinmao that the award would not be issued within the requisite time limit. Furthermore, the court opined that Xinmao was not notified by the tribunal of Shin-Etsu's modification of claims thereby depriving Xinmao of the right to present its case. |
Attachment (1)
 Original Language Adobe Acrobat PDF |
