![China / 02 June 2006 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Hanjin Shipping Co., Ltd. v. Guangdong Fuhong Oil Co., Ltd. / [2005] Min Si Ta Zi No. 53 ([2005] 民四他字第53号)](./images/case-law.png)
China / 02 June 2006 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Hanjin Shipping Co., Ltd. v. Guangdong Fuhong Oil Co., Ltd. / [2005] Min Si Ta Zi No. 53 ([2005] 民四他字第53号)
| Country | China |
| Court | China, 中华人民共和国最高人民法院 (Supreme People’s Court) |
| Date | 02 June 2006 |
| Parties | Hanjin Shipping Co., Ltd. v. Guangdong Fuhong Oil Co., Ltd. |
| Case number | [2005] Min Si Ta Zi No. 53 ([2005] 民四他字第53号) |
| Applicable NYC Provisions | IV | II | II(2) | IV(1) | II(1) |
| Source |
Guide on Foreign-related Commercial and Maritime Trial, pp. 75-82 (People's Court Press, Vol. 2, 2006). |
| Languages | English |
| Summary | On 15 April 2004, Guangdong Fuhong Oil Co., Ltd. (Fuhong) entered into a sales contract with a third party company (Louis Dreyfus Asia Pte Ltd) for the purchase of Brazilian beans. Hanjin Shipping Co., Ltd. (Hanjin) was responsible for the transportation of the beans to which Fuhong held a bill of lading. A dispute arose over the quality of the beans delivered to Fuhong, who alleged that Hanjin was responsible for the defect and applied interim measures before the Guangzhou Maritime Court to seize the vessel transporting the beans. Fuhong then and commenced an action before the same court on 18 August 2004 alleging that Hanjin was responsible for the defect in the beans. On 15 September 2004, Hanjin initiated an ad hoc arbitration with a sole-arbitrator in London. The arbitration was brought on the basis of the bill of lading, which made reference to a charter-party agreement containing an arbitration clause. Fuhong challenged the proceeding by arguing that no arbitration agreement existed between the parties and that it had not participated in the arbitration. On 6 December 2004, the sole-arbitrator issued an award in favour of Hanjin, who then applied for recognition and enforcement of the award before the Guangzhou Maritime Court. Fuhong objected to the application contending, among other things, that (i) there was no written arbitration agreement between Hanjin and Fuhong and (ii) Hanjin was unable to furnish the original arbitration agreement or a certified copy thereof in accordance with Article IV NYC since there was no arbitration agreement between parties. The Guangzhou Maritime Court opined that the award should not be recognised or enforced according to Articles II(1), II(2) and IV(1) NYC. In particular, the court opined that Hanjin had failed to prove that the arbitration agreement it provided was the original arbitration agreement or a certified copy thereof and that the charter-party it provided was in fact the charter-party referred to in the bill of lading. The Guangzhou Maritime Court reported its opinion to the Guangdong Higher People's Court for review. The Guangdong Higher People's Court confirmed that the award should not be recognised or enforced. In particular, the court opined that Hanjin’s application did not satisfy Article IV(1) NYC since it could not prove that the charter-party it provided was the one referred to in the bill of lading. As such, the court opined that there was no written arbitration agreement between the parties, especially since Hanjin failed to provide an original or certified copy of the arbitration agreement. The Guangdong 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 pursuant to Article II NYC that there was no written arbitration agreement between the parties, in particular since Hanjin could not show that the charter-party referred to in the bill of lading was in fact the one it provided as the basis of the arbitration. |
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