![China / 08 December 2009 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Aiduoladuo (Mongolia) Co., Ltd. v. Zhejiang Zhancheng Construction Group Co., Ltd. / [2009] Min Si Ta Zi No. 46 ([2009] 民 四 他 字 第 46 号)](./images/case-law.png)
China / 08 December 2009 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / Aiduoladuo (Mongolia) Co., Ltd. v. Zhejiang Zhancheng Construction Group Co., Ltd. / [2009] Min Si Ta Zi No. 46 ([2009] 民 四 他 字 第 46 号)
| Country | China |
| Court | China, 中华人民共和国最高人民法院 (Supreme People’s Court) |
| Date | 08 December 2009 |
| Parties | Aiduoladuo (Mongolia) Co., Ltd. v. Zhejiang Zhancheng Construction Group Co., Ltd. |
| Case number | [2009] Min Si Ta Zi No. 46 ([2009] 民 四 他 字 第 46 号) |
| Applicable NYC Provisions | V | IV | II | I | V(1)(b) | V(1)(a) | II(2) |
| Source |
Guide on Foreign-related Commercial and Maritime Trial, pp. 87-93 (People's Court Press, Vol. 1, 2010). |
| Languages | English |
| Summary | Aiduoladuo (Mongolia) Co., Ltd. (Aiduoladuo) and Mongolia Yaojiang Co., Ltd. (Mongolia Yaojiang) entered into a construction contract. Zhejiang Zhancheng Construction Group Co., Ltd., formerly known as, Zhejiang Yaojiang Construction Group Co., Ltd. (Zhejiang Zhancheng) was a guarantor to the agreement. In the construction contract, any disputes were to be submitted for resolution either before a court or in arbitration and Mongolian law governed the agreement. A dispute arose between the parties when Mongolia Yaojiang refused to perform its obligations under the agreement. Aiduoladuo filed for arbitration against Mongolia Yaojiang before the Mongolia National Arbitration Court (MNAC); however, because Mongolia Yaojiang could not be located, Aiduoladuo re-filed its arbitration against Zhejiang Zhancheng. On 1 August 2007, an award was rendered in favour of Aiduoladuo, who then applied to the Shaoxing Intermediate People's Court for recognition and enforcement pursuant to Article IV NYC. Zhejiang Zhancheng objected to the application on the grounds that (i) it had been incorrectly identified as a party in the dispute, in particular because it had no factual or legal connection to Mongolia Yaojiang and that its company stamp (which appears in the construction contract) was made fraudulently, (ii) the arbitration agreement, providing for both litigation before courts and arbitration, was null and void because it was ambiguous and conflicted with itself and (iii) it did not have proper notice of the arbitration proceedings. The Shaoxing Intermediate People's Court opined that the award should not be recognised. In particular, the court opined, according to Article V(1)(b) NYC and Article 269 (now Article 267) of the Civil Procedure Law, that there was no evidence to show that Zhejiang Zhancheng had received proper notice of the arbitration proceedings. The Shaoxing Intermediate People's Court reported its opinion to the Zhejiang Higher People's Court for review. The Zhejiang Higher People's Court confirmed that the award should not be recognised. In particular, the Zhejiang Higher People's Court opined, according to Article V(1)(b) NYC, that Zhejiang Zhancheng did not have proper notice of the arbitration proceedings. Furthermore, the court opined that the arbitration agreement was invalid under Chinese law since it had provided for both parties could submit their disputes before the People's Courts and arbitration. The court did not address the issue concerning the alleged fraud regarding the application of Zhejiang Zhancheng's company stamp to the construction contract. The Zhejiang 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. In particular, the court opined that Article I NYC applied to the review of the award. Pursuant to Article V(1)(b) NYC, the court opined that Zhejiang Zhancheng did not have proper notice of the relevant arbitral notices. In addition, the court opined that there was no ground for refusal under Article V(1)(a) NYC as the arbitration clause in the present application was valid. With respect to the allegation that the company stamp in the construction agreement did not belong to Zhejiang Zhancheng, the court opined that if this could be proved, then the court could refuse recognition and enforcement of the award under Article II(2) NYC as there would be no written agreement between the parties. |
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Attachment (2)
 Original Language Adobe Acrobat PDF |
Unofficial Translation Adobe Acrobat PDF |
