![China / 03 March 2006 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / TS Haimalu Co., Ltd. v. Daqing PoPeyes Food Co., Ltd. / [2005] Min Si Ta Zi No. 46 ([2005] 民 四 他 字 第 46 号)](./images/case-law.png)
China / 03 March 2006 / China, 中华人民共和国最高人民法院 (Supreme People’s Court) / TS Haimalu Co., Ltd. v. Daqing PoPeyes Food Co., Ltd. / [2005] Min Si Ta Zi No. 46 ([2005] 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 | 03 March 2006 |
| Parties | TS Haimalu Co., Ltd. v. Daqing PoPeyes Food Co., Ltd. |
| Case number | [2005] Min Si Ta Zi No. 46 ([2005] 民 四 他 字 第 46 号) |
| Applicable NYC Provisions | V | V(1)(b) |
| Source |
Guide on Foreign-related Commercial and Maritime Trial, pp. 51-57 (People's Court Press, Vol. 1, 2006). |
| Languages | English |
| Summary | TS Haimalu Co., Ltd. (Haimalu) and Daqing PoPeyes Food Co., Ltd. (PoPeyes) entered into a development and chain agreement, which was governed by Korean law. Under the agreement, disputes were to be submitted to arbitration and the arbitrators were to be selected by the Korean Commercial Arbitration Board (KCAB). A dispute arose between the parties and Haimalu filed for arbitration with the KCAB claiming that PoPeyes had failed to make payments under the agreement. An award was rendered in favour of Haimalu on 22 October 2004. Haimalu applied for recognition and enforcement of the award with the Harbin Intermediate People’s Court. PoPeyes challenged the application on the grounds that the award had violated the arbitration procedures when the arbitral tribunal did not abide by the provisions of the Treaty between the People’s Republic of China and the Republic of Korea on Judicial Assistance in Civil and Commercial Affairs (Treaty on Judicial Assistance), in particular when the notice of arbitration and the award were directly mailed to PoPeyes (instead of through the judicial organs designated) and were not served with Chinese translations as prescribed by the Treaty on Judicial Assistance. PoPeyese contended that based on these grounds the award should be refused recognition and enforcement under Article V NYC. Harbin Intermediate People’s Court opined that the award should not be recognised or enforced. In particular, the court opined that the arbitral body had not been chosen in the parties’ agreement and the arbitration notification was not delivered to the agreed address. Harbin Intermediate People’s Court reported its opinion to the Heilongjiang Higher People’s Court for review. The Heilongjiang Higher People’s Court came to two differing opinions as to the award’s recognition and enforcement. The majority of the court opined that service of the arbitration notice and award had been proper under the applicable law, Korean law, and the KCAB arbitration rules. On the other hand, the minority of the court opined that the KCAB should have respected the language customs of China and attached a Chinese translation when it served the notice and award. The minority opined that the award should be refused recognition and enforcement under Article V(1)(b) NYC. The Heilongjiang Higher People’s Court reported both opinions 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 were no grounds for refusal under Article V(1) NYC. The court further opined, among other things, that the parties had selected the KCAB arbitration rules to govern the arbitration and that the arbitral tribunal had served notice of the arbitration and award according to the KCAB rules. Moreover, the court opined that even though the tribunal did not provide Chinese translations with the notice of arbitration and the award, there had been no violation of the arbitration law of Korea and the KCAB rules. Furthermore, the court opined that the Treaty on Judicial Assistance did not apply to arbitration matters. |
Attachment (2)
 Original Language Adobe Acrobat PDF |
Unofficial Translation Adobe Acrobat PDF |
