[2009]XHFRZ No.2

Updated : 2016-10-26

Xiamen Maritime Court

Civil Ruling

 

[2009]XHFRZ No.2

March 9, 2011

 

* Carriage of goods by sea – bill of lading claim – arbitration clause in C/P – incorporation of C/P arbitration clause into B/L – application to recognize London arbitral award – jurisdiction of arbitration tribunal

 

Applicant: Southern Route MaritimeS.A.,Panama

Domicile: Comosa Building, Samuel Levis and Manuel M. Ycaza Avenues, the City of Panama, Republic of Panama

Legal representative: Tesuo Abe, director of this company

Agents ad litem: Zhao Shuzhou & Li Rongcun, lawyers of Wang Jing & Co Xiamen Office

 

Respondent: Xiamen Zhonghe Industry Co., Ltd.China

Domicile: Tong’an Chengnan Industry Park, Xiamen City,China

Legal representative: Chen Yueqian, general manager of this company

Agents ad litem: Chen Zhiming & Zeng Qiyu, lawyers of Fujian Xiamen Mingjia Law Office

 

With respect to the case of dispute over recognition and enforcement of a foreign arbitral award between the applicant Southern Route Maritime S.A. and the respondent Xiamen Zhonghe Industry Co., Ltd, the applicant filed an application with our Court on July 16, 2009, requesting for recognition and enforcement of the arbitral award made by the arbitrator Patrick O’ Donovan of London Arbitrators Association on December 24, 2008 at London. After accepted the case, our Court formed a collegial panel according to the provisions of law and held a hearing on August 28, 2009. The agent ad litem of the applicant- Li Rongcun lawyer and the agents ad litem of the respondent- Chen Zhiming & Zeng Qiyu lawyers appeared at court to attend the hearing. The trial of this case has now been finished.

 

I. Claim of the applicant

1. The applicant Southern Route Maritime S.A. (hereinafter referred to as the applicant) claimed that it was the shipowner of M/V “NORD LUNA”. In April 2007, the applicant accepted an entrustment in the name of carrier, and on April 24, the applicant issued two bills of lading, evidences to the fact that there was an effective contract of carriage between the parties. The said bills of lading recorded that the respondent was the consignee, and the applicant would carry 63,000 MT Argentine soybeans in total from Rosario Port and Bahia Blanca Port of Argentina respectively to Xiamen. Thereafter, the respondent alleged cargo loss and disputes happened between the parties. 

2. The above two bills of lading record on the front that “BILL OF LADING TO BE USED WITH CHARTER-PARTIES”. In the meantime, on the back of the bills of lading, Clause 1 provides that “All the terms and conditions, liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Arbitration Clause, are herewith incorporated”. The charter party referred to by the bill of lading was the charter party concluded on November 28, 2006, which was recorded on the front of the bill of lading. In the said charter party, M/V “NORD LUNA” was appointed as the vessel under the said charter party.

3. In the meantime, according to the contents of the above fixture note, the said charter party also incorporated another charter party concluded on July 18, 2006, in which Clause 52 “RIDER CLAUSES” clearly stipulates that: “Arbitration, if any to be made in London, English law to apply.”

4. In this respect, pursuant to the provisions of Articles 97 and 98 of the Answers of Issues in Foreign Related Commercial and Maritime Trial Practice promulgated by the Fourth Civil Division of the Supreme People’s Court, under the circumstance that the arbitration clause is expressly incorporated, the arbitration clause in the charter party which is incorporated into the bill of lading shall be binding on the bill of lading holder and the carrier. Moreover, the examination of the validity of the arbitration clause in the charter party shall apply the governing law agreed by the parties in the arbitration clause. Where the parties do not agree the governing law or the agreement is unclear, the law of the place of arbitration agreed in the charter party shall apply. As a result, in respect of the above dispute of cargo loss, pursuant to the contract of carriage between the parties, i.e. the agreement of the above two bills of lading, the parties have already clearly agreed to incorporate the clauses of the charter party into the said bills of lading.

5. However, according to the arbitration clause in the charter party, any dispute under the bill of lading shall be submitted to London for arbitration and the English law shall apply. Consequently, the validity of the said arbitration clause shall be determined according to the English law. However, the respondent breached the arbitration agreement and lodged an action with Xiamen Maritime Court. In order to clarify validity of the arbitration agreement, the applicant applied with the English High Court. On February 1, 2008, Justice Teare of English High Court made an anti-suit injunction according to the English law. The said anti-suit injunction clearly determined that the arbitration agreement between the parties shall be valid and the said issue shall be settled through arbitration in London by 3 arbitrators and the English law shall apply. Thus, as for the dispute of cargo loss, there was an effective arbitration agreement between the parties. As a result, the applicant shall be entitled to submit the above dispute for arbitration.

6. On September 25, 2007, the arbitration procedure was formally commenced. Afterwards, the arbitration tribunal notified the parties through fax, requiring the respondent to appoint the arbitrator. On October 18, the respondent replied through fax, denying there was an effective arbitration agreement between the parties and refusing to appoint the arbitrator. On October 24, the applicant replied to the respondent that pursuant to relevant provisions of the England Arbitration Act 1996, it would further give the respondent a 7-day extension period to appoint the arbitrator; otherwise, the applicant would appoint Mr. Patrick O’ Donovan as the sole arbitrator according to the Arbitration Act. On October 31, because the respondent failed to appoint the arbitrator within 7 days, the applicant appointed Mr. Patrick O’ Donovan as the sole arbitrator in this case. On November 5, Mr. Patrick O’ Donovan required the respondent to submit the defence opinions and made an explanation to kindly remind the respondent matters relating to the arbitration procedure and arbitration rules.

7. On September 17, 2008, the applicant submitted the arbitration submissions with the sole arbitrator. Thereafter, the applicant served the above submissions and 5 volumes of evidentiary materials to the respondent and the insurer of the goods PICC Property and Casualty Co., Ltd Xiamen Branch through the Chinese lawyer of the applicant. The respondent accepted the service of the statement of complaint, and Xiamen Lujiang Notary carried out a notarization. The arbitrator urged the respondent to submit the defence opinions before October 22. On October 31, Mr. Patrick O’ Donovan sent out a notice to the respondent again, gave a further 7-day extension, and required the respondent should submit the defence opinions before November 7. On November 10, Mr. Patrick O’ Donovan sent a final compulsory order to the respondent, requiring the respondent to submit the defence opinions no later than November 17, 2008. The said compulsory order also pointed out that before the above time period, if the respondent still refused to submit the defence opinions, the arbitrator shall be entitled to directly make a final and binding arbitral award. Although after the above many notices and being urged many times, the respondent still failed to submit any defence opinions.

8. On December 24, under the circumstance that the respondent refused to submit the defence opinions, pursuant to the provision of Article 41 of the England Arbitration Act 1996, Mr. Patrick O’ Donovan made the final and binding arbitral award.

9. The contents of the arbitral award were clear. Thus the said arbitral award shall be recognized and enforced. After objective analysis of all evidences, the arbitrator Mr. Patrick O’ Donovan determined that the cargo loss was caused by the adverse weather conditions and/or potential defects of the goods themselves before loaded onboard the vessel, and there was no obvious damage to the goods.

10. On December 24, 2008, Mr. Patrick O’ Donovan made the final award and served the award to the parties on the same day. The said award determined that: “(A) The ship interest shall not be liable for cargo loss of soybeans during the course of discharge at XiamenChinain June 2007 as alleged by the cargo interest. (B) (i) The cargo interest shall assume its expenses and pay the ship interest the arbitration expense paid by the ship interest; (ii) The cargo interest shall also assume and pay the undersigned the arbitral award expense of GBP4,500 (including the charge of the undersigned and the interim charge). In the event that during the first instance, the ship interest has paid any expenses related to this arbitral award, the ship interest shall be entitled to immediately recourse claim against the cargo interest for any expenses that have been paid; and (iii) With regard to the expenses determined by the above paragraphs B (i) and (ii), the cargo interest shall pay the interests therefrom at the annual interest rate of 4% from the day when this award is made to the day of proper payment or repayment, compound interest shall be calculated every 3 months.”

11. The applicant contended that the above declaratory award was made by the sole arbitrator Mr. Patrick O’ Donovan inEngland, andChinaand theU.K.are the contracting states of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (hereinafter referred to as the “New York Convention”). According to relevant provisions of the Supreme People’s Court on “Notice of Implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards acceded to byChina”, since the main administrative organization of the respondent is located under your court’s jurisdiction, your court shall have jurisdiction over the application according to the provisions of law. In order to safeguard the lawful rights and interests of the application, the applicant requested the court to order as follows:

(1) To recognize and enforce the arbitral award made by the arbitrator Mr. Patrick O’ Donovan of London Maritime Arbitrators Association on December 24, 2008 in England, including: (1) to recognize the conclusion on the liability for cargo loss of the said arbitral award, i.e. the applicant shall not be liable for the cargo loss under the two bills of lading No.01 and No.02 as claimed by the respondent; (2) to recognize and enforce the arbitration expenses that shall be assumed by the respondent as determined by the said arbitral award (including the expenses of the arbitrator) at GBP4,500 in total as well as the interests (calculated from the day when the said arbitral award was issued to the day when the compensation was actually paid at the annual interest rate of 4% and compound interests shall be calculated every 3 months).

(2) To order the respondent to assume the court fee of this case and the execution fee and other court expenses.

 

II. Defence of the respondent

The respondent raised defence opinions that: 

12. There was no arbitration agreement between the respondent and the applicant. Pursuant to the provisions of the New York Convention and Chinese law, the recognition and enforcement of the arbitral award dated December 24, 2008 provided by the applicant should be refused.

13. First of all, the respondent was not aware of the arbitration agreement included by the voyage charter party as claimed by the applicant, and the applicant should bear the burden of proof regarding the existence and taking effect of the agreement. Based on international trading, the respondent accepted and held the bills of lading issued by the applicant, but the charter party did not attach to the bills of lading. Thus, the respondent was not aware of the charter party, the subject matter to the charter party, the rights and obligations and the arbitration clause of the charter party.

14. Secondly, the authenticity of the two voyage charter parties submitted by the applicant could not be confirmed. With respect to the voyage charter party dated November 28, 2006, there was an E-mail sent from liugang to jiperhua@lorywealth.com, but the source, the identities of the email sender and receiver and the authenticity of the said E-mail could not be verified. The first line of the E-mail wrote that “please confirm that we have completely settled the following matters”, but the other party did not reply for confirmation. Hence, CHS confirmed that the said E-mail was not the charter party concluded by CHS. With respect to the voyage charter party dated July 18, the said charter party was not signed. Moreover, Clauses 46 and 52 of the RIDER CLAUSES were contradictory. Thus, the authenticity of the said charter party was doubtful. Clause 46 was about the NYPE Arbitration Clause, while Clause 52 agreed that “Arbitration, if any to be made in London, English law to apply”. Furthermore, the effective civil ruling [2007]XHFSCZ No.241 has already determined that the authenticity of the above two charter parties could not be confirmed. What’s more, even if the authenticity of the charter parties could be confirmed, the arbitration agreement included in the voyage charter party dated July 18 could not be incorporated into the bills of lading to bind the respondent. Hence there was no arbitration agreement between the parties. The law at the place where the court was located should be applied to determine whether the voyage charter party arbitration clause was incorporated into the bill of lading, i.e., Chinese law should be applied. In this respect, the civil ruling [2007]XHFSCZ No.241 has already made a determination in this regard. Because the two voyage charter parties were irrelevant to the parties in this case, the said charter parties could not be incorporated into the bill of lading. The said two bills of lading were issued by MARITIME HEINLEIN S.A. in the name of the shipowner after authorization by the master. In other words, the carriers were the shipowner NISSEN KAIUN CO., LTD and Southern Route Maritime S.A., and the bill of lading holder was the respondent. In the voyage charter party dated November 28, the shipowner was GLORY WALTH SHIPPING SERVICE LTD, and the charterer was CHS. However, the voyage charter party dated July 18 was concluded on July 18, 2006 between GLORY WALTH SHIPPING SERVICE LTD and CHS concerning the carriage of goods by M/V ESNA from east coast of South America toChina. Although the parties in the litigation were the parties to the above two charter parties, the said parties were irrelevant to the carriage. Thus, the said charter parties and the arbitration agreement included therein could not be incorporated into the bills of lading, and there was not any arbitration agreement between the parties in this case. Pursuant to the provisions of the New York Convention and Chinese law, there was not an arbitration agreement between the parties in this case, i.e. the precondition for recognition and enforcement is not satisfied. Thus, the court shall refuse to recognize and enforce the said arbitral award.

15. The arbitral award dated December 24, 2008 impaired the judicial sovereignty and judicial jurisdiction ofChina. According to the provision of Article V2(b) of the New York Convention, the said arbitral award shall be refused to recognize and enforce.

16. First of all, based on the anti-suit injunction of London High Court, the said arbitral award exercised the jurisdiction, which impaired the judicial sovereignty ofChina. The said arbitral award was based on the said anti-suit injunction to determine whether there was an arbitration agreement, the validity of the arbitration agreement and the jurisdiction. However, the anti-suit injunction prevented and/or prohibited the respondent to “continue to take legal measures, assist in claiming or in any other ways to attend any legal proceeding in Xiamen Maritime Court or any other Chinese court” against the applicant. Obviously, the said anti-suit injunction violated the international public law principle regarding sovereign equality of each country. The judicial decision of any country shall not override other countries. The English court issued the injunction to prohibit the Chinese court proceeding, which impaired the judicial sovereignty ofChina.

17. According to the provision of Article V2(b) of the New York Convention, recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that the recognition or enforcement of the award would be contrary to the public policy of that country. Since the above arbitral award impaired the judicial sovereignty and judicial jurisdiction ofChina, if it was recognized and enforced, it would be contrary to the public policy ofChina. As a result, the application for recognition and enforcement of the said award shall be refused.

 

III. Cross-examination of evidences of the parties

Evidences of the applicant 

18. In order to support its claim, the applicant Southern Route Maritime S.A. provided the evidences as follows:

(1) Evidence No.1, the arbitral award made by the arbitrator Mr. Patrick O’ Donovan on December 24, 2008, which was used to prove that the said award determined that the applicant shall not be liable for the cargo loss claimed by the respondent, and the respondent shall assume corresponding arbitration expenses and interests;

(2) Evidence No.2, the anti-suit injunction made by Justice Teare of London High Court on February 1, 2008, which was used to prove that according to English law, the above arbitration agreement was legitimate and effective;

(3) Evidence No.3, two bills of lading issued by the applicant on April 24, 2007, which were used to prove that the bills of lading had clearly incorporated the charter party including the arbitration clause dated November 28, 2006;

(4) Evidence No.4, the charter party dated November 28, 2006, which was used to prove that the contents of the said charter party had been effectively incorporated into the above bills of lading;

(5) Evidence No.5, the charter party dated July 18, 2006 and its rider clauses, which were used to prove that the said charter party and the arbitration clause included therein had been effectively incorporated into the bills of lading;

(6) Evidence No.6, emails between the parties in the charter parties, which were used to prove that the said vessel M/V “NORD LUNA” was appointed as the ship under the above charter parties;

(7) Evidence No.7, fax dated September 25, 2007 sent by the applicant to the arbitrator, which was used to prove that the applicant applied for arbitration and the applicant appointed Mr. Patrick O’ Donovan as the arbitrator of the applicant;

(8) Evidence No.8, fax dated September 27, 2007 sent by the English lawyer of the applicant to the respondent, which was used to prove that the applicant notified the respondent of the arbitration matter and notified the respondent to appoint the arbitrator;

(9) Evidence No.9, fax dated October 12, 2007 sent by the English lawyer of the applicant to the respondent, which was used to prove that the applicant notified again the respondent to appoint the arbitrator as soon as possible;

(10) Evidence No.10, fax dated October 18, 2007 sent by the respondent to Thomas Cooper, which was used to prove that the respondent received the notice of arbitration but expressly refused to appoint the arbitrator;

(11) Evidence No.11, letter dated October 24, 2007 replied by the applicant to the respondent, which was used to prove that the applicant urged the respondent to attend the arbitration and to appoint the arbitrator;

(12) Evidence No.12, fax dated October 31, 2007 sent by the applicant to the arbitrator Mr. Patrick O’ Donovan and his reply, which were used to prove that the applicant appointed the sole arbitrator according to the provisions of law and the arbitrator confirmed to accept the appointment;

(13) Evidence No.13, letter dated November 5, 2007 sent by the sole arbitrator to the respondent, which was used to prove that the sole arbitrator clearly notified the respondent that he was appointed as the sole arbitrator and the time period for the respondent to submit defence opinions;

(14) Evidence No.14, letter dated September 17, 2008 sent by the English lawyer of the applicant to the arbitrator and the arbitration submissions;

(15) Evidence No.15, the notarization dated September 24, 2008 on the service of the arbitration submissions and evidentiary materials to the respondent by the applicant, which were used to prove that the above materials had been served lawfully and timely;

(16) Evidence No.16, letter dated September 25, 2008 sent by the English lawyer of the applicant to the arbitrator, which was used to prove that the applicant notified the arbitrator about the service of arbitration submissions and evidentiary materials;

(17) Evidence No.17, letter dated September 29, 2008 sent by the arbitrator to the respondent, which was used to prove that the arbitrator urged the respondent to submit the defence opinions before October 22, 2008;

(18) Evidence No.18, letter dated October 30, 2008 sent by the applicant to the arbitrator, which was used to prove that respondent failed to submit the defence opinions within the time period prescribed by the arbitrator;

(19) Evidence No.19, letter dated October 30 sent by the applicant to the agent of the insurer of the goods of the respondent, which was used to prove that the applicant also notified the insurer of the respondent about the matter of submitting defence opinions;

(20) Evidence No.20, notice dated October 31, 2008 sent by the arbitrator to the respondent, which was used to prove that the arbitrator gave the respondent a further 7-day extension period to submit the defence opinions;

(21) Evidence No.21, letter dated November 7, 2008 sent by the English lawyer of the applicant to the arbitrator, which was used to prove that the respondent failed to submit the defence opinions within the extension period;

(22) Evidence No.22, the final compulsory order made by Mr. Patrick O’ Donovan on November 10, 2008, which was used to prove that the arbitrator required the respondent to submit the defence opinions before November 17, 2008; otherwise the arbitrator might directly make the award.

19. With regard to the evidences of the applicant, the respondent raised the following opinions:

(1) As for Evidence No.1, the respondent confirmed the authenticity, but argued that according to the Chinese law, the said evidence was illegal, and the arbitral award impaired the judicial sovereignty ofChina;

(2) As for Evidence No.2, the respondent confirmed the authenticity, but argued that the said evidence also violated the public policy ofChina;

(3) As for Evidence No.3, the respondent raised no objection to the authenticity and legitimacy, but argued that the bills of lading could not effectively incorporate the arbitration clause;

(4) As for Evidence No.4, the respondent could not confirm the authenticity of the charter party dated November 28;

(5) As for Evidence No.5, the respondent could not confirm the authenticity of the charter party dated July 18;

(6) As for evidence No.6, the respondent could not confirm the authenticity;

(7) As for Evidences No.7-22, the respondent confirmed the authenticity, but argued that because there was not any arbitration agreement between the parties, the said materials could not become the evidences to prove that the arbitration proceeding was legitimate.

Evidence of the respondent

20. In order to corroborate its contention, the respondent provided the effective civil ruling [2007]XHFSCZ No.241 with our Court, which was used to prove that there was not any arbitration agreement between the applicant and the respondent.

21. After cross-examination, with respect to the evidence of the respondent, the applicant confirmed the authenticity but contended that the proceeding of the said civil ruling and the proceeding of application for recognition and enforcement of arbitration award in this case were independent. The said civil ruling shall, strictly according to the provisions of law, be reported to the courts level by level (up to Supreme Court) but the said ruling did not go through the above internal reporting procedure. Thus the said ruling did not follow the due process. Moreover, the said civil ruling examined the issue of incorporation of the arbitration clause from the perspective of Chinese law, which is an error in law application.

 

IV. Findings of facts

22. Our Court finds out that the applicant is the shipowner of M/V “NORD LUNA”. On April 16-18, 2007 and April 23-24, 2007, the applicant accepted the entrustment of carriage, loaded 63,000MT soybeans at Rosario Port and Bahia Blanca Port of Argentina respectively to XiamenChina. On April 24, 2007, the applicant issued two bills of lading No.01 and No.02 in the name of the carrier, and the respondent was the assignee of the bills of lading. The above two bills of lading record on the front that “BILL OF LADING TO BE USED WITH CHARTER-PARTIES”, and in the box at the left bottom of the bills of lading, it is recorded that “Freight payable as per CHARTER-PARTIES dated 28-NOV-2006”. Clause 1 on the back of the bills of lading provides that: “All terms and conditions, liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Arbitration Clause, are herewith incorporated”.

23. On June 2, 2007, M/V “NORD LUNA” arrived at No.2 berth in Dongdu of Xiamen Port and started to discharge the goods. On June 5, the respondent claimed that the goods were damaged. Dispute arose and court action was commenced. On June 8, the respondent immediately applied with our Court for property preservation before litigation to arrest M/V “NORD LUNA”. Thereafter, the respondent lodged an action of contract of carriage of goods by sea dispute against the registered shipowner of M/V “NORD LUNA” NISSEN KAIUN CO., LTD and the applicant as co-defendants. Our Court filed and heard this case with case number as [2007]XHFSCZ No.241. During the trial of this case, the two defendants raised objection to jurisdiction on the ground that the said bills of lading had effectively incorporated the arbitration clause in the said charter party parties. There was an effective arbitration agreement between the bill of lading holder and the carrier, which clearly recorded that all disputes related to the contract of carriage of goods by sea should be submitted for arbitration in London. As such the said case should not be under the jurisdiction of our Court. On March 28, 2008, our Court determined that there was no arbitration agreement between the parties of the said case and delivered the civil ruling to dismiss the objection to jurisdiction. The two defendants did not appeal and the said ruling has taken effect.

24. On September 25, 2007, NISSEN KAIUN CO., LTD and the applicant commenced arbitration proceeding in London. During this process, NISSEN KAIUN CO., LTD and the applicant applied with London High Court for an anti-suit injunction. On February 1, 2008, London High Court made the anti-suit injunction, which read as follows:

25. The first respondent (Xiamen Zhonghe Industry Co., Ltd) and/or the second respondent (the People’s Insurance Company of China), be they themselves or their employees, agents or at any other place shall be prevented and/or prohibited to raise any claim for compensation arising from or related to the loss or damage of the Argentine soybeans carried under the contract of carriage as evidenced by the bills of lading No.1 and No.2 issued April 27, 2007 against the applicants or any one of the applicants in Xiamen Maritime Court or any other Chinese court by continuing or lodging an action or taking any other further legal act or by other means attending litigation in China;

26. The respondents shall pay the applicants the application expenses of this case, in total as GBP12,000.

27. On December 24, 2008, the arbitrator of Patrick O’ Donovan made the arbitral award, which read as follows: 

“(A) The ship interest shall not be liable for cargo loss of soybeans during the course of discharge at XiamenChinain June 2007 as alleged by the cargo interest.

(B) (i) The cargo interest shall assume its expenses and pay the ship interest the arbitration expense of the ship interest (and the expenses that might be claimed by the ship interest, if the parties reach consensus on this, the ship interest shall choose to make a decision by itself or by the London High Court according to the provisions of Section 65(5) of the Arbitration Act 1996); (ii) The cargo interest shall also assume and pay the undersigned the arbitral award expense of GBP4,500 (including the charge of the undersigned and the interim charge). In the event that during the first instance, the ship interest has paid any expenses related to this arbitral award, the ship interest shall be entitled to immediately recourse claim against the cargo interest any expenses that have been paid; and (iii) With regard to the expenses determined by the above paragraphs B (i) and (ii), the cargo interest shall pay the interests therefrom at the annual interest rate of 4% from the day when this award is made to the day of proper payment or repayment, compound interest shall be calculated every 3 months.

(C) Although a temporary/partial award is made in respect of the above matters, the undersigned hereby declares that this award is final and the undersigned reserves the right to make a further proper award regarding all the specific disputes between the parties.” 

28. During the trial of this case, on August 14, 2009, the insurer of the said goods PICC Property and Casualty Co., Ltd Xiamen Branch applied with our Court to attend the litigation as a third party. On August 18, our Court dismissed the application of the said insurer to attend the litigation for the reason that this is a case about recognition and enforcement of foreign related arbitral award rather than an ordinary litigation case, so that the application lacks legal basis.

 

V. Ruling of our Court

29. According to the findings of facts and the disputed issue of this case, our Court is of the following opinions: 

30. The civil ruling [2007]XHFSCZ No.241 has already determined that the arbitration agreement in the said charter party parties cannot be incorporated into the bills of lading, and there is no effective arbitration agreement between the parties in this case. This civil ruling is binding on the applicant Southern Route Maritime S.A. Thus, it lacks factual and legal basis for the applicant to contend that there is an arbitration agreement as determined by London Arbitration Tribunal based on the anti-suit injunction issued by London High Court.

31. Pursuant to the provision of Article II of the New York Convention, only when there is a written arbitration agreement between the parties can they submit the dispute for arbitration. However, the civil ruling [2007]XHFSCZ No.241 has already determined that there is no arbitration agreement between the parties in this case. Consequently, the precondition to apply for recognition and enforcement of the foreign related arbitral award in this case is not satisfied.

32. In conclusion, in accordance with the provisions of Article 267 of the Civil Procedure Law of the PRC and Article II of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and after discussion by the Judicial Committee of our Court, our Court hereby delivers the ruling as follows:

33. The arbitral award made by the arbitrator Mr. Patrick O’ Donovan of London Maritime Arbitrators Association shall not be recognized and enforced.

34. The court fee of this case is RMB500, which shall be assumed by the applicant Southern Route Maritime S.A.

 


Presiding Judge: Zhou Chengyou

Judge: Li Zhekun

Judge: Liu Yurong

 

Court Clerk: Zhang Wei

March 9, 2011