Fairdeal Supplies Ltd. (Fairdeal物资供应有限公司) v. 山西煤炭进出口集团有限公司

At a glance

Parties

Fairdeal Supplies Ltd. (India; formerly Fairdeal Supplies Pvt. Ltd.) v. 山西煤炭进出口集团有限公司 (Shanxi Coal Import & Export Group Co., Ltd.)

Case no.

(2018)晋01民初921号

Court

Taiyuan Intermediate People's Court, Shanxi Province (山西省太原市中级人民法院)

Forum and rules

Application to recognise and enforce a foreign arbitral award under the New York Convention

Underlying award(s)

ICC Case No. 14760/JEM, final award of sole arbitrator Jane Willems, 31 January 2008

Court

Presiding judge 任峥; judges 赵耀功 and 段雪丽

Sector

Coal and metallurgical coke trade

Outcome

Application dismissed (21 November 2019): the court could not find that the award had been served on the respondent or had become legally effective abroad.

Amount

Sought: USD 1,144,635.37 in total as of 28 August 2018, including USD 551,250 damages for non-performance of the second shipment and 8% interest from 18 November 2006. Court fee of RMB 66,433 borne by the applicant.

The dispute

Fairdeal Supplies Ltd., an Indian company based in Ahmedabad, obtained an ICC award against Shanxi Coal Import & Export Group (Shancoal) in a dispute over an international sale of metallurgical coke under contract No. SXCOAL/FSP200601. On 31 January 2008 the sole arbitrator ordered Shancoal to pay costs for the first shipment, damages and expenses for failing to perform the second shipment, interest, and arbitration and legal costs. Fairdeal asked the Taiyuan court to recognise and enforce the award. Shancoal argued that it never received the award and that Fairdeal had not produced a written arbitration agreement as Article IV of the New York Convention requires. It also relied on Article V(1)(a), (b) and (d): it said it never signed the arbitration agreement, the signatory 张瑞波 acted for another company, the contract was still under negotiation, it had no proper chance to present its case, and the procedure did not follow the alleged agreement. Finally, it argued that the two-year time limit for applying under Chinese law had expired.

Key holdings

1. Fairdeal relied on a certificate from the ICC Secretariat dated 9 November 2015, stating that Shancoal received the award on 14 February 2008. The court rejected it as evidence because it was formed outside China and had not been notarised and authenticated, as Article 11 of the Supreme People's Court Provisions on Evidence in Civil Procedure requires. pp. 7–8
2. The award itself gave Shancoal's and its counsel's address as Room 707, Xianghai Building, 39 Xinjian Road, Taiyuan, and that address was used throughout the arbitration. The ICC mailed the award on 1 February 2008 to a different address (Room F, Shengwei Building, 168 Nanneihuan Street). On the same day it sent a separate case-closure notice to the Xianghai Building address. p. 8
3. The court therefore could not find that the award had been served on Shancoal, or that it had become legally effective abroad. It dismissed the application under Article 283 of the Civil Procedure Law, Article 548 of the SPC Interpretation of the Civil Procedure Law and Article 11 of the SPC Evidence Provisions. It did not rule on Shancoal's other defences. p. 8
4. Fairdeal must bear the case acceptance fee of RMB 66,433. p. 8

Procedural history

1. 27 March 2007The ICC writes to the parties on the choice of a sole arbitrator, after both parties agreed to one (January and March 2007).
2. 29 August 2007The sole arbitrator submits to the ICC the Terms of Reference signed by both parties.
3. 31 January 2008ICC final award in Case No. 14760/JEM, rendered by sole arbitrator Jane Willems.
4. 1 February 2008The ICC mails the award to the Shengwei Building address, and a case-closure notice to the Xianghai Building address.
5. 2011–2012Earlier proceedings are listed among Fairdeal's evidence: rulings of the Beijing No. 2 Intermediate People's Court ((2011)二中民特字第00242号) and the Beijing High People's Court ((2011)高民终字第4338号), and Taiyuan Intermediate Court case (2012)并民确字第2号. The published judgment does not describe their outcome.
6. 9 November 2015The ICC Secretariat issues a certificate that the award was received on 14 February 2008.
7. 21 November 2019The Taiyuan Intermediate People's Court dismisses the application for recognition and enforcement.

Tribunal, counsel and experts

For the claimant

北京金杜律师事务所 (King & Wood Mallesons, Beijing)

For the respondent

北京华贸硅谷（太原）律师事务所

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Keywords

• New York Convention
• recognition and enforcement
• ICC award
• China
• Shanxi Coal
• Shancoal
• metallurgical coke
• service of award
• notarisation and authentication
• foreign evidence
• Article IV New York Convention
• Article V(1)(b)
• written arbitration agreement
• limitation period
• Civil Procedure Law Article 283
• Taiyuan

Summary generated with AI from the published documents — refer to the award for the authoritative text.