肯考迪亚农产品贸易有限公司 (Concordia Agritrading Pte Ltd) v. 山东晨曦集团有限公司, 山东晨曦集团有限公司管理人

At a glance

Parties

Concordia Agritrading Pte Ltd (Singapore) v. Shandong Chenxi Group Co., Ltd. (山东晨曦集团有限公司) and its bankruptcy administrator (管理人)

Case no.

(2018)鲁11协外认5号

Court

Rizhao Intermediate People's Court, Shandong Province, China

Underlying award(s)

FOSFA Arbitration Award No. 4558 of 8 May 2018 (London)

Treaty

New York Convention 1958 (Articles III, IV, V)

Court

Presiding Judge Shang Hua; Judges Han Wenzhuo and Wang Rong

Sector

Agricultural commodities (soybean trade)

Outcome

The FOSFA award was recognised in China (15 January 2019).

Amount

Award: USD 27,277,838.09 unpaid price plus interest; USD 100,921.88 demurrage plus interest; arbitration costs GBP 6,920.00 and appointment fee GBP 100.00; reasonable legal costs. The court's application fee of RMB 500 was charged to Shandong Chenxi Group.

The dispute

Concordia Agritrading, the seller, and Shandong Chenxi Group, the buyer, signed Contract No. S0540734 on 1 July 2016 for about 60,000 metric tons of soybeans. The contract incorporated FOSFA Contract No. 23 and provided for arbitration in London under FOSFA rules. The vessel "Great Victory" carried 65,581.185 metric tons of Brazilian soybeans to Rizhao port. The buyer paid neither the price nor the demurrage. A FOSFA tribunal ruled for the seller on 8 May 2018. After the Ju County People's Court accepted the buyer's bankruptcy reorganisation on 20 July 2018, the administrator required the award to be recognised in China before it would confirm Concordia's claim. Chenxi opposed recognition on three grounds: the arbitration clause was invalid because it named no arbitral institution; Chenxi had received no notice of the appointment of arbitrators; and the award had never been served on it.

Key holdings

1. The arbitration clause is valid. Under Article 16 of the Supreme People's Court interpretation, its validity is governed by the law the parties chose or, failing that, by the law of the seat. Here that is English law and the FOSFA rules, because FOSFA Contract No. 23 (Articles 26 and 28) and the Arbitration Act 1996 place the arbitration in England. Chinese law as the law of the forum does not apply, and Chenxi offered no evidence that the clause is invalid under English law. pp. 9–10
2. Chenxi had proper notice. The award records that the notice of arbitration and the related notices were sent by email, fax and post and that receipt was signed for. This shows Chenxi was notified of the appointment of arbitrators, so Article V(1)(b) of the New York Convention does not apply. p. 10
3. The award was served. FOSFA sent it to Chenxi by email and by international recorded post on 11 May 2018, so Chenxi's claim that it never received the award fails. p. 10
4. The award is recognised. The application met the document requirements of Article IV, no ground under Article V(1) was shown, and recognition does not conflict with China's reservations to the Convention. The court relied on Article 283 of the Civil Procedure Law and Articles III–V of the Convention. pp. 10–11

Procedural history

1. 1 July 2016Contract No. S0540734 is signed.
2. 4 September 2017The seller serves its notice of arbitration and appoints P G Davies as arbitrator.
3. 20 February 2018FOSFA appoints K Jansa as arbitrator on the buyer's behalf, and the tribunal is constituted.
4. 8 May 2018FOSFA Award No. 4558 is issued in the seller's favour. It is served on the buyer on 11 May 2018.
5. 20 July 2018The Ju County People's Court accepts the buyer's bankruptcy reorganisation and appoints an administrator.
6. 12 November 2018The Rizhao Intermediate People's Court docket-registers (立案) the application for recognition.
7. 15 January 2019The court rules that the award is recognised.

Tribunal, counsel and experts

For the claimant

广东敬海（青岛）律师事务所

For the respondent

山东名律律师事务所 · 国浩律师（济南）事务所

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Keywords

• New York Convention
• recognition of foreign arbitral award
• FOSFA
• soybeans
• commodity sale
• validity of arbitration clause
• designation of arbitral institution
• law of the seat
• English Arbitration Act 1996
• Article V(1)(b)
• notice of arbitration
• default appointment
• bankruptcy reorganisation
• demurrage
• China
• Rizhao

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