来宝资源国际有限公司 (Nobel Resources International Pte Ltd) v. 山东中淼商业有限公司

At a glance

Parties

Noble Resources International Pte Ltd (来宝资源国际有限公司, Singapore) v. Shandong Zhongmiao Commercial Co., Ltd (山东中淼商业有限公司, China; formerly Rizhao Zhongrui Wuchan Co., Ltd)

Case no.

(2018)鲁11协外认2号

Court

Rizhao Intermediate People's Court, Shandong Province, China (collegiate bench: Shang Hua presiding, Han Wenzhuo, Wang Rong)

Underlying award(s)

London arbitration under a guarantee of 4 September 2014: Final Award of 6 June 2016 and Supplementary Award of 17 September 2016 (arbitrators David Martin-Clark, Gavin Kealey and Robert Gaisford)

Forum and rules

Application to recognise and enforce a foreign arbitral award under the PRC Civil Procedure Law and the New York Convention (Arts. III, IV, V)

Treaty

New York Convention 1958

Sector

Iron ore trade; guarantee

Outcome

The court recognised the London Final and Supplementary Awards and ordered the respondent to pay within 30 days of service of the ruling. The ruling is final.

Amount

Principal: USD 2,468,544.52, HKD 1,871,626.70 and AUD 131,678.42, plus interest at 3.5% (USD 135,634.69, HKD 102,836.91 and AUD 7,235.10 up to 31 December 2017). Costs: HKD 1,162,170, AUD 47,605 and GBP 64,461.67, plus interest. Remaining costs of the award: GBP 51,493.33, plus interest. Court fee of RMB 500 charged to the respondent.

The dispute

On 4 September 2014 Shandong Zhongmiao issued a guarantee for an iron ore sale and carriage contract (No. NRIPL-IRO-53986SIF) between Noble Resources and Jolly Asia Holdings Ltd. The cargo was carried on the vessel "ALPHA LIBERTY". The guarantee was governed by English law and provided for arbitration in London. A London tribunal ordered the guarantor to pay sums owed under the guarantee, with interest and costs, and Noble applied to the Rizhao court to recognise and enforce the awards. It also asked the court to add the respondent's legal representative and shareholder, Gao Huazhong, as a judgment debtor up to his unpaid capital contribution of RMB 7.6672 million. The respondent raised four objections: its liability was only supplementary to Jolly Asia's; the awards had not been lawfully served; the London award relied on an Australian award that it disputed; and the applicant had not filed originals or certified copies of the award and the arbitration agreement as the New York Convention requires.

Key holdings

1. The court had jurisdiction because the respondent is domiciled within its district. The application, filed on 12 March 2018, was within the two-year time limit of Article 239 of the Civil Procedure Law. p. 7
2. The supplementary-liability defence failed. The respondent offered no evidence for it, and the applicant showed that Jolly Asia had been put into liquidation in the British Virgin Islands and had no funds to pay. p. 7
3. The awards were validly served. The Final Award was emailed to the respondent's counsel on 1 August 2016, and counsel forwarded it to the respondent. Robert Gaisford's declaration confirms that the signed originals were then posted. The signed Supplementary Award was posted on 19 September 2016. pp. 7–8
4. The objection to the London award's reliance on an Australian award goes to the merits. It falls outside the scope of review in recognition proceedings. p. 8
5. Article IV of the New York Convention was satisfied. The applicant filed the original award, a copy of the original arbitration agreement and a Chinese translation, all duly notarised, authenticated and translated. pp. 8–9
6. No ground for refusal under Article V(1) existed, and recognition did not breach China's reservations to the Convention. The awards were recognised and enforced. The request to add Gao Huazhong as a judgment debtor falls outside the scope of recognition proceedings, so the court did not examine it. pp. 9–10

Procedural history

1. 4 September 2014Shandong Zhongmiao issued the guarantee for the iron ore cargo on the "ALPHA LIBERTY".
2. 6 June 2016The London tribunal issued its Final Award on the guarantee. The court's reasoning also refers to it once as dated 4 September 2016.
3. 1 August 2016The Final Award was emailed to the respondent's counsel at Ince & Co LLP, Shanghai office. The signed originals were posted afterwards.
4. 20 September 2016A British Virgin Islands court ordered Jolly Asia to be wound up, on the liquidation petition Noble filed on 20 June 2016.
5. 17 September 2016Supplementary Award amended the costs order of the Final Award. It was posted on 19 September 2016, and the operative part of the court's ruling refers to it by that date.
6. 12 March 2018The Rizhao Intermediate People's Court accepted Noble's application for recognition and enforcement.
7. 20 December 2018The court ruled to recognise and enforce both awards. The ruling is final.

Tribunal, counsel and experts

For the claimant

北京市正见永申律师事务所

For the respondent

山东恒盛德律师事务所 · Ince & Co LLP (Shanghai office), counsel in the London arbitration

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Keywords

• New York Convention
• recognition and enforcement
• foreign arbitral award
• China
• London arbitration
• guarantee
• iron ore
• ALPHA LIBERTY
• Jolly Asia
• service of award
• Article IV documents
• Article V
• supplementary liability
• time limit for enforcement
• Civil Procedure Law Article 239
• shareholder liability
• Noble Resources

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