武汉协卓联合贸易有限公司 v. 别洛德莱销售有限责任公司 (Büro 3 Marketing GmbH & Co. KG)

At a glance

Parties

武汉协卓联合贸易有限公司 (Wuhan Xiezhuo United Trading Co., Ltd., China), applicant, v. 别洛德莱销售有限责任公司 (Büro 3 Marketing GmbH & Co. KG, Germany)

Case no.

(2021)京04民特710号; underlying CIETAC case G20202907

Court

Beijing No. 4 Intermediate People's Court (北京市第四中级人民法院)

Underlying award(s)

CIETAC Award 〔2021〕中国贸仲京裁字第2199号 of 25 August 2021

Forum and rules

Set-aside of a foreign-related CIETAC award. The arbitration ran under the summary procedure of the CIETAC Arbitration Rules in force from 1 January 2015.

Tribunal

Court: 冀东 (presiding judge), 朱秋菱, 于颖颖

Sector

Personal protective equipment (disposable medical protective coveralls)

Outcome

Application to set aside the award rejected (29 March 2022). The award against Wuhan Xiezhuo stands.

Amount

The ruling does not state the amounts of the award. Application fee of RMB 400 borne by the applicant.

The dispute

On 7 April 2020 Wuhan Xiezhuo, a Chinese seller, and Büro 3 Marketing, a German buyer, signed Contract No. HSP20200407-2 for disposable medical protective coveralls to EN14126 standards. The contract contained an arbitration clause. Büro 3 Marketing's trading partner, the Hessian Ministry of the Interior and Sport, had the goods tested and reported that 20,000 of the first 40,000 coveralls delivered on 30 April 2020 were defective. Wuhan Xiezhuo then shipped 20,000 replacements. An Italian laboratory, CENTROCOT, also found the replacement batch non-conforming. Büro 3 Marketing won a CIETAC award, and Wuhan Xiezhuo applied to set it aside. It argued that the tribunal had wrongly refused its request for a fresh expert test, had applied the CISG instead of Chinese law, and had misread the contract on the notice period for quality claims, the quality standard and damages. Büro 3 Marketing replied that ordering expert testing was within the tribunal's discretion and that the remaining grounds were merits questions outside the court's review.

Key holdings

1. Because one party is a foreign legal person, the case is foreign-related. The application was therefore reviewed under the rules for setting aside foreign-related awards: Article 70 of the Arbitration Law and Article 281 of the Civil Procedure Law (2021 amendment). p. 15–16
2. Under Article 44 of the Arbitration Law and Article 44(1) of the CIETAC Rules, the tribunal decides whether to order expert testing. Refusing Wuhan Xiezhuo's request after weighing the parties' views and the circumstances was within its powers and did not breach the law or the Rules. p. 17
3. The tribunal had found that Büro 3 Marketing could rely on the CENTROCOT report, and it refused the request. So there was no late notice and no denial of Wuhan Xiezhuo's right to retest, present evidence or argue its case. The procedural ground fails. p. 17
4. The court did not review the complaints about fact-finding, contract interpretation (the notice period for quality claims, the quality standard and damages) or the choice of the CISG as governing law. These are matters for the tribunal on the merits and fall outside judicial review under Article 70 of the Arbitration Law and Article 281 of the Civil Procedure Law. p. 18
5. The application is rejected. Wuhan Xiezhuo bears the RMB 400 application fee. p. 18

Procedural history

1. 7 April 2020The parties sign Contract No. HSP20200407-2, which contains an arbitration clause.
2. 30 April 2020First batch of 40,000 coveralls delivered. 20,000 were later replaced.
3. 8 May 2021The only hearing in CIETAC case G20202907.
4. 12 May 2021Wuhan Xiezhuo applies for a fresh expert test of the goods.
5. 18 August 2021CIETAC notifies the parties that the tribunal has refused both Wuhan Xiezhuo's request for expert testing and Büro 3 Marketing's application for evidence collection.
6. 25 August 2021CIETAC issues Award 〔2021〕中国贸仲京裁字第2199号.
7. 7 September 2021Beijing No. 4 Intermediate People's Court dockets the set-aside application.
8. 29 March 2022The court rejects the application to set aside the award.

Tribunal, counsel and experts

For the claimant

北京市中伦律师事务所

For the respondent

湖北诚明律师事务所

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Keywords

• set-aside
• foreign-related arbitral award
• CIETAC
• expert appraisal refused
• tribunal discretion
• CISG
• governing law
• protective coveralls
• EN14126
• COVID-19 PPE
• CENTROCOT
• quality inspection
• notice period for quality claims
• Article 70 Arbitration Law
• Article 281 Civil Procedure Law
• scope of judicial review
• Büro 3 Marketing

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