Recognition and Enforcement of Foreign Arbitral Award in China

HoangThuong (Vietnam)

How does the Chinese Court recognize and enforce judgments of International Commercial Arbitration in case of international commercial contract disputes as the following

 Our contracting party – a Chinese company has breached their obligation of delivery goods pursuant to the commercial contract between two parties; particularly, they delivered to us the kind of goods which is different to the agreement in contract. This dispute was settled by arbitration and the Vietnam International Arbitration Centre concluded that Chinese company must to refund the money we had paid before (we had paid by the mean of L/C at sigh).

We has already translated this award and the two- party contract into Chinese, certified them, and sent all to the Hubei Court (Hubei Court is the competent court in province where Chinese company conducts business, the address of Chinese company is 2-3-6, Building N4 Temple street N1 North Xinhua Road, QiaodongDistric, Xingtai, China). However, our request was not received by any bodies of Hubei Court.

What the address I should send our request to? What documents are included in our dossier of requesting? Can MTON lawyers show me the address of Supreme People's Court of China?

PhươngThúy (MTON VIETNAM LAW FIRM)

The effect of International Arbitration

In your letter, you told that the contracting dispute between your company and Chinese company was settled by Vietnam International Arbitration Centre.

Pursuant to Article 35 UNCITRAL Model Law on International Commercial Arbitration, the “New York” Convention 1958 (both Vietnam and China are member states), as well as Vietnam - China mutual legal assistance Treaty: an arbitral award, irrespective of the country in which it was made, shall be recognized as binding and shall be enforced as well as other competent Court’s decisions. The system of State judicial agencies may apply any coercive measures to enforce the judgment.

That means the Vietnam International Arbitration Centre’s award which enforce Chinese company refund money for your company is final and binding. In the case Chinese company does not voluntarily perform their obligation in accordance with the award, your company has right to request Chinese judicial agencies apply coercive measures.

Documents requesting recognition and enforcement of arbitral award

As you said in your letter, your company has translated the arbitral award and the two- party contract into Chinese, certified them, and sent all to the Hubei Court.

However, according to Article 35 (2) UNCITRAL Model Law, the party requesting recognition and enforcement of arbitral award must supply all documents below:

(1)   Application letter to the competent court;

(2)   The duly authenticated original award or a duly certified copy thereof;

(3)   The original arbitration agreement or a duly certified copy thereof.

Please note that if the award or agreement is not made in an official language of China, your company shall supply a certified translation thereof into such language.

That means your application dossier which your company sent to the Hubei Court last time is not full because of without application letter. You should notice that all translation must be certified by China’s competent agencies on the basic of the certified copies in Vietnam. Furthermore, the translation must also be certified by an official translator or sworn translator or by a diplomatic mission or consulate.

Agency receiving the request of recognition and enforcement of arbitral award

As you provided, your company’s application dossier had been sent to Hubei Court – the competent court in province where Chinese company conducts business and had not been received by any bodies of this court.

In this case, you can send your application dossier including all above- mentioned documents to Supreme People's Court of China(abbreviated as SPC) and request SPC apply coercive measures to enforce the arbitral award. Arbitral award shall be enforced in accordance with the law on execution civil judgment.

However, pursuant to Article 36 UNCITRAL Model Law, recognition or enforcement of an arbitral award may be refused in some specific situations. In order to avoid such situations, you should state clearly that:

(1)   The reason of the request recognizing and enforcing of arbitral award;

(2)   The arbitration agreement is valid under the law to which the parties have subjected it and under the law of the country where the award was made;

(3)   The party against the award was given proper notice of the appointment of an arbitrator or of the arbitral proceedings;

(4)   The composition of arbitral tribunal or the arbitral procedure is in accordance with the agreement of the parties.

You can find out more information about the Supreme People's Court of China on the website: www.court.gov.cn

You can provide more details relating to the dispute and the arbitration agreement between the parties, MTON lawyers will support you specifically on the basic of these documents.

www.mton.vn

At the time you read above text, the effective of rule or Act may have changed. Moreover, each case have not the same. MTON advised the readers not to be arbitrarily applied in the above text. Please consult a trusted attorney or contact us at the address is listed at the bottom of this website. Thank you!