Decision on Dismissal
By
China International Economic and Trade
Arbitration Commission
CLAIMANT: Shanghai Mindac Machinery Equipment Co., Ltd.
ADDRESS: Unit A, 23 FL., Majesty Building, No. 138 Pudong
Avenue,Pudoiig District, Shanghai, P.R.C.
LEGAL REPRESpNTATiVE: Ms. Fu Minyan
ARBITRATION AGENTS: Ms. Mao Shujing & Mr. Qiao Yanchun,
Attorneys at Law
RESPONDENT: AUBEMA Crushing Technology GmbH
(Former Name: AUBEMA MASCHINENFABRIK GMBH)
ADDRESS: Koelner Strasse 94, D-51702,Bergneustadt, Germany ARBITRATION AGENT: Mr. Tim Meng, Attorney at Law
April 18, 2008
Beijing
Decision on Dismissal
(2008)CIETAC Award No. 0184
TheChina International Economic and Trade ArbitrationCommission (hereinafter referred to as “the CIETAC”) accepted a reference ofadisputearising
out of the CONTRACT FORPROCUREMENT OFHAMMER MILL FOR CHONGQINGSHUIJLANG LIMESTONE 1X30MW UNIT PROJECT (CONTRACT NO.: MENDACAUB-SHUIJIANGLIME-2005-394 ,
hereinafter referred to as "the Contract")signed by and between the Claimant shanghai Mindac Machinery Equipment Co., Ltd. (hereinafter referred to as"the Claimant”)and the Respondent AUBEMA Crushing Technology GmbH (FormerName: AUBEMA MASCHINENFABRIK GMBH, hereinafter referred to the "the Respondent") on 17 June 2005.
The dispute was referred to the CIETAC pursuant to Clause 24 "Resolution of Disputes" of the Contract. It states as follows:
"24.1 All disputes arising from the execution of or in connection with the Contract shall be settled through friendly consultation by both
parties. In case no settlement can be reached within sixty (60) days of commencement of such consultation, the dispute shall be submitted
for arbitration.
24.2 Arbitration organization shall be China International Economic and Trade Arbitration Commission (CIETAC). The Commission comprises two
person chose by both parties respectively and one person negotiated by both parties.
TheCIETAC took cognizance of the dispute for arbitration basedon the arbitration clause incorporated in the Contract, and the written
arbitration application filed by the Claimant on 29 April 2007. The CIETACnumber of the case is M20070278 to which the ArbitrationRules ofthe China International Economic
and Trade ArbitrationCommission effective as from 1 May 2005 (hereinafter referred to as "the CIETAC Arbitration
Rules") applies.
A Notice of Arbitration was sent to the Claimant and the Respondent respectively on 4 June 2007 by the Secretariat of the CIETAC
(hereinafterreferred to as “the Secretariat”). Attached tothe Notice of Arbitration tothe Claimant were the Panel of Arbitrators and CIETAC
Arbitration Rules, and to the Respondent were the Application for Arbitration submitted by the Claimant, the Panel of Arbitrators and the CIETAC Arbitration Rules.
On 23 October 2007, an Arbitration Tribunal was formed consisting of Mr. Shen Sibao, the Presiding Arbitrator appointed by the Chairman
ofthe CIETAC under the CIETAC Arbitration Rules as the parties failed to jointly appoint or jointly entrust the Chairman to appoint the
presiding arbitrator within the time limit, Mr. Wan Meng, the Arbitrator appointed by the Claimant, and Ms. Yan Siyi, the Arbitrator
appointed by the Respondent. A Notice on the Formation of Arbitral Tribunal was sent to the Claimant and the Respondent respectively on the same day.
On 13 November 2007, the Respondent submitted the Request for Extension for Submitting Counterclaim. On 16 November 2007, the Secretariat
sent the notice on the Tribunal's decision to extend the time limit for the Respondenf's submission of defense and/or counterclaims to17 December 2007.
On 6 December 2007, the Respondent submitted the Satement of Counterclaims and attached evidence.The Secretariat transmitted these documents to
the Claimant.
TheTribunal, in consultation with the Secretariat, decided to hold anoral hearing on 1-3 April 2008. The Secretariat sent the Notice on Oral Hearing
to the parties on 23 January 2008.
On 23 January 2008, the Claimant requested for extension of the time limit for submitting defense against counterclaims. The
Secretariattransmitted the request to the Respondent on the next day.
On 29 January 2008, the Respondent agreed to the Claimant’s above request in writing. The Tribunal decided to extend the timelimit for the
Claimant’s submission of defense against counterclaims to 20 March 2008 accordingly.
On 19 March 2008, the Claimant submitted the Statement of Defense. The Respondent submitted supplementary evidence on the next day. On 25
March 2008, the Secretariat made exchange of the above documents between the parties.
On 27 March 2008, the Claimant submitted supplementary evidence. The Secretariat transmitted the evidence to the Respondent on the same day.
On 1 April 2008, the Secretariat notified the parties the oral hearing scheduled on 1-3 April 2008 was cancelled since the parties had reached settlement.
During the arbitration procedure, the Claimant submitted the Application for Withdrawing (Re: Arbitration Case No. M20070278)dated 7 April 2008,
which is as follows:
"Thecaptioned case was brought to arbitration on April 29, 2007, Commission on June 4, 2007. Finally, the partiesreached a settlement . We
hereby represent MINDAC to withdrawthe captioned applicationto close the procedure in your goodcommision."
The Respondent submitted its application for withdrawal (Re: CIETAC Cases No. M20070278, M20070279, M20070280 &M20070281) on 10 April 2008,
stating that:
"The Claimant and Respondent signed a Settlement Agreement onMarch 31, 2008. More than one week has passed since then, and theparties show
no signs of retrograde movement.
As such, in accordance with Article 41 of the applied 'Arbitration Rules' in those cases and further to our last requests, we hereby request a withdrawal of the claims
made by us in the Statement of Counterclaims in these cases listed in the title.”
It is stipulated in Article 41.2 of the CIETAC Arbitration Rules that "where a case is to be dismissed before the formation of the
arbitral tribunal, the decision shall be made by the Secretary-General of theCIETAC.Where the case is to be dismissed after the formation of arbitral tribunal, the decision shall be made by the arbitral tribunaT".
Therefore, according to the Claimant's and the Respondent's request for withdrawal of this case, the Tribunal has made the following decisions:
1、that the captioned No. M20070278 Arbitration Case on Disputes Arising out of the CONTRACT FOR PROCUREMENT OF HAMMER MILL FOR CHONGQING
SHUIJIANG LIMESTONE 1 X 30 MWtheClaimant and the Respondent is dismissed;
2、that thearbitration fee for claims of this case is RMB 25,000which shall be borne by the Claimant, since the Claimant has remitted RMB
40,000 as the prepaid arbitration fee, the CIETAC is to refund the Claimant RMB 15,000 after subtracting the arbitration fee from the
prepaid amount; the arbitration fee for counterclaims of this case is USD 637, since the Respondent has remitted USD 1,274 as the prepaid
arbitration fee, the CIETAC is to refund the Respondent USD 637 after subtracting the arbitration fee from the prepaid amount.
Presiding Arbitrator:
Arbitrator:
Arbitrator:
April 18 2008 at Beijing