Decision on Dismissal
By
China International Economic and Trade
Arbitration Commission
CLAIMANT: Shanhai Mmdac Machinery Equipment Co., Ltd.
ADDRESS: Unit A, 23 FL.5Majesty Building, No.138 Pudong Avenue, Pudong Distr ict, Shaaghai, P.R.C.
LEGAL REPRESENTATIVE: Ms.Fu Minyan
ARBITRATION AGENTS: Ms. Mao Shujing & Mr. Qiao Yanchun,Attorneys at Law
RESPONDENT: AUBE3VIA 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. 0186
The China International Economic and Trade Arbitration Commission (hereinafter referred to as “the CIETAC”) accepted a reference of a dispute
arising out of the CONTRACT FOR PROCUREMENT OF HAMMER MILL FOR CHONGQING SHUIJIANG POWER CO., LTD, 1 X 30MW UNIT
PROJECT (CONTRACT NO.: MINDACAUB-SHUIJLANG-2004-239, hereinafter referred to as "the Contract”)signed by and between the Claimant Shanghai Mndac Machinery Equipment Co., Ltd. (hereinafter referred to as “the Claimant”)and the Respondent AUBEMA Crashing Technology GmbH (Former Name: AUBEMA MASCHINENFABRIK GMBH, hereinafter referred to the “the Respondent”)on 27 September 2004.
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.
The CIETAC took cognizance of the dispute for arbitration based on the arbitration clause incorporated in the Contract, and the written arbitration
application filed by the Claimant on 29 April 2007. The CIETAC number of the case is M20070280 to which the Arbitration Rules of the China
International Economic and Trade Arbitration Commission 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 2007by the Secretariat of the CIETAC (hereinafter
referred to as "the Secretariat"). Attached to the Notice of Arbitration to the Claimant were the Panel of Arbitrators and CIETAC Arbitration Rules, and to the
Respondent were the Application for Arbitration submitted by the Claimaint, 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 of the
CIETAC under the CIETAC Arbitration Rules as the parties failed to jointly appoint or jointly entrust the Chairman to appoint the presiding
arbitrator within thetime limit, Mr. Wan Meng, the Arbitrator appointed by the Claimant,and Ms. YanSiyi, 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 Respondent’s submission of defense and/or counterclaims to 17 December 2007.
On 6 December 2007, the Respondent submitted the Statement of Counterclaims and attached evidence. The Secretariat transmitted these documents to
the Claimant.
The Tribunal, in consultation with the Secretariat, decided to hold an oral 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 Secretariat transmitted
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 time limit for the
Claimant’s submission of defense against counterclaims to 20 March 2008 accordingly.
On 20 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. M20070280) dated 7 April 2008,
which is as follows:
“The captioned case was brought to arbitration on April 29, 2007, and was accepted by your good Commission on June 4, 2007. Finally, the parties
reached a settlement. We hereby represent MINDAC to withdraw the captioned application to close the procedure in your good Commission.”
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 on March 31, 2008. More than one week has passed since then, and the parties show no
signs of retrograde movement.
As such,in accordance with Article 41 of the applied Arbitration Rules’in those cases and farther 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 the CIETAC. Where the case is to be dismissed after the formation of arbitral tribunal, the decision shall be made by the arbitral tribunal" 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. M20070280 Arbitration Case on Disputes Arising out of the CONTRACT FOR PROCUREMENT OF HAMMER MILL FOR CHONGQING SHUIJIANG POWER CO., LTD, 1X30MW UNIT PROJECT between the Claimant and
the Respondent is dismissed;
2、that the arbitration fee for claims of this case is RMB25,000 which 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 theRespondent USD 637 after subtracting the
arbitration fee from the prepaid amount.
Presiding Arbitrator:
Arbitrator:
Arbitrator:
April 18, 2008 at Beijing