Decision on Dismissal
China International Economic and Trade
CLAIMANT: Shanghai Mindac Machinery Equipment Co., Ltd.
ADDRESS: Unit A, 23 FL., Majesty Building, No.138 Pudong Avenue,Pudong District, Shanghai, P.R.C.
LEGAL REPRESENTATIVE: 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
Decision on Dismissal
(2008)CIETAC Award No.0173
The China International Economic and Trade ArbitrationCommission (hereinafter referred to as “the CIETAC”) accepted areference of a dispute
arising out of the CONTRACT FOR PROCUREMENT OF HAMMER MILL FOR HAISHEN THERMAI POWER PLANT 2X150MW CFB PROJECT (CONTRACT NO.:MINDACAUB-HAISHEN-2005-370,，
hereinafter referred to as “theContract") signed by and between the Claimant Shanghai Mindac Machinery & Equipment Co., Ltd. (hereinafter
referred to as "theClaimant”) and the Respondent AUBEMA Crushing Technology GmbH(Former Name:AUBEMA MASCHINENFABRIK GMBH, hereinafter referred
to the "the Respondent") on 25 April 2005.
The dispute was referred to the CIETAC pursuant to Clause 24 "Resolution of Disputes” of the Contract It states as follows:
All disputes arising from the execution of or in connection with title Contract shall be settled through friendly consultation by both
parties. In case no settlement can be reached within sixty (60) days ofcommencement of such consultation, the dispute shall be submitted
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.
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 12 January 2007. The CIETAC number of the case is M20070098 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 15 February 2007 by 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 Claimant, the Panel of
Arbitrators and the CIETAC Arbitration Rules.
On 16 April 2007, the Respondent submitted the Statement of Counterclaims and attached evidence. The Secretariat transmitted these
documents to the Claimant.
After the Respondent had handled with the counterclaim accepting procedure, the Secretariat notified the parties that the Claimant should
submit defense against counterclaims within thirty days.
October 2007, an Arbitration Tribunal was formed consisting of Mr. Wang Jun, 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 arbiljator within the time limit, Mr. Wei Runquan, the Arbitratorappointed by the Claimant, and Mr. Meng Yuqun, 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.
The Tribunal, in consultation with the Secretariat, decided to hold an oral hearing on 21 December 2007. The Secretariat sent the
Notice on Oral Hearing to the two parties on 30 November 2007.
On 5 December 2007, the Claimant requested to defer the oral hearing due to the Christmas season. The tribunal decided to hold
the oral hearing on 10 April 2008.
the parties being in a process of making a settlement, the arbitral tribunal cannot render the arbitral award before 26 January 2008.
Upon the request of the arbitral tribunal, the Chairman of CIETAC has decided to extend the time period to 26 May 2008.
On 24 March,
the Claimant submitted the "Supplementary Claims of Claimant”.
On 1 April 2008,
the Secretariat notified the parties the oral hearing scheduled on 10 April 2008 was cancelled since the parties had reached settlement.
During the arbitration procedure, the Respondent submitted the Application for Withdrawing (Re: Arbitration Case No. M20070098) dated 8
April 2008, which is as follows:
"The captioned case was accepted by your good Commission on February 28, 2007 and MINDAC as the respondent submitted the counterclaim
on April 13, 2007. Finally, the parties reached a settlement. We hereby represent MINDAC to withdraw the captioned application toclose
the procedure in your good Commission.”
The Claimant submitted its application for withdrawal (Re: CIETAC Cases No. M20070098) on 10 April 2008, stating that:
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 further to our last requests，,we hereby
request a withdrawal of the claims made by us in the Statement of Counter-claims in these cases listed in the title.”
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 Claimants'and the Respondents' request for withdrawal of this case, the Tribunal has made the following decisions:
1、that the captioned No. M20070098 Arbitration Case on Disputes Arising out of the CONTRACT FOR PROCUREMENT OF HAMMER MILL FOR HAISHEN
THERMAI POWER PLANT 2X150MW CFB PROJECT between the Claimant and the Respondent is dismissed;
2、that the arbitration fee for claims of this case is USD 3,139, whichshall be borne by the Claimant, since the Claimant has remitted
USD 4,850 as the prepaid arbitration fee, the Arbitration Commission is to refund the Claimant USD 1,711 after subtracting the arbitration
fee from the prepaid amount; the arbitration fee for counterclaims of this case isRMB 12,246, since the Respondent has remitted RMB 24,492 as
the prepaid arbitration fee, the Arbitration Commission is to refund theRespondent RMB 12,246 after subtracting the arbitration fee from the prepaid amount.
Madein Beijing, China on 18 April 2008