Decision on Dismissal
China International Economic and Trade
CLAIMANT: Shanghai Mindac Machinery Equipment Co., Ltd.
ADDRESS: Unit A, 23 FL., Majesty Building, No.l38 Pudong Avenue, Pudong Distr ict, 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
Decision on Dismissal
(2008)CIETAC Award No.0197
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 NO. MINDACAUB-LONGYAN-2004-125 (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 (Former Name: AUBEMA MASCHINENFABRIK
GMBH, hereinafter referred to the “the Respondent”）.
The dispute was referred to the CIETAC pursuant to Clause 21 “Arbitration” of the Contract. It states as follows:
"21.1 All disputes arising from the execution of or inconnection with the Contract shall be settled through friendly
consultation by both parties. In case no settlement can be reached withinsixty (60) days of commencement of such
consultation, the dispute shall be submitted for arbitration.
21.2 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 onthe arbitration clause incorporated in the Contract,
and the written arbitration application filed by the Claimant on 1 August 2007. The CIETAC number of the case is
M20070406 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 3 September 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 forArbitration submitted
by the Claimant, the Panel of Arbitrators and the CIETAC Arbitration Rules.
On 1 November 2007, the Respondent submitted the Request for Extension for Submitting Defense and Counterclaim. On 6 Novemb
er 2007, the Secretariat sent the notice on the CIETAC's decision to extend the time limit for the Respondent's submission
of defense and/orcounterclaims to 6 December 2007.
On 6 December 2007, the Respondent submitted the Statement of Countercl-
aims and attached evidence. The Secretariat transmitted these documents to
After the Respondent had handled with the counterclaim accepting proce-dure,the Secretariat notified the parties on 2 January
2008 that the Claimant should submit defense against counterclaims within thirty days. 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 26 January 2008, the Respondent agreed to Claimant's above request in writing. The Tribunal decided to extend the time
limit for theClaimant’s submission of defense against counterclaims to 20 March2008 accordingly.
On 26 February 2008, an Arbitration Tribunal was formed consisting of Mr. Xia 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 arbitrator within the time limit, Mr. Meng Yuqun, 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.
The Tribunal, in consultation with the Secretariat, decided to hold an oral hearing on 9 April 2008. The Secretariat
sent the Notice onOral Hearing to the two parties on 29 February 2008.
On19 March 2008, the Claimant submitted the Statement of Defense. The Respondent submitted supplementary evidence on the
nextday. The Secretariat made exchange of the above documents between the parties in time.
On 7April 2008, the Secretariat notified the partiesthe oral hearing scheduled on 9 April 2008 was cancelled sincethe
parties had reached settlement.
Duringthe arbitration procedure, the Claimant submittedtheApplication for Withdrawing (Re: Arbitration Case No. M20070406)
dated 8 April 2008, which is as follows:
"The captioned case was brought to arbitration on August 1, 2007, and was accepted by your good Commission on September
3, 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. M20070406) 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 further to our last
requests, wehereby request a withdrawal of the claims made by us in the Statement of Counter-claims 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 arbitraltribunal,the decision shall be made by the Secretary-General of the CIETAC. Where the case is to he 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. M20070406 Arbitration Case on Disputes Arising out of the CONTRACT NO. MINDACAUB-LONGYAN-2004-125 between the Claimant and the Respondent is dismissed;
2、that the arbitration fee for claims of thiscase is RMB 27,586which shall be borne by the Claimant, since the Claimant
has remitted KMB45,171 as the prepaid arbitration fee, the Arbitration Commission is to refund the Claimant RMB 17,585
after subtracting the arbitration fee from the prepaid amount; the arbitration fee for counterclaims of this case is USD
1,790 , since the Respondent has remitted USD 3,579 as the prepaid arbitration fee, the Arbitration Commission is to
refund theRespondent USD 1,789 after subtracting the arbitration fee from the prepaid amount.
Beijing , April 17 2008