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 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 MASCHINEMFABRIK GMBH)
ADDRESS: Koelner Strasse 94, D-51702, Bergneustadt,Germany ARBITRATION AGENT: Mr. Tim Meng, Attorney at Law
Decision on Dismissal
(2008)CIETAC Award No. 0187
The China International Economic and Trade Arbitration Commission (hereinafter referred to as "the CIETAC") accepted a reference
of a dispute arising out of the HAMMER MILL CRUSHER CONTRAC (CONTRACT NO.:MINDACAUB-QINHUANGDAO-2004-153,hereinafter referred to as " the Contract) signed by and between the Claimant Shanghai Mindac Machinery Equipment Co., Ltd. (hereinafterreferred to as “the Claimant"）and the Respondent AUBEMA
CrushingTechnology GmbH (Former Name: AUBEMA MASCHINENFABRIK GMBH, hereinafter referred to the "the Respondent") on 28 May 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. Incase no settlement can be reached within sixty (60) days of commencement of such consultation, the dispute
shall be submitted forarbitration.
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 negotiatedbyboth parties.
The CIETAC took cognizance of the dispute for arbitration based on thearbitration 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 M20070281 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 Respondentrespectively on 4 June 2007 by the Secretariat of the CIETA
C (hereinafterreferred to as “the Secretariat”). Attached to the Notice of Arbitration tothe Claimant were the Panel of Arbi
trators 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 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. 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 2 November 2007, the Respondent submitted the Statement of Counterclaims and attached evidence. The Secretariat transmitted
these documents to the Claimant.
On 17 December 2007, 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 4 January 2008, the Tribunal decided to extend the time limit for the Claimant's submission of defense against counterclaim
s to 31 January2008.
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 two parties on 23 January 2008.
On 30 January 2008, the Claimant submitted the Statement of Defense. The Respondent amended its counterclaims on the same day.
The Secretariat exchanged the above documents between the parties.
On 20 March 2008, the Respondent submitted the supplementary evidence. The Secretariat transmitted it to the Claimant.
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 reachedsettlement.
During the arbitration procedure, the Claimant submitted the Application for Withdrawing (Re: Arbitration Case No. M20070281)
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. Finall
y, the parties reached a settlement. We hereby represent MINDAC to withdraw the captioned application to close the procedure in yo
ur good Commission.”
The Respondent submitted its application for withdrawal (Re: CIETAC Cases No. M20070278, M20070279, M20070280 & M20070281) on 10Ap
ril 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, we hereb
y 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". Theref
ore, according to the Claimant's and the Respondent's request for withdrawal of this case, the Tribunal has made the following
1、that the captioned No. M20070281 Arbitration Case on Disputes Arising out of the HAMMER MILL CRUSHER CONTRAC between the
Claimat and the Respondent is dismissed;
2、that the arbitration fee for claims of this case is RMB 29,323 which shall be borne by the Claimant, since the Claimant has
remitted RMB 48,645 as the prepaid arbitration fee, the CIETAC is to refund theClaimant RMB 19,322 after subtracting the arbitratio
fee from the prepaid amount; the arbitration fee for counterclaims of this case is USD 711, since the Respondent has remitted USD
1,421 as the prepaid arbitration fee, the CIETAC is to refund the Respondent USD 710 aftersubtracting the arbitration fee from the repaid amount.
April 18, 2008 at Beijing