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.l38 Pudong Avenue,
Pudong District, Shanghai, P.R.C.
LEGAL REPRESENTATIVE: Ms.FuMinyan
ARBITRATION AGENTS: Ms. Mao Shujing & Mr. Qiao Yanchun,
Attorneys at Law
RESPONDENT: AUBEMA Crushing Technology GmbH
(Fonner Name: AUBEMA MASCHINENFABRIK GMBH)
ADDRESS:Koelner Strasse 94, D-51702, Bergneustadt, Gennany ARBITRAI ION AGENT: Mr. Tim Meng, Attorney at Law
April 18,2008
Beijing
Decision on Dismissal
(2008) CIETAC Award No. 0185
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 SHENDONG BAODE POWER PLANT,
2X135MW UNIT PROJECT (CONTRACT NO. MINDACAUB-BAODE-2004-247, hereinafter referred to as “theContract”)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”) 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 ofcommencement 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 Commissioncomprises
two person chose by both parties respectively and one personnegotiated by both parties.
······
The CIETAC cognizance of the dispute for arbitration based onthearbitration clause incorporated inthe Contract, and the writtenarbitration
application filed by the Claimant on 29 April 2007. TheCIETAC numberof the case is M20070279 to which the ArbitrationRulesof the China
International Economic and Trade ArbitrationCommission effective as from 1 May 2005 (hereinafter referred to as “the CIETAC Arbitration
Rules”) applies.
A NoticeofArbitration was sent to the Claimant and the Respondent respectively on 4 June 2007 by the Secretariat of the CIETAC (hereinafter
referred to as “he Secretarial”). 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 bythe 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 CIETAG Arbitration Rules as the parties failed to jointly appoint or jointly entrust the Chairmanto appointedbypresiding
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 28 November 2007, the Respondent submitted the Statement ofCounterclaims and attached evidence. The Secretariat transmitted these
documents to the Claimant.
On 7 January 2008, the Claimant requested for extension of the timelimit for submitting defense against counterclaims. The Secretariat transmitted to the Respondent on the next day.
On 8January 2008, the Respondent agreed to the Claimant’s aboverequest in writing. The Tribunal decided to extend the time limit for theClaimant’s
submission of defense against counterclaims to 20 February 2008 accordingly.
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 t0 the parties on 23 January 2008.
On 19 February 2008, the Claimant submitted the Statement of Defense. The Secretariat transmitted it to the Respondent.
On 24 March 2008, the Respondent submitted the supplemental evidence. The Secretariat transmitted it to the Claimant.
On 27 March 2008, the Claimant submitted supplemental 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 parties had reachedsettlement.
During the arbitration procedure, the Claimant submitted the Application for Withdrawing (Re: Arbitration Case No. M20G70279) 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 goodCommission.”
TheRespondent submitted its application for withdrawal (Re:CIETAC Cases No.M20070278, M20070279, M20070280 & M2007028l) on10 April
2008, stating that:
“TheClaimant 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 furthertoourlastrequests, weherebyrequesta
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 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. M20070279 Arbitration Case on Disputes
Arising out of the CONTRACT FOR PROCUREMENT OF HAMMER MILL FOR SHENNDONG BAODE POWER PLANT, 2X135MW UNIT
PROJECT between the Claimant and the Respondent is dismissed;
2、that the arbitration fee for claims of this case is RMB 26,393which shall be borne by the Claimant, since the Claimant has remitted RMB
42,786 as the prepaid arbitration fee, the CIETAC is to refund the Claimant RMB 16,393 after subtracting the arbitration fee from theprepaid
amount; the arbitration fee for counterclaims of this case is USD 1,404, since the Respondent has remitted USD 2,807 as the prepaid arbitration
fee, the CIETAC is to refund the Respondent USD 1,403 after subtracting the arbitration fee from the prepaid amount.
Presiding Arbitrator:
Arbitrator:
Arbitrator:
April 18, 2008 at Beijing