Successfully Deal With International Arbitration on Behalf of Turkey Client
Arbitral Award
Our Ref: CIETAC 0102/2010
Beijing, February 19, 2010
CHINA INTERNATIONAL ECONOMIC AND TRADE ARBITRATION COMMISSION (hereinafter refered to as “the Commission”) accepted CIETAC Arbitration Case No. G20090106 on the basis of the Arbitration Clause in the Agreement entered into between the SINOCHEM HEBEI CORP. (hereinafter refered to as the “the Claimant” ) and GARANTi MOTORLU ARACLAR SAN. VE TiC. LTD. Sti (hereinafter refered to as “the First Respondent”), Mr. MEHMET OKSUZ (hereinafter refered to as “the Second Respondent”) and on the basis of the written Request for Arbitration submitted by the Claimant dated on March 3, 2009.
The procedural matters of the case is subject to CIETAC Arbitration Rule (hereinafter refered to as “the Rule” ) ,effective as from May 1, 2005.
On March 17, 2009, the Secretariate of the Commission sent Arbitration Notice, Arbitration Rule and Panel of Arbitrators to the Claimant and the Respondent by express respectively. Meanwhile the Secretariate sent the Request for Arbitration and the attached Evidences provided for by the Claimant to the Respondent.
On April 15, 2009. the Commission notified two parties that the Arbitration Language shall be Chinese in accordance with the Rule and that the Respondent shall submit relevant materials in Chinese version.
On April 24, 2009, the First Respondent sent an English letter to the Commission. On April 29, 2009, the Commission sent the reply to the two parties and stressed again that the Arbitration Language shall be Chinese and the Respondent shall submit relevent materials in Chinese. As for Objection to Jurisdiction raised by the First Respondent, the Commission decided that it’s up to the Arbitral Tribunal since Objection to Jurisdiction is a substantial matter of the captioned case.
The Claimant appointed Mr. Peng Xuejun as the arbitrator. Because the two Respondents fail to jointly appoint arbitrator and fail to jointly entrust the Chairman of the Commission to make such appointment, the Chairman of the Commission appoint Mr. Wang Qiang as the arbitrator in accordance with the Rule. Because the two parties fail to jointly appoint the presiding arbitrator and fail to jointly entrust the Chairman of the Commission to make such appointment, the Chairman of the Commission appoint Mr. Zhou Qi as the presiding arbitrator in accordance with the Rule. The above-mentioned three arbitrators form the arbitral tribunal to examine the captioned case on October 20,2009. On the same day, the Secretariate sent the notice of forming Arbitral Tribunal to two parties by express.
After consultation with the Secretariate, the Arbitral Tribunal decided to hold oral hearing on October 19, 2009 in Beijing. On September 17, 2009 the Secretariate sent the Notice of holding the oral hearing to two parties by express.
The First Respondent sent the request of prolonging the oral hearing to the Commission on October 10, 2009. The arbitral tribunal held deliberation and overruled the request of prolonging the oral hearing. The arbitral tribunal decides to hold the oral hearing at 9:00 am of October 19, 2009 as arranged.
Afterwords, the Commission sent letter to two parties on October 19, 2009. In the above-said letter, the Arbitral Tribunal decided to cancel the arranged oral hearing on October 19, 2009 because the two Respondents are outside the territory of China, the above-mentioned Letter is hard to reach the two Respondents.
The Arbitral Tribunal and the Secretariate decide to hold the oral hearing on November 13, 2009 in Beijing. The Secretariate sent to two parties the Notice of canceling the oral hearing on October 19, 2009 and the Notice of newly arranged date of holding oral hearing.
On November 13, 2009 the Arbitral Tribunal held oral hearing in Beijing as arranged. The agent of the Claimant appeared before the court. These two Respondents failed to take part in the oral hearing. The agent of the Claimant set forth the facts and the law-related issues and showed relavent evidences before the Arbitral Tribunal and answerd questions raised by the Arbitral Tribunal.
On November 16, 2009 the Commission sent letters to two Respondents and made a statement about the oral hearing. The Commission notified two Respondents that two Respondents shall submit to the Commission with your written examining opinion before November 27, 2009 and that in case two Respondents apply for holding an oral hearing again, the written application shall be submitted to the Commission before November 27, 2009.
On November 16, 2009 the Commission empowered the Arbitral Tribunal to include the Objection to Jurisdiction raised by the First Respondent in the final Arbitral Award. Meanwhile the Secretariate sent the above-said notice to two parties.
On November 30, 2009 the Claimant sumbit to the Commission with the Post-trial Wording and supplementary evidences. On December 3, 2009 the Secretariate transmitted the above-mentioned documents to two Respondents. Meanwhile the Sceretariate required two Respondent submit written examining opinion and request for holding oral hearing again before December 24, 2009.
Two Respondents failed to submit written examining opinion and request for holding oral hearing again. All arbitral documents are served in accordance with the Rules.
Now the captioned case is over. The Arbitral Tribunal rendered the Arbitral Award based on facts and evidences in accordance with relevant laws and regulations. The following is about details of the case, opinion of the Arbitral Tribunal and Arbitral Award:
Details of the Case
In the Request for Arbitration, the Claimant states:
1. Introduction of two parties and the background of entering into contracts
The Claimant is an important distributor in the domestic of China. The business of the Claimant includes importaion of lumpy chrome abroad.
The First Respondent is a supplier of lumpy chrome ore in Turkey.
The Second Respondent is the manager of the First Respondent and in charge of the above-mentioned contracts. The Second Respondent bears joint liability with the First Respondent.
2. The Claimant and the First Respondent entered into a series of sales contracts as of lumpy chrome ore.
During January to April of 2008, the Claimant and the First Respondent entered into a series of sales contracts as of lumpy chrome ore. There are altogether 7 pieces of contracts:
No.08TR13HB2CKYC1009 Contract（“C1009 Contract”）
No.08TR13HB2CKYC1013 Contract（“C1013 Contract”）
No.08TR13HB2CKYC1018 Contract（“C1018 Contract”）
No.08TR13HB2CKYE2007 Contract（“E2007 Contract”）
No.08TR13HB2CKYE2010 Contract（“E2010 Contract”）
No.08TR13HB2CKYE2011 Contract（“E2011 Contract”）
No.08TR13HB2CKYC1023 Contract（“C1023 Contract”）
In accordance with the above-mentioned contracts, the Claimant imported lumpy chrome ore from the First Respondent. In the above-mentioned contracts the standard of premium/penalty is specified. In case the actual Cr2O3 is higher/lower than the agreed content, the premium/penalty applies.
The Second Respondent is the manager of the First Respondent and in charge of the above-mentioned 7 pieces of contracts.
(a) terms of the above-mentioned contracts, take C1009 Contract as an example.
（1） Commodity：Turkish Chrome Ore and Chore Concentrates
（2） Quantities,Specifications and Prices:
① Lumpy Chrome Ore 1000MT+/-10% at the seller’s option
Cr203: 38% Basis / 36% Min
US$ 315 (U>S. Dollars Three Hundred and Fifteen Only) per DMT CFR
Xingang Port, China on the basis of 38% Cr203 with premium/penalty of US$7.11 per DMT for each 1% increase or decrease in Cr2O3, scale fracton pro-rata. Payable by D/P at sight.
Total Amount: US$ 315,000 (Say U.S. Dollars Three Hundred and Fifteen Thousand Only)
② Lumpy Chrome Ore 3500MT +/-10% at the seller’s option
Cr2O3: 42% Basis/40% Min
US$380(U.S. Dollars Three Hundred and Eighty Only) per DMT CFR Xingang
Port, China on the basis of 42% Cr2O3 with premium/penalty of US$7.98 per DMT for each 1% increase or decrease in Cr2O3, scale fraction pro-rata. Payable by D/P at sight.
Total Amount: US$ 1,330,000 (Say U.S.Dollars On Million and Three
Hundred and Thirty Thousand Only)
③ Lumpy Chrome Ore 500MT+/- 10% at the seller’s option
Cr2O3: 48% Basis/46% Min
US% 445(U.S.Dollars Four Hundred and Forty-five Only)per DMT CFR
Xingang Port, Chian on the basis of 48% Cr2O3 with premium/penalty of US$ 8.33 per DMT for each 1% increase or decrease in Cr2O3, scale fraction pro-rata. Payable by D/P at signt.
Total Amount: US$ 222,500(Say U.S Dollars Two Hundred and Twenty Two
Thousand and Five Hundred Only)
(3) Sampling & Analysis:
Cerficates of Weight, Quality, Moisture and Size at loading port issued by SGS/A.H.K will be the basis for payment. Costs of SGS/A.H.K inspection incurred to be at SELLER’s account. Re-inspection shall be taken by CIQ within 90 days after discharge of the goods ath the port of destination incurred to be at BUYER’s account.
(4) Mode of Payment:
D/P at sight
Commercial Invoice:
The commercial invoice shall be made out for one hundred (100) percent of the value based on the price as set forth in Caluse-4, and calculated on the basis of quality and weitht at the loading port as per certificates issued by Seller basedon SGS/AHK report-Turkey’s result.
(5) Discrepancy and Claim:
In case the quanlity, quantity or weight of the goods are found not in conformity with those stipulated in this contract, the buyers shall return the goods or to loge claimes against the sellers after re-inspection against discharge of the goods at the port of destination for compensation of losses supported by Inspection Certificate/Report issued by State Administration for Entry-Exit Inspection and Quarantine of P.R.China. All expenses (including inspection fees)and looses arising from the return of goods or claims should be borne by the sellers.
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