April 9, 2020

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Post-Arbitration Challenges for Foreign Companies in China

Guiding Conditions Nos. 33 and 37 are the 1st two Guiding Conditions (“GCs”) launched by the Supreme People’s Court docket of China that are similar to arbitration. Equally situations reveal problems dealing with international events just after arbitration has concluded.

1. Guiding Scenario No. 33: Cargill Global S.A. received an arbitral award from a Chinese corporate team. In accordance to the award, a member of the Chinese team experienced to home finance loan its assets to Cargill as protection for the compensation of the financial debt. In the conclude, on the other hand, these assets have been transferred by the debtor to its affiliate corporations. Inspite of the court’s resolve that the similar home transfer contracts have been invalid, Cargill was not in a position to achieve the debtor’s assets.Why not?

two. Guiding Scenario No. 37: Shanghai Jwell Equipment Co., Ltd. (上海金纬机械制造有限公司) received an arbitral award from Retech Aktiengesellschaft, Switzerland. Jwell applied to the Lenzburg Court docket of the Swiss Confederation for the recognition and enforcement of the arbitral award, but to no avail. Later on, Jwell found out that Retech’s assets have been in Shanghai and right away applied to a court docket in Shanghai to “seal up” Retech’s assets. Retech elevated an objection on the floor that Jwell’s application for enforcement experienced currently exceeded the time restrict set forth in the Civil Technique Regulation of the People’s Republic of China. The court docket ruled from Retech. Why?

 

The China Guiding Conditions Undertaking (“CGCP”) finds these two GCs incredibly intriguing and thinks that they supply lessons that can gain all fascinated events, in particular international buyers. We would like to accumulate extra data to generate a piece of commentary. Help us unravel these two GCs by sending your insights to [email protected] (in the subject matter line, be sure to use: Unravel GC33 and 37 in the physique of your message, be sure to let us know whether or not you want your contribution to stay nameless if chosen). In certain, we are hunting for data, solutions, and insights regarding the subsequent issues:

1. Why was Jwell’s application to the Lenzburg Court docket unsuccessful? Did Jwell enchantment?

two. The Supreme People’s Court docket made use of “译文由公设或宣誓之翻译员或外交或领事人员认证” (i.e., “the translation shall be qualified by an official or sworn translator or by a diplomatic or consular agent”) in Guiding Scenario No. 37, instead than the text presented in the official Chinese text of the New York Convention (“译本应由公设或宣誓之翻译员或外交或领事人员认证之” transformed listed here from common Chinese figures). Why was not this official Chinese text made use of in the GC?

three. Guiding Scenario No. 37 refers to these two original rulings: (2009)沪高执复议字第2号执行裁定and(2008)沪一中执字第640-1民事裁定. We have the previous. Do you have the latter?

4. Guiding Scenario No. 33 also refers to(2007)闽民初字第37号民事判决. Do you have a duplicate?

 

For specific discussion of GCs and their importance, be sure to be a part of our 1st Guiding Conditions SeminarTM on April 22. Also, be certain to download totally free copies of the GCs from the CGCP site, such as our most current merchandise:

1. Guiding Scenario 32:《张某某、金某危险驾驶案》(A certain ZHANG and a certain JIN, A Harmful Driving Scenario)

two. Guiding Scenario 33:《瑞士嘉吉国际公司诉福建金石制油有限公司等确认合同无效纠纷案》(Cargill Global S.A. v. Fujian Jinshi Vegetable Oil Making Co., Limited et al., A Dispute above Contracts Affirmed to be Invalid)

three. Guiding Scenario 34:《李晓玲、李鹏裕申请执行厦门海洋实业(集团)股份有限公司、厦门海洋实业总公司执行复议案》(Application by LI Xiaoling and LI Pengyu for Enforcement from Xiamen Maritime Industry (Group) Co., Ltd. and Xiamen Maritime Industry Controlling Corporation, An Enforcement Reconsideration Scenario)

4. Guiding Scenario 35:《广东龙正投资发展有限公司与广东景茂拍卖行有限公司委托拍卖执行复议案》(Guangdong Longzheng Financial commitment Improvement Co., Ltd. and Guangdong Jingmao Auction Co., Ltd., An Enforcement Reconsideration Scenario on an Entrusted Auction)

five. Guiding Scenario 36:《中投信用担保有限公司与海通证券股份有限公司等证券权益纠纷执行复议案》(Zhongtou Credit score Guarantee Co., Ltd. and Haitong Securities Co., Ltd. et al., An Enforcement Reconsideration Scenario on a Dispute above the Legal rights and Passions in Securities)

6. Guiding Scenario 37:《上海金纬机械制造有限公司与瑞士瑞泰克公司仲裁裁决执行复议案》(Shanghai Jwell Equipment Co., Ltd. and Retech Aktiengesellschaft, Switzerland, An Enforcement Reconsideration Scenario on an Arbitral Award)