Guiding Cases Nos. 33 and 37 are the first two Guiding Cases (“GCs”) released by the Supreme People’s Court of China that are related to arbitration. Both cases reveal challenges facing foreign parties after arbitration has concluded.
- Guiding Case No. 33: Cargill International S.A. received an arbitral award against a Chinese corporate group. According to the award, a member of the Chinese group had to mortgage its assets to Cargill as security for the repayment of the debt. In the end, however, these assets were transferred by the debtor to its affiliate companies. Despite the court’s determination that the related property transfer contracts were invalid, Cargill was not able to reach the debtor’s assets.Why not?
- Guiding Case No. 37: Shanghai Jwell Machinery Co., Ltd. (上海金纬机械制造有限公司) received an arbitral award against Retech Aktiengesellschaft, Switzerland. Jwell applied to the Lenzburg Court of the Swiss Confederation for the recognition and enforcement of the arbitral award, but to no avail. Later, Jwell discovered that Retech’s assets were in Shanghai and immediately applied to a court in Shanghai to “seal up” Retech’s assets. Retech raised an objection on the ground that Jwell’s application for enforcement had already exceeded the time limit set forth in the Civil Procedure Law of the People’s Republic of China. The court ruled against Retech. Why?
The China Guiding Cases Project (“CGCP”) finds these two GCs very interesting and believes that they provide lessons that can benefit all interested parties, especially foreign investors. We would like to collect more information to produce a piece of commentary. Help us unravel these two GCs by sending your insights to firstname.lastname@example.org (in the subject line, please use: Unravel GC33 and 37; in the body of your message, please let us know whether you want your contribution to remain anonymous if selected). In particular, we are looking for information, answers, and insights regarding the following issues:
- Why was Jwell’s application to the Lenzburg Court unsuccessful? Did Jwell appeal?
- The Supreme People’s Court used “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 certified by an official or sworn translator or by a diplomatic or consular agent”) in Guiding Case No. 37, rather than the text provided 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”; converted here from traditional Chinese characters). Why wasn’t this official Chinese text used in the GC?
- Guiding Case 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 former. Do you have the latter?
- Guiding Case No. 33 also refers to（2007）闽民初字第37号民事判决. Do you have a copy?
For detailed discussion of GCs and their significance, please join our first Guiding Cases SeminarTM on April 22. Also, be sure to download free copies of the GCs from the CGCP website, including our latest products:
- Guiding Case 32:《张某某、金某危险驾驶案》(A certain ZHANG and a certain JIN, A Dangerous Driving Case)
- Guiding Case 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 International S.A. v. Fujian Jinshi Vegetable Oil Producing Co., Limited et al., A Dispute over Contracts Affirmed to be Invalid)
- Guiding Case 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 against Xiamen Marine Industry (Group) Co., Ltd. and Xiamen Marine Industry Controlling Corporation, An Enforcement Reconsideration Case)
- Guiding Case 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 Investment Development Co., Ltd. and Guangdong Jingmao Auction Co., Ltd., An Enforcement Reconsideration Case on an Entrusted Auction)
- Guiding Case 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 Guarantee Co., Ltd. and Haitong Securities Co., Ltd. et al., An Enforcement Reconsideration Case on a Dispute over the Rights and Interests in Securities)
- Guiding Case 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 Machinery Co., Ltd. and Retech Aktiengesellschaft, Switzerland, An Enforcement Reconsideration Case on an Arbitral Award)