Decision on Dismissal
By
China International Economic and Trade
Arbitration Commission
CLAIMANT: AUBEMA Crushing Technology GmbH
(Former Name: AUBEMA MASCHINENFABRIK GMBH)
ADDRESS: Koelner Strasse 94, D-51702, Bergneustadt, Germany ARBITRATION AGENT: Mr. Tim Meng, Attorney at Law
RESPONDENT: Shanghai Mindac Machinery Equipment Co., Ltd.
ADDRESS: Unit A, 23 FL., Majesty Building, No. 138 Pudong Avenue, Pudong District, Shanghai, P.R.C.
LEGAL REPRESENTATIVE: Ms. Fu Minyan
ARBITRATION AGENTS： Ms. Mao Shujing & Mr. Qiao Yanchun,
Attorneys at Law
April 18, 2008
Beijing
Decision on Dismissal
(2008 ) CIETAC Award No. 0188
The China International Economic and Trade Arbitration Commission (hereinafter referred to as “he CIETAC”) accepted a reference of
a dispute arising out of the Hammer Mill Crusher Contract (Contract No.: MINDACAUB-ZAOZHUANG-20G3-87, hereinafter referred to as “the Contract”) signed by and between the Claimant AUBEMA Crushing Technology GmbH (Former Name:
AUBEMA MASCHINENFABRIK GMBH，hereinafter referred to as “the Claimant”）and the Respondent Shanghai Mindac Machinery Equipment
Co., Ltd. (hereinafter referred to the “the Respondent”) on 26 December 2003.
The dispute was referred to the CIETAC pursuant to Clause 21 “Arbitration”of the Contract. It states as follows:
“21.1 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 of commencement of such consultation, the dispute shall be submitted
for arbitration.
21.2 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 chose by both parties respectively and one person negotiated by
both parties.
······”
The CIETAC took cognizance of the dispute for arbitration based on the arbitration clause incorporated in the Contract, and the written
arbitration application filed by the Claimant on 26 July 2007. The CIETAC number of the case is M20070408 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. Since the amount in dispute does not exceed RMB 500,000, Chapter IV Summary Procedure shall apply. As to
matters not covered in this Chapter, the relevant provisions in other chapters of the Rules shall apply.
A Notice of Arbitration was sent to the Claimant and the Respondent respectively on 5 September 2007 by the Secretariat of the CIETAC
(hereinafter referred to as “the Secretariat”). 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 by the Claimant, the Panel of Arbitrators and the CIETAC Arbitration Rules. The parties were also notified to make
additional payment of USD 1,500 each for appointment of a three-member tribunal for this summary procedure case.
On 25 September 2007, the Respondent applied to make the above payment of USD 1,500 in RMB. The Secretariat informed the parties
on the next day that the Respondent may make such payment in RMB 11,775. Both parties made the above additional payment.
On 31 October 2007, the Respondent submitted the Examination of Exhibit, the Defense Submission, the Request of Counterclaim and
the attached evidence. The Secretariat transmitted the above documents to the Claimant.
On 7 November 2007, an Arbitration Tribunal was formed consisting of Mr. Xia Jun, 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, Ms. Yan Siyi, the Arbitrator appointed by the Claimant, and Mr. Meng Yuqun, 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 31 January 2008, the Chairman of the CIETAC decided to extend the time limit for making award to 7 May 2008.
The Tribunal, in consultation with the Secretariat, decided to hold an oral hearing on 8 April 2008. The Secretariat sent the Notice on Oral
Hearing to the parties on 25 February 2008.
On 25 March 2008, the Claimant submitted supplementary evidence. The Secretariat transmitted the evidence to the Respondent.
On 2 April 2008, the Secretariat notified the parties the oral hearing scheduled on 8 April 2008 was cancelled since the parties had reached
settlement.
During the arbitration procedure, the Claimant submitted the application for withdrawal (Re: CIETAC Cases No. M20070408 & M20070409)
on 10 April 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 farther to our last requests, we hereby request a
withdrawal of the claims made by us in the Arbitration Request of these cases listed in the title.”
The Respondent submitted the Application for Withdrawing (Re: Arbitration Case No. M20070408) dated 7 April 2008, which is as follows:
“The captioned case was accepted by your good Commission on September 5, 2007, and Mindac as the respondent submitted the counterclaim
on October 31, 2007. Finally, the parties reached a settlement. We hereby represent MINDAC to withdraw the captioned counterclaim to close the
procedure in your good Commission.”
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”.
Therefore, according to the Claimant to and the Respondent’s request for withdrawal of this case, the Tribunal has made the following decisions:
1、that the captioned No. M20070408 Arbitration Case on Disputes Arising out of the Hammer Mill Crusher Contract between the Claimant and
the Respondent is dismissed;
2、that the arbitration fee for claims of this case is USD 1,988 which shall be borne-by the Claimant, since the Claimant has -remitted USD 2,548 as the prepaid arbitration fee, the CIETAC is to refund the Claimant USD 560 after subtracting the arbitration fee from the
prepaid amount; the arbitration fee for counterclaims of this case is RMB 16,096, since the Respondent has remitted RMB 32,191 as the prepaid
arbitration fee, the CIETAC is to refund the Respondent RMB 16,095 after subtracting the arbitration fee from the prepaid amount; the additional
fee for appointing three-member tribunal for the Claimant is USD 750, since the Claimant has remitted USD 1,500 as the prepaid fee, the CIETAC
is to refund the Claimant USD 750; the additional fee for appointing three-member tribunal for the Respondent is RMB 5,888, since the Respondent
has remitted RMB 11,775 as the prepaid fee, the CIETAC is to refund the
Respondent RMB 5,887.
Presiding Arbitrator:
Arbitrator:
Arbitrator:
Made in Beijng ,China on 18 April 2008.