SPC Clarifies the Standard for Fair and Impartial Treatment and
Equal Opportunity of Statement
In a voyage charter dispute between Jiarui Shipping Co., Ltd.
("Jiarui") and Sichuan Beifang Qinyuan
Biological Engineering Co., Ltd.
("Qinyuan"), shanghai branch of China
Maritime Arbitration Commission rendered an award in favor of
Jiarui. Later, Jiarui applied to the Wuhan Maritime Court to
enforce the award, however, Qinyuan challenged the
enforcement, claiming 1) that the tribunal had violated its
institutional rules, because the tribunal failed to organize a
hearing for a piece of evidence submitted by Jiarui after the
hearing so as itcould notcross-examine the evidence, and 2) that the
award did not mention or analyse Respondent's Supplementary
Statement of Attorney challenging the admissibility of the evidence,
which led the Respondent to believe the tribunal deprivedits
reasonable right to make statements and arguments.
The Wuhan Maritime Court confirmed the facts and decided to refuse
to enforce the award, finding that the arbitration violated the
institutional rules, specifically Article 38.2, which states
"The Tribunal shall be fair and impartial to treat the parties
and give them reasonable opportunity to make statements and
arguments."and Article 44, which states "The evidence
shall be presented and examined during the hearing, unless the
parties agree to a trial or cross examination solely base on written
Hubei Higher People's Court found Qinyuan waived its right
to challenge under Article 52 of the Arbitration Rules since it
didn't raise challenge to the arbitration procedure upon
reception of the disputed evidence, rather proceed with the
arbitration by submitting Supplementary Opinion of Attorney. But it
also found Qinyuan was unfairly treated and deprived of its right
of making statements due to the silence on its Opinion in the award
or its reasoning.
The Supreme People's Court of China disagreed with the
opinions of the lower courts, finding the award is enforceable under
Article 274 of the Civil Procedure Law,which grants for refusal of
enforcement of arbitral awards. On one hand, the submission of the
Supplementary Opinion of Attorney constitutes consent by Qinyuan on
cross-examination by written materials, as well as a waiver of right
to challenge; on the other hand, the tribunal rendered its award
after Qinyuan's submission, which means Qinyuan was given
rights to make statements and Qinyuan actually availed this right.
The tribunal didn't treat the parties in any unfair or
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