Claimant: Sfera Met Co., Ltd. (ООО "СФЕРА МЕТ"). Domicile: Room 31-A4, Novossdionaya Street, Dnepropetrovsk Region, Ukraine (Украина, Днепропетровскаяобл .,г.Новомосковск,ул.Стадионная,31-А,комната4).

Representative: Burlaka Artem Viktorovych.

Attorney: He Fei, Jiangsu Y&T Lawyers.

Attorney: Xiang Wei, Jiangsu Y&T Lawyers.

Respondent: Zhangjiagang Wansheng New Materials Co., Ltd. Domicile: 1404A, Jiulong Logistics Park, Jiangsu Yangtze River International Metallurgical Industrial Park, No. 2, Xingye Road, Jinfeng Town, Zhangjiagang City, Jiangsu Province, the People's Republic of China.

Legal representative: Li Yuzhen, managing director.

Agent: Dang Fenfen, female, staff member.

On December 4, 2019, the Claimant Sfera Met Co., Ltd. (hereinafter referred to as Sfera Met) applied for recognition and enforcement of arbitration award AC No. 262k/2017 of the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry. This Court formed a collegiate panel in accordance with the law to review the case. The review is now completed.

Sfera Met requests the recognition and enforcement of arbitration award AC No. 262k/2017 of the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry with the enforcement amount of US$83,530.52, equivalent to RMB586,442.72, and the application fee to be borne by Zhangjiagang Wansheng New Materials Co., Ltd. (hereinafter referred to as Wansheng).

Facts and reasons: 1. On December 14, 2017, the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry issued an arbitration award on the AC No. 262k/2017 case, ruling that Wansheng should refund the advance payment of US$79,235 to Sfera Met and pay the arbitration fee of US$4,295.52, totaling US$83,530.52. As of the date of filing of this application, the respondent had not fulfilled the repayment obligations determined by the effective arbitration award.

2. The People's Republic of China and Ukraine are signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Done at New York (the Convention). Article 3 of the Convention stipulates: "Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.”

3. Because the registered address and actual place of business of the respondent Wansheng are both in Suzhou, in accordance with relevant provisions of the Civil Procedure Law of the People's Republic of China, in order to protect the legitimate rights and interests of the Claimant, we apply to Suzhou Intermediate People's Court for recognition of this arbitration award, and implement the repayment amount confirmed by the arbitration award.

Wansheng’s claims: 1. Wansheng did not receive any arbitration notices or other arbitration materials involved in the case. Since none of the arbitration materials involved in the case were effectively delivered, the arbitration award demanded by the claimant Sfera Met accordingly has no legal effect.

2. The Claimant  Sfera Met ignored the contract articles, and first conducted violations of refusing goods shipping according to the agreement, demanding a price reduction and extending the payment period. And it also never asked the respondent Wansheng to return the deposit in writing before applying for the arbitration.

Upon examination, this Court finds that: 1. About the contract signed between both parties and the arbitration: On March 13, 2017, Sfera Met signed a contract numbered SF13032017 with Wansheng to purchase color coated steel rolls from the latter. The contract stated that Wansheng’s address was "NO.6 BLDG, ORIENTAL NEW PLAZA, BAIZIGANG ROAD, ZHANGJIAGANG CITY, JIANGSU, CHINA". The second paragraph of Article 9 of the contract stipulates that "all disputes, disagreements or claims arising from or related to this contract, including disputes, disagreements or claims related to the validity, invalidity, violations or termination of this contract, shall be submitted to the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry and be resolved in accordance with the arbitration rules of the court. The number of arbitrators shall be one, the place of arbitration shall be Kiev, and the language of arbitration shall be Russian. The substantive law applicable to this contract shall be Ukrainian law, and the arbitration fee shall be borne by the losing party.”

On September 11, 2017,  Sfera Met filed an arbitration application with the International Commercial Arbitration Court  of the Ukrainian Chamber of Commerce and Industry. On December 14, 2017, the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry issued the AC No. 262k/2017 arbitration award, ruling that Wansheng refund the advance payment of US$79,235 and pay the arbitration fee of US$4,295.52 to Sfera Met, totaling US$83,530.52.

2. The arbitration tribunal's service to Wansheng: On September 25, 2017, the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry sent the copy of the arbitration materials, the rules and the list of recommended arbitrators of the court to Wansheng by letter through DHL with the stated address on the mailing voucher ofNO.6 BLDG, ORIENTAL NEW PLAZA, BAIRIGANG ROAD, ZHANGJIAGANG CITY, JIANGSU, CHINA. And the letter was received with the signature ofLISA on September 30, 2017. On November 3, 2017, the International Commercial Arbitration Tribunal of the Ukrainian Chamber of Commerce and Industry sent a letter via DHL to NO.6 BLDG, ORIENTAL NEW PLAZA, BAIZIGANG ROAD, ZHANGJIAGANG CITY, JIANGSU, CHINA, the address stated in the contract. It was a notification consisting of the date, the time, the venue and the arbitration tribunal for the case. The letter was received with the signature of Shen Zhengyi, the general manager of Wansheng then, on November 13, 2017.

3. Ukrainian legal provisions on service provided by Sfera Met: Both Article 3 of the International Commercial Arbitration Law of Ukraine and Article 15(5) of the Arbitration Rules of the International Commercial Arbitration Tribunal of the Ukrainian Chamber of Commerce and Industry stipulate that "any written letter, if delivered in person to the recipient, or delivered to the business place, the habitual residence or mailing address of the recipient, shall be deemed as being received by the recipient; in case that any of the above addresses is not found after reasonable inquiries, if the written correspondence is sent to the recipient’s last known place of business, habitual residence or mailing address by registered mail or any other method (presenting delivery records), it shall be deemed as being received by the recipient. The letter shall be deemed as being received on the day of delivery in the manner accordingly. "

Upon review, this Court considers that the arbitration award involved in the case was made by the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry within the territory of Ukraine, and this case is about the recognition and enforcement of a foreign arbitration award. In accordance with the reciprocal reservation and commercial reservation made by China when signing the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Done at New York, for the recognition and enforcement of arbitration awards with disputes arising from contractual and non-contractual commercial legal relations in accordance with China’s laws and made in the territory of another contracting state, the people’s court shall apply the provisions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Done at New York. The People’s Republic of China and Ukraine are both contracting states to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Done at New York. The dispute over the sale and purchase contract submitted by the applicant Sfera Met to the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry for arbitration is a dispute arising from commercial legal relations. So, this Court will review the arbitral awards involved in the case in accordance with Article 5 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Done at New York.

In this case, the respondent Wansheng raised the defense of neither recognizing nor implementing the arbitration award involved in the case. The main reasons were as follows: 1. None of the arbitration materials involved in the case were effectively serviced; 2. The applicant Sfera Met first violated the contract. Since the second reason does not belong to the circumstances in which the recognition and enforcement of an arbitral award may not be permitted under Article 5 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Done at New York, this Court will not review this reason. Therefore,  the issue in dispute in this case is whether the notification of the arbitration procedures and other materials sent by the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry to Wansheng is in accordance with the Article 5, paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Done at New York.

This Court considers that, in accordance with Article 5, paragraph 1 (b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Done at New York, the recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration procedures or was otherwise unable to present his case. After accepting the case, the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry sent a copy of the arbitration materials, the rules and the recommended list of arbitrators of the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry to Wansheng by letter on September 25, 2017 through DHL. Despite the slight difference between the DHL mailing address BAIZIGANG and  the contracted address BAIRIGANG, the city, building and company name in the mailing address are correct. And according to the map, the only road corresponding to Zhangjiagang Oriental New Plaza is Baizigang Road. Therefore, according to the above information, the DHL service address is sufficient to spot the address of Wansheng, and DHL's receipt also shows that the letter was delivered and signed for. In addition, on November 3, 2017, the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry sent a letter via DHL to the address of Wansheng stated in the contract. It was a notification consisting of the date, the time, the venue and the arbitration tribunal for the case. The letter was received with the signature of Shen Zhengyi, the general manager of Wansheng then. According to Article 3 of Ukraine's International Commercial Arbitration Law and Article 15(5) of the Arbitration Rules of the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry, the notification on arbitration procedures can be sent by mail. In this case, the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry sent the notification on arbitration procedures to Wansheng by letter through DHL. Although there was a slight flaw in the mailing address when it was first served, the stated address information could clearly spot Wansheng and the letter was received with signature. So, the service complied with Ukrainian legal provisions on arbitration procedure notifications, and the procedure was legal and effective. Based on this, this Court determined that the arbitration award involved did not have the circumstances specified in Article 5, paragraph 1 (b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Done at New York.

In summary, the arbitration award made by the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry in this case does not have the circumstances listed in Article 5 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Done at New York, nor does it violate China’s statements when joining the Convention. Meanwhile, the recognition and enforcement of the arbitration award does not violate China’s public policy. Therefore, the arbitration award should be recognized and enforced. In accordance with Article 283 of the Civil Procedure Law of the People's Republic of China and Article 5 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Done at New York, this Court rules as follows:

Recognize and enforce the AC No. 262k/2017 arbitration award made by the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry on December 14, 2017.

The case application fee RMB8,265 shall be borne by the respondent Zhangjiagang Wansheng New Materials Co., Ltd.

Presiding Judge Yang Enqian

Judge Cai Yanfang

Judge Li Cheng

January 4, 2012

Assistant: Leng Yue

Clerk: Zhang Jue