Guangdong Higher People’s Court,

Your Court’s Request for Instruction on the Recognition and Enforcement of a U.K. Arbitral Award by the Applicant Bunge Agribusiness Singapore Pte. Ltd. with Case Number “[2006] Yue Gao Fa Min Si Ta Zi No. 10” has been received by this court. Upon deliberation, we reply as follows:

The Applicant applied for the recognition and enforcement of an arbitral award made by the Federation of Oils, Seeds and Fats Associations (“FOSFA” or “Association”). This arbitral award was a foreign arbitral award. China and the U.K. are both Contracting States of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). According to Article 269 of the Civil Procedure Law of the People’s Republic of China, the court shall review this case in accordance with the New York Convention and then decide that whether or not the arbitral award in this case should be recognized and enforced. The review of the arbitration agreement and the arbitration procedure shall be in accordance with the Rules of Arbitration and Appeal of FOSFA which was amended on 1 January 2001, and the English Arbitration Act 1996, as agreed by both parties.

Article 1(f) of the Rules of Arbitration and Appeal of FOSFA states that this Association must notify a party, which has failed to nominate an arbitrator or replace an arbitrator, that the Association would appoint a replacement arbitrator on its behalf, unless this party nominates one within 14 days of the notification. In this case, after the arbitrator, Mr. S. Bigwood, questioned his impartiality as an arbitrator on his own accord, the arbitral tribunal then appointed a new arbitrator for Guangdong Fengyuan Food & Oil Group Company Ltd (“Fengyuan” or “Respondent”) without sending any prior notification. The arbitral tribunal failed to comply with the arbitration rules agreed by the parties. This constitutes a ground for refusal of recognition and enforcement under Article V(1)(d) of the New York Convention,  i.e. the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties. Therefore, the People’s Court shall refuse to recognize and enforce the arbitral award in this case.