## Facts

- A PRC trading company (seller) and a Hong Kong company (buyer) agreed in writing to a cement sale and shipment contract that included a CIETAC arbitration clause, but the written contract was not signed.
- Delivery by sea was delayed; the seller incurred demurrage and blamed the buyer’s default.
- The seller sued in a PRC admiralty court for damages relating to detention of a chartered vessel.
- The buyer objected to the PRC court’s jurisdiction in writing, asserting that its contract with the seller “expressly provides for arbitration” and seeking referral to CIETAC; counsel later filed written submissions to the same effect.
- The PRC court declined jurisdiction and referred the dispute to CIETAC.
- In the CIETAC arbitration, the buyer challenged jurisdiction, arguing there was no valid “agreement in writing” because the contract was unsigned.
- CIETAC issued an interim ruling upholding jurisdiction and later issued a final award (23 Aug. 1993) for the seller.
- The seller obtained ex parte leave in Hong Kong to enforce the award as a judgment under the Arbitration Ordinance; the buyer applied to set aside that enforcement order.

## Issues

1. Whether there was a valid “agreement in writing” to arbitrate under the New York Convention and Hong Kong’s Arbitration Ordinance despite an unsigned contract and writings addressed to a court.
2. Whether enforcement should be refused for failure to produce the “original” arbitration agreement or because the arbitration agreement was allegedly invalid under the applicable law.
3. Whether enforcement should be refused because the arbitral tribunal’s composition or procedure allegedly departed from PRC law.

## Decision

- The court dismissed the buyer’s application to set aside leave to enforce and maintained enforcement of the CIETAC award.
- The court held that an arbitration agreement “in writing” existed and satisfied the New York Convention and the Arbitration Ordinance.
- The court held the evidentiary requirements for proving the arbitration agreement were met on the record presented.
- The court held the buyer failed to show a proven procedural or composition defect sufficient to justify refusal of enforcement.

## Legal Principles

- An “agreement in writing” under the New York Convention may be established without a signed contract when the arbitration clause is reliably evidenced by documents, including written admissions.
- Written statements made to a court invoking an arbitration clause to defeat court jurisdiction can constitute written assent (or a written acknowledgment) supporting enforcement of the arbitration agreement.
- A party that relied on an arbitration clause in writing to obtain a jurisdictional referral may be treated as bound by that position when later attempting to deny the clause at the enforcement stage.
- For enforcement, the court may accept a coherent documentary record proving the existence and terms of the arbitration agreement; rigid insistence on producing a particular “original” document is not required where the agreement is otherwise adequately proved.
- The party resisting enforcement bears the burden to establish a Convention-based ground for refusal, including alleged invalidity or procedural irregularity.

## Conclusion

The court enforced the CIETAC award, holding that the arbitration agreement’s “in writing” requirement was satisfied by the parties’ documentary record and the buyer’s written invocation of arbitration in prior court proceedings, and finding no substantiated basis to refuse enforcement on validity or procedural grounds.


Jiangxi Provincial Metal & Minerals Import & Export Corp. v. Sulanser Co., 21 Y.B. Com. Arb. 546 (H.K. Ct. First Instance 1996)