Service of documents in CIETAC arbitrations

The service of documents is an important procedural and practical matter. Whether documents have been properly served may have an impact on a party’s opportunity to present its case, and any irregularity in serving case documents on a party may potentially result in the arbitral award being set aside or declared not to be enforceable.

On 9 July 2015, the Jiangsu Wuxi Intermediate People’s Court made a ruling in a case where the responding party was resisting the enforcement of a CIETAC arbitral award, alleging that it had not been properly served.

In 2014, a Turkish company, U, commenced a CIETAC arbitration case against Z, a Chinese company, seeking compensation for Z’s breach of contract. In December that year, the arbitral tribunal rendered a final award in U’s favour, ordering Z to pay compensation to U. Since Z did not voluntarily comply with the award, U turned to the court, seeking enforcement.

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Z opposed the enforcement application, arguing that it had not been given proper notice to take part in the arbitral proceedings. According to Z, it had not received any of the case documents from the arbitral tribunal, nor any communication from the CIETAC secretariat. Z also asserted that several companies conducted business at Z’s registered address, and that the other companies may therefore have received the case documents without forwarding them to Z.

In its ruling, the court rejected Z’s arguments and determined that the award was enforceable. The court took into account that the CIETAC secretariat, by way of an express mail service, had sent the first notice of arbitration to Z’s registered address as provided by U, and that the other arbitration notices and documents had been sent in the same manner. Consequently, the court took the position that all case documents had been properly served in accordance with the applicable arbitration rules, and that Z had been fully notified of the arbitral proceedings.

Based on the court’s ruling, the key issue is whether the service of documents is made in accordance with the applicable arbitration rules, and whether such service is effective as a matter of law. The argument that one party has not in fact received any documents may not be sufficient to resist enforcement of the award.

According to article 8 of the CIETAC arbitration rules, all documents, notices and written material in relation to the arbitration shall be sent to the address provided by a party itself, or to the address agreed upon by the parties. If there is no such address, the documents shall be sent to such party’s address as provided by the other party. Any correspondence to a party shall be deemed to have been properly served on the party if sent to the addressee’s place of business, place of registration, domicile, habitual residence or mailing address.

In this case, Z did not participate in the arbitral proceeding, and all the case documents were sent to its registered address as provided by U. Even if the address to which documents are sent is not the registered address, but the last known mailing address or other reasonable address, it should, based on the court’s ruling, still be deemed as proper as long as the service is made in accordance with the applicable arbitration rules.

In its revised arbitration rules of 2015, CIETAC sets out examples of default mechanisms of serving documents in instances where the address of a party cannot be ascertained despite reasonable inquiries having been made by the other party. The default mechanisms listed in the revised article 8 of the arbitration rules are service through public notary, entrustment, retention and other means which can provide a record of the attempt of delivery.

Service by a public notary involves a public notary certifying an attempted delivery by the arbitration institution. This can be used by way of further support for, or proof of, other methods of service. Service by retention means leaving the case documents at a party’s address, which is common practice in Chinese court litigation and is often used when the recipient refuses to accept service in person or by post.

Any attempted delivery should be made through a method that can be recorded. In practice, since 2015, service by public notary is used in most of the cases administered by CIETAC where the documents relating to the arbitration cannot be delivered to the party directly.

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