The Court of Appeal of England and Wales has rejected a challenge to an arbitration award issued by the China International Trade Arbitration Commission (the “Tribunal”) against RBRG Trading (UK) Limited in favor of Sinocore International Co. Ltd., despite an argument from RBRG that the award was contrary to public policy.
The matter arose from Sinocore’s agreement to sell steel to RBRG. The parties later amended the contract to give RBRG a right to inspect the steel, and RBRG claimed that the parties agreed to amend a letter of credit issued by a Dutch bank in connection to the transaction to change the shipping date to July 20 and 30, 2010. Sinocore then shipped the steel on July 7, 2010, a fact of which RBRG was informed, but presented bills of lading that falsely gave the date of July 20-21, 2010 to the bank. The bank refused to pay due to the fraudulent bills of lading, and Sinocore terminated the contract and sold the steel to a third party. RBRG then commenced the arbitration, claiming that Sinocore had breached the agreement to allow RBRG to inspect the steel by shipping it too soon, and Sinocore counterclaimed for damages related to the termination of the contract.
The Tribunal determined that RBRG had not asked to inspect the steel and had been timely notified of its shipment and thus could not claim damages from Sinocore’s failure to allow an inspection. The tribunal further determined that RBRG had breached the contract by instructing the bank to issue the amended letter of credit, an amendment to which Sinocore had not agreed. The Tribunal further determined that that forgery of the bills of lading had not harmed RBRG and had not been the cause of the termination of the agreement, which instead resulted from RBRG’s instruction to issue the non-conforming letter of credit.
When Sinocore attempted to enforce the award in the United Kingdom, RBRG argued that it should not be enforced because it was based on Sinocore’s forgery of bills of lading, and that it was contrary to public policy to assist a seller who present forged documents under a letter of credit. The court disagreed, however, and emphasized the importance both of enforcing arbitral awards and of strictly construing the exception for awards that violate public policy. Ultimately, relying in part on the Tribunal’s determination that RBRG’s conduct caused the contract to terminate, the court found that the connection between the forged bills of lading and the award was simply too weak to justify a departure from the general rule that arbitral awards should be enforced.
RBRG Trading (UK) Limited v. Sinocore International Co. Ltd., [2018] EWCA (Civ) 838
This post written by Jason Brost.
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