2015 Ghana 96457 Arbitral Award

A

B A.

September 16, 2015

October 30, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

With respect to cases No. 1411-0162 (this application), No. 1411-011-0189 (compact application) between the Plaintiff and the Defendant, the arbitral award in the attached Form No. 1415 (compact application) shall be revoked on March 11, 2015 by the said arbitral tribunal.

1. The plaintiff's assertion

A. The plaintiff's construction contract

On July 11, 2014, the Plaintiff entered into a construction contract between C (hereinafter referred to as “C”) and C (hereinafter referred to as “C”) with respect to construction works for remodeling of the DMomoel’s operation of the Plaintiff, with the construction cost of KRW 100,000,000 (excluding value-added tax; hereinafter the same shall apply) and the construction period from July 14, 2014 to August 14, 2014. At the time of commencement, C agreed to waive construction works and compensate the Plaintiff for damages if the construction is suspended for at least five days after the commencement. The Plaintiff paid the construction price of KRW 50,000,000 in total from July 11, 2014 to August 4, 2014.

(b) Suspension of construction and arbitration.

C, on August 12, 2014, without properly carrying out construction works under the construction contract, required the Plaintiff to pay additional construction cost of KRW 60,00,000,00, and the Plaintiff refused to pay additional construction cost. C filed an application for arbitration with the Korea Commercial Arbitration Board (Korea Commercial Arbitration Board No. 1411-0162) on August 20, 2014, and the Plaintiff filed an counterclaim on September 26, 2014 (Korea Commercial Arbitration Board No. 1411-0189).

(c) Misappropriation of the arbitral award;

On March 11, 2015, the KCAB made an arbitral award (hereinafter referred to as “instant arbitral award”) such as the written arbitral award indicated in the attached Form (hereinafter referred to as “instant arbitral award”). However, the instant arbitral award should be revoked in the following respect:

① In the course of the arbitral proceedings, C filed an application for change of the name of the applicant with the ground that the name of the applicant was changed. The Korea Commercial Arbitration Board accepted the application and rendered an arbitral award with the applicant as the defendant. However, since the defendant and C are separate corporations, the arbitral award against the applicant is unfair.

(2) C shall aggregate of the contract price and the additional construction cost of the remodelling project.

169,00,000 won and among them, the amount of 118,386,000 won is equivalent to 118,386,00 won, and thus, C filed an application for arbitration seeking payment of 80,224,000 won (including value-added tax) remaining after excluding the amount of 50,000,000 won for the previous payment of construction cost. However, C, despite the absence of intention or ability to implement remodeling works as a non-registered corporation, upon deceiving the Plaintiff, and filed an application for arbitration by drawing up a false claim for the construction cost as if it was executed without properly examining whether C works have been implemented or not. The arbitral tribunal of the Korea Commercial Arbitration Board received most of the Defendant’s application for arbitration without properly examining whether C works have been implemented, and thus, the instant arbitral award is unreasonable as it makes fraudulent acts, such as C and the Defendant and its representative, to be justified.

2. Determination

As asserted by the Plaintiff, there is no evidence to prove that C and the Defendant are separate corporations, and the Plaintiff’s assertion alone does not constitute grounds for setting aside the arbitral award in the instant arbitral award under each subparagraph of Article 36(2) of the Arbitration Act. Therefore, the Plaintiff’s assertion premised on the existence of grounds for setting aside the arbitral award in the instant arbitral award is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Cho Jong-sung

Order of Award

1. The respondent shall pay to the applicant 60,000,000 won with an annual interest of 6% per annum from August 13, 2014 to the date of full payment.

4. The costs of arbitration shall be borne by each party.