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FILED: NEW YORK COUNTY CLERK 12/07/2023 06:01 PM INDEX NO. 653826/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/07/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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In the Matter of the Arbitration Between :
: Index No. 653826/2023
PING AN BANK CO., LTD., :
:
Petitioner, : NOTICE OF ENTRY
:
v. :
: Mot. Seq. No.: 001
ASIAMIND DEVELOPMENT LIMITED, :
:
Respondent. :
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PLEASE TAKE NOTICE that the attached is a true and accurate copy of the decision
and order and judgment pertaining to motion sequence no.: 001 in the above captioned action,
which was entered in the office of the Clerk of the Supreme Court for New York County on
December 7, 2023.
Date: December 7, 2023
New York, New York
Respectfully submitted,
DGW KRAMER LLP
By: /s/ Rongping Wu
Rongping Wu, Esq.
DGW KRAMER LLP
One Rockefeller Plaza, 10th Fl.
Suite 1060
New York, NY 10020
T: (917) 633-6860
lwu@dgwllp.com
Counsel for Petitioner
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SUPREME COURT OF THE STATE OF NEW
YORK NEW YORK COUNTY
PRESENT: HON. BARRY R. OSTRAGER PART IAS MOTION 61EFM
Justice
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In the Matter of the Arbitration Between
INDEX NO. 653826/2023
PING AN BANK CO., LTD.,
MOTION DATE
Petitioner,
MOTION SEQ. NO. 001
- against -
ASIAMIND DEVELOPMENT LIMITED, DECISION + ORDER ON MOTION
Respondent.
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HON. BARRY R. OSTRAGER
Before the Court is the Petition by Ping An Bank Co., Ltd. (“Ping An”) for an Order: (i)
pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38) and Chapter 2 of the Federal Arbitration Act
(“the FAA”, 9 U.S.C. § 201, et seq.), confirming the September 7, 2020 Arbitral Award issued
by the Shenzhen Court of International Arbitration (“ the Award”, NYSCEF Doc. No. 4) and
directing that judgment be entered thereon. Respondent Asiamind Development Limited
(“Asiamind”) was served with process pursuant to the Convention of the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965 (the
“Hague Convention”), 20 U.S.T. 361, T.I.A.S. No. 6638 (Feb. 10, 1969). (NYSCEF Doc. Nos.8-
10 ). Further, jurisdiction over Asiamind was obtained in accordance with Section 9 of the FAA.
Asiamind has failed to appear or respond to the Petition in any way. Based on the papers
submitted, and for the reasons stated below, the Petition is granted.
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The following facts are confirmed in the Petition and in the Affirmation from counsel
providing the supporting documents (NYSCEF Doc. No. 3). The facts are also confirmed in the
Award.
On November 1, 2016, Ping An and Asiamind entered into three loan agreements
whereby Ping An would provide Asiamind an aggregate sum of $147,500,000.00 USD divided
into three tranches, with each loan tranche being subject to Asiamind applying for same with
Ping An (the “Loans”, NYSCEF Doc. No. 5). Thereafter, on November 8 and 22, 2016,
Asiamind submitted the required applications to Ping An for disbursement of the proceeds of the
Loans. and Ping An, on the respective dates, did disburse the Loans in the aggregate amount of
$147,500,000.00 USD.
The Loans provided a repayment schedule and a remedy that, in the event the repayment
schedule was not met by Asiamind, Ping An could declare the Loans immediately due (the
“Remedy”). Further, in the event any dispute regarding the Loans could not be resolved by the
parties, the Loans provided that any such dispute would be submitted for arbitration before the
Shenzhen Court of International Arbitration, a/k/a South China International Economic and
Trade Arbitration Commission, Shenzhen Arbitration Commission (the “SAIC”), (the
“Arbitration Clause”).
After the Loans were executed, on November 4 and 21, 2016, Ping An and a third-party
(the “Guarantor”) executed independent guaranty agreements whereby the Guarantor agreed to
be liable to Ping An for any unpaid amount of principal due from Asiamind. Asiamind failed to
make three consecutive interest payments, thereby triggering the Remedy. Consequently, Ping
An declared the Loans due and owing as of October 12, 2019. On November 26, 2019, the
Guarantor paid Ping An $144,695,080.50 USD, which left the following amounts due and owing
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from Asiamind: a) USD $2,804,919.50 in principal, b) prepayment fee of USD $337,611.11, c)
interest of USD $3,717,798.88, d) compound interest of USD $152,667.12, and e) penalty
interest of USD $1,278,962.84. Thereafter, on April 20, 2020, in accordance with the Arbitration
Clause, Ping An commenced the Arbitration before the SAIC located in Shanghai.
The Arbitration was conducted before a panel of three Arbitrators. Both sides were
represented by counsel and submitted significant evidence. Thereafter, the Panel issued a fifteen-
page Arbitral Award in favor of Ping An directing Asiamind to pay to Ping An the above-stated
amounts and also directed Asiamind to pay $75,000.00 USD for attorney’s fees and $420,061.00
USD for arbitration fees. These amounts total $8,787,020.30.
The September 7, 2020 Arbitral Award is detailed and well-reasoned, and both sides
were given a full and fair opportunity to be heard on the issues in accordance with the arbitral
procedures. Ping An has sought confirmation of the Award within three years after its issuance
pursuant to the FAA, 9 USC §207. As indicated earlier, Asiamind has not appeared or responded
to the Petition.
The only issue is that Ping An has requested a judgment in the sum of USD
$9,159,481.95, which is an amount greater than the amount in the Award, presumably because it
has added additional interest and penalties since the issuance of the Award three years ago. The
Court declines to award additional penalties that accrued during the three-year delay by Ping An
in seeking confirmation of the Award, which delay is solely attributable to Ping An. Therefore,
while the Court will allow statutory interest to accrue on the Award, the Court declines to Award
additional sums beyond those awarded by the Arbitrator.
Accordingly, it is hereby
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ORDERED that the Petition is granted, the September 7, 2020 Arbitral Award is
confirmed, and the Clerk is directed to enter judgment in favor of petitioner PING AN BANK
CO., LTD., against respondent ASIAMIND DEVELOPMENT LIMITED in the sum of USD
$8,787,020.20 plus interest at the statutory rate of 9% per annum from September 7, 2020, the
date the Award was issued, through the entry of judgment as calculated by the Clerk of the
Court, plus costs and disbursements as taxed by the Clerk of the Court, upon petitioner’s efiling
of a Proposed Judgment and Bill of Costs directed to the County Clerk.
Dated: December 7, 2023
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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FILED: NEW YORK COUNTY CLERK 12/07/2023 06:01 PM INDEX NO. 653826/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------x In the Matter of the Arbitration Between : : Index No. 653826/2023 PING AN BANK CO., LTD., : : Petitioner, : NOTICE OF ENTRY : v. : : Mot. Seq. No.: 001 ASIAMIND DEVELOPMENT LIMITED, : : Respondent. : ------------------------------------------------------------------x PLEASE TAKE NOTICE that the attached is a true and accurate copy of the decision and order and judgment pertaining to motion sequence no.: 001 in the above captioned action, which was entered in the office of the Clerk of the Supreme Court for New York County on December 7, 2023. Date: December 7, 2023 New York, New York Respectfully submitted, DGW KRAMER LLP By: /s/ Rongping Wu Rongping Wu, Esq. DGW KRAMER LLP One Rockefeller Plaza, 10th Fl. Suite 1060 New York, NY 10020 T: (917) 633-6860 lwu@dgwllp.com Counsel for Petitioner 1 1 of 5 FILED: NEW YORK COUNTY CLERK 12/07/2023 06:01 PM INDEX NO. INDEX NO. 653826/2023 653826/2023 NYSCEF DOC. NYSCEF DOC. NO. NO. 14 13 RECEIVED RECEIVED NYSCEF: NYSCEF: 12/07/2023 12/07/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. BARRY R. OSTRAGER PART IAS MOTION 61EFM Justice ---------------------------------------------------------------------------------X In the Matter of the Arbitration Between INDEX NO. 653826/2023 PING AN BANK CO., LTD., MOTION DATE Petitioner, MOTION SEQ. NO. 001 - against - ASIAMIND DEVELOPMENT LIMITED, DECISION + ORDER ON MOTION Respondent. ---------------------------------------------------------------------------------X HON. BARRY R. OSTRAGER Before the Court is the Petition by Ping An Bank Co., Ltd. (“Ping An”) for an Order: (i) pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38) and Chapter 2 of the Federal Arbitration Act (“the FAA”, 9 U.S.C. § 201, et seq.), confirming the September 7, 2020 Arbitral Award issued by the Shenzhen Court of International Arbitration (“ the Award”, NYSCEF Doc. No. 4) and directing that judgment be entered thereon. Respondent Asiamind Development Limited (“Asiamind”) was served with process pursuant to the Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965 (the “Hague Convention”), 20 U.S.T. 361, T.I.A.S. No. 6638 (Feb. 10, 1969). (NYSCEF Doc. Nos.8- 10 ). Further, jurisdiction over Asiamind was obtained in accordance with Section 9 of the FAA. Asiamind has failed to appear or respond to the Petition in any way. Based on the papers submitted, and for the reasons stated below, the Petition is granted. 1 of 2 of 5 4 FILED: NEW YORK COUNTY CLERK 12/07/2023 06:01 PM INDEX NO. INDEX NO. 653826/2023 653826/2023 NYSCEF DOC. NYSCEF DOC. NO. NO. 14 13 RECEIVED RECEIVED NYSCEF: NYSCEF: 12/07/2023 12/07/2023 The following facts are confirmed in the Petition and in the Affirmation from counsel providing the supporting documents (NYSCEF Doc. No. 3). The facts are also confirmed in the Award. On November 1, 2016, Ping An and Asiamind entered into three loan agreements whereby Ping An would provide Asiamind an aggregate sum of $147,500,000.00 USD divided into three tranches, with each loan tranche being subject to Asiamind applying for same with Ping An (the “Loans”, NYSCEF Doc. No. 5). Thereafter, on November 8 and 22, 2016, Asiamind submitted the required applications to Ping An for disbursement of the proceeds of the Loans. and Ping An, on the respective dates, did disburse the Loans in the aggregate amount of $147,500,000.00 USD. The Loans provided a repayment schedule and a remedy that, in the event the repayment schedule was not met by Asiamind, Ping An could declare the Loans immediately due (the “Remedy”). Further, in the event any dispute regarding the Loans could not be resolved by the parties, the Loans provided that any such dispute would be submitted for arbitration before the Shenzhen Court of International Arbitration, a/k/a South China International Economic and Trade Arbitration Commission, Shenzhen Arbitration Commission (the “SAIC”), (the “Arbitration Clause”). After the Loans were executed, on November 4 and 21, 2016, Ping An and a third-party (the “Guarantor”) executed independent guaranty agreements whereby the Guarantor agreed to be liable to Ping An for any unpaid amount of principal due from Asiamind. Asiamind failed to make three consecutive interest payments, thereby triggering the Remedy. Consequently, Ping An declared the Loans due and owing as of October 12, 2019. On November 26, 2019, the Guarantor paid Ping An $144,695,080.50 USD, which left the following amounts due and owing 2 2 of 3 of 5 4 FILED: NEW YORK COUNTY CLERK 12/07/2023 06:01 PM INDEX NO. INDEX NO. 653826/2023 653826/2023 NYSCEF DOC. NYSCEF DOC. NO. NO. 14 13 RECEIVED RECEIVED NYSCEF: NYSCEF: 12/07/2023 12/07/2023 from Asiamind: a) USD $2,804,919.50 in principal, b) prepayment fee of USD $337,611.11, c) interest of USD $3,717,798.88, d) compound interest of USD $152,667.12, and e) penalty interest of USD $1,278,962.84. Thereafter, on April 20, 2020, in accordance with the Arbitration Clause, Ping An commenced the Arbitration before the SAIC located in Shanghai. The Arbitration was conducted before a panel of three Arbitrators. Both sides were represented by counsel and submitted significant evidence. Thereafter, the Panel issued a fifteen- page Arbitral Award in favor of Ping An directing Asiamind to pay to Ping An the above-stated amounts and also directed Asiamind to pay $75,000.00 USD for attorney’s fees and $420,061.00 USD for arbitration fees. These amounts total $8,787,020.30. The September 7, 2020 Arbitral Award is detailed and well-reasoned, and both sides were given a full and fair opportunity to be heard on the issues in accordance with the arbitral procedures. Ping An has sought confirmation of the Award within three years after its issuance pursuant to the FAA, 9 USC §207. As indicated earlier, Asiamind has not appeared or responded to the Petition. The only issue is that Ping An has requested a judgment in the sum of USD $9,159,481.95, which is an amount greater than the amount in the Award, presumably because it has added additional interest and penalties since the issuance of the Award three years ago. The Court declines to award additional penalties that accrued during the three-year delay by Ping An in seeking confirmation of the Award, which delay is solely attributable to Ping An. Therefore, while the Court will allow statutory interest to accrue on the Award, the Court declines to Award additional sums beyond those awarded by the Arbitrator. Accordingly, it is hereby 3 3 of 4 of 5 4 FILED: NEW YORK COUNTY CLERK 12/07/2023 06:01 PM INDEX NO. INDEX NO. 653826/2023 653826/2023 NYSCEF DOC. NYSCEF DOC. NO. NO. 14 13 RECEIVED RECEIVED NYSCEF: NYSCEF: 12/07/2023 12/07/2023 ORDERED that the Petition is granted, the September 7, 2020 Arbitral Award is confirmed, and the Clerk is directed to enter judgment in favor of petitioner PING AN BANK CO., LTD., against respondent ASIAMIND DEVELOPMENT LIMITED in the sum of USD $8,787,020.20 plus interest at the statutory rate of 9% per annum from September 7, 2020, the date the Award was issued, through the entry of judgment as calculated by the Clerk of the Court, plus costs and disbursements as taxed by the Clerk of the Court, upon petitioner’s efiling of a Proposed Judgment and Bill of Costs directed to the County Clerk. Dated: December 7, 2023 CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 4 4 of 5 of 5 4