Petition for Writ of Certiorari — Wenbin Que, Petitioner v. Lihua Song

Supreme Court briefNov 20, 2025

Ask Donna

What actually matters in this document.

Text

No. 25In the

Supreme Court of the United States

__________

WENBIN QUE,

LIHUA SONG,

__________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari to the

United States Courts of Appeals

for the Ninth Circuit

__________

PETITION FOR A WRIT OF CERTIORARI

__________

JOHN S. WORDEN

ZOE GALLAGHER

VENABLE LLP

101 California Street

San Francisco, CA 94103

Hua Jiang

VAN DE POEL, LEVY,

THOMAS LLP

1600 South Main Plaza

Walnut Creek, CA 94596

ELIZABETH C. RINEHART

Counsel of Record

KYLE H. KERAGA

VENABLE LLP

750 E. Pratt Street

Baltimore, MD 21202

Tel: (410) 528-4646

ecrinehart@venable.com

Counsel for Petitioners

November 20, 2025

QUESTION PRESENTED

A foreign arbitration award should not be enforced

if it is “repugnant to fundamental notions of what is

decent and just in the United States.” Estate of Ke v.

Yu, 105 F.4th 648, 660 (4th Cir. 2024) (cleaned up).

Among them is the notion that proceedings must be

“fundamentally fair.” Int’l Broth. of Elec. Workers v.

CSX Transp., Inc., 446 F.3d 714, 720 (7th Cir. 2006).

And that requires a “fair opportunity to present evidence and argument” to the arbitral panel. Brown v.

Brown-Thill, 762 F.3d 814, 820 (8th Cir. 2014).

The Ninth Circuit allowed enforcement of a foreign

award issued after a hearing where one of three arbitrators engaged in clear misconduct. During one side’s

arguments, the rogue arbitrator paid close attention.

During the other’s, he did everything but arbitrate—

he used the restroom, spoke to a third party, rode in a

car, and boarded a train. His misbehavior derailed the

arbitration and forced its early termination.

The Ninth Circuit acknowledged that this arbitrator displayed a “concerning lack of attention.” 4a. Yet

it held that his conduct was harmless because “the remaining two arbitrators” behaved properly. Id. That

holding clashes with the views of many other courts,

including this one, which have vacated awards when

just one of three arbitrators misbehaved. See, e.g.,

Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393

U.S. 145, 150 (1968). This case asks whether fairness

demands that all appointed arbitrators perform with

integrity, or whether two out of three is sufficient.

The question presented is:

Do arbitration proceedings held by a three-member

panel lack fundamental fairness if one arbitrator has

functionally abandoned his post?

RELATED PROCEEDINGS

This case arises from the following proceedings:

•

Lihua Song v. Wenbin Que, No. 23-cv-02159RFL (N.D. Cal. 2024), judgment entered on May

31, 2024.

•

Lihua Song v. Wenbin Que, Nos. 24-4129, 244980 (consolidated) (9th Cir. 2025), judgment

entered on July 10, 2025; petition for rehearing

en banc denied on August 22, 2025.

No other proceedings in state or federal trial or appellate courts, or in this Court, directly relate to this

case under this Court’s Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED...........................................i

RELATED PROCEEDINGS .......................................ii

TABLE OF AUTHORITIES ....................................... iv

PETITION FOR A WRIT OF CERTIORARI ............ xi

OPINIONS BELOW ................................................... xi

JURISDICTION ......................................................... xi

STATUTORY AND REGULATORY PROVISIONS

INVOLVED ........................................................... xi

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 4

A. Legal Background ............................................. 4

B. Factual Background ......................................... 6

REASONS FOR GRANTING THE PETITION ......... 9

I. The Ninth Circuit’s decision conflicts with

prior cases holding that one arbitrator’s

misconduct can invalidate an award................... 10

II. An arbitrator’s complete abandonment of his

responsibilities renders an arbitration

hearing unfair. ..................................................... 14

III.The arbitral misconduct in this case is

manifest and ripe for review................................ 19

CONCLUSION .......................................................... 23

TABLE OF AUTHORITIES

Page(s)

Cases

Ackermann v. Levine,

788 F.2d 830 (2d Cir. 1986) .....................................5

Aetna Life Ins. Co. v. Lavoie,

475 U.S. 813 (1986) ............................................ 2, 12

Applied Indus. Mats. Corp. v. Ovalar Makine,

492 F.3d 132 (2d Cir. 2007) ...................................11

Arakas v. SSA,

983 F.3d 83 (4th Cir. 2020) ....................................22

Astoria Med. Grp. v. Health Ins. Plan of

Greater N.Y.,

182 N.E.2d 85 (N.Y. 1962) .....................................14

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ................................................13

Barcon Assoc., Inc. v. Tri-Cnty. Asphalt Corp.,

430 A.2d 214 (N.J. 1981)........................................14

Belize Bank Ltd. v. Gov’t of Belize,

852 F.3d 1107 (D.C. Cir. 2017) ................................5

Bell Aero. Co. Div. of Textron, Inc. v.

Local 516, UAW,

500 F.2d 921 (2d Cir. 1974). ................................ 5, 9

BG Grp., PLC v. Republic of Argentina,

572 U.S. 25 (2014) ..................................................16

Boston & Maine Corp. v. Broth. of Maint. of

Way Emps.,

94 F.3d 15 (1st Cir. 1996). .....................................18

Brown v. Brown-Thill,

762 F.3d 814 (8th Cir. 2014) ..................................14

Chassen v. Fidelity Nat’l Fin., Inc.,

836 F.3d 291 (3d Cir. 2016) ...................................20

Cinderella Career & Finishing Schs. Inc. v. FTC,

425 F.2d 583 (D.C. Cir. 1970) ................................12

Commonwealth Coatings v. Continental Cas. Co.,

393 U.S. 145 (1968) ............................ 1, 3, 10, 16, 17

Commonwealth v. McGhee,

25 N.E.3d 251 (Mass. 2015) ...................................16

Corporacion AIC, SA v. Hidroelectrica

Santa Rita S.A.,

66 F.4th 876 (11th Cir. 2023) ..................................9

Costco Wholesale Corp. v. Int'l Broth. of Teamsters,

850 F. App'x 467 (9th Cir. 2021)............................18

Dean v. Sullivan,

118 F.3d 1170 (7th Cir. 1997) ................................19

Dodson Int’l Parts, Inc. v. Williams Int’l Co. LLC,

12 F.4th 1212 (10th Cir. 2021) ............................ 3, 6

Doyle v. UBS Fin. Servs., Inc.,

144 F.4th 122 (2d Cir. 2025) ............................ 20, 21

Enron Nigeria Power Holding, Ltd. v. Fed.

Republic of Nigeria,

844 F.3d 281 (D.C. Cir. 2016) ...................... 4, 21, 22

Epic Systems Corp. v. Lewis,

584 U.S. 497 (2018) ............................................ 5, 18

Estate of Ke v. Yu,

105 F.4th 648 (4th Cir. 2024) ........................ 5, 9, 12

Europcar Italia S.p.A. v. Maiellano Tours, Inc.,

156 F.3d 310 (2d Cir. 1998) ...................................17

Ficek v. Southern Pacific Co.,

338 F.2d 655 (9th Cir. 1964) ..................................14

Florasynth, Inc. v. Pickholz,

750 F.2d 171 (2d Cir. 1984) ......................... 2, 12, 13

Friedler v. Stifel, Nicolaus & Co., Inc.,

108 F.4th 241 (4th Cir. 2024) ................................18

GDG Acquis. LLC v. Gov’t of Belize,

749 F.3d 1024 (11th Cir. 2014) ..............................22

GE Energy Power Conversion France SAS, Corp. v.

Outokumpu Stainless USA, Inc.,

590 U.S. 432 (2020) ..................................................9

Generica Ltd. v. Pharm. Basics, Inc.,

125 F.3d 1123 (7th Cir. 1997) .......................... 14, 22

Greer v. United States,

593 U.S. 503 (2021) ................................................20

Heckman v. Live Nat. Ent., Inc.,

120 F.4th 670 (9th Cir. 2024) ..................................5

Hicks v. City of Watonga,

942 F.2d 737 (10th Cir. 1991) ............................ 2, 12

Hoover v. Wagner,

47 F.3d 845 (7th Cir. 1995) ....................................22

Hott v. Mazzoco,

916 F. Supp. 510 (D. Md. 1996) .............................17

Hurn v. Macy’s Inc.,

728 F. App’x 598 (7th Cir. 2018)............................20

Lester v. Commonwealth,

132 S.W.3d 857 (Ky. 2004) .....................................16

Loren Imhoff Homebuilder, Inc. v. Taylor,

973 N.W.2d 836 (Wis. App. 2022) ..........................17

vii

McCoy v. Goldston,

652 F.2d 654 (6th Cir. 1981) ..................................16

Met. Prop. & Cas. Ins. Co. v. J.C. Penney

Cas. Ins. Co.,

780 F. Supp. 885 (D. Conn. 1991) ...................... 2, 13

Middlesex Mut. Ins. Co. v. Levine,

675 F.2d 1197 (11th Cir. 1982) ..............................11

Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc.,

473 U.S. 614 (1985) ..................................................4

Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp.,

460 U.S. 1 (1983) ....................................................18

Move, Inc. v. Citigroup Glob. Mkts., Inc.,

840 F.3d 1152 (9th Cir. 2016) .......... 3, 4, 5, 6, 12, 18

Muschany v. United States,

324 U.S. 49 (1945) ....................................................5

Nat’l Ass’n of Social Workers v. Harwood,

69 F.3d 622 (1st Cir. 1995) ....................................22

Nat’l Post Off. Mailhandlers v. USPS,

751 F.2d 834 (6th Cir. 1985) ..................................20

Pac. & Arctic Ry. & Nav. Co. v. United

Transp. Union,

952 F.2d 1144 (9th Cir. 1991) ................................11

Parsons & Whittemore Overseas Co. v. Societe

Generale de L’Industrie du Papier (RAKTA),

508 F.2d 969 (2d Cir. 1974) .....................................9

People v. Vargas,

673 N.E.2d 1037 (Ill. 1996) ....................................15

viii

Positive Software Sols., Inc. v. New Century

Mortg. Corp.,

337 F. Supp. 2d 862 (N.D. Tex. 2004)......................6

Rainier DSC 1, L.L.C. v. Rainier Cap.

Mgmt., L.P.,

828 F.3d 362 (5th Cir. 2016) ............................ 10, 13

Riley v. Deeds,

56 F.3d 1117 (9th Cir. 1995) ........................ 3, 15, 17

Scherk v. Alberto-Culver Co.,

417 U.S. 506 (1974) ..................................................4

Schmitz v. Zilveti,

20 F.3d 1043 (9th Cir. 1994) ..................................11

Skaggs v. Otis Elevator Co.,

164 F.3d 511 (10th Cir. 1998) ................................16

Smith v. Phillips,

455 U.S. 209 (1982) ................................................15

Soaring Wind Energy, L.L.C. v. Catic USA Inc.,

946 F.3d 742 (5th Cir. 2020) ........................ 5, 11, 22

Somportex Ltd. v. Phila. Chewing Gum Corp.,

453 F.2d 435 (3d Cir. 1971). ..................................22

Star Ins. Co. v. Nat’l Union Fire Ins. Co.,

656 F. App’x 240 (6th Cir. 2016)............................11

State v. Strange,

214 P.3d 672 (Idaho App. 2009).............................16

Stokes v. Stirling,

64 F.4th 131 (4th Cir. 2023) ..................................22

Tempo Shain Corp. v. Bertek, Inc.,

120 F.3d 16 (2d Cir. 1997) .....................................18

Termorio S.A. E.S.P. v. Electrificadora Del

Atlantico S.A. E.S.P.,

421 F. Supp. 2d 87 (D.D.C. 2006) ..........................19

Thomas Kinkade Co. v. White,

711 F.3d 719 (6th Cir. 2013) ..................................11

Totem Marine Tug & Barge, Inc. v. N. Am.

Towing, Inc.,

607 F.2d 649 (5th Cir. 1979) ..................................11

United Paperworkers Int’l Union v. Misco, Inc.,

484 U.S. 29 (1987) ..................................................17

United States v. Barrett,

703 F.2d 1076 (9th Cir. 1983) ............................ 3, 15

United States v. Fox,

134 F.4th 348 (6th Cir. 2025) ................................15

United States v. Kone,

307 F.3d 430 (6th Cir. 2002) ..................................15

United States v. Kyle,

734 F.3d 956 (9th Cir. 2013) ..................................20

United States v. McKeighan,

685 F.3d 956 (10th Cir. 2012) ................................16

United States v. Mortimer,

161 F.3d 240 (3d Cir. 1998) ............................... 3, 15

United States v. Solon,

596 F.3d 1206 (10th Cir. 2010) ..............................16

United States v. Warner,

690 F.2d 545 (6th Cir. 1982) ............................ 15, 17

United Transp. Union v. Nat’l R.R. Passenger Co.,

588 F.3d 805 (2d Cir. 2009) ...................................18

Volt Info. Scis., Inc. v. Stanford Univ.,

489 U.S. 468 (1989) ................................................13

W.R. Grace & Co. v. Local Union 759, Int’l Union of

United Rubber Workers,

461 U.S. 757 (1983) ...................................... 5, 21, 22

Williams v. Pennsylvania,

579 U.S. 1 (2016) ................................................ 2, 12

Statutes & Treaties

9 U.S.C. § 4 ................................................................13

9 U.S.C. § 10(a) ..........................................................18

9 U.S.C. § 10(a)(3) .....................................................10

9 U.S.C. § 207 ..............................................................5

9 U.S.C. §§ 201-08 .......................................................4

United Nations Convention on the Recognition and

Enforcement of Foreign Arbitral Awards

21 U.S.T. 2517 (June 10, 1958)................................4

Article I(1) ................................................................4

Article V(2)(b) ...........................................................5

Other Authorities

AAA Code of Ethics, Canon I(B)(4) ....................... 2, 14

ICC Rules, Art. 11(2)

(2021) .................................................................. 2, 14

ICC, ICC Dispute Resolution 2024 Statistics

(2025) ......................................................................12

JAMS Ethics Guidelines, Rule VI(B)

(2021) .................................................................. 2, 14

USD-CNY X-RATE, Bloomberg

(last visited Nov. 20, 2025) ......................................6

PETITION FOR A WRIT OF CERTIORARI

Petitioner Wenbin Que respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The district court’s opinion is unreported but available at 2024 WL 2853983. 8a-15a. The court of appeals’ opinion is unreported but available at 2025 WL

1904476. 1a-5a. The court of appeals’ order denying

the petition for rehearing en banc is unreported but

available at 6a-7a.

JURISDICTION

The district court had jurisdiction under 28 U.S.C.

§ 1331 because this case arises under the Convention

on the Recognition and Enforcement of Foreign Arbitral Awards, as codified at 9 U.S.C. § 207. The appeals

court had jurisdiction under 28 U.S.C. § 1291.

The United States Court of Appeals for the Ninth

Circuit issued its decision on July 10, 2025. Petitioner

sought en banc rehearing of that decision, which the

court denied on August 22, 2025. This Court has jurisdiction under 28 U.S.C. § 1254.

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

9 U.S.C. § 207 provides:

Within three years after an arbitral award falling

under the Convention is made, any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award as

against any other party to the arbitration. The court

shall confirm the award unless it finds one of the

grounds for refusal or deferral of recognition or

xii

enforcement of the award specified in the said Convention.

Article V of the United Nations Convention on

the Recognition and Enforcement of Foreign Arbitral Awards provides:

1. Recognition and enforcement of the award may

be refused, at the request of the party against whom

it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:

(a) The parties to the agreement referred to in article II were, under the law applicable to them, under

some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or,

failing any indication thereon, under the law of the

country where the award was made; or

(b) The party against whom the award is invoked

was not given proper notice of the appointment of the

arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or

(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration,

provided that, if the decisions on matters submitted to

arbitration can be separated from those not so submitted, that part of the award which contains decisions

on matters submitted to arbitration may be recognized and enforced; or

(d) The composition of the arbitral authority or the

arbitral procedure was not in accordance with the

agreement of the parties, or, failing such agreement,

was not in accordance with the law of the country

where the arbitration took place; or

xiii

(e) The award has not yet become binding on the

parties, or has been set aside or suspended by a competent authority of the country in which, or under the

law of which, that award was made.

2. Recognition and enforcement of an arbitral

award may also be refused if the competent authority

in the country where recognition and enforcement is

sought finds that:

(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that

country; or

(b) The recognition or enforcement of the award

would be contrary to the public policy of that country.

INTRODUCTION

Our nation has a strong policy favoring arbitration.

That policy relies on the belief that arbitration is fundamentally fair. Arbitration is a creature of contract,

founded on the assent and expectations of the parties.

But if parties cannot trust arbitrators to perform their

duties fairly, they will not agree to arbitrate disputes.

And when an arbitrator abdicates his responsibilities,

the arbitral forum is destroyed, and the parties’ expectations are thwarted. So, while courts defer to the outcomes of arbitration, they must also be “scrupulous” in

ensuring that the proceedings are fundamentally fair.

Commonwealth Coatings v. Continental Cas. Co., 393

U.S. 145, 149 (1968).

This case asks whether our notions of fundamental

fairness can allow an arbitrator to abandon his duties.

Petitioner Wenbin Que and Respondent Lihua Song

participated in a Chinese arbitration where one of the

arbitrators abandoned an ongoing hearing. This rogue

arbitrator paid attention through Song’s arguments.

But when Que began arguing, he stopped arbitrating.

Rather than listen and inquire, he embarked on a misadventure with a third party and refused to reengage.

His actions derailed the arbitral hearing and forced its

early termination.

The Ninth Circuit acknowledged that this behavior

was “concerning.” 4a. But the appellate court cast that

concern aside because “the remaining two arbitrators”

behaved properly. 4a. That two-out-of-three holding is

wrong, and must be corrected. Left intact, it will erode

our notions of fundamental fairness and reduce public

trust in arbitration. Worse, it threatens to degrade the

United States’ standing as a reliable and evenhanded

forum for international disputes.

I. Courts have recognized that bias or misconduct

by one member of a multimember tribunal can corrupt

the entire proceeding. And rightly so. Because “each

member’s involvement plays a part in shaping” the

tribunal’s final decision, Aetna Life Ins. Co. v. Lavoie,

475 U.S. 813, 831 (1986) (Brennan, J., concurring),

even one member’s misconduct “taint[s] the tribunal,”

Hicks v. City of Watonga, 942 F.2d 737, 748 (10th Cir.

1991); accord Williams v. Pennsylvania, 579 U.S. 1, 14

(2016) (appellate judge’s failure to recuse warrants reversal “even if the judge in question did not cast a deciding vote”). Tripartite arbitrations are no different—

when parties contract for tripartite arbitration, they

expect all three arbitrators “to serve and act as one

board.” Florasynth, Inc. v. Pickholz, 750 F.2d 171, 173

(2d Cir. 1984). Even one arbitrator’s misconduct can

interfere with the panel’s decisional process and taint

the outcome of the proceedings.

Leading professional associations fully understand

this, and multiple states have codified it. Today, AAA,

JAMS, and ICC require arbitrators to be engaged, and

to perform their duties fairly. See, e.g., ICC Rules, Art.

11(2) (2021); AAA Code of Ethics, Canon I(B)(4);

JAMS Ethics Guidelines, Rule VI(B). Various states

require “all arbitrators” to “participate in the arbitration process in a fair, honest and good-faith manner.”

Met. Prop. & Cas. Ins. Co. v. J.C. Penney Cas. Ins. Co.,

780 F. Supp. 885, 892 (D. Conn. 1991) (collecting state

citations). There is thus a broad recognition that every

member of a tripartite proceeding has a responsibility

to perform their appointed duties fairly. Excusing one

arbitrator’s misconduct anytime the other two panelists behave will frustrate the parties’ expectations and

undermine the integrity of proceedings.

II. An arbitrator’s abandonment of the proceedings

violates our nation’s notions of fundamental fairness.

In court, due process requires judges and juries to pay

attention during critical stages of proceedings. United

States v. Mortimer, 161 F.3d 240, 241 (3d Cir. 1998)

(judges); United States v. Barrett, 703 F.2d 1076, 1083

& n.13 (9th Cir. 1983) (juries). And a judge’s “complete

abdication” of the judicial role destroys the structure

of the proceedings. Riley v. Deeds, 56 F.3d 1117, 1118

(9th Cir. 1995); see Mortimer, 161 F.3d at 241 (“When

the judge is absent at a ‘critical stage’ the forum is destroyed.” (cleaned up)). So, too, for private arbitration:

An arbitrator’s total abandonment destroys the structure arranged by the parties, and prevents fair consideration of the facts and arguments.

These concerns are only amplified by the wide latitude granted to arbitrations. Arbitrators have “completely free rein to decide the law as well as the facts,”

Commonwealth Coatings, 393 U.S. at 149, and courts

exercise “maximum deference” to their decisions. Dodson Int’l Parts, Inc. v. Williams Int’l Co. LLC, 12 F.4th

1212, 1228 (10th Cir. 2021) (cleaned up). That discretion demands “scrupulous” review to ensure fairness,

Commonwealth Coatings, 393 U.S. at 149, so courts

apply no “special deference” in evaluating claims “that

the forum was unfair.” Move, Inc. v. Citigroup Glob.

Mkts., Inc., 840 F.3d 1152, 1158 (9th Cir. 2016)

(cleaned up). Review to ensure that all arbitrators perform in good faith is the only way for parties to ensure

this vast discretion is exercised fairly.

III. Finally, the facts of this case are ripe for review.

The record makes plain that Qing abandoned his post,

disengaging from the hearing as Que began arguing.

Those actions destroyed the arbitral forum, disrupting

the proceeding and forcing its premature termination.

And the Ninth Circuit acknowledged as much, finding

that Qing exhibited a “concerning lack of attention”—

only to excuse it by reasoning that two-out-of-three is

good enough. 4a. No meritorious factual disputes or

procedural bars hinder review of that holding. Enron

Nigeria Power Holding, Ltd. v. Fed. Republic of Nigeria, 844 F.3d 281, 288 (D.C. Cir. 2016) (“[P]arties cannot waive their rights under Article V(2)(b)[.]”).

STATEMENT OF THE CASE

A. Legal Background

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards governs the confirmation, enforcement, and refusal of foreign arbitral

awards. Convention art. I(1).1 Its “principal purpose”

is to encourage the arbitration of international commercial disputes “and to unify the standards by which

agreements to arbitrate are observed and arbitral

awards are enforced.” Scherk v. Alberto-Culver Co.,

417 U.S. 506, 520 n.15 (1974). By incorporating the

Convention into federal law, the United States has extended the “federal policy in favor of arbitral dispute

resolution” into “the field of international commerce.”

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614, 631 (1985).

But because “the general pro-arbitration policy relies on the assumption that the forum is fair,” Move,

Inc. v. Citigroup Glob. Mkts., Inc., 840 F.3d 1152,

1157–58 (9th Cir. 2016) (cleaned up), Article V(2)(b) of

the Convention allows courts to vacate an award that

is “contrary to . . . public policy.” Convention art.

1 The Convention was ratified by the United Nations in 1958.

21 U.S.T. 2517 (June 10, 1958). Congress has since codified the

Convention within Chapter 2 of the Federal Arbitration Act. See

9 U.S.C. §§ 201-08.

V(2)(b); see 9 U.S.C. § 207. That exception allows our

courts to set aside awards that offend “basic notions of

morality and justice,” Belize Bank Ltd. v. Gov’t of Belize, 852 F.3d 1107, 1111 (D.C. Cir. 2017) (cleaned up),

and are “‘repugnant to fundamental notions of what is

decent and just’ in the United States,” Estate of Ke v.

Yu, 105 F.4th 648, 660 (4th Cir. 2024) (quoting Ackermann v. Levine, 788 F.2d 830, 841 (2d Cir. 1986)).

The public policy exception is narrow, but essential.

To trigger Article V(2)(b), a petitioner must identify a

“well defined and dominant” public policy arising from

“‘laws and legal precedents.’” W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber Workers,

461 U.S. 757, 766 (1983) (quoting Muschany v. United

States, 324 U.S. 49, 66 (1945)). Those precedents include the rule that arbitrators must, at the very least,

“grant the parties a fundamentally fair hearing.” Bell

Aero. Co. Div. of Textron, Inc. v. Local 516, UAW, 500

F.2d 921, 923 (2d Cir. 1974). That entails “minimal

requirements of fairness,” such as “adequate notice, a

hearing on the evidence, and an impartial decision by

the arbitrator.” Soaring Wind Energy, L.L.C. v. Catic

USA Inc., 946 F.3d 742, 756 (5th Cir. 2020).

Review to ensure fundamental fairness protects our

policy favoring arbitration by preserving public trust.

Our nation has a “federal policy favoring arbitration,”

Epic Systems Corp. v. Lewis, 584 U.S. 497, 505 (2018)

(cleaned up), but that policy rests on an “assumption

that [arbitration] is fair,” Move, Inc., 840 F.3d at

1157–58 (cleaned up). Fairness “promote[s] public

confidence in the arbitration process.” Heckman v.

Live Nat. Ent., Inc., 120 F.4th 670, 687 (9th Cir. 2024).

Its absence both “frustrates the federal policy favoring

arbitration and jeopardizes its continued use as an alternative method of dispute resolution.” Positive

Software Sols., Inc. v. New Century Mortg. Corp., 337

F. Supp. 2d 862, 880 (N.D. Tex. 2004), rev’d on other

grounds, 476 F.3d 278 (5th Cir. 2007). So while courts

usually exercise “maximum deference” to the results

of arbitration, Dodson Int’l Parts, Inc. v. Williams Int’l

Co. LLC, 12 F.4th 1212, 1228 (10th Cir. 2021) (cleaned

up), no “special deference” applies “in the face of a colorable claim that the forum was unfair in a particular

case,” Move, Inc., 840 F.3d at 1158 (cleaned up).

B. Factual Background

This case arises from a foreign arbitration between

Wenbin Que and Lihua Song, two citizens of the People’s Republic of China. In 2014, Song and Que signed

an investment agreement governed by Chinese law.

41a. Through that agreement, Song bought RMB 210

million in stock and Que guaranteed a 200% rate of

return after six months.2 41a-42a. Things didn’t work

out as planned. In 2020, Song asserted that the shares

were worth less than the guaranteed RMB 630 million

when the six-month period concluded. 42a. She filed

arbitral claims requesting RMB 337 million, reflecting

his alleged shortfall. 44a.

Song initiated proceedings with the Chengdu Arbitration Commission on November 23, 2020. See 42a.

But Song’s counsel provided the Commission with an

incorrect address for service on Que. 42a. So, when the

Commission sent initiating papers to that address,

Que did not receive them. 42a.

Though the Commission received no indication that

Que knew about the proceedings, it elected to proceed.

The arbitration advanced through panel selection and

2 The acronym RMB refers to the Chinese Renminbi currency.

As of November 20, 2025, 1.00 USD is equivalent to 7.1135 RMB.

USD-CNY X-RATE Bloomberg, https://tinyurl.com/n3v7u5xk.

its first arbitration hearing without Que’s knowledge.

On February 19, 2021, the Commission selected three

arbitrators with input from Song, but not Que. 138a.

On March 26, 2021, that panel held its first hearing

with Song’s attorney present, but not Que’s. 42a-43a.

Que at last learned of the arbitration on April 2, 2021,

when the Commission emailed Que’s assistant about

the ongoing arbitration. 43a.3 Que promptly retained

mainland Chinese counsel. 43a.

The panel held a second arbitration hearing on May

26, 2021, with counsel for both parties present. 43a.

One arbitrator, Feng Qing, attended remotely. 43a.

His participation was littered with serious problems.

Throughout Song’s arguments, Qing remained seated

and engaged. 43a. 4 But once Que’s attorney began his

oral presentation, Qing stopped paying attention. 43a.

Only fifty-four seconds into Que’s presentation, Qing

left his seat and began walking about his apartment.

110a. He used the lavatory during the hearing. 110a.

He exited the bathroom and spoke with a short-haired

woman unrelated to the arbitration. 52a. They left his

home, rode in a car, and boarded a train. 52a-54a.

Throughout this misadventure, Qing frequently disconnected from the call, 52a-54a, and engaged in unrelated conversations that disrupted the hearing, 52a54a. He asked no further questions.

The panel eventually became aware that Qing had

stopped participating altogether. 53a-54a; 99a-100a.

3 Neither Song’s attorney nor the Commission explained why

email service was not attempted before the first hearing.

4 During Song’s arguments, Qing stated that he didn’t think

Que had “respect for the rules” because Que did not “accept the

materials” served by the Commission, notwithstanding the service issues. 100a-101a. He then asked two substantive questions.

Afterward, he said nothing further.

They attempted without success to reengage him. The

other arbitrators and attorneys for the parties periodically asked Qing whether he could hear them, but he

did not respond once. See, e.g., 60a; 61a; 62a; 66a; 67a;

70a; 99a; 113a; 114a; 115a; 117a. The panel concluded

Qing was a lost cause, and decided to end proceedings.

117a-118a. The panel chair called Qing and asked him

to “pull over” so they could “get this panel deliberation

over with.” 117a. When Qing did not reengage, the

panel ended the hearing. 114a-115a. Altogether, the

hearing lasted just under one hour and 45 minutes before Qing’s abandonment of his duties forced its premature conclusion. 114a-115a.

The Commission invited both parties to file written

submissions within a week of the terminated hearing.

115a. Song lodged a supplemental brief, but the Commission never informed Que of her submission. 44a.

On October 11, 2021, the panel granted Song’s request

for RMB 337 million plus interests and costs, for a full

award of roughly $55 million USD. 44a. Que asked a

Chinese court to set this award aside, but the court

dismissed his challenge. 50a-51a.

After the unjust events of the arbitration, Que refused to pay Song, so Song turned to the courts. 41a.

She filed an enforcement action in a Hong Kong court

on December 9, 2022. 41a. But the Hong Kong court

instead set the award aside on August 24, 2023. 44a.

That court had no trouble determining that arbitrator

Qing’s actions rendered the hearing unfair. 44a-45a.

Concluding that enforcement would “violate the most

basic notions of justice,” 46a, the court set the award

aside under Article V(2)(b) of the Convention. 44a.

And it went even further, ordering Song to pay Que’s

400,000 RMB in attorney’s fees. 44a.

Song would not take no for an answer, so she tried

again in the United States. This time, she succeeded.

17a. She filed her enforcement action in the Northern

District of California on May 23, 2023. 46a. Paying little attention to the judgment of the Hong Kong court,

the district court determined that Qing’s misconduct

“did not rise to the level of a violation of due process

or the most basic notions of morality and justice.” 11a.

And the Ninth Circuit affirmed. 4a–5a. The appellate

panel agreed that Qing’s conduct “reflected a concerning lack of attention.” 4a. But it nonetheless held that

Que “failed to show that enforcing the Award would

violate United State public policy,” as “the remaining

two arbitrators” behaved properly. 4a–5a.

REASONS FOR GRANTING THE PETITION

A foreign arbitration award should not be enforced

if it offends our nation’s “basic notions of morality and

justice.” Est. of Ke, 105 F.4th at 660 (cleaned up); Parsons & Whittemore Overseas Co. v. Societe Generale de

L’Industrie du Papier (RAKTA), 508 F.2d 969, 974 (2d

Cir. 1974). And those notions require arbitration to be

“fundamentally fair.” Textron, Inc., 500 F.2d at 923. 5

This case implicates the limits of that basic principle:

Does fundamental fairness permit one arbitrator on a

three-member panel to abandon his post? And can one

arbitrator’s wholesale dereliction be excused anytime

the other two behave? The answer must be no.

5 Standards governing the Federal Arbitration Act apply under

the Convention unless the two are in conflict. GE Energy Power

Conversion France SAS, Corp. v. Outokumpu Stainless USA,

Inc., 590 U.S. 432, 439 (2020); accord Corporacion AIC, SA v. Hidroelectrica Santa Rita S.A., 66 F.4th 876, 882–84 (11th Cir.

2023) (discussing parallels).

The Ninth Circuit’s decision conflicts with

prior cases holding that one arbitrator’s

misconduct can invalidate an award.

This case shows how an arbitrator’s misconduct can

destroy the fairness of a tripartite arbitration. 4a.

Courts may void an arbitration award for “misbehavior by which the rights of any party have been prejudiced.” 9 U.S.C. § 10(a)(3). And an arbitrator’s “misconduct” requires vacatur if it “so affects the rights of

a party that . . . he was deprived of a fair hearing.”

Rainier DSC 1, L.L.C. v. Rainier Cap. Mgmt., L.P.,

828 F.3d 362, 364 (5th Cir. 2016) (cleaned up). The

Ninth Circuit held that one arbitrator’s misconduct is

harmless if his two panel colleagues behaved. But that

outcome conflicts with a widespread understanding

that courts may invalidate an arbitral award tainted

by a single arbitrator’s misconduct.

Start with this Court’s own precedent. In Commonwealth Coatings v. Continental Casualty Co., a subcontractor sued a prime contractor for overdue funds.

393 U.S. at 146. Their contract required that the dispute be arbitrated by a three-member panel—including an arbitrator selected by each party and one thirdparty neutral. Id. After the arbitration, it came to

light that this supposed “neutral” had an extended

business relationship with one of the arbitral parties.

Id. Although a district court and appeals court upheld

the award, this Court reversed, holding that the arbitrator’s failure to disclose his business ties suggested

partiality, and demanded vacatur. See id. at 148–49.

Nowhere did this Court suggest that this misconduct

could be harmless merely because the other appointed

arbitrators were unbiased.

And Commonwealth is not alone. Courts often void

awards when one of three arbitrators commits serious

misconduct. For example, one arbitrator’s receipt of ex

parte communications can constitute prejudicial “misbehavior.” See Totem Marine Tug & Barge, Inc. v. N.

Am. Towing, Inc., 607 F.2d 649, 653 (5th Cir. 1979);

Pac. & Arctic Ry. & Nav. Co. v. United Transp. Union,

952 F.2d 1144, 1149 (9th Cir. 1991); see also Star Ins.

Co. v. Nat’l Union Fire Ins. Co., 656 F. App’x 240, 257

(6th Cir. 2016) (applying Michigan law). And a single

arbitrator’s undisclosed relationship with an arbitral

party likewise requires vacatur. See Thomas Kinkade

Co. v. White, 711 F.3d 719, 724–25 (6th Cir. 2013); Applied Indus. Mats. Corp. v. Ovalar Makine, 492 F.3d

132, 137 (2d Cir. 2007); Middlesex Mut. Ins. Co. v. Levine, 675 F.2d 1197, 1200–02 (11th Cir. 1982); Schmitz

v. Zilveti, 20 F.3d 1043, 1049 (9th Cir. 1994) (“Evident

partiality in one arbitrator generally requires vacatur

of the arbitration award.”).

Despite this broad recognition that one arbitrator’s

misconduct can taint a hearing, the Ninth Circuit held

the opposite. It agreed that Qing shirked his duty, but

excused that misconduct because “the remaining two

arbitrators” behaved. 4a. But if that was the law, even

severe misconduct could go unchecked so long as two

arbitrators perform fairly. Courts could ignore an arbitrator’s ex parte contacts if the other two panelists

were unaware, or disregard an arbitrator’s bias if his

two colleagues were untainted. Tripartite arbitration

requires a two-out-of-three vote—it is not enough that

two-out-of-three perform in good faith.

This Court should hear the case and clarify that one

arbitrator’s misconduct can taint a tripartite arbitration proceeding. That holding will affect domestic arbitration, not merely our treatment of foreign awards.

After all, the rule that arbitration must be fundamentally fair stems from due process, Soaring Wind, 946

F.3d at 756, and reflects our “notions of morality and

justice,” Est. of Ke, 105 F.4th at 660. And since tripartite proceedings are the most common form of arbitration, this case has broad implications. According to the

International Chamber of Commerce, 63% of international arbitrations rely on a three-arbitrator panel.

See, e.g., ICC, ICC Dispute Resolution 2024 Statistics

8 (2025), https://tinyurl.com/4j28rne8. A holding that

all three arbitrators must perform with good faith and

integrity will improve trust in that process. It will also

align with longstanding ethical rules and due process

safeguards governing commercial arbitration.

To start, strong due process principles demand that

all members of a multimember body behave properly.

Because the three panelists “serve and act as one

board,” Florasynth, Inc. v. Pickholz, 750 F.2d 171, 173

(2d Cir. 1984), it can be “difficult if not impossible” to

decide how one member’s misconduct tainted deliberations. See Move, Inc., 840 F.3d at 1159 (cleaned up).

As Justice Brennan noted in Aetna Life Insurance Co.

v. Lavoie, “each member’s involvement plays a part in

shaping” a decision of a multimember body. 475 U.S.

813, 831 (1986) (Brennan, J., concurring). So “while

the influence of a single participant” cannot “be measured with precision,” one rogue decisionmaker “necessarily imports a bias into the deliberative process.” Id.

Thus, even a single member’s misconduct can “taint[]

the tribunal” and render its proceeding unfair. Hicks

v. City of Watonga, 942 F.2d 737, 748 (10th Cir. 1991);

Cinderella Career & Finishing Schs. Inc. v. FTC, 425

F.2d 583, 592 (D.C. Cir. 1970) (reversing even though

vote of tainted member “was not necessary for a majority”). Cf. Williams v. Pennsylvania, 579 U.S. 1, 15

(2016) (holding that “it is neither possible nor productive to” determine how a biased appellate judge “influenced the views of his or her colleagues”).

It is not necessary for courts to measure the effects

of Qing’s misconduct because its impact was apparent.

Qing’s misconduct not only deprived the parties of an

appointed panelist; it corrupted the entire proceeding.

His conversations with the woman in his apartment

disrupted the arguments of counsel. His intermittent

disconnection forced the panel to pause proceedings.

And after the arbitral panel failed to reengage Qing,

they ended the hearing prematurely, cutting short all

remaining deliberations. Because Qing’s misconduct

destroyed the structure of the arbitration altogether,

it “deprived” Que “of a fair hearing.” Rainier, 828 F.3d

at 364 (cleaned up).

Moreover, parties who submit disputes to tripartite

arbitration expect that all panelists will engage in the

proceeding. “Arbitration is a matter of contract, and

[federal law] requires courts to honor parties’ expectations.” AT&T Mobility LLC v. Concepcion, 563 U.S.

333, 351 (2011) (cleaned up). Contracting parties expect that arbitration will be conducted “in the manner

provided for in [their] agreement.” Volt Info. Scis., Inc.

v. Stanford Univ., 489 U.S. 468, 474 (1989) (quoting 9

U.S.C. § 4). And when the parties contract for a tripartite proceeding, “the three arbitrators [are] intended to serve and act as one board.” Florasynth, 750

F.2d at 173. A proceeding run by only two arbitrators

frustrates that expectation. So, too, does a hearing at

which one of the three arbiters appointed to the panel

has functionally abandoned his post.

Ethical rules governing American commercial arbitration also require all three panelists to participate,

not just two. Many states require arbitrators to “participate in the arbitration process in a fair, honest and

good-faith manner.” Met. Prop. & Cas. Ins. Co. v. J.C.

Penney Cas. Ins. Co., 780 F. Supp. 885, 892 (D. Conn.

1991) (collecting authorities). Under their rules, “all

arbitrators” must do their jobs with good faith, integrity, and fairness. See, e.g., Barcon Assoc., Inc. v. TriCnty. Asphalt Corp., 430 A.2d 214, 219–20 (N.J. 1981);

Astoria Med. Grp. v. Health Ins. Plan of Greater N.Y.,

182 N.E.2d 85, 89 (N.Y. 1962). The leading arbitration

associations similarly require arbitrators to be available, diligent, and engaged. E.g., ICC Rules, Art. 11(2)

(2021) (arbitrators must certify their “availability”);

AAA Code of Ethics, Canon I(B)(4) (arbitrators must

“devote the [necessary] time and attention to [the proceeding’s] completion”); JAMS Ethics Guidelines,

Rule VI(B) (2021) (arbitrators must “perform duties

diligently”). By excusing Qing’s total dereliction of his

duties, the Ninth Circuit’s holding sanctions behavior

that violates these established ethical rules.

II. An arbitrator’s complete abandonment of

his responsibilities renders an arbitration

hearing unfair.

Review will also allow this Court to declare that our

nation’s notions of fairness do not permit an arbitrator

to abandon his duties. The “minimal requirements of

fairness” include “adequate notice, a hearing on the

evidence, and an impartial decision by the arbitrator.”

Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123,

1130 (7th Cir. 1997) (cleaned up). Parties must have a

“fair opportunity to present evidence and argument,”

Brown v. Brown-Thill, 762 F.3d 814, 820 (8th Cir.

2014), and “a decision based on the honest judgment

of the arbitrators.” Ficek v. Southern Pacific Co., 338

F.2d 655, 657 (9th Cir. 1964) (cleaned up). Those principles require all key decisionmakers to pay attention.

In court, inattention by a judge or juror can prejudice

a litigant. In arbitration, those concerns weigh even

heavier. Arbitrators have broad authority to decide

law and fact alike, and courts rarely question their

judgment. That vast discretion cries out for basic safeguards to prevent its abuse.

A. In judicial proceedings, fundamental fairness requires decisionmakers to pay attention to the parties’

arguments. Start with judges. A fair hearing demands

“a trial judge ever watchful” to stand guard against

“prejudicial occurrences.” Smith v. Phillips, 455 U.S.

209, 217 (1982). Naturally, then, a judge’s absence “at

a critical stage” of a trial can “destroy” the forum, and

deprive proceedings of fundamental fairness. United

States v. Mortimer, 161 F.3d 240, 241 (3d Cir. 1998)

(cleaned up); Riley v. Deeds, 56 F.3d 1117, 1118 (9th

Cir. 1995); People v. Vargas, 673 N.E.2d 1037, 1043

(Ill. 1996). And a “complete abdication” of the judicial

role is a structural error that warrants vacatur. Riley,

56 F.3d at 1121; see United States v. Kone, 307 F.3d

430, 442 (6th Cir. 2002) (noting that structural error

occurs if judge “completely abdicate[s] his judicial responsibilities”); Mortimer, 161 F.3d at 241 (“[T]he forum is destroyed. . . . The structure has been removed.

There is no way of repairing it.”).

The same can be said for juries. Since jurors occupy

an essential role in our system of justice, a fair trial

requires “an astute and attentive jury.” United States

v. Fox, 134 F.4th 348, 381 (6th Cir. 2025). And a juror

who does not pay attention “cannot be expected to perform his duties.” United States v. Warner, 690 F.2d

545, 555 (6th Cir. 1982). Thus, a juror’s inattentiveness during “essential portions of the trial” risks depriving litigants of “due-process” and “impartial-jury

guarantees.” 6 United States v. Barrett, 703 F.2d 1076,

6 It makes no difference that these are criminal cases, as the

same principles apply. The Seventh Amendment’s right to trial

by jury necessarily demands an impartial jury in civil matters.

1083 & n.13 (9th Cir. 1983); see also Commonwealth

v. McGhee, 25 N.E.3d 251, 256 (Mass. 2015) (“Defendants, as well as the public, have ‘a right to decisions

made by alert and attentive jurors.’” (cleaned up));

Lester v. Commonwealth, 132 S.W.3d 857, 862 (Ky.

2004) (“[A] juror’s inattentiveness is a form of juror

misconduct[.]”); State v. Strange, 214 P.3d 672, 675

(Idaho App. 2009) (“A juror’s inattentiveness . . . may

constitute misconduct.”). 7

B. Those rules should apply with even greater force

in arbitration hearings. Arbitrators have “completely

free rein to decide the law as well as the facts and are

not subject to appellate review.” Commonwealth Coatings, 393 U.S. at 149. They act at once as judge and

jury, with negligible checks on their discretion. Courts

rarely second-guess an arbitrator’s decision on issues

that are subject to arbitration. See, e.g., BG Grp., PLC

v. Republic of Argentina, 572 U.S. 25, 32–33 (2014)

(discussing deference owed to arbitral decisions). And

even a court’s conviction that an arbitrator committed

“serious error” is not sufficient to overturn an award.

See McCoy v. Goldston, 652 F.2d 654, 657 (6th Cir. 1981); Skaggs

v. Otis Elevator Co., 164 F.3d 511, 514–15 (10th Cir. 1998) (“[T]he

right to a jury trial in a civil case would be illusory unless it encompassed the right to an impartial jury.”).

7 Of course, lesser showings of juror inattentiveness or judicial

absence violate due process only on a showing of prejudice. See,

e.g., United States v. Solon, 596 F.3d 1206, 1212 (10th Cir. 2010);

United States v. McKeighan, 685 F.3d 956, 973 (10th Cir. 2012).

Here, however, both structural error and prejudice are apparent.

Qing stopped participating only fifty-four seconds into Que’s argument—asking no further questions and declining to respond

when addressed. Effectively, he converted a panel of three into a

panel of only two. And his misadventure derailed the proceeding.

His unrelated conversations, frequent disconnections, and general wandering disrupted the arguments and forced the hearing’s

early termination.

United Paperworkers Int’l Union v. Misco, Inc., 484

U.S. 29, 38 (1987); accord Europcar Italia S.p.A. v.

Maiellano Tours, Inc., 156 F.3d 310, 316 (2d Cir. 1998)

(“[A]n arbitration award cannot be avoided solely on

the ground that the arbitrator may have made an error of law or fact.”). That extreme deference demands

that courts “be even more scrupulous to safeguard”

fundamental fairness in arbitration. Commonwealth

Coatings, 393 U.S. at 149.

An arbitrator’s disregard for his duties wounds fairness even more than a judge’s or juror’s abdication of

their own.8 There are no checks built into arbitration

to safeguard substantive outcomes, so basic fairness

is essential. Just as a judge’s “complete abdication” of

the judicial role destroys the structure of proceedings,

Riley, 56 F.3d at 1121, an arbiter’s failure to perform

his role defeats the structure arranged by the parties.

And just as an inattentive juror “cannot be expected

to perform his duties,” Warner, 690 F.2d at 555, an

arbitrator who pays no heed to one party’s arguments

cannot make a proper decision. In hearing this case,

this Court can reinforce these principles by declaring

that our fundamental notions of fairness do not permit

a presiding arbitrator to wholly abandon his post. See,

e.g., Hott v. Mazzoco, 916 F. Supp. 510, 517 (D. Md.

1996) (“Misconduct sufficient to warrant vacating an

award is something patently egregious, such as an arbitrator sleeping during testimony.”); Loren Imhoff

Homebuilder, Inc. v. Taylor, 973 N.W.2d 836, 849–50

8 Indeed, this Court in Commonwealth Coatings already made

this analogy. See 393 U.S. at 148 (“We have no doubt that if a

litigant could show that a foreman of a jury or a judge in a court

of justice had, unknown to the litigant, any such relationship, the

judgment would be subject to challenge.”).

(Wis. App. 2022) (affirming vacatur where arbitrator’s

sleeping was “certain, extensive, and significant”).

C. A rule that all arbiters must participate matches

the existing scope of judicial review of arbitral awards.

Courts review the results of arbitration to ensure that

the arbitrator “did his job.” Friedler v. Stifel, Nicolaus

& Co., Inc., 108 F.4th 241, 246 (4th Cir. 2024) (cleaned

up); United Transp. Union v. Nat’l R.R. Passenger Co.,

588 F.3d 805, 810 (2d Cir. 2009); Boston & Maine

Corp. v. Broth. of Maint. of Way Emps., 94 F.3d 15, 18

(1st Cir. 1996). And courts can vacate an award if an

arbitrator committed “misbehavior” that rendered the

proceedings unfair. 9 U.S.C. § 10(a); see, e.g., Tempo

Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20–21 (2d Cir.

1997); Costco Wholesale Corp. v. Int'l Broth. of Teamsters, 850 F. App’x 467, 468 (9th Cir. 2021) (“[A]n arbitration award may be vacated if the proceedings violate the rule of fundamental fairness”). An arbitrator

abandoned his post did not “do his job,” much less with

“fundamental fairness.”

Such a rule will also strengthen the policy in favor

of arbitration by safeguarding trust in its fairness.

Our nation recognizes “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Mem’l

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983).

Parties enjoy a near-absolute right to commit disputes

to arbitration, and courts enforce such agreements according to their terms, Epic Systems Corp. v. Lewis,

584 U.S. 497, 506 (2018). But “[t]he general pro-arbitration policy relies on the assumption that the forum

is fair.” Move, Inc., 840 F.3d at 1157–58 (cleaned up).

And that policy “cannot justify special deference” to an

arbitral award “in the face of a colorable claim that

the forum was unfair in a particular case.” Id. at 1158

(cleaned up). Review of arbitration hearings to ensure

fundamental fairness preserves their integrity by

guarding “against the risk of runaway arbiters.” Dean

v. Sullivan, 118 F.3d 1170, 1171 (7th Cir. 1997).

Requiring arbitrators to perform their obligations

fairly, and to pay attention to both parties’ arguments,

strengthens that important policy. Judicial protection

of fundamental fairness promotes trust in arbitration.

But that goal will be thwarted if parties cannot rely

on courts to protect them from arbitrator misconduct.

Such concern is particularly pressing under the New

York Convention. By underscoring that courts should

scrutinize foreign arbitral awards to ensure that the

arbitrators performed their duties with integrity, this

Court can ensure the United States maintains its stature as a fair, just, and evenhanded forum.9

III. The arbitral misconduct in this case is manifest and ripe for review.

Qing’s total disregard for the proceedings amounts

to complete abdication of his arbitral responsibilities.

Qing certainly paid attention while Song was arguing.

But once Que presented his case, Qing abandoned his

post. During the course of Que’s 90-minute argument,

Qing paid no attention and asked Que no questions.

Instead, he spoke with a third party in his apartment,

used the restroom, rode in a car, and boarded a train.

He dropped from the call several times. His colleagues

9 Notably, the district court approved this award after a Hong

Kong court found it to “violate the most basic notions of justice.”

46a. By affirming, the Ninth Circuit’s holding implicates core

questions of international comity that merit this Court’s review.

See Termorio S.A. E.S.P. v. Electrificadora Del Atlantico S.A.

E.S.P., 421 F. Supp. 2d 87, 97 (D.D.C. 2006) (“There are very few

cases that address the question of whether a U.S. court should

enforce an arbitral award when a foreign court has nullified that

same award.” (collecting cases)).

asked four times whether he was listening to the hearing. But he did not answer, as he had fully disengaged.

The chair called him to “get this panel deliberation

over with.” 118a. And when Qing refused, the panel

ended the hearing early. Our notions of fundamental

fairness cannot countenance such behavior.

This case offers a perfect opportunity to reject the

Ninth Circuit’s problematic misreading of the law and

ensure that arbitration remains fundamentally fair.

None of the relevant facts are contested, as the parties

acknowledge the essential facts of Qing’s misconduct.

So did the Ninth Circuit, which agreed that his actions

reflected a “concerning lack of attention,” but found it

enough that “the remaining two arbitrators” did their

jobs. 4a.10 Because Qing’s misconduct is apparent, this

Court can address the legal issues without becoming

mired in factual disputes.

A. Song has argued that Que abandoned his claims

by declining to object at the conclusion of the hearing.

Not so. Waiver entails an “intentional relinquishment

of a known right,” Doyle v. UBS Fin. Servs., Inc., 144

F.4th 122, 127 n.3 (2d Cir. 2025), so a failure to object

is no waiver if the party had no meaningful chance to

do so, Greer v. United States, 593 U.S. 503, 512 (2021),

or if objection would be futile, Chassen v. Fidelity Nat’l

Fin., Inc., 836 F.3d 291, 296 (3d Cir. 2016); United

States v. Kyle, 734 F.3d 956, 962 n.3 (9th Cir. 2013)

(“A failure to raise a futile objection does not waive the

10 That finding distinguishes this case from various appellate

decisions declining to reach this issue when the facts did not support it. See, e.g., Hurn v. Macy’s Inc., 728 F. App’x 598, 599 (7th

Cir. 2018) (rejecting sleeping arbiter claim where parties waited

for him to wake up); Nat’l Post Off. Mailhandlers v. USPS, 751

F.2d 834, 840 (6th Cir. 1985) (rejecting inattentive arbiter claim

because he “appeared inattentive only ‘very briefly’”).

objection”). Both principles apply. Que had no need to

object during the proceeding because Qing’s panel colleagues did it for him. When Qing’s abandonment became apparent, the other arbitrators tried to address

the issue sua sponte—calling Qing multiple times and

ending the hearing early when he refused to reengage.

Because the panel was already attempting to remedy

Qing’s dereliction of duty, a formal objection would

have served no practical purpose.

The Ninth Circuit held otherwise by referencing a

domestic arbitration case in which a party waived its

claims. 4a. This Court should reject that notion.

American waiver doctrine does not cleanly apply to an

arbitration conducted in China. Waiver, as discussed,

must involve an “intentional” surrender of a “known”

right. Doyle, 144 F.4th at 127 n.3. This arbitration was

conducted under Chinese procedural rules. The parties did not contract for future litigation in America.

Que’s Chinese counsel could not have anticipated that

the hearing would be reviewed in an American court,

applying American waiver doctrines.

B. But even if waiver could somehow apply on these

facts, “parties cannot waive their rights under Article

V(2)(b).” Enron Nigeria Power Holding, Ltd. v. Fed.

Republic of Nigeria, 844 F.3d 281, 288 (D.C. Cir.

2016). Both the language of the Convention and vital

judicial policy compel this result. Unlike Article V(1)’s

procedural defenses, which may be enforced “at the request of the liable party,” Article V(2)’s public policy

defense applies “if the court finds on its own initiative

that such grounds exist.” Id. (cleaned up). Moreover,

“because public policy violations implicate the integrity of the enforcing court,” id., a public policy defense

“may not be waived by any system of pleading.” Id. at

289 (cleaned up); accord W.R. Grace, 461 U.S. at 766

(“[T]he question of public policy is ultimately one for

resolution by the courts.”). Thus, “forfeiture cannot divest the court of its duty to resolve the public policy

question.” Enron Nigeria, 844 F.3d at 288.

That principle aligns with the longstanding notion

that waiver is “devised to promote the ends of justice,”

and does not apply “where injustice might . . . result.”

Arakas v. SSA, 983 F.3d 83, 105–06 (4th Cir. 2020)

(cleaned up); accord Nat’l Ass’n of Social Workers v.

Harwood, 69 F.3d 622, 627 n.5 (1st Cir. 1995) (observing that courts relax waiver if its application “threatens the frustration of some broadly important right.”).

This case implicates the “minimal requirements of

fairness” commanded by our nation’s “basic notions of

morality and justice.” Generica Ltd., 125 F.3d at 1130.

It concerns fundamental fairness, a “dominant” public

policy and a central tenet of due process. W.R. Grace,

461 U.S. at 766 (cleaned up); Soaring Wind, 946 F.3d

at 756. If such precepts can be inadvertently forfeited,

“justice would be a hollow word indeed.” Stokes v. Stirling, 64 F.4th 131, 142 (4th Cir. 2023).

Finally, the international character of this case also

warrants addressing the merits. After all, “when matters of comity are involved, the ordinary doctrines of

waiver give way.” Hoover v. Wagner, 47 F.3d 845, 852

(7th Cir. 1995). International comity “is a nation’s expression of understanding” for its “international duty”

and “the rights of persons protected by its own laws.”

Somportex Ltd. v. Phila. Chewing Gum Corp., 453

F.2d 435, 440 (3d Cir. 1971). And that principle guides

federal courts in resolving issues “entangled in international relations.” GDG Acquis. LLC v. Gov’t of Belize, 749 F.3d 1024, 1030 (11th Cir. 2014) (cleaned up).

This case turns on application of a multilateral treaty

that governs the treatment of foreign arbitral awards.

And Song’s award was set aside by a Hong Kong court

just after Que’s appeal was rejected by a Chinese one.

Determining which judgment should be honored, and

whether the award violates our nation’s public policy,

involves weighty issues of comity. Those issues should

not be subject to waiver.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

ELIZABETH C. RINEHART

Counsel of Record

KYLE H. KERAGA

VENABLE LLP

750 E. Pratt Street

Baltimore, MD 21202

Tel: (410) 528-4646

ecrinehart@venable.com

JOHN S. WORDEN

ZOE GALLAGHER

101 California Street

San Francisco, CA 94103

Tel: (415) 653-3713

jsworden@venable.com

November 20, 2025

HUA JIANG

VAN DE POEL, LEVY,

THOMAS LLP

1600 South Main Plaza

Walnut Creek, CA 9459

Tel: (925) 934-6102

hjiang@vanlevylaw.com

APPENDIX

TABLE OF APPENDICES

Page

Appendix A — Court of Appeals Memorandum

(July 10, 2025) ......................... 1a

Appendix B — Court of Appeals Order

(August 22, 2025)..................... 6a

Appendix C — District Court Order Granting

Petition to Confirm Foreign

Arbitration Award

(May 31, 2024) ......................... 8a

Appendix D — District Court Judgment

(July 29, 2024) ....................... 16a

Appendix E — Lihua Song’s First Amended

Complaint

(September 1, 2023)............... 19a

Appendix F — Memorandum of Points and

Authorities in Support of Wenbin

Que’s Opposition to Lihua Song’s

Petition/Complaint for

Confirmation of Foreign

Arbitration Award

(December 1, 2023) ................ 40a

Appendix G — Declaration of John F. Van De Poel

in Support of Wenbin Que’s

Opposition to Lihua Song’s

Petition/Complaint for

Confirmation of Foreign

Arbitration Award and Exhibit C

Attached Thereto

(December 1, 2023) ................ 58a

Appendix H — Defendant Wenbin Que’s Statement

of Recent Decision in Support of

Opposition to Lihua Song’s

Petition/Complaint for

Confirmation of Foreign

Arbitration Award

(May 31, 2024) ..................... 126a

Appendix I — Chengdu Arbitration Commission’s

Notice Regarding Composition of

the Arbitral Tribunal and Hearing

(February 20, 2021) ............. 138a

APPENDIX A

United States Court of Appeals

FOR THE NINTH CIRCUIT

Submitted July 8, 2025**

Decided July 10, 2025

No. 24-4129

LIHUA SONG,

PLAINTIFF-APPELLEE

WENBIN QUE, AKA CHEE HON LEE,

DEFENDANT-APPELLANT

Consolidated with 24-4980

Appeal from the United States District Court

for the Northern District of California

Rita F. Lin, District Judge, Presiding

Before: H.A. THOMAS and DE ALBA, Circuit

Judges, and RAKOFF, District Judge.***

* This disposition is not appropriate for publication

and is not precedent except as provided by Ninth

Circuit Rule 36-3.

** The panel unanimously concludes that this case is

suitable for decision without oral argument. See Fed.

R. App. P. 34(a)(2).

*** The Honorable Jed. S. Rakoff, United States

District Judge for the Southern District of New York,

sitting by designation.

MEMORANDUM*

Wenbin Que appeals the district court’s order

granting a petition to confirm a foreign arbitration

award (“Award”) in Lihua Song’s favor. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

The Convention on the Recognition and

Enforcement of Foreign Arbitral Awards (“New York

Convention”), June 10, 1958, 21 U.S.T. 2517, provides

the exclusive grounds upon which we may refuse to

confirm a foreign arbitration award. N.Y. Convention,

art. V. Our review of a foreign arbitration award is

“quite circumscribed—[r]ather than review the merits

of the underlying arbitration, we review de novo only

whether the party established a defense under the

[New York] Convention.” Ministry of Def. & Support

for the Armed Forces of the Islamic Republic of Iran v.

Cubic Def. Sys., 665 F.3d 1091, 1103 (9th Cir. 2011)

(quotation marks omitted). Any “defenses are

construed narrowly, and the party opposing

recognition or enforcement bears the burden of

establishing that a defense applies.” Id. at 1096.

1. The district court did not err in its

determination that Que failed to present a defense

under Article V(1)(a) of the New York Convention.

The parties agreed that the validity of the Income

Guarantee Agreement (“Agreement”) would be

determined by the Chengdu Arbitration Commission,

and that such a determination would be “final and

binding upon the parties.” An arbitral tribunal from

the Chengdu Arbitration Commission found that

there were no Chinese laws regarding contract

formation or stock transfers that invalidated the

Agreement. Cf. E. Associated Coal Corp. v. United

Mine Workers of Am., 531 U.S. 57, 62 (2000) (stating

that when parties have “bargained for the arbitrator’s

construction of their agreement,” “courts will set aside

the arbitrator’s interpretation of what their

agreement means only in rare instances” (internal

citation and quotation marks omitted)).

2. The district court did not err in its

determination that Que failed to present a defense

under Article V(1)(b) of the New York Convention. See

N.Y. Convention, art. V(1)(b) (court may refuse to

confirm award when “[t]he party against whom the

award is invoked was not given proper notice of the

appointment of the arbitrator or of the arbitration

proceedings”). Que’s argument that he lacked notice

of the first arbitration hearing, and of the arbitral

tribunal’s composition, is refuted by evidence in the

record that the hearing materials were properly

mailed to his place of residence.

3. The district court did not err in its

determination that Que failed to present a defense

under Article V(2)(b) of the New York Convention,

which applies only when an award’s confirmation

“would violate the forum state’s most basic notions of

morality and justice.” Ministry of Def. & Support, 655

F.3d at 1097 (quoting Parsons & Whittemore Overseas

Co. v. Societe Generale de L’Industrie du Papier

(RAKTA), 508 F.2d 969, 974 (2d Cir. 1974)). Although

one arbitrator’s conduct during the second arbitral

hearing reflected a concerning lack of attention, Que

failed to show that enforcing the Award would violate

United States public policy since (1) Que never

objected to the arbitrator’s conduct during the hearing

or within the four-month period between the hearing

and Award; (2) the remaining two arbitrators were

attentive to the parties; and (3) Que was given the

opportunity to provide supplemental written

testimony following the hearing. See Marina v.

Writers Guild of Am., E., Inc., 992 F.2d 1480, 1484

(9th Cir. 1993) (“[I]t is well settled that a party may

not sit idle through an arbitration procedure and then

collaterally attack that procedure on grounds not

raised before the arbitrators when the result turns out

to be adverse.”).

AFFIRMED.

APPENDIX B

United States Court of Appeals

FOR THE NINTH CIRCUIT

NO. 24-4129

Filed On: August 22, 2025

LIHUA SONG,

PLAINTIFF-APPELLEE

WENBIN QUE, AKA CHEE HON LEE,

DEFENDANT-APPELLANT

Consolidated with 24-4980

BEFORE:

H.A. THOMAS and DE ALBA, Circuit

Judges, and RAKOFF, District Judge.*

* The Honorable Jed S. Rakoff, United

States District Judge for the Southern

District of New York, sitting by designation

ORDER

The panel has unanimously voted to deny the

petition for rehearing en banc. The full court has been

advised of the petition for rehearing en banc, and no

judge of the court has requested a vote on whether to

rehear the manner en banc. See Fed. R. App. P. 40.

The petition for rehearing en banc, Dkt. No. 44, is

DENIED.

FOR THE COURT:

Molly C. Dwyer, Clerk

APPENDIX C

NO. 3:23-CV-02159-RFL

LIHUA SONG, AN INDIVIDUAL,

PLAINTIFF,

WENBIN QUE, AN INDIVIDUAL; XIAOLAN HE, AN

INDIVIDUAL; SHIXI LIN, AN INDIVIDUAL,

DEFENDANTS.

Filed On: May 31, 2024

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Docket No. 86

ORDER GRANTING PETITION TO CONFIRM

FOREIGN ARBITRATION AWARD

Judge RITA F. LIN

Plaintiff Lihua Song brings this action to confirm

an arbitration award made in China in October 2021,

requiring Defendant Wenbin Que to pay Plaintiff over

RMB 337 million for having breached an agreement

to “guarantee” her income from the purchase of

certain stock shares and to make up any shortfall from

his own assets. The video from the arbitration shows

that one of the three arbitrators, Feng Qing, attended

the hearing remotely via videoconference and was

moving around, not paying attention, and riding in

the back of a car, and periodically disconnected from

the hearing. Que’s counsel did not object at the time.

The presiding arbitrator stated that, due to the

problems with the connection, the parties could

supplement the record with written statements, and

asked if the parties had any objections to the hearing

procedure. Que’s counsel said he had no objection, and

did not submit any supplemental materials. Que now

complains that the hearing procedures violated his

due process rights.

Having reviewed the evidence submitted by the

parties, including the videos of the arbitration and the

translated transcripts, the Court grants Song’s

petition to confirm the arbitration award (Dkt. No.

25), for the reasons detailed below. This order

assumes the reader’s familiarity with the factual

allegations, the relevant law, and the parties’

arguments.

Chapter 2 of the Federal Arbitration Act provides

that the court “shall” confirm a foreign arbitration

award “unless it finds one of the grounds for refusal

10a

or deferral of recognition or enforcement of the award

specified” in the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards (the “New

York Convention”). 9 U.S.C. § 207; see also Ministry of

Def. of the Islamic Republic of Iran v. Gould, Inc., 969

F.2d 764, 770 (9th Cir. 1992) (observing that the

district court “has little discretion” under § 207). Que

challenges the arbitration award on various grounds

under Article V of the New York Convention. Defenses

under the Convention are “construed narrowly,” and

“the party opposing recognition or enforcement bears

the burden of establishing that a defense applies.”

Ministry of Def. & Support for the Armed Forces of the

Islamic Republic of Iran v. Cubic Def. Sys., Inc., 665

F.3d 1091, 1096 (9th Cir. 2011). Que fails to carry that

burden as to any of the asserted defenses.

First, Que argues that Arbitrator Qing’s

inattention rendered Que unable to present his case

under Article V(1)(b) and makes enforcement of the

award contrary to public policy under Article V(2)(b).

Under Article V(1)(b), the inquiry is essentially

whether the arbitration was so deficient that it

violated “United States standards of due process.”

Hawaiian Host, Inc. v. Citadel Pac. Ltd., 637 F. Supp.

3d 1083, 1102–03 (D. Haw. 2022) (quoting Karaha

Bodas Co. v. Perusahaan Pertambangan Minyak Dan

Gas Bumi Negara, 364 F.3d 274, 298 (5th Cir. 2004)).

That “does not include the complete set of procedural

rights guaranteed by the Federal Rules of Civil

Procedure” but instead assesses whether the parties

had an “opportunity to be heard at a meaningful time

and in a meaningful manner.” Id. at 1103 (quoting

Karaha Bodas, 364 F.3d at 299). Likewise, under

Article V(2)(b), “[t]he public policy defense is to be

11a

construed narrowly to be applied only where

enforcement would violate the forum state’s most

basic notions of morality and justice.” Id. at 1102

(quoting TermoRio S.A. E.S.P. v. Electranta S.P., 487

F.3d 928, 938 (D.C. Cir. 2007)).

Examination of the video and transcripts show

that Arbitrator Qing’s conduct did not rise to the level

of a violation of due process or the “most basic notions

of morality and justice.” Arbitrator Qing appears to be

paying attention during most of the hearing, which

lasted approximately an hour and thirty-seven

minutes of active time. (See Dkt. No. 73-1.) There are

three periods where Arbitrator Qing appears to be

distracted or inattentive when Que’s counsel is

speaking:

•

There is a six-minute period where

Arbitrator Qing appears to be distracted

and then disconnects (id. at 1:11:13 to

1:17:30), but Que’s counsel’s only argument

during that time period appeared to be a

series of conclusory evidentiary objections to

some exhibits. (Dkt. No. 73-3 at 24–25.) 1

Que submits no argument or evidence that

the admitted exhibits were improperly

admitted or otherwise important to the

result of the arbitral award.

•

There is also a second four-minute period

where Arbitrator Qing seems distracted but

also displays body language consistent with

listening. (Dkt. No. 73-1 at 1:33:29 to

1:36:53.) During that period, Que’s counsel

1 Citations to page numbers refer to the ECF pagination.

12a

makes some general rhetorical points about

simplifying issues, the public good, and

morality. (Dkt. No. 73-3 at 33:27–34:5.)

Again, Que submits no argument or

evidence that this portion of his counsel’s

argument was important to the result of the

arbitral award.

•

As Song’s counsel is presenting argument

toward the end of the hearing, Arbitrator

Qing’s connection freezes and then he

appears to be walking outside and riding in

a car. (Dkt. No. 73-1 at 1:36:53 to end.)

Arbitrator

Yong

Deng

immediately

comments on Arbitrator Qing’s connection

problems, and no further argument from

either

counsel

occurs.

Eventually,

Arbitrator Deng proposes that “the two

sides will file written representation

statements . . . [b]ecause it . . . the hearing

has not worked out well due to unstable

connections.” (Dkt. No. 73-3 at 37:5–9.) He

then asks, “[D]oes any of you have any

challenge to today’s hearing procedure?” (Id.

at 36:9–10.) Que’s counsel responds, “No, we

don’t.” (Id. at 37:13.) No subsequent written

representation statement was filed by Que’s

counsel. (Dkt. No. 80 ¶ 31.)

At no point did Que’s counsel object to Arbitrator

Qing’s conduct or propose alternative procedures to

allow him to make additional argument on behalf of

Que. See Empresa Constructora Contex Limitada v.

Iseki, Inc., No. 00-56768, 2002 WL 460236, at *1 (9th

Cir. Feb. 12, 2002) (court’s review of whether party

13a

was unable to present its defense under Article V(1)(b)

of the Inter-American Convention is “particularly

limited” where it failed to raise the alleged defect of

the proceedings at the time). 2

Second, Que contends that he suffered a due

process violation because he did not receive adequate

notice of the arbitration process, and was thus

deprived of an opportunity to object to the composition

of the panel and to attend the first hearing. The

undisputed evidence is that Song served Que at

Building 43, No. 46, Section 4, Renmin South Road,

Wuhou District, Chengdu City, which was his listed

address on his ID card and other official documents.

(Dkt. No. 80 ¶¶ 4, 7.) Que, however, did not appear at

the first hearing on March 26, 2021. (Id. ¶ 7.) A second

hearing was held on May 26, 2021, which Que’s

counsel attended. (Id. ¶ 21.) At the second hearing,

Que’s counsel confirmed that Que’s address was in

fact “Unit 1, Building 43, No. 46, Section 4, Renmin

South Road, Wuhou District, Chengdu City.” (Id. at ¶

23.) Que offers no explanation of why the service at

his address was insufficient. Moreover, during the

second hearing, Que’s attorney stated that he had

received all the materials from the first hearing and

2 “There is no substantive difference between” the InterAmerican Convention on International Commercial Arbitration

and the New York Convention, and Article V(1)(b) under both

Conventions are substantively identical. See Corporacion

Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v.

Pemex-Exploracion Y Produccion, 832 F.3d 92, 105 & n.9 (2d Cir.

2016). Thus, “precedents under one [Convention] are generally

applicable to the other.”

Corporacion Mexicana de

Mantenimiento Integral, S. de R.L. de C.V. v. Pemex-Exploracion

y Produccion, 962 F. Supp. 2d 642, 653 (S.D.N.Y. 2013), aff’d, 832

F.3d 92 (2d Cir. 2016).

14a

read the transcript, so he had an opportunity to lodge

any necessary objections as to their content. (Id. ¶¶

17, 24.) Que’s attorney confirmed that Que had no

such objections. (Id. ¶ 29.)3

Third, Que argues that the Court may decline

enforcement of the arbitral award under Article

V(1)(e), because of a ruling from a Hong Kong court

declining to enforce the award there. However, Article

V(1)(e) applies to a situation in which the award “has

been set aside or suspended by a competent authority

of the country in which, or under the law of which,

that award was made.” That defense does not apply

because the arbitral award was not set aside by a

competent authority of the People’s Republic of China,

where it was made. See Corporacion AIC, SA v.

Hidroelectrica Santa Rita S.A., 66 F.4th 876, 883–84

(11th Cir. 2023); Karaha Bodas, 364 F.3d at 309–10.

Instead, the People’s Court in Chengdu confirmed the

arbitration award on March 16, 2023, rejecting

similar arguments to those made above regarding

Arbitrator Qing’s conduct. (Dkt. Nos. 25-9, 25-10.)

Although the Hong Kong court declined to enforce the

award in Hong Kong based on its own public policy

concerns about Arbitrator Qing, the Hong Kong court

was clear that its ruling was based on its role as a

“court of enforcement” as to property in Hong Kong,

and not as a “court of supervisory jurisdiction” over

3 Que also complains that he had difficulty accessing some

additional submissions and the video recording of the hearings

when he was appealing the order to the Chengdu court. He does

not state, though, what he would have argued differently if he

had access to those materials, let alone how the absence of those

materials was so fundamental an error that it robbed him of his

due process rights.

15a

the location where the arbitral award was made. (Dkt.

No. 74-2 at 5–6.)

Fourth, Que argues that the income guarantee

agreement that is the basis of the arbitration award

was unenforceable as a matter of public policy under

Chinese law, and thus that the award should be set

aside as invalid under the applicable law under

Article V(1)(a). Que raised and lost that argument

before the arbitral panel and again on appeal before

the Chengdu court. (Dkt. No. 25-7 at 20; Dkt. No. 258 at 16; Dkt. No. 25-9 at 14; Dkt. No. 25-10 at 11.) In

so holding, the arbitral panel and the Chengdu court

reasonably concluded that the agreement did not

implicate public policy because it did not affect the

stability of the market or impair the rights of other

investors, the corporation, or its creditors. (Id.) The

Court therefore declines to preclude enforcement on

this basis.

Accordingly, Song’s motion to confirm the

arbitration award is granted. Song shall file a

proposed judgment within 21 days of this order,

including a calculation of the interest and a

conversion to U.S. dollars. Que shall file any

objections to the form of the proposed judgment within

14 days of Song’s motion.

IT IS SO ORDERED.

/S/ RITA F. LIN

RITA F. LIN

UNITED STATES DISTRICT JUDGE

16a

APPENDIX D

NO. 3:23-CV-02159-RFL

LIHUA SONG, AN INDIVIDUAL,

PLAINTIFF,

WENBIN QUE, AN INDIVIDUAL; XIAOLAN HE, AN

INDIVIDUAL; SHIXI LIN, AN INDIVIDUAL,

DEFENDANTS.

Filed On: July 29, 2024

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Docket No. 104

JUDGMENT GRANTING PLAINTIFF’S

PETITION TO CONFIRM FOREIGN

ARBITRATION AWARD

17a

Judge RITA F. LIN

TO ALL PARTIES AND THEIR COUNSEL OF

RECORD:

Plaintiff Lihua Song filed a petition to confirm

foreign arbitration award pursuant to the

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (the “New York

Convention”) and Chapter 2 of the Federal

Arbitration Act, 9 U.S.C. §§ 201-208. (Dkt. No. 25.)

Defendant Wenbin Que opposed the petition. (Dkt.

No. 71.) Having read all moving, opposing, and

replying papers, and having considered all other

papers and/or exhibits that may have been

submitted, the Court decides the petition without

oral argument, grants Plaintiff’s petition to confirm

foreign arbitration award and enters judgment in

accordance with the foreign arbitration award as

follows:

IT IS ORDERED, ADJUDGED, AND DECREED

that, within 15 days of entry of this judgment:

(1) Que shall pay Song the sum of

RMB337,222,219.9, which, converted to U.S. dollars

as of June 21, 2024, amounts to $46,442,952.29.

(2) Further, Que shall pay Song interest in the

amount of RMB43,037,870.33, which, converted to

U.S. dollars as of June 21, 2024, amounts to

$5,927,265.88;

(3) Further, Que shall pay Song RMB 500,000,

which, converted to U.S. dollars as of June 21, 2024,

18a

amounts to $68,861.05, in reasonable attorneys’ fees

incurred in the underlying arbitration;

(4) Finally, Que shall pay Song RMB902,758,

which, converted to U.S. Dollars as of June 21, 2024,

amounts to $124,329.73, for his portion of the

arbitration fee of RMB904,095 (which, converted to

U.S. dollars as of June 21, 2024, amounts to

$124,513.86) that was previously paid by Song.

IT IS SO ORDERED.

/S/ RITA F. LIN

RITA F. LIN

UNITED STATES DISTRICT JUDGE

19a

APPENDIX E

NO. 3:23-CV-02159-RFL

LIHUA SONG, AN INDIVIDUAL,

PLAINTIFF,

WENBIN QUE, AN INDIVIDUAL; XIAOLAN HE, AN

INDIVIDUAL; SHIXI LIN, AN INDIVIDUAL,

DEFENDANTS.

Filed On: December 1, 2023

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Docket No. 18

FIRST AMENDED COMPLAINT:

(1) To Recognize, Confirm and Enforce a

Foreign Arbitration Award; and

(2) For Violation of California Uniform

Voidable Transactions Act (Cal. Civ. Code §§

3439, et seq.)

20a

Plaintiff, Lihua Song (“Plaintiff” or “Song”), seeks

confirmation of an arbitration award (the “Arbitration

Award”) dated October 11, 2021 and entered by the

Chengdu Arbitration Commission (hereinafter

referred to as the “Commission”) in Chengdu, China

against Defendant, Wenbin Que (“Defendant” or

“Que”). Plaintiff is entitled to and hereby applies for

recognition, confirmation and enforcement of an

Arbitration Award (the “Arbitration Award”)

pursuant to the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards (the “New

York Convention”) and Chapter 2 of the Federal

Arbitration Act, 9 U.S.C. §§ 201-208.

Plaintiff further seeks an avoidance of the

transfers of Que’s assets and real property in the State

of California to his wife, Defendant Xiaolan He (“He”)

and brother-in-law, Defendant Shixin Lin (“Lin”), or

other provisional remedy against the assets

transferred or their proceeds. Plaintiff further alleges

as follows:

PARTIES

1. Plaintiff Song is a natural person of Chinese

nationality residing in the People’s Republic of China.

2. Defendant Que, aka Lee Chee Hon after April

18, 2019, is a natural person of Chinese nationality

residing in the People’s Republic of China and in

Santa Clara County, California and owning real

property in Santa Clara County and San Mateo

County, California.

3. Defendant Xiaolan He (“He”) is a natural person

of Chinese nationality, who at all times relevant to

21a

this action has been married Defendant Que, residing

and owning real property in Santa Clara County and

San Mateo County.

4. Defendant Shixin Lin (“Lin”) is a natural person

of Chinese nationality, residing and purporting to own

real property in Santa Clara County and San Mateo

County. On information and belief, at all times

relevant to this action, Lin has been married to the

sister of He, and is Que and He’s brother-in-law.

JURISDICTION AND VENUE

5. This Court has original jurisdiction under 28

U.S.C. Section 1331, in that this matter is one of

federal question arising under the New York

Convention, and the Federal Arbitration Act, 9 U.S.C.

§ 1, et seq. The People’s Republic of China, where the

arbitration took place, is a signatory to the New York

Convention. The Arbitration Award is final and

legally binding and arises out of a written contract

between Song and Que governed by the laws of China.

6. This Court has personal jurisdiction over Que as

a property owner in Santa Clara County, because Que

purposefully availed himself of the laws and benefits

of the State of California and consented to jurisdiction

of the state and federal courts in Santa Clara County

with respect to litigation involving his right to, title

to, or ownership of his residence there.

7. This Court has quasi-in-rem jurisdiction over

this action established by the presence of property

owned by Que, He and Lin in Santa Clara County and

San Mateo County.

22a

8. Venue is proper in this Court pursuant to 9

U.S.C. § 204 and 302 and 128 U.S.C. § 1391(b)(1), as

Defendant is located in this judicial district in Santa

Clara County, and the underlying dispute could

therefore have been initiated in this judicial district

absent the Income Guarantee Agreement (as defined

below).

9. Furthermore, venue is proper in this Court

under 28 U.S.C. § 1391(b)(2) as a substantial part of

the events or omissions giving rise to the cause of

action for violation of California Civil Code § 3439

occurred, and a substantial part of property that is the

subject of this cause of action is situated, within this

judicial district, and under 28 U.S.C. § 1391(b)(3), as

Defendant is located in this judicial district and

subject to the Court’s personal jurisdiction here.

JURISDICTION AND VENUE

A. The Foreign Arbitration Award

1. On July 7, 2014, the Plaintiff and the Defendant

entered into an agreement titled “Income Guarantee

Agreement between Que Wenbin and Song Lihua in

Connection with the Equity Transfer of Wafangdian

Third Hospital” (hereinafter referred to as the

“Income Guarantee Agreement”). A true and correct

copy of the Income Guarantee Agreement is attached

as Exhibit 1 and is incorporated herein by reference.

A certified English translation of the Income

Guarantee Agreement is attached as Exhibit 2 and is

incorporated herein by reference.

2. The Income Guarantee Agreement provided that

Song would pay a total of RMB210 Million (the “

23a

Purchase Cost” ) to purchase shares of Hengkang

Medical Group Co., Ltd. (“Hengkang Medical”) (the

“Target Shares”), subject to a certain lock up period

during which the Plaintiff was prohibited from

transferring her acquired Target Shares to third

parties (the “Lock-up Period”). In consideration

therefor, Que committed that, during the six month

period immediately following the expiry of the Lockup Period, from June 7, 2018 to December 7, 2018, the

closing price of the Target Shares would be

guaranteed to increase by at least 200% for Song (i.e.,

such that Song would be able sell her Target Shares

acquired at the RMB210 Million Purchase Cost for a

total of RMB630 Million (the “Target Yield Rate”)).

Further, Que pledged to compensate Song for any

shortfall from the RMB630 Million with his personal

assets, if the Target Yield Rate were not achieved,

according to the Income Guarantee Agreement.

3. Despite the guaranteed rate of return terms in

the Income Guarantee Agreement, between June 7,

2018 to December 7, 2018 (the six month period

following the Lock up Period), the highest closing

share price, on June 29, 2018, was only RMB10.54,

resulting in a total value of only RMB292,777,780.1

for the Target Shares, and a shortfall of RMB337,

222,219.9 (the “Shortfall”). According to the Income

Guarantee Agreement, Que was therefore required to

compensate Song for the Shortfall out of his personal

assets.

4. The Income Guarantee Agreement contains the

following arbitration clause at section 4.4 thereof:

This Income Guarantee Agreement shall be

governed by and construed in accordance with the

24a

laws of China. Any dispute arising out of or in

connection with this Agreement, including any

question relating to its existence, validity or

termination, shall first be resolved by the parties

through friendly consultation. If such dispute fails

to be resolved through consultation within thirty

(30) days after being proposed by any party for

consultation, any party may submit such dispute

to Chengdu Arbitration Commission (the

“Commission”) for arbitration in accordance with

its arbitration rules in effect at the time of

applying for arbitration. The arbitration

proceedings shall be conducted in Chinese. The

arbitration award is final and binding upon the

Parties. Unless otherwise specified in the

arbitration award, the arbitration costs, including

reasonable legal fees, of the prevailing party, shall

be borne by the losing party.

(Ex. 1, section 4.4.)

5. Plaintiff made repeated requests to Defendant

to pay for the compensation for the Shortall as

required by the Income Guarantee Agreement.

However, Defendant failed to pay the agreed Shortfall

under the terms of the Income Guarantee Agreement

(the “Dispute”).

6. On December 29, 2020, the Dispute was

submitted to be arbitrated by the Commission

pursuant to the Income Guarantee Agreement. A true

and correct copy of the Arbitration Petition is attached

as Exhibit 3 and is incorporated herein by reference.

A certified English translation of the Request for

Arbitration is attached as Exhibit 4 and is

incorporated herein by reference.

25a

7. The Commission gave notice of the composition

of the Arbitral Tribunal on February 19, 2021, a true

and correct copy of which is attached as Exhibit 5 and

incorporate herein by reference. A certified English

copy of the Notice of Composition of Arbitral Tribunal

is attached as Exhibit 6 and incorporated herein by

reference.

8. On October 11, 2021, the Commission made the

Arbitration Award, a true and correct copy of which is

attached as Exhibit 7 and incorporated by reference.

A certified English translation of the Arbitration

Award is attached as Exhibit 8 and incorporated

herein by reference.

9. The Commission found the Income Guarantee

Agreement to be “legal and valid on the basis of facts

and laws and should have binding force upon the

Parties” and ordered as follows:

(I) The Respondent, Que Wenbin, shall pay the

sum of RMB337,222,219.9 as compensation to the

Claimant, Song Lihua, within 15 days upon the

service of the Award.

(II) The Respondent, Que Wenbin, shall pay

interest [on the sum of RMB337,222,219.9 and at

the loan prime rate (LPR) released by the National

Interbank Funding Center in the same period from

December 29, 2020 to the date of actual payment

of the compensation] to the Claimant, Song Lihua,

due to his delay in payment of the compensation,

within 15 days upon the service of the Award.

(III) The Respondent, Que Wenbin, shall pay to the

Claimant, Song Lihua, the sum of RMB500,000

26a

being legal fee incurred by the Claimant for the

Case, within 15 days upon the service of the

Award.

(IV) The arbitration fee of the Case in the amount

of RMB904,095 is prepaid by the Claimant, Song

Lihua, of which RMB902,758 shall be borne by the

Respondent, Que Wenbin, and RMB1,337 shall be

borne by the Claimant, Song Lihua. The

Respondent, Que Wenbin, when performing the

payment obligations prescribed in Items (I), (II)

and (III) above, shall concurrently pay the sum

equal to the arbitration fee borne by him to the

Claimant, Song Lihua.

The Arbitration Award is final and binding,

effective upon the date it is made. (See Exhibit 7, at

24-25 and Exhibit 8, at 19-20.)

10. On December 29, 2022, the Intermediary

People’s Court of Chengdu City (the “People’s Court”),

upon Song’s petition, served an enforcement notice to

Que regarding the Arbitration Award. On January 3,

2023, Que appealed to the People’s Court to deny the

enforcement of the Arbitration Award. Que made 5

allegations to the People’s Court, claiming the

following: (1) that the subject matter arbitrated by the

Commission was not within the scope of arbitration;

(2) that the composition and organization of the

Committee was unlawful; (3) that the arbitration

procedure was illegal; (4) that the Commission made

the Arbitration Award against the law; and (5) that

the enforcement of the Arbitration Award would be in

breach of public interest. The People’s Court rejected

and denied all five of Que’s allegations, and issued an

“Enforcement Ruling” on March 16, 2023, effective

27a

upon its service to the Parties, a true and correct copy

of which is attached as Exhibit 9 and incorporate

herein by reference. A certified English copy of the

Enforcement Ruling is attached as Exhibit 10 and

incorporated herein by reference.

11. In total, Defendant has been ordered to pay

Plaintiff RMB338,624,977.9, plus interest on the

principal amount of RMB337,222,219.9 from

December 29, 2020 to the date of actual payment of

the compensation.

12. To date, Defendant has not paid any amount

toward satisfying the Arbitration Award.

B. Defendants’ Voidable Transfers of Real

Property

13. In December 2022, Plaintiff filed two related

actions for the purpose of recognizing, confirming and

enforcing the Arbitration Award in Hong Kong, where

Defendant Que also previously owned real property.

14. During the pendency of those actions, it was

determined that Que had arranged for the

intrafamilial transfer of his real property to his son,

Mike F. Que (“Mike F.”) for consideration, if any,

below market value.

15. While the transfer of the real property from

Que to Mike F. was initially enjoined, it was

subsequently permitted, upon the posting of a bond by

Que and Mike F.

16. Accordingly, Que no longer appears to own real

property in Hong Kong.

28a

17. Recently, Defendant has attempted to transfer

significant assets, including the real property he owns

in the United States, to his wife and brother-in-law,

without receiving anything in value—much less the

reasonably equivalent value—in exchange for this

transfer of assets.

18. Defendant has done so for the express purpose

of artificially deflating his assets and preventing,

hindering and delaying Plaintiff’s efforts to enforce

the Arbitration Award and collect on her judgment in

the United States.

19. These attempted transfers are voidable and in

violation of the California Uniform Voidable

Transactions Act, Cal. Civ. Code §§ 3439, et seq.

20. Specifically, over a decade ago, Defendant

purchased three properties in the Bay Area with his

wife, Xiaolan He (“He”):

a. 384 Atherton Avenue in Atherton,

California, purchased in April 2010 (the

“Atherton Property”),

b. 525 Channing Avenue in Palo Alto,

California, purchased in May 2010 (the

“Channing Property”) and

c. 1920 Byron Street in Palo Alto,

California, purchased in May 2012 (the “Byron

Property”) (collectively, the “Bay Area

Properties”).

21. Notwithstanding title information that

indicates on its face that the property is held in the

29a

name of “Xiaolan He, a married woman as her sole

and separate property,” Que made no effort to

transmute the Byron Property and the Channing

Property to He’s separate property for more than 10

years after those properties were purchased with He.

22. Only with respect to the Atherton Property did

Que expressly disclaim his community property rights

at an earlier time, when he recorded an Interspousal

Transfer Grant Deed on April 23, 2012.

23. Accordingly, the presumption that all property

acquired during marriage, pursuant to Family Code §

760, applies to the Byron Property and the Channing

Property, and this community property presumption

remained unrebutted for more than a decade since the

properties were acquired by Que and He.

24. During the time that the Byron Property and

the Channing Property were presumed to be

community property belonging to both Que and He, on

April 20, 2023, Que’s wife, He, sent for recording two

substantively identical documents titled Deed of

Trust With Assignment of Rents, purporting to grant,

transfer and assign all three Bay Area Properties to

Defendant Lin as Trustee, in trust, with power of sale.

25. The first Deed of Trust with Assignment of

Rents was recorded in San Mateo County with respect

to the Atherton Property (“Deed of Trust 1”), and the

second Deed of Trust with Assignment of Rents was

recorded in Santa Clara County with respect to the

Byron Property (“Deed of Trust 2”) (collectively, the

“Deeds of Trust”).

30a

26. Both Deeds of Trust purport to effect the

transfer of interest to Lin in all three Bay Area

Properties for the following purpose:

For the Purpose of Securing the full and timely

payment of the indebtedness and the full and

timely performance of the obligations under or

evidenced by the following: (1) Earnings Guaranty

Agreement dated May 8, 2015 between Shixi Lin

and Wenbin Que; (2) Debt Confirmation Letter for

Earnings Guaranty Agreement dated March 1,

2019 among Shixi Lin, Wenbin Que, Sichuan

Hengkang

Development

Limited

Liability

Company, and Xiaolan He; (3) Supplemental

Agreement to Earnings Guaranty Agreement

dated May 16, 2022 among Shixi Lin, Wenbin Que,

and Xiaolan He; and (4) Mortgage Contract dated

November 1, 2022 between Shixi Lin and Xiaolan

He. The principal amount of the indebtedness

secured hereby is Two Hundred Thirty Million

Chinese Yuan (CN¥ 230,000,000.00).

27. Significantly, the Deeds of Trust are

unilaterally executed by Xiaolan He and repeatedly

reference, confirm and supplement an alleged May 8,

2015 Earnings Guarantee Agreement (“Earnings

Guarantee Agreement”) between Lin and Que. 4

4 Notably, the alleged Earnings Guarantee Agreement appears

to be the same type of income or revenue guarantee agreement

about which Que asserts, in his recently filed Motion to Quash

Service of Summons and Complaint and Dismiss for Lack of

Personal Service, that “pursuant to Chinese law, the Agreement

is against public policy.” (See Dkt. No. 15 at 3:21-23.)

31a

28. The Deeds of Trust do not attach the Earnings

Guarantee Agreement or any of the other listed

documents purporting to confirm the debt or

supplement the agreement.

29. Nowhere in the Deeds of Trust there any

reference to any judgment or arbitration award

confirming the enforceability of Que’s purported

indebtedness to Lin, or any other indicia that the

parties are in any way adverse or at arms’ length.

30. Rather, on information and belief, Lin has been

a long-time associate of Que’s in China, was a cofounder of Hengkang Medical and was involved in the

stock and market manipulation for which Defendant

Que was sanctioned by the China Securities

Regulation Commission (“CSRC”) in 2017.

31. Further, on information and belief, Lin is also

Que’s brother-in-law and is married to He’s sister.

32. The recorded Deeds of Trust indicate that He

signed and notarized them in Vietnam before sending

them to be recorded in San Mateo County and Santa

Clara County.

33. Both Deeds of Trust expressly state, however,

that Que’s wife He’s address is 1920 Byron Street in

Palo Alto, California.

34. The Deeds of Trust also indicate that Lin’s

address is 415 S. Murphy Street in Sunnyvale,

California.

35. Less than one week after the Deeds of Trust

were recorded, on April 24, 2023 (and just days before

32a

Song filed her initial complaint in the instant action),

Que signed and notarized a Quitclaim Deed for the

Channing Property and a Quitclaim Deed for the

Byron Property in Santa Clara County (collectively,

the “Quitclaim Deeds”), each stating as follows: “FOR

NO CONSIDERATION, Wenbin Que, a married man,

hereby does remise, release, and forever quitclaim to

Xiolan He, a married woman as her sole and separate

property, the real property situated in the City of Palo

Alto, County of Santa Clara, State of California

described as follows:” followed by legal description of

the Channing Property and the Byron Property.

36. Both Quitclaim Deeds indicate that Wenbin

Que personally appeared before a notary public in

Santa Clara County to sign them, evidencing Que’s

presence in the State of California.

37. Both Quitclaim Deeds bear the further

instruction: “WHEN RECORDED MAIL TO & MAIL

TAX STATEMENTS TO: Xiaolan He, 1920 Byron St,

Palo Alto, CA 94301,” underscoring He’s maintenance

of a physical presence in the State of California.

38. On April 25, 2023, Que had both Quitclaim

Deeds recorded in Santa Clara County.

FIRST CAUSE OF ACTION

(Recognition, Confirmation, Enforcement of

Foreign Arbitration Award)

39. Song incorporates by reference all of the above

paragraphs as if each were fully alleged herein.

33a

40. Chapter 2 of the Federal Arbitration Act

(incorporating the New York Convention) provides

that “[w]ithin three years after an arbitral award

falling under the Convention is made, any party to the

arbitration may apply to any court having jurisdiction

under this chapter for an order confirming the award

as against any other party to the arbitration. The

court shall confirm the award unless it finds one of the

grounds for refusal or deferral of recognition or

enforcement of the award specified in the said

Convention.” 9 U.S.C. § 207.

41. “Under the United Nations Convention on the

Recognition and Enforcement of Foreign Arbitration

Awards, upon application for an order confirming the

award, the district court has little discretion: the court

shall confirm the award unless it finds one of the

grounds for refusal or deferral of recognition or

enforcement of the award specified in the

Convention.” Ministry of Defense and Support for

Armed Forces of Islamic Republic of Iran v. Cubic

Defense Systems, Inc., 29 F.Supp.2d 1168, 1171

(S.D.Cal. 1998) (citing 9 U.S.C. § 201-208).

42. Article V of the New York Convention provides

the grounds for refusing to recognize or enforce an

arbitral award, including:

a. incapacity of a party (Article V(1)(a));

b. lack of proper notice (Article V(1)(b));

c. awards outside the scope of

arbitration agreement (Article V(1)(c));

the

34a

d. awards not in accordance with the law of

the country where the arbitration took place

(Article V(1)(d));

e. or awards that have not yet become

binding (Article V(1)(e)).

43. None of the above grounds are present in this

case. There is no issue of incapacity of the parties or

lack of proper notice.

44. The Arbitration Award is within the scope of

the Agreement, as it addresses Defendant’s failure to

fulfill his commitment and to compensate Song for the

agreed shortfall with his personal assets, under the

terms of the Income Guarantee Agreement.

45. The Agreement provides that the Arbitration

Award is final and legally binding on the parties (see

Paragraph 4, supra, and Exs. 1 and 2, section 4.4).

46. Furthermore, the award has already been

affirmed by the People’s Court in Chengu City, China,

where the arbitration took place.

47. Plaintiff is therefore entitled to confirmation of

the Arbitration Award and entry of judgment in

conformity with the Arbitration Award pursuant to 9

U.S.C. § 207.

WHEREFORE, Song prays for relief as hereinafter

set forth.

SECOND CAUSE OF ACTION

(Violation of California Uniform Voidable

Transactions Act, Cal. Civ. Code §§ 3439, et seq.

35a

– Against All Cross-Defendants and

ROES 1-100)

48. Song incorporates by reference all of the above

paragraphs as if each were fully alleged herein.

49. At all times mentioned herein Song been the

holder of claims against Que.

50. Song is a creditor, and Que is a debtor, within

the meaning of Section 3439.01 of the California Civil

Code, because Song has an Arbitration Award against

Defendant, and Defendant has not paid any amount

toward satisfying the Arbitration Award.

51. Song is hindered in collecting on its claim

against Que because, Que has transferred significant

assets, including the Bay Area Properties, to his wife,

Defendant He, and brother-in-law, Defendant Lin for

no consideration.

52. Que did not receive reasonably equivalent

value from Lin in exchange for Que’s transfer of his

assets and real property and to He and Lin.

53. The transfer of Que’s assets and real property

to He and Lin constitute transfers of Que’s property

within the meaning of Section 3439.01 of the

California Civil Code.

54. Que is insolvent within the meaning of Section

3439.02 of the California Civil Code.

55. On information and belief, Que transferred his

assets and real property to He and Lin, with the

actual intent to hinder, delay or defraud Song.

36a

56. On information and belief, when He and Lin

received the assets and real property from Que as

alleged herein, He and Lin did not receive such assets

and real property in good faith, and Que did not

receive reasonably equivalent value in exchange for

conferring such assets and real property.

57. All Defendants were aware that Que’s

transfers of assets and real property to He and Lin

would make it difficult for Song to collect on and

enforce her Arbitration Award against Que, because

Que has artificially depleted his assets. Nevertheless,

acting in concert with and for the benefit of Defendant

Que, Defendants He and Lin proceeded with the

transfers of Que’s assets and real property for the

purpose of putting such assets beyond the reach of

Song.

58. Que’s transfer of his assets and real property

were transfers to insiders within the meaning of Cal.

Civil Code § 3439.04(b)(1), as He is Que’s wife Lin is

Que’s brother-in-law and a long-time business

associate of Que’s.

59. Que transferred his assets and real property to

He and Lin well after Que’s obligation to pay Song

pursuant to the Arbitration Award began, and Que

was on notice of this duty.

60. In fact, Que sought to effect the transfer of his

assets and real property in the United States several

months after Song initiated an action to enforce the

Arbitration Agreement in Hong Kong and Que

managed transfer real property assets in Hong Kong

to his son, Mike F. Que.

37a

61. On information and belief, there was no

legitimate purpose for the transfer of Que’s assets and

real property to He and Lin, and the only purpose of

those transfers was to place the assets beyond the

reach of Que’s creditors, including Song.

62. On information and belief, Que concealed

and/or removed assets and real property within the

meaning of Cal. Civil Code § 3439.04(b)(7).

63. On information and belief, the transfers of

Que’s assets and real property to He and Lin, were

done for the benefit of Defendants Que, He and Lin,

who benefitted because the transfers purported to

move Que’s assets and real property beyond the reach

of Que’s creditors, including Song.

64. The transfer of assets and real property by Que

to He and Lin has damaged Song by making it difficult

for Song to collect on her claims and Arbitration

Award against Que. As such, the conduct of Que and

the other Defendants was a substantial factor in

causing Song damages. Song is therefore entitled to

judgment against the transferees, Defendants He and

Lin.

WHEREFORE, Song prays for relief as hereinafter

set forth.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, Lihua Song prays for

relief against Defendants, and each of them, as

follows:

38a

As to the First Cause of Action:

1. For an Order:

a. Confirming

and

recognizing

the

Arbitration Award against Defendant Que;

b. Entering judgment in favor of Plaintiff

against Defendant Que in the amount of

RMB338,624,977.90 (or the equivalent amount

in non-RMB currency, subject to Plaintiff’s

prior written approval), plus interest on the

principal amount of RMB337,222,219.9 from

December 29, 2020 to the date of actual

payment of the compensation (or the equivalent

amount in non-RMB currency, subject to

Plaintiff’s prior written approval), subject to

proof; and

c. Providing Plaintiff with such other and

further relief as the Court may deem necessary

and appropriate.

As to the Second Cause of Action:

1. For damages in an amount to be proved at trial,

but in no event less than RMB337,222,219.9 (or the

equivalent amount in non-RMB currency, subject to

Plaintiff’s prior written approval);

2. For an avoidance of the asset and real property

transfers, an attachment or other provisional remedy

against the assets transferred or their proceeds, the

value of the assets transferred, and any other relief

the circumstances may require, including declaratory

relief that the transfers were unlawful;

39a

3. For pre-judgment and post-judgment interest in

the maximum allowed by law, according to proof;

4. For and costs of suit; and

5. For such other and further relief as the Court

may deem necessary and appropriate.

VARELA, LEE, METZ & GUARINO, LLP

DATED: September 1, 2023

/S/ DANIEL SAKAGUCHI

DANIEL SAKAGUCHI

HOLLY M. BRETT

Attorneys for Plaintiff Lihua Song

40a

APPENDIX F

NO. 3:23-CV-02159-RFL

LIHUA SONG, AN INDIVIDUAL,

PLAINTIFF,

WENBIN QUE, AN INDIVIDUAL; XIAOLAN HE, AN

INDIVIDUAL; SHIXI LIN, AN INDIVIDUAL,

DEFENDANTS.

Filed On: December 1, 2023

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Docket No. 71

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF WENBIN

QUE’S OPPOSITION TO LIHUA SONG’S

PETITION/COMPLAINT FOR CONFIRMATION

OF FOREIGN ARBITRATION AWARD

41a

Defendant Wenbin Que, a/k/a Chee Hon Lee

(“QUE”) hereby submits this Opposition to Plaintiff

Lihua Song (“SONG”)’s Petition/Complaint for

Confirmation of Arbitration Award. According to

Articles V(1) and V(2) of the New York Convention,

grounds for the Court’s refusal to recognize the

Chinese Arbitration Award exist because 1) the

procedure before the Chengdu arbitral tribunal was

affected by procedural unfairness; 2) the arbitration

award has been set aside in Hong Kong; 3) QUE’s due

process rights were deprived and recognition of such

an arbitration award would be against public policy;

4) the composition of the arbitral authority/procedure

was not in accordance with the parties’ agreement;

and 5) the parties’ underlying agreement is invalid.

I. FACTUAL BACKGROUND

A. The Mainland China Arbitration

Proceedings

This action arises out of a Chinese arbitration

award (“Award”) entered in 2021 by the Chengdu

Arbitration Commission (“Commission”) in China.

SONG is seeking to confirm the Award with this

Court. On or about December 9, 2022, SONG filed a

similar action in Hong Kong (the “Hong Kong action”

or “HCCT 111/2022”). On or about May 3, 2023, five

(5) months after filing the Hong Kong action, SONG

filed the above-referenced action with this Court.

The underlying Award arises out of an Income

Guarantee Agreement (“Agreement”) entered by

SONG and QUE on July 7, 2014. SONG agreed to

purchase certain shares (“Shares”) for RMB210

million and undertook not to transfer or otherwise

42a

deal with the Shares for 36 months (“Lockup Period”).

QUE agreed to guarantee the rate of return of the

Shares to be no less than 200% by six months after the

expiration of the Lockup Period (i.e., no less than

RM630 million).

SONG believes that she fulfilled her obligations

under the Agreement, but the Shares were worth less

than RMB630 million six (6) months after the Lockup

Period. By a notice of arbitration dated November 23,

2020, SONG commenced arbitration against QUE at

the

Commission

seeking

damages

RMB337,222,219.90. The sum was said to be the

difference between the value of the Shares at the

relevant time and the guaranteed value of RMB630

million. On or about December 7, 2020, SONG’s

counsel represented to the Commission that all of the

contact methods for QUE of which she was aware

were (a) Block 43, Number 46, Renmin South Road,

Fourth Part, Wuhou District, Chengdu City (the

“Former Residence”) and (b) the cell phone number of

QUE’s assistant.

The Commission mailed arbitration documents to

QUE at the Former Residence on December 31, 2020,

January 18, 2021, and February 20, 2021 (and on

March 29, 2021, three days after the First Hearing).

None of the packages was successfully delivered

because QUE sold the Former Residence in November

of 2017 and no longer lived there. (See Declaration of

Boli Liu in support of QUE’s Opposition to SONG’s

Complaint/Petition (“Liu Decl.”), ¶ ¶ 4-9.)

The Commission accepted SONG’s request for

arbitration on December 29, 2020, and held a hearing

on March 26, 2021 (the “First Hearing”). SONG

43a

attended the First Hearing through her mainland

Chinese counsel. However, QUE was absent because

he was unaware of the hearing.

On April 2, 2021, one week after the First Hearing,

the Commission e-mailed “philiplyf@163.com” with

the intention of informing QUE of the First Hearing

and inviting QUE to contact the Commission and

attend the second hearing. The email address

belonged to QUE’s assistant Yufei Li, and was

presumably provided by SONG to the Commission.

QUE was informed about the arbitration by Yufei Li

after Li received the April 2, 2021 email. QUE

immediately retained a mainland Chinese counsel,

Mr. Fugang Cai, who acknowledged receipt of certain

arbitration documents on April 21, 2021. (See Liu

Decl., ¶ ¶11-12.)

On May 26, 2021, the Commission held the second

arbitration hearing (“the Second Hearing”) which

SONG and QUE both attended through their

respective mainland Chinese counsel. At the time of

the Second Hearing, the three-member arbitral

tribunal (the “Tribunal”) had already been constituted

without any input from QUE as he was unaware of

the arbitration process until April 2021.

As elaborated below, one key member of the

Tribunal, Mr. Feng Qing (“Mr. Qing”) attended the

Second Hearing remotely though video conference.

Mr. Qing appeared to be engaged in a host of other

activities and moved around from place to place while

counsel for QUE was making arguments. At the end

of the Second Hearing, the Commission asked the

parties to lodge written submission within one week.

44a

On May 31, 2021, SONG’s mainland Chinese

counsel lodged supplemental submissions to the

Tribunal. However, these supplemental submissions

were not provided to QUE, whether by SONG or the

Tribunal. QUE and his counsel were unaware of these

supplemental submissions until January 4, 2023

when they searched the arbitration files.

The Tribunal issued the Award on October 11,

2021,

ordering

QUE

pay

SONG

RMB337,222,210.90 plus interest and costs. SONG

then took steps to enforce the Award in mainland

China, Hong Kong, and now California.

B. The Hong Kong Court Ordered to Set

Aside the Award

As this Court is aware, SONG filed a similar action

in Hong Kong to enforce the Award against QUE. On

August 24, 2023, after hearing arguments and

reviewing briefs and evidence from both parties,

particularly screenshots and videos of the arbitration

process, the Honorable Madam Justice Mimmie Chan

ordered to set aside her January 12, 2023 order

granting leave to SONG to enforce the Chinese

arbitration award. Honorable Madam Justice

Mimmie Chan further awarded SONG to pay QUE for

his attorneys’ fees and costs. To date, the Hong Kong

Court has ordered SONG to pay at least HK$400,000

for QUE’s fees and costs. SONG has refused to make

any payment. (See Declaration of Leung Kwan

Hermann

support

Opposition

Complaint/Petition for Confirmation of Arbitration

Award (“Leung Decl.”), ¶11, Ex. A thereto., Leung

Decl., ¶ ¶ 28-30.)

45a

On or about October 5, 2023, the Hong Kong Court

issued its Reasons for Decision on the order to set

aside enforcement. (See Leung Decl., ¶ 13, Ex. B

thereto.) The Hong Kong Court explained that:

“40. Having carefully reviewed the entire Video [of

the arbitration process] (which lasted 2 hours 17

until the end of the recording), and the excerpts

thereof of the second half of the 2nd Hearing

(“Excerpt”) (which Excerpt lasted approximately

12 minutes), it is quite obvious that essentially for

the second half of the hearing, commencing

approximately 1 hour 36 minutes after the start of

the 2nd Hearing, Q [the arbitrator] had scarcely

been stationary for more than 1 minute (apart

from the last part of the Video when he was inside

a car). The Video clearly showed the background of

Q’s [the arbitrator] various locations, and it could

be observed that he had moved from one room of

the premises to another, at times talking to and/or

gesturing to others in the room. Q [the arbitrator]

could also be seen to be looking into the distance

frequently, instead of watching the screen and the

video of the proceedings . . .

42. Approximately 6 minutes from the

commencement of the Excerpt of the Video, Q [the

arbitrator] could be seen walking out of the main

door of the premises into an open public area. He

remained standing there for a short period of time,

and then went off-line at around 7:50 minutes

after the commencement of the Excerpt. Q [the

arbitrator] went online again at approximately

8:20 minutes, before going off-line again at around

8:28, and again at 9:14. When Q [the arbitrator]

46a

appeared online again at 9:56 minutes, he was

seen inside a vehicle which appeared to be a

private car as he was sitting in the front seat and

adjusting his seatbelt. The video image froze again

at 10:35 minutes of the Excerpt, and when Q [the

arbitrator] appeared online at 10:58, the chairman

of the tribunal could be heard asking if Q [the

arbitrator] could hear him but there was no

response whatsoever from Q [the arbitrator] for

some time. At 11:25 minutes of the Excerpt, Q [the

arbitrator] spoke for the first time to state that he

had no reception as he was on or proceeding to the

high-speed railway. The manner of Q’s [the

arbitrator] attendance of the 2nd Hearing, by

going outdoors where reception was poor, was

obviously disruptive of the proceedings, to say

the least.” [emphasis added].

The Hong Kong Court stated in paragraph 54 of its

Reasons for Decision that “enforcement of the Award

in Hong Kong would violate the most basic notions of

justice in our forum and should be refused . . .” Id.

The parties have heavily litigated the enforcement

action in Hong Kong. SONG made an application to

the Hong Kong Court of First Instance for leave to

appeal the Order to set aside enforcement. The Hong

Kong Court of First Instance denied SONG’s

application for leave to appeal. A published copy of the

Hong Kong Court of First Instance’s decision is

unavailable at this point. Once the published decision

is available, QUE will submit a copy to the Court.

47a

II. PROCEDURAL BACKGROUND

SONG filed her initial complaint on May 23, 2023,

seeking recognition of the Award. On or about

September 1, 2023, without meeting and conferring

with QUE or requesting leave to amend, SONG filed

her first amended complaint (docket number 18),

adding additional facts and naming additional

defendants into this action. On or about September

11, 2023, SONG filed an amendment to her first

amended complaint without any meet and confer or

request for leave to amend. SONG’s current amended

complaint alleges two causes of action: (1) recognition,

confirmation, and enforcement of foreign arbitral

award against QUE; and (2) violation of California

Uniform Voidable Transactions Act against “All

Cross-Defendants and ROES 1-100”. (See First

Amended Complaint filed by SONG on September 11,

2023, docket number 25, page 10, lines 22-23).

On or about October 16, 2023, the Court ordered to

quash service of SONG’s first amended complaint on

QUE. In the spirit of resolving this matter, QUE

agreed to allow the undersigned to accept service on

his behalf. The two other defendants, Xiaolan HE and

Shixi LIN, remain unserved.

III. LEGAL ARGUMENTS

1. The Court Shall Refuse to Recognize

the Chinese Arbitration Award

Because The Hong Kong Court Has

Ordered To Set It Aside.

Under Article V(1)(e) of the Convention on the

Recognition and Enforcement of Foreign Arbitral

48a

Awards (the New York Convention (“NYC”)), courts

can refuse recognition and enforcement of a foreign

arbitral award if the award has been set aside. SONG

contends that the Award should be confirmed under

the NYC without notifying the Court that the Hong

Kong Court has ordered to set aside the Award.

As discussed above, on August 24, 2023, the Hong

Kong Court, after reviewing evidence and hearing oral

arguments, refused to recognize the Award and

ordered to set aside enforcement. On October 5, 2023,

the Hong Kong Court rendered its detailed Reasons

for Decision, stating that “It would be shocking to

the conscience of the Court to give recognition

to the Award.” (emphasis added). (See Leung

Decl., ¶ ¶ 12-13, Ex. B thereto.)

SONG applied to appeal the set aside order. The

Hong Kong Court of First Instance has refused

SONG’s appeal application. A published copy of the

Hong Kong Court of First Instance’s decision is

unavailable at this point. Once the published decision

is available, QUE will submit a copy to the Court.

Notably, the Hong Kong Court also ordered SONG

to pay for QUE’s attorneys’ fees and costs. SONG has

failed to follow the court order as she has not paid a

dime to QUE for his legal costs. (See Leung Decl., ¶ ¶

12-13, Ex. B thereto, ¶28).

As a result, the Court should refuse to recognize

the Chinese Arbitration Award as it has been set aside

by the Hong Kong Court, which is the jurisdiction

where the Award was rendered.

49a

2. The Court Shall Refuse To Recognize

the Award Because It Violated QUE’s

Due Process Rights.

Article V(1)(b) of the NYC provides that courts can

refuse recognition and enforcement of a foreign

arbitral award if “[t]he party against whom the award

is invoked was not given proper notice of the

appointment of the arbitrator or of the arbitration

proceedings or was otherwise unable to present his

case;[.]” Article V(1)(d) further provides that if “T[t]he

composition of the arbitral authority or the arbitral

procedure was not in accordance with the agreement

of the parties, or, failing such agreement, was not in

accordance with the law of the country where the

arbitration took place,” the court may refuse

recognition of the foreign arbitral award.

It is appropriate to vacate an arbitral award if the

exclusion of relevant evidence deprives a party of a

fair hearing. Karaha Bodas Co., L.L.C. v. Perusahaan

Pertambangan Minyak Dan Gas Bumi Negara, 364

F.3d 274, 300-01 (5th Cir. 2004). “[T]he defense

provided for in Article V(1)(b) ‘essentially sanctions

the application of the forum state’s standards of due

process,’ and that due process rights are ‘entitled to

full force under the Convention as defenses to

enforcement.’” Iran Aircraft Indus, v. Avco Corp., 980

F.2d 141, 145-46 (2nd Cir. 1992) citing Parsons &

Whittemore Overseas Co., 508 F.2d at 975-76. “A

hearing is fundamentally fair if it meets ‘the minimal

requirements of fairness’ - adequate notice, a hearing

on the evidence, and an impartial decision by the

arbitrator.” Sunshine Mining Co. v. United

50a

Steelworkers of America, etc., 823 F.2d 1289, 1295 (9th

Cir. 1987).

Here, QUE’s due process rights were deprived as

1) QUE was not given proper notice about the

arbitration process; 2) QUE was not given proper

notice about the composition of the Tribunal; 3) QUE

was not able to attend the First Hearing; 4) arbitrator

Mr. Qing misbehaved during the Second Hearing; and

5) QUE was unable to appeal the Award as the

Commission failed to provide arbitration files to QUE

until 2023.

As the Hong Kong Court noted, QUE “had not

received any notice of or documents relating to the

Arbitration which were sent to his former address,

and by the time he was informed of the Arbitration,

the 1st Hearing had already taken place and he could

only instruct his [Chinese] lawyers to attend the 2nd

Hearing.” (See Paragraph 33 of Exhibit B to Leung

Decl.) As a result, SONG selected the arbitrators

unilaterally against the arbitration clause in the

Income Guarantee Agreement.

Additionally, in its October 5, 2023 Reasons for

Decision, the Hong Kong Court laid out the reasons

that QUE was unable to successfully appeal the

Award in mainland China:

“34. Also by way of background, it was only after

Lee [QUE] had applied to the Mainland China

Court to set aside the Award, and while he was

preparing for his opposition to Song’s application

to enforce the Award on the Mainland and in Hong

Kong, that Lee’s [QUE] lawyers were able on 4

January 2023 to conduct a search of the

51a

Commission’s files of the arbitral proceedings, and

obtained copies of the notice of arbitration,

transcripts of the 1st Hearing and of the 2nd

Hearing, and two sets of submissions filed on

behalf of Song, dated 9 April 2021 and 31 May

2021. The April submissions had been filed by

Song after the 1st Hearing, which Lee [QUE] had

never received before his participation in the

Arbitration. The May submissions were filed by

Song after the 2nd Hearing (as directed by the

tribunal at the hearing), but had never been served

on or received by Lee [QUE] or his lawyers.

35. Lee’s [QUE] lawyers had asked for a copy of the

video recording of the entire arbitral proceedings.

This request was not acceded to by the

Commission, but eventually, on 29 January 2023,

Lee’s [QUE] lawyers were able to arrange with the

Commission to review the video recording of the

2nd Hearing . . .”

(See Paragraphs 34-35 of Exhibit B to Leung Decl.)

Further, as the Hong Kong Court recognized, “For

at least the second half of the hearing, Q [the

arbitrator] was moving from one location to another,

indoors and outdoors, and had eventually left his

premises, and traveled in a car, without giving his

undivided attention to the hearing. He was off-line for

periods of time from the second half, and obviously

could not hear what was being said by the parties’

lawyers or by the other members of the tribunal.” (See

Paragraph 38 of Exhibit B to Leung Decl.)

The following is a non-exhaustive list of examples

of Mr. Qing’s misconduct during the Second Hearing,

52a

particular when the parties were making oral

arguments, as reflected in the video and transcript of

the Second Hearing:

a. Arbitrator Mr. Qing left his apartment (at

1:11:51 of the Video), walked around an

outdoor garden before re-entering the

apartment. His screen then froze for a few

seconds before he was disconnected from the

arbitration hearing for around two and a

half minutes. Mr. Qing did not ask to be

excused nor did he give any explanation for

his absence or disconnection.

b. Mr. Qing remained seated in his apartment

when

SONG’s

counsel

made

oral

submissions from 1:24:50 to 1:33:23.

Immediately

after

SONG’s

counsel

concluded the submissions, and before

QUE’s counsel even began to talk, Mr. Qing

started to look around.

c. At 1:33:34, Mr. Qing made hand signals to

the short-haired woman in his apartment

before getting up to move around.

d. From 1:34:20 to 1:35:15, Mr. Qing was in

what appears to be a bathroom. After

leaving the bathroom, Mr. Qing continued to

walk around the apartment.

e. From 1:36:09 to 1:36:50, Mr. Qing was

waiting at the bottom of the apartment’s

internal staircase for the short-haired

woman, who appeared at 1:36:41. By that

53a

time, QUE’s counsel had already concluded

his oral submissions.

f. SONG’s counsel then made further oral

arguments (from 1:36:34). At this time, Mr.

Qing was leaving his apartment with the

woman.

g. Mr. Qing’s screen froze at 1:36:54 while

SONG’s counsel continued to talk. SONG’s

counsel were stopped, and continued, three

times before the Second Hearing was called

off:

1) First at 1:37:21, other members of the

Tribunal noticed that Mr. Qing was

disconnected and stopped SONG’s

counsel. Mr. Qing reappeared at

1:37:28, and the hearing continued.

2) Second, shortly after Mr. Qing

reappeared, his screen froze again

but it could be heard at 1:37:41 that

he was talking about a Chinese cell

phone number. SONG’s counsel was

interrupted and stopped. Mr. Qing

reconnected at 1:37:53 and SONG’s

counsel resumed oral arguments at

1:37:57.

3) Third, just six seconds after SONG’s

counsel started to speak again, at

1:38:03, they were interrupted by Mr.

Qing’s background noise and he was

outdoors. At 1:38:11, a woman’s voice

could be heard talking about a car

54a

coming to pick them up. The woman

talked for around 20 seconds.

h. At 1:38:49, other members of the Tribunal

asked Mr. Qing if he could hear them. Mr.

Qing did not respond. Mr. Qing was

disconnected from 1:38:58 to 1:39:27.

i. At 1:39:16, other members of the Tribunal

suggested that the parties submit written

submissions. Mr. Qing continued to

reconnect and disconnect from the hearing.

Mr. Qing was asked four additional times if

he could hear anyone, but Mr. Qing failed to

respond.

j. When Mr. Qing reappeared at 1:41:05, he

was in a car. It transpired that Mr. Qing was

headed to and eventually arrived a

highspeed railway station.

(See Declaration of John Van De Poel in support of

QUE’s Opposition “Van De Poel Decl.”, ¶ ¶ 3-4, Ex. A

& Ex. B thereto.)

The Court shall refuse to recognize the Award

because the arbitration process has been particularly

egregious and the arbitration radically strayed from

standards of due process.

3. The Court Shall Refuse To Recognize

the Award Because The Underlying

Chinese Income Guarantee Agreement

Is Invalid.

55a

Article V1(a) of the NYC sets forth the following:

“T[t]he parties to the agreement referred to in article

II were, under the law applicable to the them, under

some incapacity, or the said agreement is not valid

under the law to which the parties have subjected it

to or, failing any indication there on, under the law of

the country where the wared was made;[.]”

As SONG is aware, the underlying Income

Guarantee Agreement, which she based her

arguments on, is deemed invalid and against public

policy in Chinese law. Article 29 of the Chinese

Detailed Implementation Rules for the Non-Public

Offering of Stocks of Listed Companies precluded the

provision of guarantees of return (or equivalent

agreements). Article 9 of a Notice by the Chinese

Supreme People’s Court of Issuing the Several

Opinions on Providing Judicial Guarantee for

Furthering the National Equities Exchange and

Quotations Reform and Establishing the Beijing Stock

Exchange also stated that provisions in the nature of

serving as a “minimum guarantee” in the private

placement and refinancing process, which provided

superior rights and benefits to certain investors and

increased the cost for capital of small and medium

enterprises, contradicted the principle of fairness, and

are invalid.

As a result, the Court shall refuse to recognize the

Award as the underlying Income Guarantee

Agreement (and the arbitration clause contained

therein) is invalid.

4. The Court Shall Refuse to Recognize

the Chinese Arbitration Award

56a

Because Recognition Of The Award

Would Be Against Public Policy.

Article V2(b) of the NYC sets forth the following:

“Recognition and enforcement of an arbitral award

may also refused if the competent authority in the

country where recognition and enforcement is sought

finds that . . . (b) T[t]he recognition or enforcement of

the award would be country to the public policy of that

country.”

As discussed above, QUE’s due process rights to a

fair hearing and to be heard were deprived. QUE was

not able to present his case to defend himself because

when he received notice of the arbitration hearing, the

First Hearing had already concluded. During the

Second Hearing, rather than hearing the arbitral

proceedings with care, skill, and integrity, arbitrator

Mr. Qing focused on catching a ride to the highspeed

rail station. Mr. Qing’s misconduct not only prevented

himself from concentrating on the submissions made

by QUE’s counsel, but also seriously disturbed the

other two arbitrators and counsel’s ability to

concentrate, as shown in the transcript and the

videos. (See Van De Poel Decl., Exhibits A, B, & C

thereto). Mr. Qing did not hear, and his actions

prevented the other arbitrators from properly hearing

counsel’s oral arguments and submissions, which was

the most critical part of the hearing. QUE was

particularly prejudiced because Mr. Qing paid no

attention at all when QUE’s counsel was making oral

arguments. Mr. Qing’s misconduct seriously

undermined the structural integrity of the arbitration

process, truncated the second hearing, and violated

QUE’s right to a fair hearing and right to be heard.

57a

More egregiously, the appointment of Mr. Qing as

the arbitrator was caused by SONG’s breach of the

duty to act in good faith. SONG did not provide proper

notice to QUE about the arbitration hearing and as a

result, the three-member Tribunal was constituted

based on SONG’s ex parte request without any input

from QUE.

As a result, the Court shall refuse to recognize the

Award because recognition of the award would be

against public policy as it violated the principle of

fairness, deprived QUE of his due process rights, and

violated the duty of good faith.

CONCLUSION

For the foregoing reasons, Defendant QUE

respectfully requests that the Court deny SONG’s

Complaint/Petition for Confirmation of Arbitration

Award.

VAN DE POEL, LEVY, THOMAS LLP

DATED: December 1, 2023

/S/ JOHN F. VAN DE POEL

JOHN F. VAN DE POEL

HUA JIANG

Attorneys for Defendant WEBIN

QUE a/k/a CHEE HON LEE

58a

APPENDIX G

NO. 3:23-CV-02159-RFL

LIHUA SONG, AN INDIVIDUAL,

PLAINTIFF,

WENBIN QUE, AN INDIVIDUAL; XIAOLAN HE, AN

INDIVIDUAL; SHIXI LIN, AN INDIVIDUAL,

DEFENDANTS.

Filed On: December 1, 2023

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Docket Nos. 73 and 73-3

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF WENBIN

QUE’S OPPOSITION TO LIHUA SONG’S

PETITION/COMPLAINT FOR CONFIRMATION

OF FOREIGN ARBITRATION AWARD

59a

I, John F. Van De Poel, declare as follows:

1. I am an attorney duly licensed to practice law in

the State of California and admitted to practice before

the California Northern District Court. I am appearing

for Defendant WEBIN QUE a/k/a CHEE HON LEE

(“Defendant”).

2. All facts contained herein are within my personal

knowledge except where noted on information and belief

and if called as a witness, I could and would testify

thereto.

3. Attached as Exhibit A is a true and correct copy of

the video recording of the May 26, 2021 second

arbitration hearing which took place in Chengdu, China.

4. Attached as Exhibit B is a true and correct copy of

extracts of the video recording of the May 26, 2021

second arbitration hearing which took place in Chengdu,

China.

5. Attached as Exhibit C is a true and correct copy of

the certified translation of the transcripts for the May

26, 2021 second arbitration hearing which took place in

Chengdu, China.

I declare under penalty of perjury and under the

laws of the State of California that the foregoing is true

and correct. Executed this 1st day of December 2023, at

Walnut Creek, California.

/S/ JOHN F. VAN DE POEL

JOHN F. VAN DE POEL

60a

[00:00:01]

EXHIBIT C

Arbitration Secretary Yuhong Yang: What about

now?

Arbitrator Yong Deng: Hello, can you hear me?

Mr. Qing. Hello, can you hear me?

Arbitration Secretary Yuhong Yang: Hello, Mr.

Qing, can you hear me now? It seems that he still

can’t hear us.

Arbitrator Yong Deng: It’s still not working. If it

doesn’t work, he has to use that.

[00:00:26]

Arbitrator Feng Qing: Hello!?

Arbitrator Yong Deng: Yes, I can hear you. Go

ahead.

Arbitration Secretary Yuhong Yang: We can

hear you, hello?

Arbitrator Li: Network problem.

Arbitration Secretary Yuhong Yang [calling Mr.

Feng Qing]: Hello, Mr. Qing? Can you see our video?

Wait a minute. I’ll get our colleague to fix it.

Arbitrator Yong Deng: Try and see if you can get it

to work.

61a

Arbitration Secretary Yuhong Yang: OK OK OK,

wait a moment.

Arbitrator: We have to make sure how good his

connection is, because his video feed goes in and out.

[00:02:43] Feng Qing’s video freezes

[00:03:04] inaudible

[00:03:35]

Arbitration Secretary Yuhong Yang: Hello, Mr.

Qing, can you hear me?

[00:04:52]

Arbitration Secretary Yuhong Yang: Hello, Mr.

Feng Qing. Hello?

Arbitrator Feng Qing goes offline

Respondent’s lawyer Fugang Cai: There is

nothing else, right?

Arbitration Secretary Yuhong Yang: Is there

anything else you need to see? We are now verifying

[00:05:03]

Respondent’s lawyer Fugang Cai: No, no. I mean

the evidence. Anything apart from the three pieces of

evidence?

62a

[00:05:15] Arbitrator Feng Qing rejoins the video

conference

Respondent’s lawyer Fugang Cai: Well, it doesn’t

matter to me. What is your relationship with the

Shanghai branch of Grandall Law Firm? Franchises?

[00:06:31] Arbitrator Feng Qing goes offline, and

rejoins

[00:07:25]

Arbitrator Yong Deng: …inaudible; offline

[00:08:34]

Arbitrator Feng Qing: Hello, I can see you now.

Arbitration Secretary Yuhong Yang: Mr. Feng

Qing, can you hear me?

Arbitrator Feng Qing: Yes, I can see you.

Arbitration Secretary Yuhong Yang: Can you

hear? Can you hear us?

Arbitrator Feng Qing: Yes.

Arbitration Secretary Yuhong Yang: OK, OK.

Arbitrator Feng Qing: I think we’re ready to get

started.

Arbitrator Yong Deng: Can you hear me?

63a

Arbitrator Feng Qing: Yes.

Arbitrator Yong Deng: OK. OK. I was unable to

hear you.

Arbitrator Feng Qing: Good.

Arbitrator Yong Deng: Are you in Beijing or Sanya?

Arbitrator Feng Qing: Beijing.

Arbitrator Yong Deng: In Beijing. I thought you’re

probably in Beijing because you are wearing a jacket.

[00:09:35] Arbitrator Feng Qing gets up and runs

upstairs

[00:09:49]

Arbitration Secretary Yuhong Yang: Mr. Du,

please mark that …

Claimant’s lawyer Yusong Du: Please also mark it.

This hasn’t been marked. Mark it at the top.

[00:10:07] Arbitrator Mr. Feng Qing returns to his seat

[00:11:17]

Respondent’s lawyer Fugang Cai: Why don’t we go

there together and make a copy?

Male: Ok.

64a

Arbitration Secretary Yuhong Yang: Hello, Mr.

Feng Qing.

Arbitrator Feng Qing: Hello, Miss Yang.

Arbitration Secretary Yuhong Yang: You might

want to keep your mobile phone plugged in as the

hearing might take some time. If your mobile phone

runs out of power, you will be forced out of the system.

Arbitrator Feng Qing: Ok.

Arbitration Secretary Yuhong Yang: OK, thank

you.

[00:12:20]

Arbitrator Li: … in his original. He hasn’t produced

that evidence completely. That agreement, including

schedules, has 10 to 20 pages, but he only copied the

first page and gave it to them, including [00:12:30]

Man: No, no, no, not really.

Arbitrator Li: Did you produce the evidence

completely? They produced [00:12:34], but he didn’t

produce all of it.

Claimant’s lawyer Yusong Du: Then I will give the

copies to each arbitrator once I finish coping.

Arbitration Secretary Yuhong Yang: 5 copies in

total.

65a

[00:13:07]

Claimant’s lawyer Yusong Du: You could have a

look. Pardon me, but what’s your last name again?

Respondent’s lawyer Fugang Cai: Cai.

Claimant’s lawyer Yusong Du: Mr. Cai, the

schedule to that contract is a due diligence checklist,

which should have nothing to do with the dispute in

that case.

Respondent’s lawyer Fugang Cai: [inaudible]

Arbitration Secretary Yuhong Yang: Oh, no!

[00:13:43]

Arbitrator Li: Which lawyer did they engage? Who?

[00:13:46] The information has not been filed, right?

Arbitration Secretary Yuhong Yang: Didn’t they

receive all of it? All information was filed.

Arbitrator Li: Oh, all information was filed, right?

Respondent’s lawyer Fugang Cai: We haven’t

received anything.

Claimant’s lawyer Yusong Du: Nor have we.

Arbitrator Li: Here you are.

66a

Arbitration Secretary Yuhong Yang: [inaudible]

his evidence.

[00:15:59]

Arbitration Secretary Yuhong Yang: Mr. Li,

please wait a minute. I used your hearing code to log

in, so I can’t edit the transcript. But I used my own

account to log in. Mr. Qing’s [00:16:10] I used your

hearing code to log in. I can’t edit it. There is no cursor.

I can’t read it. I just asked Mr. Liao to come down

again [⋯]

[00:17:10]

Arbitration Secretary Yuhong Yang: I was going

to use my own account before, but now [00:17:14] The

system encountered a login issue. Disconnected.

[00:18:08]

Arbitration Secretary Yuhong Yang: Hello, Mr.

Feng Qing. Can you hear me now? There is no

response, but if he does not open [18:17] there is no

way to edit it.

Arbitrator Mr. Feng Qing looks around, gives no

response

Arbitrator Yong Deng: Hello? Hello? Hello?

Arbitrator Feng Qing: There seems to be something

wrong now.

67a

Arbitrator Yong Deng: Can you hear me? We can

hear you.

[00:19:49]

Man: Problem solved.

Arbitration Secretary Yuhong Yang: This is not…

Tell them to dial directly. Hello, Mr. Qing. No

problem. Ok. Yeah. Ok. Ok. Are there three copies?

Woman: Yes.

Arbitration Secretary Yuhong Yang: Did you give

them?

[00:23:33]

Man: Hey, hello? OK, OK.

Arbitration Secretary Yuhong Yang: …

[00:23:48]

Arbitrator Yong Deng: Mr. Qing, can you hear me?

Arbitrator Feng Qing: Yes.

Arbitrator Yong Deng: OK, the contract dispute

arising between Lihua Song as claimant and Wenbin

Que as respondent has been referred to the Chengdu

Arbitration Commission and heard before us. Since

the representative of Wenbin Que the Respondent are

able to appear today, we will conduct the hearing

68a

procedure

again.

Firstly,

the

Claimant’s

representatives, please briefly introduce yourselves

because there is an additional representative present

here today.

Claimant’s lawyer Yusong Du: The Claimant is

Lihua Song, female, Han, born on January 9, 1963.

There are three arbitral representatives of the

Claimant in this case, including me, Yusong Du, who

is a lawyer from the Beijing office of Grandall Law

Firm, Juan Wang, on my left, who is also a lawyer

from the Beijing office of Grandall Law Firm, and

Yiming Deng, on my right, who is a lawyer from the

Beijing office of Grandall Law Firm, too. The three of

us appear at the hearing as the Claimant’s

representatives in this case to participate in the

arbitral proceeding of this case.

Arbitrator Yong Deng: What about the power of

attorney? General or special power of attorney? It is

still consistent with the written power of attorney,

right?

Claimant’s lawyer Yusong Du: Yes, it is consistent

with the written power of attorney. It is not a special

power of attorney. Thanks.

Arbitrator Yong Deng: The Respondent’s

representative, please briefly state the basic

information of the Respondent yourself.

Respondent’s

lawyer

Fugang

Cai:

The

Respondent is Wenbin Que, male, Han, born on

August 2, 1963, resident at Unit 1, Building [14]3,

No.[14]6, Section 4, Renmin South Road, Wuhou

69a

District, Chengdu. I am Fugang Cai, a lawyer from

Faxian Law Firm. I am the representative of Wenbin

Que. I have been granted special power of attorney.

That’s all.

Arbitrator Yong Deng: The two sides have engaged

representatives to appear at the hearing. So all of you

should be clear about the rules of the tribunal,

including rights and obligations, right?

Claimant’s lawyer Yusong Du: Yes.

Arbitrator Yong Deng: Will either party challenge the

opposing party for a withdrawal?

Claimant’s lawyer Yusong Du: No, I won’t.

Respondent’s lawyer Fugang Cai: I have read the

transcripts. It seems that one of the opposing lawyers

is going through changes. I don’t know if all relevant

information has been filed.

Arbitrator Yong Deng: The formalities have been

completed.

Respondent’s lawyer Fugang Cai: OK.

Arbitrator Yong Deng: The situation has been

verified at the previous hearing.

Respondent’s lawyer Fugang Cai: Yes, that’s what

I saw. OK.

Arbitrator Yong Deng: No other challenges?

70a

Respondent’s lawyer Fugang Cai: No.

Arbitrator Yong Deng: We just communicated with

the representatives of both sides before the hearing.

Since this case has been heard once and the

Respondent’s representative has also read the

transcripts of that hearing, we want to simplify the

hearing procedure. Is there anything that the

Claimant wants to supplement or otherwise state

regarding her written application for arbitration or

arbitration claims? Or rather, is there anything that

is inconsistent with the written statements?

Claimant’s lawyer Yusong Du: No, the written

ones shall prevail.

Arbitrator Yong Deng: The written ones shall

prevail. There is no supplement or other debate, right?

Claimant’s lawyer Yusong Du: Yes.

Arbitrator Yong Deng: OK. The Respondent, please

state your defenses to the arbitration claims and their

facts and reasons made by the Claimant in the written

application for arbitration.

Respondent’s lawyer Fugang Cai: OK, before

making defenses, I want to check, can you hear me,

Mr. Qing?

Arbitrator Feng Qing: Mouths response, inaudible

[00:26:58]

71a

Respondent’s lawyer Fugang Cai: OK, for Lihua

Song’s arbitration claims, the Respondent will make

an oral defense first, and I will refer to the Claimant

by her name. In the overall statement of Wenbin Que,

Lihua Song’s arbitration claims have no factual and

legal basis, and we request the Commission reject all

her arbitration claims. This is our overall statement.

Next, we will go through the five arbitration claims

from the Claimant’s written application for

arbitration and provide our defenses.

I’ll start with the first arbitration claim. Article 143 of

the Civil Code provides that a civil juristic act is valid

only when all the following conditions are satisfied: (1)

the person performing the act has the required

capacity for performing civil juristic acts; (2) the

intent expressed by the person is true; and (3) the act

does not violate any mandatory provisions of laws and

administrative regulations, nor does it offend any

public order or good morals. The return guarantee

agreement in this case fails to satisfy all of the three

conditions simultaneously, so the relevant acts and

the return guarantee agreement made are invalid.

Firstly, the return guarantee agreement is not the

expression of Wenbin Que’s true intent.

Let’s put aside the validity of the return guarantee

agreement for now and stay focused on the purpose of

the return guarantee agreement. I would like to ask

the tribunal to look at the first page of this agreement,

the so-called return guarantee agreement. There is a

page number below it, page 1, to be more specific,

“Recitals” section on page 1. If the tribunal says it is a

bit slow, can I slow down a bit. Under the third

72a

paragraph of the “Recitals”, the purpose of this

agreement is to achieve Hengkang Medical’s

investment in the target hospital. Looking at the

entirety of this agreement, this purpose does not

include the so-called return and compensation issues.

This [investment] is a main purpose of this

agreement.

Secondly,

from

the

purpose

this

agreement…secondly, from the specific return

agreement and arrangement, please turn to page 3 of

this agreement first to see Article 4.3.

Arbitrator Yong Deng: Could you just present your

arguments briefly for now, and elaborate on it later

when giving your statement of evidence examination?

Respondent’s lawyer Fugang Cai: Because the

tribunal has already heard this case before…in fact, I

was stating this argument while defending it.

Arbitrator Yong Deng: [30:12] inaudible

Respondent’s lawyer Fugang Cai: I will speed up

a little then, because I still want to present my overall

thoughts about that. Article 4.3 of the return

guarantee agreement expressly provides that “If the

Parties desire to sign…conclude any supplement with

respect to any matter not covered by this Agreement,

they shall do so by signing supplementary

agreements.”

The tribunal, please note that Article 4.2 of this

agreement, the most critical clause in this case,

provides that “The liability for failure to achieve any

73a

performance goals and the specific amount of

compensation for any difference under Article 3.2

shall be determined by the Parties in the form of

written supplementary agreements.”

So, please consider page 6 of the transcripts of the

hearing held on March 26, which is why the hearing

transcripts were provided to the tribunal earlier. In

relation to page 6, Mr. Qing raised one question at

that time about whether any supplementary

agreement under Article 4.2 of the return guarantee

agreement had been filed. The Claimant replied that

she hadn’t signed such supplementary agreement. So

we believe that the Claimant’s statement at the

hearing held on March 26 is a self-admission, and no

supplementary agreement with respect to the specific

amount of compensation involved in this case has

been entered into. This is one of our main arguments.

Furthermore, there is another piece of evidence that

can support the argument I just made, on page 31 of

the evidence document produced by the opposing

party at the first hearing, so this is a little bit like

that…I might need the tribunal to turn to page 31 of

the evidence document produced at the first hearing.

It is not supplementary evidence. It was produced at

the first hearing. There is one key piece of evidence on

page 31. The page number is 31, marked on the

bottom right corner of the page. Page 31 involves an

issuing report on the private placement of shares by

Hengkang Medical, a listed company, in 2015,

containing the opinion from an intermediary, namely,

a law firm as sponsor, on this private placement. I

don’t know if the tribunal has seen that, but the third

line from the bottom of the sponsor’s opinion expressly

74a

states that “The persons to whom the private

placement was made participated in the private

placement without directly or indirectly receiving any

financial assistance or compensation of any form from

the actual controller or other affiliates of the issuer.”

In other words, by the time the so-called private

placement took place in 2015, the intermediary had

examined the private placement, and the

examination, in our understanding, must have been

an interview with Lihua Song. And there is something

interesting about the intermediary, that is, the

intermediary is the Shanghai branch of the opposing

party…the Shanghai office of Grandall Law Firm,

which is another branch of the three opposing lawyers’

law firm. It is the opinion given by their Shanghai

office.

We understand that, if the supplementary agreement

is looked at now, it should indicate either the failure

of the Shanghai branch of Grandall Law Firm to

conduct due diligence during examination, or no socalled specific compensation clause or compensation

amount agreed upon by Lihua Song and Wenbin Que

at all in this case. The latter appears more probable to

us. We don’t think that Grandall Law Firm has failed

to diligently perform its duties. Instead, we think that

the supplementary agreement was indeed not signed.

Based on the statements at the hearing held on March

26, the supplementary agreement does not exist.

So, what I was trying to establish by making these

arguments is that the return guarantee agreement

does not represent an expression of Wenbin Que’s true

intent.

He signed [papers] for the purpose of acquisition of the

75a

target hospital by Hengkang Medical, a listed

company, and both sides did not enter into any

supplementary agreement with respect to the

compensation. The compensation clause and the

amount of compensation has never existed since the

beginning. This is my first main argument about the

first claim. In other words, the return guarantee

agreement is not the expression of Wenbin Que’s true

intent.

As the second argument about the first claim, we

believe that, even if the return guarantee agreement

were true and valid, this agreement would have been

invalid ab initio due to the violation of law provisions

and, in particular, public order and good morals. We

all know that, on February 14 last year, the Securities

Regulatory Commission issued the Decision to Amend

the Implementing Rules for the Private Offering of

Shares by Listed Companies and added as Article 29

a provision that goes: “Neither a listed company nor

any of its controlling shareholders, actual controllers

and major shareholders shall make guaranteed

principal and return commitments or disguised

guaranteed principal and return commitments, or

provide financial aids or compensation directly or

through its and their stakeholders, to the persons to

which its shares are issued.” This is the one provision

that’ll rest the case.

[00:35:49]

Furthermore, Article 8 of the Civil Code of the PRC

provides that “When conducting a civil activity, no

civil subjects shall violate any laws, or offend any

public order or good morals.” I believe that, since all

76a

of you here are legal professionals, you must know

that lectures and presentations about the Civil Code

following its enactment certainly have focused on

public order and good morals. Although the opposing

lawyers may argue that the relevant agreement was

executed prior to the enactment of the Civil Code, it

doesn’t matter. If they do, we need only refer to the

Several Provisions of the Supreme People’s Court on

the Validity of Time in the Application of the Civil

Code of the People’s Republic of China expressly

provides that, for any case of civil disputes arising

from any legal facts before the Civil Code came into

force, the Civil Code shall apply if the application of

the Civil Code is more conducive to protecting the

legitimate rights and interests of civil subjects,

maintaining the social and economic order and

promoting socialist core values.

That’s why I want to reiterate that, if a return

guarantee agreement really exists, then the

guarantee by the majority shareholders of any

investment is obviously contrary to the nature of

investment that any individual who invests in stocks

should assume sole responsibility for his or her own

profits and losses, and the public’s natural

expectations that investment is a game that could

result in both losses and gains. Such action is also

unfair to the tens of thousands of investors who

bought the stocks on the secondary. If the tribunal

awards in favor of Lihua Song on her compensation

requirement, it will certainly encourage regulatory

arbitrage, speculation and illegal transactions,

incurring investment risks for small and mediumsized investors and retail investors, disrupting

financial order. Therefore, it is contrary to the Civil

77a

Code and our socialist core values, undermining social

and economic order. That’s what I want to emphasize.

So, by emphasizing the two arguments, we believe

that the return guarantee agreement involved in this

case is invalid ab initio. So the first claim made by

Lihua Song has no factual and legal basis. This was

on her first arbitration claim.

As to her second arbitration claim, first of all, no loss

means no compensation, which is a commonsense

principle. Since the first claim is not tenable, the

second claim is not tenable from the beginning.

Moreover, no clause in the return guarantee

agreement provides for the relevant liability for

breach of the return guarantee agreement. This is

number one. Number two, the guarantee agreement

also doesn’t provide for the method of loss calculation.

[00:38:35]

My third argument is that the opposing lawyers of

Lihua Song cited a legal basis at the March 26

hearing, to a page 1 and page 2 of the arbitration

transcripts, they cited the Law Interpretation [1999]

No. 8, a judicial interpretation issued 21 years ago. If

they had been more careful, they would have found

that the agreement…this judicial interpretation had

long been invalid. I want to remind all of you about

this.

So the second arbitration claim of the opposing party

has no factual and legal basis, too.

Thirdly, for the third arbitration claim, as mentioned

78a

previously, Lihua Song’s claim has never had any

basis, so she should bear all the costs, including

attorney’s fees.

At the very least, based on the evidence before us,

Lihua Song signed a contract of RMB 1 million, but

only paid a fee of RMB 500,000, meaning the fee of

RMB 1 million she claims has not actually been

incurred. So, the Commission should not award in

favor of her on the claim of the attorney’s fee of RMB

1 million in relation to this arbitration.

As to the fourth arbitration claim, if I am not

mistaken, during the March 26 hearing, Lihua Song’s

representatives dropped this arbitration claim. So,

based on the fact that Lihua Song has withdrawn this

claim, we think that she could waive her rights as to

the fourth claim, and we no longer need to give any

statement on the fourth claim.

As to the fifth claim, which is about arbitration costs,

as mentioned previously, Lihua Song’s claim has no

factual and legal basis and she should bear all her own

litigation…arbitration costs for this case. This is a

general defense by Wenbin Que on this case. In fact,

it is also a statement of our arguments. If the tribunal

has any questions, please ask, and I will answer them.

[00:40:40]

Arbitrator Li: Let me just say that the legal hearing

entails facts and basis. What the Respondent just said

seems to imply that the award of the Commission in

favor of the Claimant will violate socialist core values

and public order and good morals. Putting labels on

79a

people or waving a big stick like this has no place at

court. I hope you would realize it.

Respondent’s lawyer Fugang Cai: OK, thank you

for reminding me. If there are real-time audio and

video recordings… I will be more careful with my

choice of words hereon. But I didn’t mean that. I didn’t

mean that. I made my arguments quite clear.

Arbitrator Yong Deng: The Respondent’s

representative has just made three defense

arguments against the Claimant’s four arbitration

claims and their facts and reasons. I have recorded

them, and the clerk has recorded them.

Now, regarding the three focuses summarized at the

last hearing. First, as for the return guarantee

agreement, whether it is an equity acquisition

agreement or guaranteed investment agreement, and

its nature and effectiveness; second, whether the

Respondent should pay the guaranteed compensation

and corresponding interest for return guarantee, and

whether there is any legal or factual basis for that;

and third, whether the attorney’s fee should be paid.

The two sides could produce and examine evidence

around the three focuses. Does the Claimant have

anything to add?

Claimant’s lawyer Yusong Du: No.

Arbitrator Yong Deng: Respondent?

Respondent’s lawyer Fugang Cai: Yes. My

personal suggestion is that the first focus of dispute

could be refined, that is, the return guarantee

80a

agreement, whether the supplementary agreement to

the return guarantee agreement has been signed, and

whether the supplementary amount has been

determined.

Arbitrator Yong Deng: Since one focus of dispute is

about the facts and reasons in the statements and

defenses, so far the supplementary agreement [42:53

inaudible] has not reached the procedure of producing

evidence; so, for what you have just challenged, to be

more specific, you think that, firstly, it doesn’t contain

expression of true intents, and secondly, it has

violated public order and good morals, right? So you

think it’s invalid. So we focus on the issue of

effectiveness. If the master contract is invalid, then

we should still focus on [43:16] inaudible.

Respondent’s lawyer Fugang Cai: Yes, OK.

Arbitrator Yong Deng: Well, the Claimant’s

representatives, please… Mr. Du, nine groups of

evidence have been produced at the last hearing,

right?

Claimant’s lawyer Yusong Du: Yes.

Arbitrator Yong Deng: Nine groups of evidence

were produced last time. Is there any additional

explanation about purposes of proof or facts to be

proved? Do you have any explanation in addition to

what you have mentioned in the transcripts last time?

Applicant’s lawyer Yusong Du: First evidence, we

want to add explanation about this evidence. Our first

evidence is about… wait a minute.

81a

Arbitrator Yong Deng: You’d better go through the

groups in order.

Claimant’s lawyer Yusong Du: The first group of

evidence includes the return guarantee agreement

and the new evidence produced by us today, which is

the supplementary evidence produced before the last

hearing, namely, the equity transfer agreement and

its supplementary agreement. They constitute a

group of evidence to prove the return guarantee

agreement…

Arbitrator Yong Deng: Here’s the order of groups in

which you organized the evidence at the last hearing.

The first group of evidence was identity information

and the second group of evidence was the return

guarantee agreement. Please explain based on the

transcripts: the second group of evidence is the return

guarantee agreement, and the third group of evidence

is the listing report and the listing announcement.

Claimant’s lawyer Yusong Du: There is no change

in our first group of evidence or its purpose of proof.

The second group of evidence includes the return

guarantee agreement and the supplementary

evidence we produced during the hearing.

Arbitrator Yong Deng: You may elaborate on the

supplementary evidence later. For now, please

summarize and explain anything you want to add

about the purposes of proof or the facts to be proved in

the previous nine groups of evidence.

Claimant’s lawyer Yusong Du: No, we have

nothing to add.

82a

Arbitrator Yong Deng: You have nothing to add,

meaning for the first nine groups of evidence, the

purposes of proof and the facts being proved remain

the same as those stated at the last hearing, right?

Claimant’s lawyer Yusong Du: Yes.

Arbitrator Yong Deng: Well, the Respondent, you

may challenge the nine groups of evidence produced

by the Claimant.

Respondent’s lawyer Fugang Cai: OK, let me

challenge them separately because they were

produced separately at that time. On the first group

of evidence, I do not dispute the identity information

or its authenticity. On the second group of evidence,

the return guarantee agreement…

Arbitrator Yong Deng: Please challenge mainly

from the authenticity, relevance and legality of

evidence.

Respondent’s lawyer Fugang Cai: OK. This

agreement, including its schedules, has a total of 11

pages, but Wenbin Que’s signature is on page 4 where

there is no body text of this agreement. Furthermore,

the signature page of this agreement has the

signature, fingerprint, and Song put her fingerprint

across the edges of the pages, but not the fingerprint

or edge-riding fingerprint of Wenbin Que. That’s the

reason why I just asked for the entire original

agreement.

83a

Since this agreement dates back a considerable time

and lacks Wenbin Que’s signature, we respectfully

request the tribunal to authenticate it in accordance

with the law.

Our suspicion is reasonable, because, generally

speaking, when an agreement requires signatures

and fingerprints, both parties must sign and impress

their fingerprints on the agreement and then impress

their fingerprints across the edges of the pages. But

the way signatures and fingerprints were applied to

this contract…this agreement is not consistent with

our common sense, prevailing practice and

convention. So, our doubt is well-founded, and we

would like to ask the court…the Commission to

determine its authenticity according to law.

Arbitrator Yong Deng: That is to say, you deny

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.