Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography
Search the entire CISG Database (case data + other data)

CISG CASE PRESENTATION

China October 2007 CIETAC Arbitration proceeding (CD-R and DVD-R production systems case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/071000c1.html]

Primary source(s) of information for case presentation: Case text

Case Table of Contents


Case identification

DATE OF DECISION: 20071000 (October 2007)

JURISDICTION: Arbitration ; China

TRIBUNAL: China International Economic and Trade Arbitration Commission [CIETAC] (PRC)

JUDGE(S): Unavailable

DATABASE ASSIGNED DOCKET NUMBER: CISG/2007/03

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Switzerland (respondent)

BUYER'S COUNTRY: People's Republic of China (claimant)

GOODS INVOLVED: CD-R and DVD-R production line systems


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 26 ; 72 ; 73 ; 74 ; 75 ; 76 ; 80 ; 84 ; 87 [Also cited: Article 63 ]

Classification of issues using UNCITRAL classification code numbers:

26A1 [Notification of avoidance (notification to the other party required): effective declaration of avoidance];

72A [Avoidance prior to date for performance: when clear that party will commit fundamental breach];

73A [Avoidance in installment contracts (fundamental breach with respect to installment];

74A ; 74A1 [General rules for measuring damages: loss suffered as consequence of breach; Includes loss of profit];

75A1 [Damages established by substitute transaction (substitute transaction after avoidance): resale by aggrieved seller];

76B [Avoidance without purchase or resale under article 75: damages recoverable based on current price];

80A [Failure of performance caused by other party (party causing non-performance): loss of rights];

84A [Restitution of benefits received: party bound to refund price must pay interest];

87A1 [Preservation of goods by deposit in warehouse: provided expenses are reasonable]

Descriptors: Avoidance ;Fundamental breach ; Anticipatory breach ; Installment contracts ; Damages ; Profits, loss of ; Cover transactions ; Failure of performance, other party ; Restitution ; Interest ; Storage of goods

Go to Case Table of Contents

Editorial remarks

Go to Case Table of Contents

Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Chinese): Unavailable

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

Go to Case Table of Contents
Case text (English translation)

Queen Mary Case Translation Programme

China International Economic & Trade Arbitration Commission
(CIETAC) Arbitration Award

CD-R and DVD-R production systems case (October 2007)

Translation [*] by Fan Yao [**]

Edited by Meihua Xu [***]

  1. Arbitral Proceedings
    1. Acceptance of case; Composition of tribunal; Procedural rules
    2. First Hearing
    3. Second Hearing and Extension of the arbitration time limits
    4. Third Hearing
  2. Facts and Issues
    1. Claimant [Buyer]'s statement
    2. Respondent [Seller]'s defense
    3. [Buyer]'s supplementary opinion and Response to [Seller]'s supplementary opinion
    4. [Buyer]'s supplement to Statement of Claim
    5. [Seller]'s supplementary statement of defense and Counterclaim
    6. [Seller]'s supplementary opinion in support of Counterclaim
    7. [Buyer]'s objections to Counterclaim
  3. Opinion of the Arbitral Tribunal
    1. [Buyer]'s Arbitration Claim
      1. Applicable law
      2. The residual amount of overpaid money
      3. Interest on the overpaid money
      4. Reimbursement of attorneys' fee sought by [Buyer]
      5. Arbitration costs requested by [Buyer]
    2. [Seller]'s Counterclaim
      1. Whether Tribunal should accept the Counterclaim
      2. [Seller]'s claim for contract price loss
      3. [Seller]'s claim for storage fees
      4. [Seller]'s DVD-R claim for lost profits
      5. Interest on [Seller]'s loss
      6. The limit of liability clause
      7. Reimbursement of attorneys' fee sought by [Seller]
      8. Arbitration costs requested by [Seller]
  4. Award

I. ARBITRAL PROCEEDINGS

A. Acceptance of case; Composition of tribunal; Procedural rules

The China International Economic & Trade Commission (hereinafter: "CIETAC") accepted the case (Case number M2006____) according to:

   -    The arbitration clause in Sales Agreement Contract "No. SA747-500" signed on 18 September 2003 by Claimant, Guangdong AAA New Technology Co. Ltd [of the People's Republic of China] (hereinafter: "[Buyer]"), and Respondent, CCC S.A. [of Switzerland] (later changed to "BBB S.A.", hereinafter: "[Seller]"); and
 
   -    The written arbitration application submitted to CIETAC by [Buyer] on 29 April 2006.

The "China International Economic & Trade Arbitration Commission Arbitration Rules" (hereinafter: "Arbitration Rules"), which took effect on 1 May 2005, apply to this case.

On 26 May 2006, the Secretariat of CIETAC sent the Notice of Arbitration of the case, the Arbitration Rules, as well as the Panel of Arbitrators to [Buyer] and [Seller] separately by EMS. At the same time, the Secretariat sent the Request for Arbitration submitted by [Buyer] and its attachment to [Seller].

[Buyer] appointed Mr. ___, and [Seller] appointed Mr. ___ as arbitrators. Since the parties did not appoint the presiding arbitrator jointly, or entrust the Chairman of CIETAC to make such appointment in a specified time, pursuant to the "Arbitration Rules", the Chairman of CIETAC appointed Mr. ___ to be the presiding arbitrator. These three arbitrators composed the Arbitral Tribunal to hear and decide the case together on 18 July 2006. On the same day, the Secretariat of CIETAC sent the Notice of Composition of Arbitral Tribunal separately to [Buyer] and [Seller] by EMS.

B. The First Hearing

After the Tribunal examined the materials of the case, it decided to hold an oral hearing in Beijing on 22 August 2006 through the notification of the Secretariat of CIETAC. On 19 July 2006, the Secretariat sent the Notice of Oral Hearing to the parties separately by EMS. Due to the time schedule of the arbitrators, the Arbitral Tribunal postponed the oral hearing to 23 August 2006. The Secretariat of CIETAC sent the Notice of a Postponed Oral Hearing to the parties separately on 24 July 2006.

On 27 July 2006, [Seller] submitted its Statement of Defense and relevant evidence. The Secretariat of CIETAC forwarded this material to the [Buyer].

On 23 August 2006, the Arbitral Tribunal held the oral hearing in Beijing. Representatives of [Buyer] and [Seller] participated. They made oral presentations and rebuttals concerning the law and facts, examined the evidence submitted, answered questions of the Arbitral Tribunal, and made final statements. With the concurrence of both parties, the Arbitral Tribunal confirmed that the original [Seller], CCC S.A., had been incorporated into BBB S.A, with all of its rights and obligations succeeded by BBB S.A. The [Seller] in the present case was changed to refer to BBB S.A. from then on.

C. The Second Hearing and Extension of the Arbitration Time Limits

On 3 September 2006, [Seller] sent a letter alleging that the contract that [Buyer] submitted for arbitration was falsified, and requested a handwriting appraisal, as well as to commence an oral hearing once again.

The Arbitral Tribunal notified the parties through the Secretariat of CIETAC on 19 September 2006, that, according to the principle that "each party shall have the burden of proving the facts it relies upon to support its claims", it was [Buyer] that had the burden of proof concerning whether the handwriting on the sales contract submitted by [Buyer] was real; therefore, [Buyer] should entrust relevant appraisal institutions to have the handwriting appraisal.

On 21 September 2006, [Buyer] submitted an "Opinion of Evidence Exhibit Examination", a "Statement Opinion Concerning the Dispute arising from Case No. M2006____", and relevant evidence. The next day, [Seller] submitted a "Supplementary Statement of Defense". The Secretariat of CIETAC forwarded the aforementioned materials to the opposing parties separately.

On 19 and 27 October 2006, [Buyer] sent letters to CIETAC, requesting the Arbitral Tribunal to entrust the Second Office of the Ministry of Public Security to prepare a written appraisal.

After the Arbitral Tribunal discussed jointly, it decided to have the second oral hearing in Beijing on 9 January 2007. The Secretariat of CIETAC sent the Notice of Oral Hearing to the parties separately by EMS on 18 December 2006.

On 9 January 2007, the Arbitral Tribunal held the second oral hearing in Beijing. Representatives of [Buyer] and [Seller] participated. The parties stated their opinions as to the authenticity of the contract and answered the questions of the Tribunal.

On 16 January 2007, [Buyer] requested the Tribunal in writing to ask for sufficient time for the handwriting appraisal. The Arbitral Tribunal approved this request and requested the Chairman of CIETAC to extend the time limit for rendering an arbitration award. The Chairman of CIETAC extended the time limit to 18 April 2007. On 17 January 2007, CIETAC sent the Notice of Extension of the Time Limit to the parties separately by EMS. On 17 April 2007, because of a re-request of the Tribunal, the Chairman of CIETAC decided to extend the time limits for rendering an arbitration award from 18 April 2007 to 18 August 2007.

On 8 May 2007, [Buyer] submitted to CIETAC Forensic Appraiser's Report No. 103 [2007] made by the Beijing Hua Xia Material Evidence Appraisal Center.

D. The Third Hearing

The Arbitral Tribunal decided to have the third oral hearing of the present case in Beijing on 13 June 2007 through the notification of the Secretariat of CIETAC. On 10 May, the Secretariat sent the Notice of Oral Hearing to the parties separately by EMS.

On 14 May 2007, [Seller] sent a letter to the Tribunal stating that it would respect the result of the appraisal and requested the Tribunal to give a time limit for submitting a counterclaim. After discussion, the Tribunal decided that if [Seller] had a counterclaim, it should submit it in writing before 31 May 2007, with a notice in writing sent by the Secretariat of CIETAC to the parties on 16 May 2007. [Seller] submitted a "Statement of Defense and Statement of Counterclaim" on 30 May 2007, and paid the counterclaim fee in the specified time ruled by CIETAC.

On 18 May 2007, [Buyer] submitted a "Letter alleging malicious interference with the arbitration proceeding by the [Seller]" advising that [Buyer] does not agree with [Seller]'s counterclaim and, on 5 June 2007, [Buyer] submitted a "Letter of Re-objection concerning the Tribunal's approval of [Seller]'s submission of counterclaim", requesting that the Tribunal not permit the counterclaim by [Seller].

The Arbitral Tribunal held the third oral hearing in Beijing on 13 June 2007. Both parties participated in the hearing. The Tribunal heard the claim of the [Buyer] and the counterclaim of the [Seller]. Both of parties made oral presentations and rebuttals on the procedural and substantive issues of the case, examined the evidence submitted, answered questions of the Tribunal, and made final statements. After the hearing, the parties also submitted supplementary evidence and written opinions, and provided written opinions on the evidence examination concerning the supplementary evidence submitted by the parties.

This case has finished all of its proceedings. The Arbitral Tribunal, after discussing jointly, based upon the written documents provided and the facts identified in the oral hearings, handed down its arbitration award.

II. FACTS AND ISSUES

A. Statement by Claimant [Buyer]

[Buyer] submits that:

On 18 September 2003, [Buyer] signed Sales Agreement Contract "No. SA747-500" (hereinafter: "MCL868 contract" or "contract in this case") with [Seller] to purchase ten sets of MCL868CD-R production systems and five sets of MCL868DVD-R production systems, letters of credit payment, CIF Shantou Harbor or Airport. According to the sales contract, the goods consisted of ten sets of MCL868CD-R production systems, 7,470,000.00 in total; and five sets of MCL868DVD-R production systems, 4,135,000.00 in total. The delivery of the goods was to be in three installments.

   -    The first installment was to be six MCL868CD-R systems and three thermostats, the price is 4,482,000.00 in total;
 
   -    The second installment was to be four MCL868CD-R systems and three thermostats, 2,988,000.00 in total;
 
   -    The last installment was to be five MCL868DVD-R systems and five thermostats, 4,135,000.00 in total.

After signing the contract, [Buyer] issued a letter of credit in February 2004, paying 6,509,250.00 to [Seller]. In March 2004, [Seller] provided six sets of MCL868CD-R systems to [Buyer], 4,482,000.00 in total, and issued to [Buyer] a commercial invoice for 4,482,000.00.

[Buyer] alleges that the amount it paid to [Seller] in letters of credit is 6,509,250.00, 4,482,000.00 of which was payment for the six sets of MCL868CD-R production systems, and 328,048.00 of which was paid as a device payment to FFF Technology Ltd, thus the residual amount is 1,699,202.00. [Buyer] seeks to have [Seller] return this residual amount, alleging that it is beyond the payment [Seller] is entitled to receive for goods provided.

Based upon the facts and reasons aforementioned, [Buyer] requests the Tribunal to rule that:

1. [Seller] should return the excess payment that [Buyer] has made, which is 1,699,202.00

2. [Seller] should pay interest on the excess part of the payment (the amount of which is to be decided later).

3. [Seller] should pay for the arbitration costs, attorneys' fee of [Buyer] and other expenses [Buyer] spent on this case.

B. Respondent [Seller]'s defense

[Seller] states in its Statement of Defense that:

1. [Seller] has never signed the MCL868 contract on 18 September 2003, which was submitted by [Buyer]. What the parties signed on that day was a "sales agreement contract for ten sets of MCL6 production systems of Type CD-R" (hereinafter: the "MCL6 contract"). This is different from and separate from an MCL868 contract. On 19 January 2004, in order to modify the MCL6 contract, the parties signed an additional letter. On the same day, the parties also signed "Supplementary agreement 1" on the MCL6 contract. "Supplementary agreement 1" clearly expresses that it is a supplement to the MCL6 contract, the content of which has to do with purchasing five sets of DVD-R production systems. It is impossible that the contents that the parties came to an agreement on 19 January 2004, can be written in an MCL868 contract signed on 18 September 2003.

As a matter of fact, the parties have never signed the MCL868 contract submitted by [Buyer]. Instead of the MCL868 contract, the dispute arose from the MCL6 contract, which was submitted by [Seller]. The English version of the MCL868 contract submitted by [Buyer] concerning the technical specifications of MCL868DVD-R expressly writes "Technical Specifications, SA747-501, Annex 2", which implies that this annex is prepared for Contract "No. SA747-501" contract rather than having been prepared for Contract "No. SA747-500" -- the MCL868 contract submitted by [Buyer]. Besides, "MCL6" appears several times in the MCL868 contract submitted by [Buyer], which can prove that the MCL868 contract was modified from the MCL6 contract. In addition, the Chinese version and English version of the MCL868 contract submitted by [Buyer] are different, and the contents are inconsistent with the later contract performances. All of this shows that the MCL868 contract is roughly made. It has never been signed by the parties, nor is it binding on the parties.

2. The MCL868 contract submitted by [Buyer] does not mention the letter of credit in amount of 6,509,250.00 issued by [Buyer]. Thereby, there is nothing in the MCL868 contract on which the letter of credit can rely. The contract performance by the [Buyer] is inconsistent with the contract it submitted, which proves that [Buyer] was not performing the MCL868 contract, as it has never existed. Besides, [Seller] believes that the statement by [Buyer] concerning the commercial invoice priced at 4,482,000.00 issued by [Seller] does not have a factual basis. In addition, there is nothing in the MCL868 contract submitted by [Buyer] that mentions Jinshi Technology Co. Ltd.; there is no for basis saying that [Seller] has paid to Jinshi Technology Co. Ltd. from the evidence [Buyer] submitted. And this also explains that the contract [Buyer] performed is not the MCL868 contract it submitted.

To summarize, instead of a contract signed by the parties on 18 September 2003, the MCL868 contract submitted by [Buyer] is a contract without the consent and signature of [Seller], a contract that was not concluded, a contract that has no binding effect on the [Seller]. An arbitration that relies upon the arbitration clause in a contract that does not exist from the very beginning is an arbitration with no legal basis. Thus, this arbitration should be dismissed by the Tribunal. Besides, [Seller] also believes that the cause of the dispute between the parties is the MCL6 contract, which is not the same contract as the one submitted by [Buyer] for arbitration, signed on 18 September 2003. [Seller] will request another arbitration according to the arbitration clause in this contract.

For the reasons aforementioned, [Seller] requests the Tribunal to dismiss the case, require [Buyer] to pay for the arbitration costs, and recoup the attorneys' fee [Seller] paid on this case.

C. [Buyer]'s Supplementary Opinion and Response to [Seller]'s Supplementary Opinion

After the first oral hearing on 23 August 2006, [Seller] submitted its supplementary opinion, alleging that the MCL868 contract was falsified and requesting CIETAC to entrust the Second Office of the Ministry of Public Security to prepare the handwriting appraisal required by the Tribunal.

[Buyer] submitted material in opposition to the supplementary opinion submitted by [Seller] after the oral hearing, stating that:

1. The MCL868 contract is the only formal document [Buyer] reserved, so in order to settle the dispute, [Buyer] requested CIETAC for arbitration based on this contract.

Due to the claims of [Buyer] and the facts of this case, it is not only impossible but also unnecessary for [Buyer] to falsify the MCL868 contract as [Seller] claims.

2. As to the MCL6 contract submitted by [Seller] to the Tribunal, [Buyer] does not have any reservation, registration or records to show that [Buyer] has signed this MCL6 contract with [Seller], therefore its authenticity cannot be proved.

What is more, the original signatory of the contract, Yang ___, on behalf of the [Buyer], only transferred the MCL868 contract to [Buyer] rather than the MCL6 contract, thus [Buyer] can only request arbitration based upon the MCL868 contract it has.

3. As to the third evidence exhibit, the Supplementary Agreement provided by [Seller], [Buyer] has never signed it.

[Buyer] also notes that, in this agreement, the signatory listed as representing [Buyer] is "Yang Jiaquan". [Buyer] has doubts as to this man's identity and the authenticity of this agreement. [Buyer] alleges that this Supplementary Agreement is neither signed by [Buyer], nor is it authentic, and that it cannot be proof in the present case.

The background of the present case is fairly complicated. The reason why Yang ___ can be the representative of [Buyer] to sign the MCL868 contract at that time, is because the Guangdong DDD Technology Co. Ltd., controlled by the family of Yang ___, was originally the majority shareholder of [Buyer], and the wife of Yang ___ was originally the Legal Representative of [Buyer]. Yang ___ established the company of [Buyer] through an investment that he financed in Guangdong EEE Group Co. Ltd. Later, Yang ___ lost the ability to repay the debts, so he transferred 60% of the equity of Guangdong DDD Technology Co. Ltd. in [Buyer]'s company to Guangdong EEE Group Co. Ltd. The act of transferring the shares was approved by the government, and Guangdong EEE Group Co. Ltd. became the majority shareholder of [Buyer]. As present, there is much litigation between Yang ___ Guangdong DDD Technology Co. Ltd. and [Buyer], so significant conflicts of interest exist between Yang ___ and the [Buyer].

[Buyer] has never known of the existence of the MCL6 contract, [Buyer] believes that the authenticity of that contract can never be proved. Meanwhile, the possibility that Yang ___ signed an "authentic" MCL6 contract with [Seller] so as to damage the interest of [Buyer], cannot be excluded. Thus [Buyer] doubts the authenticity of the MCL6 contract submitted by [Seller].

4. [Buyer] agrees and requests the Arbitral Tribunal to entrust relevant authorities to identify the handwriting of the contract.

D. [Buyer]'s supplement to its Statement of Claim

[Buyer] supplements in its Statement of Claim alleging that:

1. The MCL868 contract is authentic and effective; it was actually performed and is binding on the parties.

      1) The MCL868 contract is authentic. The MCL868 contract submitted by [Buyer] for arbitration is authentic and binding. It has on it the seal of the [Buyer], the signature of Mr. Yang ___ who was at that time authorized by the [Buyer], and the signature of Mr. Dai ___ who was the Asian-Pacific Region General Manager authorized by [Seller]. The arbitration clause in this contract should be the basis of this dispute settlement.

      2) The MCL868 contract has been performed. Evidence Exhibits 2, 3 and 4, which are the letter of credit issued by [Buyer], the goods invoice issued by [Seller] to [Buyer], and the import goods list to Customs, all show that the contract that the parties performed is the MCL868 contract in the present case.

      3) Based upon the above, [Buyer] believes that, unless [Seller] has sufficient evidence to show that the MCL868 contract is fake, falsified and has not been performed, the MCL868 contract should be the basis of settling the dispute in this case.

2. The statement of [Seller] concerning the MCL6 contract is not established

      1) Concerning the MCL6 contract and its Supplementary Agreement. [Seller] has alleged that the contract it signed with [Buyer] is the MCL6 contract, and that the MCL6 contract and the MCL868 contract are two different, separate and independent contracts.

First of all, [Buyer] submits that [Seller] accepts that the MCL868 contract is different from and independent of the MCL6 contract.

Second, [Buyer] believes that the MCL6 contract submitted by [Seller] cannot prove that the MCL868 contract submitted by [Buyer] is falsified. The reasons are as follows:

            a) [Buyer] has never signed the MCL6 contract, and never has been aware of the existence of such a contract. There are no reservations, registrations or records showing that [Buyer] has signed the MCL6 contract with [Seller]. As to the Supplementary Agreement, the signatory representing [Buyer] is "Yang Jiaquan". Who is this man? Does this man really exist? [Buyer] never knew such a man, needless to say, has given authority to this man. [Buyer] does not know where the "Supplementary Agreement" submitted by [Seller] comes from. [Buyer] submits that this Supplementary Agreement is not signed by [Buyer]. It is not authentic, and it has no proving effect.

            b) From the background of the current case, the reason why Yang ___ can be the representative of [Buyer] to sign the MCL868 contract at that time is because the Guangdong DDD Technology Co. Ltd., controlled by the family of Yang ___, was the majority shareholder of [Buyer]. As present, however, there is much litigation between Guangdong DDD Technology Co. Ltd. and [Buyer], so significant conflicts of interest exist between the two. Because [Buyer] has never known of the existence of the MCL6 contract, it cannot be excluded that the MCL6 contract was forged by [Seller] and Yang ___ without [Buyer]'s awareness of such a contract. Thus the authenticity of the MCL6 contract submitted by [Seller] has significant flaws.

      2) [Seller] has alleged that after it signed the MCL6 contract, the parties signed an additional letter on 19 January 2004 upon the request of [Buyer].

            a) However, [Buyer] has never signed the so-called "Additional Letter" with [Seller].

            b) From the content of the "Additional Letter", its Article 3 stipulates again what the MCL868 contract has already clarified, which indicates that the Additional Letter is contradictory with the facts and not authentic.

      3) [Seller] has alleged that the English version and Chinese version of the MCL868 contract submitted by [Buyer] are inconsistent, so this contract was never binding the parties, nor was it signed by the parties. Needless to say, this allegation has no factual basis.

The MCL868 contract was signed by the parties, so it should be binding on the signatories. The so-called "roughly made" English version was provided by [Seller], but if the conclusion, that the MCL868 contract does not exist, can be made only because of [Buyer]'s negligence on proofreading when signed a contract, obviously [Seller] has made a basic logical false understanding.

      4) [Seller] alleges that, since the price in the letter of credit is not mentioned in the MCL868 contract, this contract does not exist. [Buyer] does not think there is a logical relationship between this reason and the conclusion. It is the fact that the price in the letter of credit was higher than the contract price that led to [Buyer]'s request for arbitration.

      5) [Seller] also alleges that nothing in the MCL868 contract submitted by [Buyer] mentions Jinshi Technology Co. Ltd., therefore the contract [Buyer] performed was not MCL868.

This kind of statement cannot be supported. Whether a contract can cover all of the facts during the contract performance is not a requirement for the effectiveness of that contract.

In conclusion, the MCL868 contract submitted by [Buyer] for arbitration is authentic, effective and has been actually performed.

3. Concerning the substantive part of this case

In the oral hearing, [Seller] has acknowledged that it has over received money from [Buyer], and did not object to the amount of money submitted by [Buyer]. [Seller] only rebutted that, upon the request of [Buyer], it expended money it over received from [Buyer], but [Seller] never submitted any relevant evidence to the Arbitral Tribunal.

[Buyer] submits that it is meaningless for [Seller] to focus too much on the procedural issues of this case. In any event, [Seller] should return the money it over received from [Buyer] since there is no legal basis for [Seller] to retain this money. The reason why [Seller] entangled so much on the arbitral proceedings is just because it intends to escape the obligation of returning the money.

E. [Seller]'s Supplementary Statement of Defense and Counterclaim

[Seller] responds to the above allegations of [Buyer] in a "Supplementary Statement of Defense" to the following effect:

1. The procedural part

[Seller] believes that the contract [Buyer] submitted for arbitration is forged.

      1) [Seller] did not sign the MCL868 contract submitted by [Buyer] on 18 September 2003. The signature of the representative of the [Seller] has been falsified. Although this signature is highly similar to the handwriting of [Seller]'s Mr. Dai ___, it does not belong to Mr. Dai ___. No matter what the result of handwriting identification is, this is a fact that cannot be changed.

      2) [Buyer] accepted in the oral hearing that it forged another contract in order to deceive the bank to issue the letter of credit. In this contract, the signature of Mr. Dai ___ was falsified again. It is easy to conclude that [Buyer] is used to falsifying the signature of Mr. Dai ___, [Buyer] has already lost its credibility and good faith. Since [Buyer] showed this forged contract in the oral hearing, [Seller] has the right to ask [Buyer] to submit this contract as it involves the interests of [Seller] and [Seller] should know that contents of this falsified contract.

      3) In the contract [Buyer] submitted for arbitration, not only the signature of which is falsified, but also the forms and contents of which have a number of piecing-together flaws.

      4) The form of the document is odd: any formal document signed between the parties has the red logo and company name of the [Seller]. But the original document of the contract submitted by [Buyer], instead of the red logo, only has a printed black logo and the company name.

      5) Concerning the contents of the contract, [Seller] first requests the Arbitral Tribunal to have a careful look at Evidence Exhibits 4 and 5 in the Statement of Defense submitted by [Seller] on 24 July 2006.

      6) Evidence Exhibit 4 is extracted from the contract submitted by [Buyer] when requesting arbitration. The last sentence of this page refers to: "SA747-501 Annex A1-Tech Spec MCL868D DVD-R QOC Page 1 of 11". How can the annex of Contract "SA747-501" appear in Contract "SA747-500"? The footnotes of Contract "SA747-501" not only appear in Annex A1, but also in Annex A2. These are the flaws of piecing together the contents when falsifying the contract.

      7) [Seller] points out in Evidence Exhibit 5 that when [Buyer] pieced the contents of the contracts together, it left a lot of tracks of the MCL6 CD-R contract mentioned by [Seller] that was signed by the parties on 18 September 2003.

      8) Nothing in the contract submitted by [Buyer] mentions FFF Technology Ltd., but in the Request for Arbitration submitted by [Buyer], it accepted that [Seller] made a 328,048 device payment to FFF Technology Ltd. Such a contradictory, incompatible contract is obviously forged.

2. The substantive part

[Seller] does not owe any money to [Buyer].

      1) Actually there exists but one contract between the parties. No matter which contract, -- it indicates that [Buyer] intended to buy ten sets of MCL6CD-R production devices. After [Buyer] issued its letter of credit to [Seller], it received the first assignment of six devices, [Buyer] did not issue a letter of credit on the other four devices.

      2) [Buyer] paid 6,509,250.00 to [Seller] pursuant to the Additional Letter signed by the parties on 19 January 2004. Deducting the payment for the six devices, the payment of relevant devices requested by [Buyer], and other related costs, the residual amount is 1,006,864.00. This amount of money is the deposit paid by [Buyer] for the second installment of goods. This fact is confirmed by the signature of Mr. Huang ___, the President of the Board of Directors of [Buyer]'s company, and the seal of the company on 13 October 2004.

      3) From 20 to 26 September 2004, pursuant to the request of [Buyer], [Seller] took down the CD production devices from the original installation place and removed them to another place appointed by [Buyer] for installation; the service fee was 19,383.00. After the deduction of that sum, the residual amount would be 987,480.00.

      4) From February to October of 2004, [Seller] requested [Buyer] several times to issue the letter of credit for the next installment so as to keep on performing the contract. However, [Buyer] not only did not issue the letter of credit, but also asked [Seller] to lower the price.

      5) On 26 January 2006, the counsel of [Seller], Baker & McKenzie LL.P, sent a letter to [Buyer] asking for the payment for the devices, storage fees and interest. [Buyer] stated that it would not accept the four devices under the contract, unless [Seller] lowered the price.

      6) [Seller] did not agree with [Buyer]'s unreasonable request to lower the price. In order to reduce the loss, [Seller] sold the four devices refused by [Buyer] to Guangdong GGG Magneto-electric Industrial Co. Ltd. in March 2006 for a price of 1,352,950.00. This was 1,635,050.00 less than the price in the contract. The storage fee from 2004 to June 2006 was 37,000.00.

      7) The residual amount of [Buyer]'s deposit is 987,480, while the loss of [Seller] is 1,672,050.00. [Buyer] therefore owes [Seller] 684,570.00 after offsetting these two amounts. This is the loss that [Seller] should recoup from [Buyer].

      8) [Buyer] refused to issue the letter of credit and purchase the four MCL CD-R devices under the contract, breaching the contract fundamentally and bringing a loss of 684,570.00 to [Seller]. [Seller] does not owe [Buyer] any money; it is [Buyer] that owes [Seller] 684,570.00.

In summary:

   -    Concerning the procedural part, the contract [Buyer] submitted for arbitration is forged;
   -    Concerning the facts of this case, [Seller] does not own any money to [Buyer].

[Seller] submits that the facts that the parties have no objections are as follows:

            a) A contract exists between [Buyer] and [Seller]. According to the contract, [Buyer] has purchased ten MCL6 CD-R devices from [Seller]. The price is 7,470,000.00 in total.

            b) The parties only had their transaction on six of the ten devices, the residual four devices have not been performed.

            c) [Seller] received 6,509,250.00 from [Buyer].

[Seller] submits that this dispute is about the settlement of the residual money after [Seller] discounted the payment of five devices in the 6,509,250.00 received from [Buyer]. However, as the Supplementary Statement of Defense aforementioned states, [Seller] does not owe [Buyer] any money; it is [Buyer] that owes [Seller] over 600,000.00 and interest. Thereby, [Seller] reserves the right of counterclaim.

Based upon the facts and reasons above, [Seller] submits the following counterclaim:

      1) The Tribunal should dismiss the [Buyer]'s arbitration request;

      2) The Tribunal should require the [Buyer] to compensate [Seller] for the economic loss of 1,718,320.00 for breaching the contract, as well as interest from April 2004;

      3) The [Buyer] should be required to pay the arbitration costs, counterclaim fees and related attorneys' fee.

3. Facts and reasons

      1) According to the contract dated 18 September 2003, [Buyer] purchased ten sets of CD-R production systems and five sets of DVD-R production systems. The total price of the sales contract is 11,605,000.00, by adding these two payments together.

      2) After having signed the sales contract, [Buyer] did not issue the letter of credit as the sales contract required. The letter of credit for the first six sets of CD-R production systems was issued on 20 January 2004. The price of these six sets of CD-R production systems was 4,482,000.00, but the amount on the letter of credit was 6,509,250.00. The amount on the letter of credit was 2,027,250.00 more than the actual price. This was done by the [Buyer] itself. [Buyer] added the price pro-actively so as to let [Seller] pay related matching equipment fees and relevant expenses for [Buyer] as [Buyer] required, with the residual amount to be used to pay for the devices in other assignments under the contract. The requirements of [Buyer] were clearly written in the Additional Letter signed by the parties on 19 January 2004.

      3) [Seller] paid all the expenses pursuant to the Additional Letter and [Buyer]'s other requirements, then it paid 328,048.00 to FFF Technology Ltd. After that, the residual amount was 1,006,864.00. This amount was calculated by [Buyer] and confirmed by [Seller]. The Confirming Letter was signed by Mr. Huang ___, the President of the Board of Directors of [Buyer] on 13 October 2004, and sealed by the company. Mr. Dai ___, the representative of [Seller] confirmed it by signing the letter on 18 October 2004. The residual amount, 1,006,864.00, is consistent with the statement in the "Supplementary Agreement for Sales Agreement Contract Ref. No. SA747-500" signed by [Buyer] and [Seller] on 19 January 2004. Besides, the Supplementary Agreement stipulates expressly: "the residual money, 1,006,864.00, is used as the down payment to the seller for the buyer's performance on Sales Contract SA747-500."

      4) [Buyer] errs when it states in its Request for Arbitration, that [Buyer] paid 1,699,202.00 more than [Seller] should receive. Thus, the payment requested by [Buyer] cannot be established naturally.

      5) In 2004, [Buyer] asked [Seller] to relocate the six equipped sets of production lines to its new factory. The technical personnel assigned by [Seller] took down these production lines first, then installed and adjusted them when they arrived at the new factory. [Seller] issued two invoices for this work: one was the 80-8877 invoice for dismantling the production runs, the other was the 80-9105 invoice for installation. The total service fee was 19,383.00. [Buyer] did not pay this service fee; therefore this amount should be deducted from the 1,006,864.00.

      6) After [Buyer] received the six sets of CD-R devices, according to the Supplementary Agreement signed by the parties, the delivery time for the residual four sets of CD-R devices was postponed for half a year; it was postponed from mid-November 2003 to mid-May 2004. [Buyer] did not issue the letter of credit for these devices. Although [Seller] urged again and again, notifying [Buyer] that the four sets of devices had been prepared and requesting [Buyer] to issue the letter of credit. [Buyer], however, refused to perform this obligation under the contract.

      7) On 15 March 2006, [Buyer] sent a letter through its counsel to the counsel of [Seller], proposing two solutions: one was to have [Seller] provide the goods for 300,000.00 per set as the market price stated by [Buyer]; the other was to submit the matter for arbitration. It is not only unreasonable, but also illegal for [Buyer] to ignore the stipulations of their contract, threaten [Seller] by requesting arbitration, and asking [Seller] to lower the price from 747,000.00 per set to 300,000.00 per set. This kind of request certainly could not be agreed to by [Seller].

      8) This act of [Buyer] has shown that [Buyer] has no intention to keep on performing the contract. The [Seller]'s counsel sent a letter to [Buyer]'s counsel on 12 April 2006, pointing out that [Buyer] had not replied to the letter [Seller]'s counsel sent on 26 January 2006 asking for performance of the contract, which indicated that [Buyer] had no intention to perform the contract. In order to reduce the loss, [Seller] had to resell the other four sets of devices under the contract to another customer. The price obtained by reselling the devices to Guangdong GGG Magneto-electric Industrial Co. Ltd. was 1,352,950.00. Later Guangdong GGG Magneto-electric Industrial Co. Ltd. decided not to buy two sets of temperature and humidity adjustment equipment. The price on the letter of credit was in 2,053,300.00 Swiss francs. [Buyer] should undertake the responsibility for the contract loss of [Seller].

      9) According to the contract signed with [Buyer], the price of four sets of CD-R devices including two thermostats is 2,988,000.00. [Buyer] stated in its Request for Arbitration that the price of four sets of CD-R devices and three thermostats was 2,988,000.00. However, in the contract it is four sets of CD-R devices and two thermostats, rather than three thermostats. Thus, this statement is wrong for its inconsistency with the contract. The price obtained from resale should be 1,352,950.00, and the storage fees are 37,000.00. Therefore, the loss of contract price for [Seller] resulting from [Buyer]'s breach of contract and the storage fees should be calculated at 1,672,050.00 in total.

      10) The residual amount of [Buyer]'s down payment is 987,480.00, while the loss of [Seller] is 1,672,050.00. According to Article 75 of CISG, [Seller] has the right to ask [Buyer] to compensate this loss. The sales contract also stipulates that [Buyer] purchased five sets of DVD-R production systems, for a price of 4,135,000.00 in total. Nevertheless, [Buyer] has not performed obligations under the contract.

Pursuant to Article 76 of CISG,

" the party claiming damages may, if he has not made a purchase or resale under article 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under article 74 ..."

      11) [Seller] did not resell the five sets of DVD-R production systems under the sales contract, and at present, it is very difficult to find any evidence to prove the market price for these five sets at the time of [Seller]'s resale of the four sets of CD-R production systems in 2006. However, according to Article 74 of CISG, a [Seller] should be compensated for its loss, including loss of profit. Calculated by costs of [Seller], the contract profit for [Seller], if these five sets of DVD-R devices were sold at contract price, would be 25% of 4,135,000.00, the contract price of the five sets of devices, namely 1,033,750.00. The loss of [Seller] caused by [Buyer]'s breach of contract is 2,705,800.00 in total. Offsetting the down payment of [Buyer], [Buyer] should pay 1,718,320.00 to [Seller] so as to compensate the loss of [Seller] resulting from [Buyer]'s breach of contract.

      12) The down payment for contract performance paid by [Buyer] based upon the Supplementary Agreement, is not enough to offset the loss of [Seller] because of [Buyer]'s breach of contract, thus [Buyer] cannot recover the down payment. Meanwhile, the loss of [Seller] due to [Buyer]'s breach of contract is 2,705,800.00 in total. After offsetting the down payment of [Buyer], [Buyer] still needs to pay 1,718,320.00 to [Seller]. This amount of money is what the counterclaim of [Seller] asks for.

F. [Seller]'s Supplementary Opinion in support of the Counterclaim

After the third hearing, [Seller] submitted its Supplementary Opinion in support of its Counterclaim, alleging that:

1. [Seller] paid for the ancillary equipment and related fees

      1) The oral hearing held on 13 June has established that [Buyer] entrusted [Seller] to pay for the ancillary equipment and other related fees. [Buyer]'s position at this time is, if [Seller] paid the money aforementioned, the residual amount can be confirmed as 1,006,864.

      2) [Seller] did pay the ancillary equipment and related fees according to the agreement in the Additional Letter signed by the parties. There were four suppliers for the ancillary equipments: HHH; III Company; JJJ and FFF. The total price for the equipment including the 67 discount fee of the bank was 962,598. The residual amount was 1,064,652. Later, in order to pay the money for [Buyer], [Seller] had to re-issue an invoice, resulting in the discount fee of the bank, 35,139, extra freight 6,465, and 16,185 under the 85-1377 invoice (six second receivers). The residual amount was thus reduced to 1,006,864. There is an express reference to the above amount of money in the bill dated 31 May 2004. [Seller] faxed this bill to [Buyer] at that time, [Buyer] did not make any objection. The bill, discount fees, extra freight, and proof of providing six second receivers are all in Annex 1.

      3) The notice for payment issued by the bank also shows that FFF has received the money. [Seller] paid the other three suppliers by the same method, so they would also receive the payment. After [Seller] paid the money, Dr. Schenk Company sent a letter confirming that it had received the money. That [Seller] had paid the money for this ancillary equipment for the [Buyer] is an unarguable fact, as these ancillary devices are to be used with the CD-R production lines provided by [Seller]. Without this ancillary equipment, the CD-R production lines would not be completed and cannot work normally. The CD-R production systems have been used for several years. If the matching equipment had not been paid for, would the suppliers have provided this equipment? If the suppliers had provided the goods without receiving money, could not they ask for the money? If [Buyer] cannot begin the production, can't they take any actions? There is no evidence showing that [Seller] has not paid the money.

      4) This residual amount, namely 1,006,864, is the down payment for purchasing devices and performing the "SA 747 500" sales contract by [Buyer], rather than "occupied account". This has been explicated in the "Supplementary Agreement for Ref. No. SA 747 500 Sales Contract" signed by the parties. The letter signed by Mr. Huang ___, the President of [Buyer]'s Board of Directors on 13 October 2004, confirmed this amount again. The original copy of this confirming letter was shown in the oral hearing, and the printed copy has been submitted in Annex 2 of the Statement of Defense and Counterclaim Request.

2. Concerning the service fee for removing the devices

      1) At the hearing on 13 June, [Buyer] accepted that the removal of the devices had already been finished, but [Buyer] submitted that the service of removing the devices was free.

      2) After the new factory of [Buyer] was established, [Buyer] needed to remove the installed CD-R production systems from the original factory to the new factory. Because of this, [Buyer] called [Seller] to inquire as to the price for removing the devices. [Seller] faxed the price list to [Buyer] on 22 September 2004. Mr. Huang ___ signed the list on behalf of the [Buyer] and faxed the list to the [Seller] with his signature on it.

      3) The price of the work fixed by [Seller] was 100 Swiss francs / hour, and the price on the journey was 60 Swiss francs / hour. The service price fixed by [Seller] to [Buyer] is the same with the other companies' service price (see in the Attachment 5), which is 100 Swiss francs / hour for work, 60 Swiss francs / hour for journey.

      4) The service of removing the devices provided by [Seller] began on 23 September 2004, and was completed on 24 September 2004; the service was handled by Mr. A. Mo., Mr. Br. L. and Mr. V.W. of [Seller] jointly. They worked together; the total work hours for each person was 6.5 hours, the time for journey was 14 hours each person for a round trip. The service reports were signed by Wang __ (whose English name is J. Wang) of the [Buyer] for affirmation.

      5) The re-installation of the production line was begun on 14 November 2004, and finished on 24 November 2004. The service was completed by Mr. V.W. (57.5 work hours, 14 trip hours), Mr. H.Y. (16 work hours, 14 trip hours), Mr. Br. L. (73.5 work hours, 14 trip hours), and Mr. H.W. (51 work hours, 13 trip hours) jointly. The total work hours are 198 hours, total trip hours are 55 hours. Their service reports record their work time and contents. Also, these service reports were confirmed by Mr. J. Wang of [Buyer] with his signature, and the work time and contents recorded in these reports are consistent with the two invoices issued by [Seller].

      6) The service of removing the devices is compensable, which has been written expressly in the price list. Since [Buyer] did not issue the letter of credit for the second installment of the four CD-R devices, [Buyer] cannot invoke that the service is free, it has no reasons not to pay the service fees.

3. Concerning the compensation on [Buyer]'s refusal of the four CD-R devices

      1) According to the contract, [Buyer] should have accepted the goods and issued the letter of credit in May 2004, but until March 2006, [Buyer] was still asking [Seller] to change the price of the contract. [Buyer] sought to force [Seller] to change the contract price and reduce the price of the CD-R devices from 747,000 to 30,000 per set, or it would request arbitration. It is apparent that [Buyer] intended to refuse the performance of contract, ignore the agreement and breach the contract.

      2) As is fixed in the contract, [Buyer] purchased ten sets of CD-R production system devices, but [Buyer] only received six sets. The reason for not receiving the remaining four sets of devices is because the market price of that kind of production system devices became lower. The change of market price is an ordinary business risk for both the buyer and the seller. It will not be profitable for the buyer if the market price became lower; in contrast, if the market price became higher, the seller will have a loss. The change of market price cannot be the reason for refusing the performance of the contract.

      3) The four sets of CD-R production system devices resold by [Seller] were made for [Buyer]. Although the CD-R production devices under the contract are not specific products that merely belong to [Buyer], they were still produced according to the goods order of [Buyer] in the contract. Since the products under the contract advance and generate very fast, and need a large amount of capital, it is impossible for [Seller] to produce these products in batches without an order for goods.

      4) Concerning the issue as to whether the resold CD-R MCL6 devices are CD-R MCL868 devices, actually this issue arises simply because the logos are different. The issue on logos of MCL868 and MCL6 has already been explained in the Additional Letter signed by the parties. Although the six sets of CD-R devices that were delivered have glued logos MCL868, they are entirely the same as the resold four sets of CD-R devices, MCL6, resulting from [Buyer]'s refusal of accepting the goods. Before [Seller] resold the four sets of CD-R devices to Guangdong GGG in 2006, it took pictures of these devices, in which manifested the logos of 868. But when [Seller] delivered them, it changed these logos into the logos of MCL6. The newspaper in the picture reflects that the pictures were taken in January 2006.

      5) Although the six sets of CD-R devices that were delivered had the logos of MCL868, [Seller] still called them MCL6, since they were originally designed as MCL6. In the "Service Activity Report" submitted by [Seller] as Annex 6, the "Machine Type" is still MCL6.

      6) The payment under the resale contract was 2,120,000 Swiss francs, namely, 1,352,950, so that the price for each set was 338,000. This was the market price at that time. If [Seller] still had not resold them, because of the market change, it would not even have obtained the price at this level. This resale price was therefore reasonable.

      7) If compared with the market price, which is 300,000 per set, stated in the letter provided by the counsel of [Buyer] on 15 March 2006, the price difference is much more than the price difference of reselling the products. This can prove that the resale of the goods was reasonable and reduced the contract loss.

      8) The price provided by [Buyer] for each CD-R device, which is 300,000, can be a reference of the market price. No matter whether one calculates the price difference according to the resale price, or pursuant to the market price, [Seller] had a loss, thus it has the right to obtain compensation because of [Buyer]'s breach of contract.

4. Concerning the storage fees

      1) According to the contract, the second assignment of four CD-R production devices was to be delivered by sea in mid-November 2003. The Supplementary Agreement signed by the parties on 19 January 2004 postponed the delivery time by half a year. As a result, the time for delivery should have been mid-May 2004. The letter of credit should have been issued fifteen days before the delivery. However, [Buyer] did not issue the letter of credit, and there was no choice but to store the four sets of CD-R production devices that had been prepared in a warehouse.

      2) Since [Buyer]'s breach of contract caused the four sets of CD-R production devices to be stored in a warehouse rather than handed over for delivery, it is reasonable and justified to ask [Buyer] to pay the storage fees.

      3) The report from Price Waterhouse Coopers proves that 500 Swiss francs is a reasonable amount of storage fees to pay for each CD-R production device each month. Price Waterhouse Coopers issued documents on the storage fees from other companies as a reference. These documents, which reflect the current market price, indicate that it is reasonable that the storage fees for each month was 500 Swiss francs.

      4) Pursuant to the examination report from Price Waterhouse Coopers, the storage fees are 58,000 Swiss francs in total, which is 37,000.

5. Concerning the compensation for the profit that would have been obtained on the sale the five sets of DVD-R devices to the [Buyer]

      1) In the sales contract signed by the parties, the delivery time for the five sets of DVD-R production devices purchased by [Buyer] was early January 2004. Later in the Supplementary Agreement, the parties postponed the delivery time to early July 2004, which was half a year later. The letter of credit should have been issued fifteen days before the delivery.

      2) However, [Buyer] has never issued the letter of credit, so that [Seller] could not continue performing the contract. [Buyer]'s refusal to issue the letter of credit manifests that it will not perform its obligations under the contract, which has already constituted a fundamental breach of the contract.

      3) [Buyer] should be responsible for the loss of [Seller] because of its breach of contract.

      4) [Seller] asks [Buyer] to compensate the profit it would have obtained if the contract had been performed. Pursuant to Article 74 and Article 76 of CISG, the amount [Buyer] should compensate could be the difference between the price fixed by the contract and the current price at the time of avoidance.

      5) [Seller] provides a contract as the reference for the current market price at the time of avoidance. This contract was signed by Guangdong GGG Magneto-electric Industrial Co. Ltd., purchasing sixteen sets of DVD-R devices from the DCD-R maker, Hong Kong Hongwei Precise Technology Co. Ltd. These devices are the same as the DVD-R devices of the [Seller], the only difference is that the speed of these devices is higher, so the price is higher. The total contract price is US $9,600,000, nearly 7,136,000.

      6) From this contract, it can be seen that the price of the DVD-R devices sold on 30 November 2006 at a higher level is US $600,000 per set, which is 446,000. But the contract price fixed by [Buyer] and [Seller] was 827,000 per set, the difference for each set is 381,000, the total price difference for the five sets of devices is 1,905,000.

      7) According to Article 74 of CISG, [Seller] can obtain the profit from the performance of the contract. The cost accounting from [Seller] reflects that the cost of production for the five sets of DVD-R devices is 4,185,082 Swiss francs. The contract price was 6,409,250 Swiss francs (4,135,000). The profit [Seller] would have acquired from the performance of the contract is 2,224,168 Swiss francs, namely, 1,434,947 (which is 35% of the contract price). This amount is much higher than the amount estimated in the Request for Counterclaim of [Seller], which is 1,033,750, 25% of the contract price. If compared with the difference between contract price and market price- 1,905,000, 25% of the contract price (1,033,750) is much less than this difference. [Seller] can accept 25% of the contract price as the profit it should have obtained, which shows [Seller]'s full sincerity.

6. Concerning the avoidance of the contract

      1) It is unarguable that the sales contract signed between the parties has been avoided. The letter sent by the counsel of [Buyer] to the counsel of [Seller] on 15 March 2006 clearly states that [Buyer] will no longer accept any goods under the contract unless the price fixed in the contract is changed, otherwise, it will submit for arbitration. This act explicates that [Buyer] has already declared the termination of the contract.

      2) [Buyer] ignored the contract and refused to perform the contract. All of these acts manifest that [Buyer] had no intention to be bound by the contract. The contract has already had no effect on it.

      3) Counsel for [Seller] replied to the letter from counsel of [Buyer] on 12 April 2006, stating::

"We are writing in order to reserve written documents publicly. Since your client ("[Buyer]") did not respond our letter dated of 26 January 2006 before 10 February 2006, our client ("[Seller]") has no choice but to believe that your client has no intention to continue performing the contract. Our client has already taken some actions to reduce the loss, and asks your client to undertake responsibility for any loss of our client caused by its breach of contract."

This letter also reflects that [Seller] has already made the judgment that [Buyer] will no longer perform the contract. The contract has been avoided. [Seller] therefore made the decision to take certain actions to reduce the loss.

      4) To conclude, both parties show that the contract cannot be performed; it is a fact that the contract has been avoided.

Article 72 of CISG also stipulates that:

"If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided."

Before [Seller] delivered the goods, [Buyer] had not issued the letter of credit. Besides, it asked [Seller] to change the contract price continually, or it would not only refuse to perform the contract, but also submit this case for arbitration. These acts certainly constitute a fundamental breach of the contract. The fact that [Seller] declared the avoidance of the contract is compatible with the CISG.

      5) At the beginning of the hearing, [Buyer] submitted that the contract has never been avoided and that there is the possibility to keep on performing the contract. However, the facts are not as the [Buyer] described them. After confirming with the counsel of [Buyer], it is known that [Buyer]'s concept of "keeping on performing the contract" means to change the contract price and purchase the machines at the current market price. As is known to all, this concept is not to continue performing the contract, since the concept of continuing performing the contract is to perform the contract in accordance with the original requirements fixed in the contract. Since the market price is becoming lower, [Buyer] has never intended to perform the contract according to the original requirements of the contract. The fundamental reason for this dispute and the avoidance of the present contract is because of [Buyer]'s breach of contract.

7. Concerning the limit of liability clause

      1) Article 17 of the contract contains a limit of liability clause.

      2) People who are familiar with this kind of clause all know that the main objective of such a clause is to limit the liability of the seller, to stipulate clearly the scope of the liabilities of the seller to the buyer and under what conditions the seller is not liable to the buyer. But [Buyer] quoted it to limit the liability of the buyer, namely [Buyer] itself. It quoted that:"The total liability of the Buyer for damages shall not exceed 10% of the contract price of the supplies or services giving rise to the claim."

Unfortunately, the word "Buyer" used in this sentence is a writing error. Here, it should be the total liability of the "Seller" that can be in accordance with the text of the contract, as well as the facts. That is because this clause is about the total liability of the Seller for damages, rather than the Buyer, shall not exceed 10% of the contract price of the supplies or services giving raise to the claim. In this contract, it is obvious that the buyer does not provide goods or services. Thereby, it is totally irrelevant to invoke the issue of the buyer's compensation resulting from its performance of providing goods and services. It is actually a writing error to take the Buyer as the Seller.

      3) The compensation responsibility of [Buyer] is caused by its refusals to perform the contract, to issue the letter of credit and to accept the goods under the contract. This responsibility is entirely irrelevant with the liability caused by its products or services. The writing error makes the limitation of liability clause contradictory, hard to understand and unenforceable; thus this clause cannot come into force. [Seller] believes that the Arbitral Tribunal will find the true meaning of this clause and make a correct interpretation and judgment.

After [Buyer] performed the contract partly, since the market price changed, [Buyer] would not undertake this ordinary business risk. It insisted on asking [Seller] to modify the contract and reduce the price. Without the acceptance of [Seller], [Buyer] refused to issue the letter of credit and accept the goods, which has already constituted a fundamental breach of the contract. It is manifest that because of [Buyer]'s breach of contract, [Seller] suffered a large loss. Where the market price is becoming lower, if the contract has been performed, [Seller] was entitled to obtain the profits resulting from the contract. [Buyer] should undertake the responsibility of compensating [Seller] for its loss resulting from [Buyer]'s breach of contract. As to the deposit paid by [Buyer] according to the contract, [Seller] can retain and use this money to recover the loss it suffered, based upon Article 98, General Principles of Civil Law of PRC.

[Seller] requests the honorable Tribunal, based upon the facts and law, to dismiss the request of [Buyer], support the counterclaim of [Seller], protect the duration and seriousness of contract, preserve [Seller]'s legal rights, and make a fair and equitable decision.

G. [Buyer]'s Objections to Counterclaim

[Buyer] made the following objections to [Seller]'s counterclaim:

[Buyer] submits that since [Seller] impeded the arbitral proceedings maliciously, the Arbitral Tribunal should not accept its counterclaim. In response to the counterclaims submitted by [Seller], [Buyer] made the following Statement of Defense and rebuttal to the counterclaim.

1. [Seller] is responsible for delaying the arbitral proceedings in this case.

[Seller] has no right to file a counterclaim.

2. Reasons for the dismissal of [Seller]'s counterclaim.

      1) The contract loss, 1,635,050.00, claimed by [Seller] actually does not exist; there is no legal basis for [Buyer] to assume this responsibility.

            a) The products sold by [Seller] to Guangdong GGG Magneto-electric Industrial Co. Ltd.(hereinafter as Guangdong GGG Ltd.), are not the products involved in the contract with the [Buyer]. The production systems purchased by [Buyer] from [Seller] are general-use products, rather than specific products. Thus, even though [Seller] sold similar products to Guangdong GGG Ltd., it cannot be proved that the products sold to Guangdong GGG Ltd. are the four sets of MCL868 production systems purchased by [Buyer].

            b) The machine type number in the contract of the present case is MCL868, [Seller] also delivered the products to [Buyer] according to the MCL868 contract. However, the type number of the products sold by [Seller] to Guangdong GGG Ltd. is MCL6, which is not the same product purchased by [Buyer]. [Buyer] has no evidence to prove that the products sold to Guangdong GGG Ltd. are the specific products purchased by [Buyer]. The burden of proof is what [Seller] should undertake.

            c) After the hearing, [Buyer] appointed its personnel to go to Guangdong GGG Ltd. to examine the MCL6 machines provided by [Seller], finding that one of the core components of the machine, the sputtering machine, was from [Seller]'s Brand, but the sputtering machine provided by [Seller] to [Buyer] is from Brand UNAXIS, which can prove that the machines purchased by Guangdong GGG Ltd. are not the machines produced for [Buyer] by [Seller].

            d) [Seller] should not have disposed of the relevant products before it declared avoidance of the contract. Even if [Seller] resold the products purchased by [Buyer], it should not be entitled to compensation. According to Article 75 of CISG:

"If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74."

However, in the present case, [Buyer] has never avoided or terminated the contract, neither has [Seller]. As for the [Buyer], since the price of MCL868 in the international market has been changed significantly, which has been reduced from 747,000 per set when the contract was signed to almost 300,000 per set, [Buyer] had to negotiate with [Seller] on the price, expecting to reduce the price. Nevertheless, [Buyer] never declared the termination of the performance of the contract. Meanwhile, the letter sent by [Seller] on 12 April 2006, only notified [Buyer] that [Seller] had sold the four sets of devices to Guangdong GGG Ltd., but did not declare the contract avoided. Where neither of the parties has avoided to contract, [Seller] has no right to resell the products to others, or to ask for compensation from [Buyer] according to Articles 74 and 76 of CISG.

            e) It is [Seller]'s subjective inference to draw the conclusion that since [Buyer] did not reply the letter sent by [Seller] on 26 January 2006, [Buyer] had no intention to perform the contract. [Buyer] cannot accept any obligations forced by [Seller] unilaterally. The fact that in the negotiation, [Buyer] did not reply to the letter -- which was an obligation imposed by [Seller] unilaterally -- does not mean [Buyer] had no intention to perform the contract. Even in the present arbitration, [Buyer] does not request the termination of the contract. The true intention of the [Buyer] is to recoup the money it over paid, and to keep on performing the contract under the condition of negotiating the price with [Seller]. Therefore, it is wrong for [Seller] to believe that [Buyer] has no intention to perform the contract, as well as to resell the products. Pursuant to Paragraphs (1) and (2) of Article 63 of CISG., it is incompatible with CISG for [Seller], to unilaterally allege that [Buyer] has no intention to perform the contract and to pursue the remedy of reselling the products, unless [Buyer] explicated not to perform the contract expressly. Thus [Seller] should itself undertake any loss it caused.

      2) There is no basis for [Seller] to ask for 37,000 storage fees and 19,383 installation fees, since [Seller] did not show any calculation methods to compute the storage loss, nor did [Seller] provide any evidence to prove it has expended this amount of storage fees. Besides, there is no factual basis for [Seller] to ask for the installation fees from [Buyer]: the invoice issued by [Seller] itself cannot prove it has provided service to [Buyer] or that [Buyer] owes service fees to [Seller]. [Buyer] has never had an agreement on the installation fees with [Seller]. Any requests for installation fees are beyond the scope of this arbitration as they were not agreed in the arbitration clause.

      3) There is no basis for the foreseeable profit, 1,033,750 asked by [Seller].

            a) In the current case, the contract has not been avoided, nor terminated. Also, in this arbitration, neither of the parties has requested the cancellation of the contract. Thus, there is no legal basis for the foreseeable profit asked by [Seller].

            b) There is no factual basis for the foreseeable profit asked by [Seller]. [Seller] has not produced the third installment of the five sets of DVD-R production systems, so it has no actual loss. The foreseeable profit submitted by [Seller], is merely the estimation by itself with insufficient evidence to prove it, and cannot be supported by the Tribunal.

      4) Buyer's limit of liability is agreed in the contract. The buyer and the seller have particularly stipulated the responsibility of compensation, Article 17 "Limit of Liability" in "General Sales Conditions" of the attachment of the MCL868 contract stipulates that, "the total liability of the Buyer for damages shall not exceed 10% of the contract price of the supplies or services giving raise to the claim." Therefore, in the present case, even if [Buyer] were expected to undertake the responsibility of compensation, the amount is not what [Seller] requests. The amount submitted in [Seller]'s counterclaim cannot be established.

In conclusion, [Buyer] believes, without there having been an avoidance or termination of the contract in this case, the compensation requested by [Seller] does not have factual or legal basis, and cannot be established. The Tribunal should dismiss this request. While the return of money asked by [Buyer], has sufficient proof, and [Seller] has accepted the fact that it over received money it should have received from [Buyer]. Thus this request by the [Buyer] should be supported by the Tribunal.

III. OPINION OF THE ARBITRAL TRIBUNAL

A. [Buyer]'s Arbitration Request

1. Applicable law

According to Article 1, United Nations Convention on Contracts for the International Sale of Goods (hereinafter: "CISG"), this Convention applies to the contracts for the sale of goods in which parties have their places of business in different States. The place of business of [Buyer] is in China and the place of business of [Seller] is in Switzerland; both of these countries are parties to the CISG. Besides, both [Buyer] and [Seller] confirmed in the oral hearing that they regard CISG as the applicable law of the present case. Thus, the Tribunal takes the CISG as the applicable law in this dispute.

2. The residual amount of over paid money

Concerning the over paid money that [Buyer] seeks to have [Seller] return to the [Buyer], after the Tribunal's investigation and examination, the amount is 1,006,864.00. [Seller] should return this amount of money to [Buyer], the reasons are as follows:

      1) In the "Statement of Defense and Request for Counterclaim" submitted by [Seller] on 30 May 2007, [Seller] stated expressly that it would not insist on the objection to jurisdiction, and has provided its Statement of Defense and Request for Counterclaim according to the "Sales Agreement Contract Ref. No. SA747- 500", namely the "Sales Contract MCL868CD-R/MCL868DVD-R" (hereinafter: the "contract in this case"), submitted by [Buyer] for arbitration. The Tribunal confirms the residual money based upon that contract.

      2) According to the written evidence submitted by the parties and through the oral hearing, the Tribunal records that neither party has any objections to the following facts:

            a) Pursuant to the contract, [Buyer] purchased ten sets of MCL868CD-R production system devices (hereinafter: "CD-R devices"), five sets of MCL868DVD-R production system devices (hereinafter: "DVD-R devices"). The ten sets of CD-R devices are priced at 7,470,000.00 in total, and the five sets of DVD-R devices are priced at 4,135,000.00 in total.

            b) In February 2004, [Buyer] issued to [Seller] a letter of credit for 6,509,250.00. [Seller] provided six sets of CD-R devices to [Buyer] in March 2004, which were priced at 4,482,000.00 in total.

            c) The money in the letter of credit was 2,027,250.00 more than the actual payment for these goods.

            d) [Seller] was entrusted by [Buyer] and paid 328,048.00 as devices money to FFF Technology Ltd.. The residual money was thus reduced to 1,699,202.00.

      3) Concerning whether [Seller] had also paid for the ancillary devices for [Buyer]. [Seller] submits it has paid for the ancillary devices and other relevant fees according to the Additional Letter signed by the parties, while [Buyer] objects to this fact. The parties have obvious differences on this issue. However, the Arbitral Tribunal notes that, in Page 2, the second paragraph of the confirming letter in Annex 2 of the "Statement of Defense and Request for Counterclaim" provided by [Seller], it explicates that, the residual money was reduced to 1,006,864.00. The Confirming Letter was signed by Mr. Huang ___, the President of the [Buyer]'s Board of Directors on 13 October 2004, and sealed by the company. Then it was confirmed by the signature of Mr. Dai ___, [Seller]'s General Manager, Asian-Pacific Region on 18 October 2004. The residual amount, of 1,006,864.00 is also consistent with the statement in the "Supplementary Agreement for Sales Agreement Contract Ref. No. SA747-500" signed by [Buyer] and [Seller] on 19 January 2004. Therefore, the Tribunal determines that the residual money over paid by [Buyer] is 1,006,864.00, [Seller] should return the residual 1,006,864.00 to [Buyer].

      4) Concerning the service fee for removing the devices. [Seller] submits that from 20 September to 26 September 2004, at the request of [Buyer], [Seller] took down the CD-R devices from the original installation place and removed them to another business place appointed by [Buyer], the service fee was 19,383.00. [Buyer] did not pay this money according to the invoice. The [Seller] submits that this service fee should be discounted from the residual 1,006,864.00.

The Tribunal rules that, each party has the burden of proving the facts it relies upon to support its claims, [Seller] is therefore obligated to provide evidence to show the rationale of asking [Buyer] to pay the service fees. Since [Seller] did not provide persuasive evidence to the Tribunal, the Tribunal does not support the request from [Seller] in its Statement of Defense that the service fee for removing the devices should be discounted from the residual money.

3. The interest on the over paid money

After joint discussion, the Tribunal believes, first of all, [Buyer] voluntarily over paid 1,006,864.00; second, the fact that [Buyer] did not issue the letter of credit for the second installment, is the main reason why [Seller] did not return the over paid money. Thus, the Tribunal does not uphold the request by the [Buyer] that [Seller] should pay interest on the over paid money during the time it possessed the money.

4. The attorneys' fee requested by [Buyer]

The Arbitral Tribunal believes [Buyer] itself should undertake the attorneys' fee expensed on this case.

5. The arbitration cost requested by [Buyer]

The arbitration cost on [Buyer]'s request for this arbitration is RMB 289,920.00. Since [Buyer]'s request has been mostly supported by the Tribunal, the Tribunal determines that 80% of the arbitration cost of the present case should be undertaken by [Seller], which is RMB 230,936.00, while 20% of it should be paid by [Buyer], namely RMB 57,984.00.

B. [Seller]'s Counterclaim

1. Whether the Tribunal should accept the counterclaim

After joint discussion, according to Article 13 of CIETAC Arbitration Rules, the Arbitral Tribunal may extend the time period for filing a counterclaim if it believes that there are justified reasons. This Tribunal holds that it is proper to extend the time limits of the counterclaim in this case under the conditions of the current case.

2. [Seller]'s claim for contract price loss

      1) Whether [Buyer] breached the contract. The Arbitral Tribunal holds that, after [Buyer] accepted the six sets of CD-R devices, it did not issue a letter of credit for the residual four sets of CD-R devices in accordance with the contract; and it did not provide justified reasons for this act. Thus, the [Buyer] breached the contract.

      2) Whether the contract was avoided. The Tribunal notes that [Buyer] sent a letter through its counsel to the [Seller]'s counsel on 15 March 2006, proposing two solutions in the second paragraph in the text of the letter:

   -    One was to ask [Seller] to provide the goods at a price of 300,000.00 per set based upon the current market price, rather than according to the price fixed in the contract;
 
   -    The other was to go to arbitration.

Also, in paragraph 3 of the letter, [Buyer] states that if [Seller] does not reply in five days, [Buyer] will have no choice but request arbitration. The Tribunal believes that, the acts of [Buyer] and the wording in the aforementioned letter are sufficient to prove that [Buyer] had no intention to perform the contract in this case at that time. Besides, according to the letter sent by [Seller] through its counsel to the [Buyer]'s counsel on 12 April 2006, [Seller] also pointed out that, since the acts of [Buyer] have already manifested that it has no intention to perform the contract, [Seller] has already taken some actions to reduce the loss, and asked [Buyer] to compensate the loss of [Seller] caused by [Buyer]'s breach of contract.

Therefore, the Tribunal determines that, [Seller] has already avoided the contract in this case through the letter sent on 12 April 2006.

      3) The price difference for reselling the goods. According to Article 75 of CISG, if [Buyer] does not the accept the goods in accordance with the contract, the [Seller] can resell the four sets of CD-R devices and the two thermostats to a third party in a reasonable manner, and ask [Buyer] to compensate for the price difference between the contract price and the resale price; or, pursuant to Article 76 of CISG, if [Seller] has not resold the four sets of CD-R devices, it can ask [Buyer] to compensate the difference between the price fixed by the contract and the current price at the time of avoidance.

During the third oral hearing of this case, both [Buyer] and [Seller] have already accepted that the CD-R devices under this contract are general products. However, concerning whether the four sets of CD-R devices and two thermostats resold by [Seller] to Guangdong GGG Magneto-electric Industrial Co. Ltd.(hereinafter as "Guangdong GGG") are the goods under the present contract, the parties have different opinions. [Buyer] submits that the goods delivered to Guangdong GGG are not the goods under the contract in this case; while [Seller] alleges that the delivered products are goods under this contract.

The Arbitral Tribunal holds that, even if the four sets of CD-R devices sold by [Seller] to Guangdong GGG are not the specific goods under the contract in this case, [Seller] can still recover the difference between the price fixed by the contract and the current price at the time of avoidance in accordance with Article 76 of CISG. The price of the four sets of CD-R devices sold by [Seller] to Guangdong GGG can be a reasonable reference of the current price at the time of avoidance. Thereby, no matter whether the four sets of CD-R devices sold by [Seller] to Guangdong GGG are the specific goods fixed by the current contract, [Seller] does have the right to ask [Buyer] to recover the difference between the price fixed by the contract and the resale price.

According to the written documents submitted by the parties and the notes of the hearings, the price of the four sets of CD-R devices, including two thermostats, sold by [Seller] to Guangdong GGG, is 2,120,000 Swiss francs, which is 1,352,950.00. But according to the price fixed in the contract, the price of the four sets of CD-R devices containing two thermostats is 2,988,000.00. Thus, the loss of price difference [Seller] can ask for is 1,635,050. [Buyer] should compensate [Seller] this loss.

3. The storage fees submitted by [Seller]

After the Tribunal discussed jointly, pursuant to the contract of this case and its supplementary agreement, the delivery date of the second installment of the four sets of CD-R devices was set at mid-May 2004, and the letter of credit was to be be issued fifteen days before the goods are handed over for delivery. However, since [Buyer] did not issue the letter of credit, which meant that the four sets of CD-R devices could not be delivered, it was suitable for [Seller] to preserve the goods in a storehouse. According to the accounting report from Price Waterhouse Coopers provided by [Seller], it proves that it is justified that the storage fee for each set of CD-R device each month was 500 Swiss francs. The total storage fees are 58,000 Swiss francs, which are 37,000. Pursuant to Article 87 of CISG, the storage fees of 37,000, should be paid by [Buyer].

4. The compensation of lost profit on the five sets of DVD-R devices

[Buyer] purchased five sets of DVD-R devices, which are 4,135,000.00 in total. But because of [Buyer]'s breach of contract, these five devices were not delivered. Later, [Seller] did not resell these five sets of DVD-R devices.

According to Article 76 of CISG, [Seller] can recover the difference between the price fixed by the present contract and the current price at the time of avoidance. However, [Seller] did not provide evidence to show the market price of the five sets of DVD-R devices at the time when the contract was avoided on 12 April 2006.

According to Article 74 of CISG, [Seller] can also obtain the loss of profit of the present contract. [Seller] submits that, calculated by the costs of [Seller], if these five sets of DVD-R devices were sold at the contract price, the contract profit would be 25% of 4,135,000.00, the total contract price of the five sets of devices, namely 1,033,750.00. However, after listening to the opinions of the parties sufficiently, and examining the evidence provided by the parties, the Tribunal holds that the 25% profit rate submitted by [Seller] is too high, and should be adjusted. The Arbitral Tribunal believes that it is reasonable to calculate the profit in rate of 6% of the total contract price, 4,135,000.00. That is to say, if [Seller] sold the five sets of DVD-R devices at the contract price, the profit it expected to obtain is 248,100.00. [Buyer] should compensate [Seller] the loss of profit in this amount.

5. Interest on the [Seller]'s loss

[Seller] submits that the interest on its loss should begin to be calculated from April, 2006. However, the Tribunal holds that, since this case is fairly complicated, it is inappropriate to start the calculation of the interest before clarifying the responsibilities of the parties. Thus, the Tribunal does not support this request of [Seller].

6. The limit of liability clause

Pursuant to the evidence provided by the parties and the opinions they submitted during the hearings, the Arbitral Tribunal believes that, the word "Buyer" in the Article 17"Limit of Liability Clause", which states that the "the total liability of the Buyer for damages shall not exceed 10% of the contract price of the supplies or services giving raise to the claim", in the "General Sale Conditions" of the present contract, is an obvious writing error. According to the text of the contract, it can be indicated that the main purpose of this clause is to limit the liabilities of the seller. Therefore, the limit of liability clause cannot apply to the [Buyer] or the compensation to be paid by the [Buyer]..

7. The attorneys' fee requested by [Seller]

The Arbitral Tribunal holds that, [Seller] itself should undertake the lawyer's payment spent on this case.

8. The arbitration cost requested by [Seller]

Since most of [Seller]'s requests have been supported by the Tribunal, the Tribunal makes the decision that it is appropriate for [Buyer] to undertake 80% of the arbitration cost for counterclaim, which is US $28,721.60, and 20% of the counterclaim cost should be paid by [Seller], namely US $7,180.40.

IV. AWARD

The Arbitral Tribunal hands down the following the award:

1. [Seller] shall return to [Buyer] the over paid money, 1,006,864.00;

2. The losses of [Seller] that were caused by [Buyer]'s breach of contract are:

   -    The price difference loss for four sets of CD-R devices, 1,635,050.00;
 
   -    Storage fees, 37,000.00;
 
   -    The profit loss on five sets of DVD-R devices, 248,100.00.
 
The total loss is 1,920,150.00. [Buyer] shall compensate [Seller] 1,920,150.00;

3. The parties shall bear individual responsibility for the attorneys' fees spent on this case;

4. The arbitration cost for this case is RMB 289,920.00. [Seller] shall undertake 80% of it, which is RMB 231,936.00; [Buyer] shall pay for 20% of it, namely RMB 57,984.00. This payment has already been made by [Buyer] previously, thus [Seller] shall give its arbitration cost, RMB 231,936.00, paid by [Buyer] advanced, to [Buyer] directly. The counterclaim cost of the present case is US $35,902, [Buyer] shall undertake 80% of it, which is US $28,721.60; [Seller] shall pay for 20% of it, namely US $7,180.40. This payment has already made by [Seller] previously, thus [Buyer] shall give its counterclaim cost, US $28,721.6, paid by [Seller] advanced, to [Seller] directly.

5. The other arbitration requests by [Buyer] are dismissed.

6. The other counterclaims by [Seller] are dismissed.

7. The payment of items 1, 2 and 4 should be made within 30 days from the date this award is rendered, the interest on late payment is 5% per year.

This award is the final decision and shall take into effect from the day it is made.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of the People's Republic of China is referred to as [Buyer]; Respondent of Switzerland is referred to as [Seller]. Amounts in the standard European currency (Euro) are referred to as []; amounts in the currency of the United States (dollars) are indicated as [US $]; amounts in the currency of the People's Republic of China (renminbi) are indicated as [RMB].

** Fan Yao, graduate student studying International Economic Law at School of Law, Tsinghua University, Beijing, China; has participated in the 6th Annual Willem C. Vis (East) International Commercial Arbitration Moot.

*** Meihua Xu, LL.M. University of Pittsburgh School of Law on an Alcoa Scholarship. She received her Bachelor of Law degree, with the receipt of Scholarship granted by the Ministry of Education, Japan, from Waseda University, Tokyo, Japan. Her focus is on International Business Law and International Business related case study.

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated September 4, 2009
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography