Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

China 26 November 1998 CIETAC Arbitration proceeding (Waste paper case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/981126c2.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 19981126 (26 November 1998)

JURISDICTION: Arbitration ; China

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

JUDGE(S): Unavailable

DATABASE ASSIGNED DOCKET NUMBER: CISG/1998/07

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: United States (claimant)

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

GOODS INVOLVED: Waste paper


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 53 ; 78

Classification of issues using UNCITRAL classification code numbers:

53A [Buyer’s obligation to pay price of goods];

78A [Interest on delay in receiving price or any other sum in arrears]

Descriptors: Price ; Interest

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): Zhong Guo Guo Ji Jing Ji Mao Yi Zhong Cai Wei Yuan Hui Cai Jue Shu Hui Bian [Compilation of CIETAC Arbitration Awards] (May 2004) 1998 vol., pp. 2922-2928

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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

Joint translation project:
New York University School of Law
and Pace University School of Law


 

China International Economic and Trade Arbitration Commission
CIETAC (PRC) Arbitration Award

Waste paper case (26 November 1998)

Translation [*] by Taotao Ling [**]

Translation edited by Meihua Xu [***]

China International Economic and Trade Arbitration Commission (hereinafter referred to as CIETAC) accepted this case according to:

   (1)    The arbitration clauses in Contracts No. 6RHG41004, No. 6RHG41005 and No. 6RHG41012 signed by the Claimant (American) International Trade Company and the Respondent Shanghai ___ International Trade Company; and
 
   (2)    The written arbitration application submitted by the Claimant to CIETAC on 10 September 1997.

The Respondent submitted its reply and an arbitration counterclaim within the required period.

The Claimant appointed Mr. A as arbitrator; the Respondent appointed Mr. D as arbitrator; the Chairman of CIETAC appointed Mr. P as presiding arbitrator. The three arbitrators formed the Arbitration Tribunal to hear this case on 27 February 1998.

After reviewing the arbitration application and the supplemental materials submitted by the Claimant as well as the reply and counterclaim of the Respondent, the Arbitration Tribunal scheduled a court session to hear this case on 21 April 1998, and sent notices of this to the Claimant and Respondent. On 21 March 1998, CIETAC received a fax from the Respondent requesting postponement of the court session to a later date since its representative would be on a business trip to Switzerland on 21 April 1998. The Arbitration Tribunal postponed the date of the court session to 19 May 1998, and sent notices of this decision to the Claimant and Respondent on 27 March 1998. On 28 April 1998, CIETAC received a fax from the Claimant requesting postponement of the court session because its representative would be on a business trip to the United States in May 1998. The Arbitration Tribunal again postponed the date of the court session.

The Arbitration Tribunal held the court session on 10 September 1998 in Beijing. Representatives of both parties attended, presented oral statements and arguments on the facts and legal issues, and answered questions posed by the Arbitration Tribunal. After the court session, both parties submitted written supplemental materials.

The case has been concluded. In accordance with the arbitration application and supplemental materials submitted by the Claimant and the reply, counterclaim application and the supplemental materials submitted by the Respondent, the Arbitration Tribunal handed down its award within the required arbitration period by joint discussion.

The following are the facts, the opinion of the Arbitration Tribunal and the award.

I. FACTS

On 5 April and 29 April 1996, the Claimant and Respondent signed Contracts No. 6RHG41004, No. 6RHG41005 and No. 6RHG41012 (hereunder respectively "Contract No. 04", "Contract No. 05" and "Contract No. 12", or collectively "the three contracts"). In the three contracts:

   -    The goods are 80 tons of No. 6 American waste paper and 1,400 tons of No. 8 American waste paper;
   -    The Claimant is listed as the seller and the Respondent as the buyer;
   -    The payment conditions in Contracts No. 04 and No. 05 are both T/T payment after receiving the goods;
   -    The payment condition in Contract No. 12 is T/T payment after receiving the payment from the factory;
   -    The total price of the three contracts is US $206,640 CIF Shanghai, of which the price of Contract No. 04 is US $70,000, the price of Contract No. 05 is US $66,640 and the price of Contract No. 12 is US $70,000.

Since the Respondent did not pay the contract price in accordance with the contract and the Claimant could not obtain the payment after soliciting payment from the Respondent several times, the Claimant filed this arbitration application with CIETAC.

II. POSITION OF THE PARTIES

-  Claimant's allegations

The Claimant alleged that, after the three contracts were signed, the Claimant provided goods strictly in accordance with the contract, and the Respondent received all of the goods but never made payment as required in the contract. On 16 December 1996, the Respondent notified the Claimant by fax that, since its buyer did not make payment in time, the Respondent could not make payment; and that the Respondent would pay for the goods in full once its buyer makes the payment; in the meantime, the Respondent hoped the Claimant could excuse its temporary financial difficulty. The Claimant wrote to the Respondent on 12 January 1997 saying that, the Claimant would like to help the Respondent with the financial difficulty for renminbi [RMB] 200,000, provided that the Claimant would pursue the Respondent's legal liability if the Respondent could not make the full payment before 10 February 1997. The Respondent did not avail itself of this opportunity, but continued to use the excuse of its buyer's not paying for the goods for its own inability to make payment.

The Respondent has breached the contract. This has caused a significant loss to the Claimant. The Claimant requested that:

1. The Respondent pay the contract price: US $206,640;

2. The Respondent pay interest on this price in the amount of US $10,332 (later changed to US $20,664), the calculation of which was based on a 5% annual interest rate and two years in total;

3. The Respondent compensate part of the cost of travel expenses by the Claimant to get back the payment of goods in the amount of RMB 50,000;

4. The Respondent pay the arbitration fee and the Claimant's attorneys' fee.

-  Respondent's position

The Respondent replied to the above claims and filed counterclaims. The key points of the Respondent's reply are:

1. The Respondent is not the purchaser but only the agent for the Claimant to import the contract goods; the evidence of fact is:

      (1) On 16 March 1996, which was before the three contracts were signed, the Claimant had signed a "mineral product sales contract" (hereinafter referred to as "Mineral Contract") with Hunan ___ Paper Factory (hereinafter referred to as "___ Paper Factory"). This contract set forth that the Claimant was to provide American waste paper to ___ Paper Factory.

      (2) However, the ___ Paper Factory is not entitled to import and export goods. Therefore, after the Claimant signed the Mineral Contract with ___ Paper Factory, the Claimant contacted the Respondent - this was in March 1996 -- to make the Respondent Claimant's agent for this importing and exporting business. The Respondent agreed, signed the three contracts with the Claimant on 5 April and 29 April 1998, and orally agreed with the Claimant that the Respondent's capacity would be that of agent of the Claimant to do this business.

   -    To clarify the relationship of agent, the payment condition of Contract No. 12 was made out as T/T payment after the Respondent receives the payment from ___ Paper Factory. When the goods were shipped to Shanghai in April and May 1996, __ Paper Factory did not collect the goods in time.
 
   -    In this situation, to ensure that the Respondent was only the agent and was not liable for ___ Paper Factory's not taking delivery of the goods, the Claimant signed another Agency Agreement with the Respondent on 2 May 1996 ("the May 2nd Agreement"). In that agreement, the Claimant explicitly authorized the Respondent to act as agent and import American waste paper in 1996 in the total quantity of 20,000 tons. Since that agreement was signed by fax and the Respondent was afraid it lacked the required legal formality to be effective, the Respondent signed another Agency Agreement with the Claimant face-to-face on 9 June 1996 after all of the goods had arrived at the destination port ("the June 9th Agreement"). Besides further confirming the May 2nd Agreement, this agreement changed the payment conditions of the first two contracts to agree to have the Respondent make payment to the Claimant after it receives payment from ___ Paper Factory.

Therefore, ___ Paper Factory is the true buyer under the contract, with the Respondent involved in the transaction between the Claimant and ___ Paper Factory only because of legal provisions and the requirements of the foreign trade system.

      (3) Based on the above facts, although the three contracts were signed by the Respondent and Claimant and the Respondent was identified as the buyer in the contracts, the Respondent has merely the legal status as the agent of the Claimant in this case.

2. As the agent of the Claimant, the Respondent is not required to take the responsibility under the three contracts. Since as agent, the Respondent does not enjoy the rights under the three contracts, neither does it take the responsibility under the three contracts. In addition, as long as the Respondent imports American waste paper within its agency authority, the results caused thereby should be the responsibility of the Claimant.

3. The Respondent asks the Tribunal to:

      (1) Dismiss the Claimant's arbitration application;

      (2) Have the Claimant compensate the Respondent for the attorneys' fee and other expenses paid by it for this case; and

      (3) Have the Claimant pay the arbitration fee.

-  Respondent's counterclaims

The Respondent's counterclaims are to:

1. Have the Claimant pay the Respondent for the customs duty, value added tax, inspection fee, delayed pick-up fee and other expenses incurred by Respondent in the total amount of RMB 127,244.14 and interest on the above amount of RMB 35,373.87 (calculated at a daily rate of 4‰0, since 18 October 1996 temporarily to 28 February 1998), the total amount of the above expenses is RMB 162,618.01;

2. Have the Claimant pays other expenses incurred by the Respondent in the amount of RMB 109,717.40;

3. Have the Claimant pay the attorneys' fee paid by the Respondent for this case;

4. Have the Claimant pay the Respondent for its travel expenses RMB 8,000 and for the arbitrator's travel expenses RMB 8,000 incurred in this case, the total amount of which is RMB 16,000; and

5. Have the Claimant pay the arbitration fee and the counterclaim arbitration fee.

The rationale for the Respondent's counterclaims is:

Since __ Paper Factory did not collect the goods in time, in order to mitigate the economic loss of the Claimant, the Respondent paid for the ___ Paper Factory the customs duty, value added tax and other expenses needed to report to the customs authority and to store the goods in the warehouse. This was done to enable the American waste paper to be reported to the customs authorities and be stored in the warehouse in time. However, ___ Paper Factory collected a total of the 1,000 tons of goods made available in July and 16 November 1996, and the remaining 500 tons were never collected, which caused the fee for delay of taking delivery continuously to increase. As of 21 August 1996, the Respondent has paid RMB 917,244.14 for the American waste paper. When ___ Paper Factory collected the goods from the warehouse, it could collect goods before making payment in accordance with the payment clause of the Agency Agreement. Since the customs duty and port fees must be paid in full before the goods could be collected, ___ Paper Factory paid part of the customs duty and port fees to the Respondent in four payments in the total amount of RMB 790,000 and respectively on 29 April, 28 June, 15 July and 18 October 1996; however, the Respondent still suffered an economic loss of RMB 127,244.14.

In addition, the shipping agent company employed by the Claimant to do the importing business notified the Respondent on 19, 20 and 21 August 1996 that the customs inspection fee, the overdue renting fee, the storage fee, etc. of the imported American waste paper still needed to be paid. This came to RMB 109,717.40. Since there were 500 tons of American waste paper remaining uncollected, the above fees could not be paid out, so the Respondent has not paid for them yet.

According to the Respondent, the Respondent was authorized by the Claimant to be Claimant's agent to import American waste paper, and all the expenses incurred thereby should be paid by the Claimant. Therefore, the Claimant should reimburse the Respondent the customs duty, the value added tax, other fees for the customs report and the delayed pick-up fee that were previously paid by the Respondent. Since the Claimant did not pay for the above expenses, the Respondent suffered a significant loss. The amount mentioned in the letter sent by the shipping agent company which was employed by the Claimant is included in the expenses to be paid for the importing business of the Claimant's and that have been incurred. The Respondent would certainly have to pay for it, so the Claimant should pay for it. Therefore, the Claimant should be required to pay it in advance.

Claimant's position

The reasons that the Claimant did not acknowledge the Respondent as its agent but alleged that the Respondent was the agent of __ Paper Factory are:

1. Article 9 of the Mineral Contract signed between the Claimant and ___ Paper Factory sets forth that the buyer's agent and the seller should settle accounts using the letter of credit first, and the final settlement should be made with the seller's invoice. The buyer of the contract is ___ Paper Factory, and the seller of the contract is the Claimant, therefore the Respondent is the agent of ___ Paper Factory rather than the Claimant.

2. According to the Provisional Rules of Foreign Trade Agency of the People's Republic of China ("Provisional Rules"), an agency relationship exists where a company having importing and exporting authority in China serves as agent to a company not having such authority. Apparently the Respondent is the agent of ___ Paper Factory which has no importing and exporting authority, but Respondent is not the agent of the Claimant.

3. The June 9 Agreement mentioned by the Respondent does not prove that the Respondent is the agent of the Claimant; this Agreement is contrary to the Provisional Rules, and the Agreement explicitly provides that the agency fee for importing the waste paper is 1% of the purchase price, which should be paid by ___ Paper Factory.

According to the Claimant, the Respondent did not pay for the goods mainly because it could not provide a timely "Approval Certificate of the State Environment Protection Bureau". After the goods arrived at the destination port, they cannot be traded in China without the certificate. In fact, the Respondent obtained the certificate on 21 June 1996.

Regarding the Respondent's counterclaims, the Claimant alleges that there is no basis of fact, nor legal evidence or international convention to support them. The only evidence is the June 9 Agreement, but that Agreement does not have an arbitration clause in it. Besides, the agent status claimed by the Respondent has no factual or legal basis, and all the evidence provided by Respondent, including the customs duty invoice, the shipping certificate, the packaging fee certificate and certificates of relevant port fees in turn prove that the Claimant has completely performed its contract obligations to provide the goods, while the price term was CIF, so the Respondent's counterclaims are not well founded. The Claimant requested the Arbitration Tribunal to dismiss the Respondent's counterclaims.

The Respondent further alleged in the supplemental materials submitted by it after the court session that, after ___ Paper Factory took the 1,000 tons of goods without making payment, the Claimant agreed to permit the ___ Paper Factory to set-off the due payment with its products in the letter dated 17 October 1996. On 10 April 1997, the Claimant signed a commission contract ("Three-party Contract") with ___ Paper Factory and Shenzhen Bao An A Paper Company Ltd. ("A Company") agreeing that ___ Paper Factory would provide a large quantity of product paper to A Company, and A Company would be responsible to give the money back to the Claimant. On 30 April 1997, based on the above Three-party Contract, the Claimant signed another agreement with A Company and Respondent ("Three-party Agreement"), further clarifying that it agrees to have ___ Paper Factory set-off the payment with products, and agrees to have the Respondent pay the price of the goods to the Claimant after it receives payment from A Company. The Claimant promised to be responsible for the payment if A Company delayed the payment. In the meantime, the Claimant agreed to pay the delayed pick-up fee of RMB 340,000. Since the Claimant agreed to have ___ Paper Factory set-off the payment with products, the Respondent was not able to collect money from ___ Paper Factory since October 1996. The Claimant has confirmed in the court session that, A Company has been receiving product paper from ___ Paper Factory to set-off the payment of goods from time to time. However, A Company never made payment to the Respondent as agreed in the Three-party Agreement. In addition, since the sales price of product paper is much higher than the price of waste paper (as the raw material), the Respondent could have collected the delayed pick-up fee by deducting it from the payment from A Company in accordance with the Three-party Agreement, but since A Company did not make payment to the Respondent and ___ Paper Factory could not pay to the Respondent anymore, so the Respondent could not get back the money it paid as the delayed pick-up fee.

The Respondent thought the June 9 Agreement and the April 30 Agreement have modified the payment clauses in Contracts No. 04 and No. 05, and such a modification has been practically performed. Regarding the 500 tons of goods under Contract No. 12, since it is required that the Respondent pay the Claimant after receiving the payment from ___ Paper Factory, Since ___ Paper Factory has neither collected the goods nor made payment for them, the Respondent has no obligation to make payment to the Claimant according to the contract.

Regarding the environment certificate, the Respondent alleged that ___ Paper Factory had obtained an importing waste product environment certificate before the Mineral Contract was signed. This environment certificate was obtained by ___ Paper Factory, but since the goods did not arrive at the destination port within the period permitted in the original environment certificate, the original environment certificate expired and this caused the storage and port fees to increase. The above increased fees should be paid by Claimant because:

The customs duty and port fees paid by the Respondent can be categorized as:

   A.     Normal fees paid for the clearance at customs, including customs duty, value added tax, etc., the total amount of which is RMB 634,534.54;
 
   B. Increased expenses due to the delayed collecting of goods by ___ Paper Factory including the storage fee, the total amount of which is RMB 52,303;
 
   C. Delayed pick-up fee and other expenses caused by ___ Paper Factory's delayed collecting of goods, the total amount of which is RMB 340,124.

Apparently, the A type expenses must be paid as normal expenses and they are irrelevant to whether the environment certificate is issued timely. The B type expenses occurred because ___ Paper Factory did not collect goods timely, it was ___ Paper Factory's fault and ___ Paper Factory has paid for this part of the fees. The C type delayed pick-up fee was increased because:

1. The goods sent by the Claimant did not arrive at the destination port before the environment certificate expired;

2. The ___ Paper Factory could not clear the customs duty and port fees after the new environment certificate was issued on 21 June 1996, which caused the Respondent to be unable to report to the customs bureau and unpack the packages in time;

3. The ___ Paper Factory did not pay the total amount of RMB 400,000 (included in the RMB 790,000 paid by it) in two payments to the Respondent until 28 June and 15 July 1996 for the customs formalities;

4. The Claimant agreed to pay for the delayed pick-up fee RMB 340,000 of the three batches of contracting goods in the April 30 Agreement, but the Claimant has never paid this sum;

5. The total amount of the above A type and B type expenses is RMB 686,837.54, which has been paid by ___ Paper Factory; there was RMB 103,162.46 left after the above item is deducted from the total amount RMB 790,000 paid by ___ Paper Factory, after part of the delayed pick-up fee was deducted, the actual amount paid by the Respondent for the Claimant is RMB 236,961.54, which should be paid by the Claimant as it promised;

6. Since the storage fee of the 500 tons of waste paper under Contract No. 12 is still increasing, and the storage fee claimed by the Respondent in its counterclaims is calculated until 21 August 1996, the Respondent requested the Arbitration Tribunal to agree to the Respondent selling the waste paper and using the proceeds to pay first for the above delayed pick-up fee that Claimant agreed to pay, for the storage fee incurred after 21 August 1996 and all the amounts awarded by the Arbitration Tribunal to the Respondent in its counterclaims.

III. OPINION OF THE ARBITRATION TRIBUNAL

1. Applicable law

The parties did not choose the applicable law in the three contracts. Considering the Claimant's business is operated in the United States, the Respondent's business is operated in China, and both countries are members of the United Nations Convention on Contracts for the International Sale of Goods ("CISG"), the Arbitration Tribunal holds the CISG as the legal basis to solve the dispute under the contracts in this case.

2. Nature and legal status of the relationship between the parties

The Claimant alleged that the Respondent is ___ Paper Factory's agent, while the Respondent contended it is the Claimant's agent. After carefully reviewing all the evidential materials submitted by the parties:

   -    The Arbitration Tribunal notes that, since ___ Paper Factory did not have importing and exporting rights and was not entitled to sign foreign trade contract, the Respondent and the Claimant signed Contracts No. 04 and No. 05 on 5 April 1996 with the Respondent identified as the buyer and the Claimant identified as the seller.
 
   -    Afterward, the parties signed Contract No. 12 on 29 April 1996.

The Arbitration Tribunal further notes that:

   -    The Claimant and Respondent signed another two agency agreements on 2 May and 9 June 1996.
 
   -    These two agreements were signed after the three contracts of this case were signed, and the agreements provided that the agency fee would be paid by ___ Paper Factory.

Therefore, the Arbitration Tribunal holds that the Claimant and Respondent are the parties to the contracts in this case, the relationship between them is purchase and sale, and both the parties should be bound by the contracts in this case.

3. Payment of the purchase price

The Arbitration Tribunal notes that, Article 4 of the June 9 Agreement sets forth that the Claimant agreed to have the Respondent make payment after it received payment from ___ Paper Factory. This clause changed the payment condition of T/T payment after collecting the goods in Contracts No. 04 and No. 05.

The Arbitration Tribunal further notes that the Claimant shipped the goods within the shipping period required in the three contracts, the Respondent accepted the goods under Contracts No. 04 and No. 05 and transferred the goods to ___ Paper Factory; the ___ Paper Factory paid to the Respondent a total amount of RMB 790,000 (calculated at an exchange rate of US $1 / RMB 8.3, equals US $95,180.72) on 29 April, 28 June, 15 July and 18 October 1996, respectively. The Respondent did not deny the above facts. However, the Respondent thought the above payment made by ___ Paper Factory was for part of the customs and port fees of the goods. As shown in the bank statement of the above amount submitted by the Respondent, the above amount was not marked as the customs and port fees. Therefore, the Arbitration Tribunal does not support this claim of the Respondent. The Arbitration Tribunal holds that the above payment made by ___ Paper Factory is part of the price of the goods under the contracts, and the Respondent should pay to the Claimant interest on the above of US $95,180.72, which is US $9,518.07 calculated at an annual rate of 5% from October 1996 to October 1998.

The Arbitration Tribunal notes that the Claimant sent a letter to ___ Paper Factory on 17 October 1996 to agree to have it set-off the purchase price of goods with product paper, and agreed to have ___ Paper Factory transfer the product paper to A Company. In the meantime, the Arbitration Tribunal notes that, the Three-party Agreement provided that the Respondent would make payment to the Claimant for the three batches of waste paper after it receives payment from A Company, and that if A Company is not able to timely make payment to the Respondent, the Claimant should be liable for it. The Arbitration Tribunal holds the above agreement shows that the Claimant and Respondent agreed to change their originally agreed payment condition again. Since Company A has not yet made payment to the Respondent, the delayed payment of the purchase price due under Contracts No. 04 and No. 05 and the payment due under Contract No. 12 should not be the obligations of the Respondent, but should be the liability of the Claimant in accordance with the Three-party Agreement. Regarding the 500 tons of goods under Contract No. 12 and stored in the port, the Arbitration Tribunal suggests that Respondent collect the goods as soon as possible, and dispose of the goods in accordance with the Three-party Agreement signed by the Respondent, Claimant and A Company on 30 April 1997.

4. Payment of the fee for delayed pick-up

The Arbitration Tribunal notes that the Respondent alleged that it has paid RMB 917,244.14 for the goods, included in which is a RMB 340,124 delayed pick-up fee. The Claimant did not claim against the above delayed pick-up fee.

Since the Arbitration Tribunal has confirmed the above RMB 790,000 payment made by ___ Paper Factory, the Arbitration Tribunal holds that the RMB 790,000 payment should not be set-off with the customs and port fee. The fee for delayed pick-up of the goods should be paid in accordance with the agreements signed by the parties. According to the Three-party Agreement, RMB 340,000 of the delayed pick-up fee of the three batches of American waste paper should be paid by the Claimant and should be deducted from the price of the goods; the remaining part should be paid by the Respondent. Therefore, the delayed pick-up fee of US $40,963.86 (i.e., RMB 340,000) agreed to be paid by the Claimant should be deducted from the price of the goods, US $95,180.72 (i.e., RMB 790,000); and the price to be paid for the goods by the Respondent to the Claimant should be US $54,216.86 (US $95,180.72 - US $40,963.86). The remaining delayed pick-up fee not yet paid for the three batches of goods should be paid by the Respondent.

5. Payment of the arbitration fee, the arbitration fee for the counterclaims and other expenses of this case

      (1) 40% of the arbitration fee of this case should be paid by the Claimant, 60% should be paid by the Respondent;

      (2) 60% of the counterclaim arbitration fee should be paid by the Respondent, 40% should be paid by the Claimant;

      (3) The actual expenses of non-local arbitrators should be paid by the Respondent;

      (4) The attorneys' fee and travel expenses paid by the parties should be covered by each party, respectively.

III. THE AWARD

The Arbitration Tribunal renders the following award:

1. The Respondent shall pay to the Claimant the price of the goods, US $54,216.86;

2. The Respondent shall pay to the Claimant interest in the amount of US $9,518.07;

3. The Respondent shall collect the 500 tons of goods under Contract No. 12 that are stored in the port as soon as possible. These goods should be processed in accordance with the Three-party Agreement;

4. All other arbitration requests of the Claimant and other counterclaims of the Respondent are dismissed;

5. The Claimant shall pay 40% of the arbitration fee, and the Respondent shall pay 60% of the arbitration fee. The US $___ prepaid by the Claimant has been set-off with the arbitration fee. Therefore, the Respondent shall pay US $___ to the Claimant to reimburse its part of arbitration fee;

6. The Claimant shall pay 40% of the arbitration fee for the counterclaims, and the Respondent shall pay 60% of the arbitration fee for the counterclaims. The RMB ___ prepaid by the Respondent has been set-off with the counterclaims arbitration fee. Therefore, the Claimant should pay RMB ___ to the Respondent to reimburse its part of the arbitration fee for the counterclaims;

7. The actual expense of non-local arbitrators was RMB 8,000, which should be paid entirely by the Respondent. The Respondent has prepaid an equal amount to CIETAC; it is set off with the actual expense of non-local arbitrators in this case.

8. The above amount should be paid in full at the date hereof; the overdue interest rate is 8% for the US dollar amount and 10% for the Renminbi amount.

This is the final award.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, 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].

** Taotao Ling, LL.M. New York University School of Law on the Arthur T. Vanderbilt Scholarship. She received her Bachelor of Law degree and Bachelor of Economics degree from Peking University, Beijing, China. Her focus is on corporate and commercial law.

*** 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 June 5, 2006
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography