Applying the CISG in Moot Arbitration

IN THE MATTER OF THE CONVENTION OF CONTRACTS FOR INTERNATIONAL SALE OF GOODS (CISG)

CASE I IN THE MATTER OF ARBITRATION BETWEEN :-

{Basil Green}

       Australia                    RESPONDENT - SELLER

-AND-

{Beautiful Clothes Ltd}

China         CLAIMANT - BUYER

AWARD

FACTS

1. CISG contract where goods were damaged during delivery. Buyer accepts goods to discover damages in addition missing and extra items. Buyer dumps entire load in harbour and claims damages equal to contract price plus loss of profits.

CLAIMANT - BUYER’S SUBMISSIONS

2. Claimant accuse seller of breach of obligation Art. 35(1), (2)(a), 36(1) and 52(2) and seeks fundamental breach Art. 25 with lack of conformity Art. 51(2). Estimates damages at 150% under Art. 45, 46, 52, 74 and 77.

RESPONDENT - SELLER’S SUBMISSIONS

3. Respondent seeks non-fundamental breach under Art. 25 as damages could be repaired, surplus is sellable, and missing goods does not amount to a faulty breach. Evidence was destroyed as to Art. 79(1), Art. 79(2) and Art. 38. Estimates undamaged 30% and damaged 70%, yet not liable for both. Offers remedy to non conforming batch of goods only under Art.49 and 50.

FINDINGS

4. Non fundamental nature by virtue of Art. (25). Seller not liable for lack of conformity, buyer did not give notice within reasonable time. The application of ‘Jeans’ and ‘Steel bars’ cases is inappropriate.

ACCORDINGLY WE MAKE AND PUBLISH THIS AWARD AND DIRECT AS FOLLOWS:

5. Claimant shall not claim for 150% under Art. (74). Respondent can claim for retribution, but not in total. The panel provides that the dumping of the evidence deprives the buyer from claiming loss of profit only. Buyer has to compensate the full amount of surplus that have been dumped accordance to Art. 46(3).

CASE II IN THE MATTER OF ARBITRATION BETWEEN :-

{Basil Green}

        Australia       CLAIMANT - SELLER

-AND-

{Oui Oui}

France RESPONDENT - BUYER

AWARD

FACTS

1. Contract of the sale of goods. Seller request payment after completion. Buyer did not reply and asked the assistant to return both. Seller deny the responsibility for the payment due to faulty goods.

 CLAIMANT SELLER’S SUBMISSIONS

2. CISG is applicable, based on Art. 1(1)(a) and goods are for commercial use, according to Art. 2(a). Buyer loses right on lack of conformity virtue of Art. 39(1) and liable to pay and take delivery under Art. 53, 54 and 58(1). Seeking damages under Art. 74.

RESPONDENT BUYER’S SUBMISSIONS

3. CISG does not apply due to Art. (2) and Claimant breached contract under Good Act Vic (s.18) and (s.19).

FINDINGS

4. CISG does not apply by virtue Art. 1(1) as it states CISG only applies in places of business. There’s no clear evidence of whether it was sent to a business or residence. Art. 2(a) explicitly discloses CISG is not applicable to sale of goods for personal use. The respondent is an artist, and many artist have unique, individualistic taste. Although an autographed photo imply buyer’s celebrity status ,but does not necessarily express her intentions with goods.   
5. Goods Act Victoria (1958) is inapplicable, because choice of law is not declared.

ACCORDINGLY WE MAKE AND PUBLISH THIS AWARD AND DIRECT AS FOLLOWS:

6. The matter of this arbitration is not governed by the laws of CISG. Thus it is out of this panel’s jurisdiction. Parties can rely on other ADRs to resolve this dispute.

MADE AND PUBLISHED IN AUSTRALIA, BEING THE SEAT OF THIS ARBITRATION

[Signed]   Nawaf Almohaimeed; Qinyuan Dong; Chulun Shang; Binh Duc Mai; Yang Yang; Yichen Zhang.  [28th of September 2014]