Data

Date:: 24-06-2008
Country:: Arbitral Award
Number:
Court:: Arbitration Institute of the Stockholm Chamber of Commerce
Parties:

Keywords

SUPPLY/SALES CONTRACTS - BETWEEN A CHINESE COMPANY AND A GERMAN COMPANY - CHOICE OF LAW CLAUSE REFERRING TO "INTERNATIONAL COMMERCIAL LAW" - AFTER THE BEGINNING OF THE ARBITRAL PROCEEDINGS PARTIES AGREED THAT THIS INCLUDES CISG AND, TO SOME EXTENT, THE UNIDROIT PRINCIPLES

SUBSEQUENT MODIFICATION OF THE CONTRACT BY FAX MESSAGES - VALIDLY CONCLUDED ACCORDING TO ART. 11 CISG AND ARTS. 1.2 AND 3.1.2 UNIDROIT PRINCIPLES

RIGHT TO INTEREST - REFERENCE TO ARTS. 74 AND 79 CISG AND ART. 7.4.9 UNIDROIT PRINCIPLES

Abstract

Claimant, a Chinese company, entered into a supply/sales contracts with Respondent, a German company, according to which Claimant would supply silicone solar wafers to Respondent on a monthly basis and Respondent would supply silicone solar cells to Claimant in two stages. The contract included a clause entitled “Law and Arbitration” pursuant to which “On this contract shall apply International Commercial Law. All disputes in connection with this contract or the execution thereof shall be settled friendly through negotiations. In case no settlement can be reached, the case may be submitted to arbitration to International Arbitration Committee in Stockholm”.

Claimant initiated arbitral proceedings at the Arbitration Institute of the Stockholm Chamber of Commerce over an alleged breach of contract by Respondent.

Regarding the law applicable to the contract, the parties agreed during the arbitration proceedings that the expression "International Commercial Law" includes, inter alia, the CISG and, to some extent, the UNIDROIT Principles of International Commercial Contracts.

The Arbitral Tribunal had to decided whether a subsidiary agreement amending the parties’ original contract was valid as it was concluded via fax message. Respondent argued for invalidity, as China, Claimant's home jurisdiction, made use of an Article 96 reservation under the CISG, requiring contracts to be evidenced in writing.

The Arbitral Tribunal held that “by not choosing directly and explicitly the CISG but by choosing "international commercial law”, the parties have expressed an intention to avoid national law or any national deviation from the main international body of commercial law”. The Chinese reservation to the CISG was thus disregarded.

The Arbitral Tribunal decided that the subsidiary agreement was validly concluded via fax messages and based its decision on Art. 11 CISG and Arts. 1.2 and 3.2 (i.e. Art. 3.1.2 since the 2010 edition) of the UNIDROIT Principles as “international commercial law chosen by the parties”. It further referenced to German and Chinese law under a comparative law approach.

The Arbitral Tribunal also referred to “the general international commercial principles set out both in CISG Articles 74 and 78 and in Art. 7.4.9 of the UNIDROIT Principles of International Commercial Contracts” in order to grant Claimant's claim for interest.

(ECKART BROEDERMANN)

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