日期：The date of 双方当事人：Parties： 申诉方/反诉被诉方：卖方Claimant/counter-defendant：Seller 被诉方/反诉申诉方：买方Defendant/Counter-claimant：Buyer 仲裁地： Place of arbitration： 事实 FACTS 1994年，双方当事人根据某种协议规格规定签
日期：The date of
仲裁地： Place of arbitration：
In 1994, the parties concluded three contracts for the sale of a product
according to certain contract specifications. The buyer paid 90% of the price
payable under each of the contracts upon presentation of the shipping documents,
as contractually agreed.
The product delivered pursuant to the first and third contracts met the
contract specifications. The conformity of the second consignment was dispute
prior to its shipment. When the product was again inspected upon arrival, it was
found that it did not meet the contract specifications. The product was
eventually sold by the buyer to third parties at considerable loss, after having
undergone a certain treatment to make it more saleable.
The seller initiated arbitration proceedings to recover the 10% balance
remaining due under the contracts. The buyer filed a counterclaim alleging that
the seller's claim should be set off against the amounts which the buyer
estimates to be payable to the buyer by the seller, i.e., the direct losses,
financing costs, lost profits and interest.
一、适用的法律 APPLICABLE LAW
The contract contains no provisions regarding the substantive law.
Accordingly that law has to be determined by the Arbitrators in accordance with
Art. 13（3） of the ICC rules. Under that article, the Arbitrators will apply the
law designated as the proper law by the rule of conflicts which they deem
The contract is between a Seller and a Buyer （of different nationalities）
for delivery （in a third country）. The sale was f.o.b. so that the transfer of
risks to the Buyer took place in （the country of Seller）. （The country of
Seller） accordingly appears as being the jurisdiction to which the sale is most
The Hague Convention on the law applicable to international sales of goods
dated 15 June 1995 （Art. 3） regarding sales contracts, refers as governing law
to the law of the Seller's current residence. （The country of the Buyer） has
adhered to the Hague convention, not （the country of the Seller）. However, the
general trend in conflicts of law is to apply the domestic law of the current
residence of the debtor of the essential undertaking arising under the contract.
That debtor in a sales contract is the Seller. Based on those combined findings,
（the law of the country of the Seller） appears to be the proper law governing
the Contract between the Seller and the Buyer.
As regards the applicable rules of （the law of the country of the Seller）, the
Arbitrators have relied on the Parties' respective statements on the subject and
on the information obtained by the Arbitration from an independent consultant.
The Arbitrators, in accordance with the last paragraph of Art. 13 of the ICC
rules, will also take into account the relevant trade u
二、反诉的可受理性 ADMISSIBILITY OF THE COUNTERCLAIM
The Tribunal finds that there is no better source to determine the
prevailing trade usage than terms of the United Convention on the International
Sale of Goods of 11 April 1980, usually called the Vienna Convention. This is
also even though neither （the country of the Buyer） nor （the country of the
Seller） are parties to that Convention. If they were, the Convention might be
applicable to this case as a matter of law and not only as reflecting the trade
The Vienna Convention, which has been given effect to in 17 countries, may
be fairly taken to reflect the generally recognized usage regarding the matter
of the non-conformity of goods on international sales. Art. 38（1）of the
Convention puts the onus on the Buyer to “examine the goods or cause them to be
examined promptly”. The buyer should then notify the Seller of the nonconformity
of the goods within a reasonable period as of the moment he noticed or should
have noticed the defect； otherwise he forfeits his right to raise a claim based
on the said non-conformity. Art. 39（1） specifies in the respect that： “In any
event the buyer shall lose the right to rely on a lack of conformity of the
goods if he has not given notice thereof to the seller within a period of two
years from the date on which the goods were handed over, unless the lack of
conformity constituted a breach of guarantee covering a longer period.”
In the circumstances, the Buyer had the shipment examined within a
reasonable time-span since （an expert） was requested to inspect the shipment
even before the goods had arrived. The Buyer should also be deemed to have given
notice of the defects within a reasonable period, that is eight days after the
expert's report had been published.
The Tribunal finds that, in the circumstances of the case, the Buyer has
complied with the above-mentioned requirements of the Vienna Convention. These
requirements are considerably more flexible than those provided under （the law
of the country of the Seller）. This law, by imposing extremely short and
specific time requirements in respect of the giving of the notice of defects by
the Buyer to the Seller appears to be an exception on this point to the
generally accepted trade usage.
In any case, the Seller should be regarded as having forfeited its right
to invoke any non-compliance with the requirements of Art. 38 and 39 of the
Vienna Convention since Art. 40 states that the Seller cannot rely on Arts. 38
and 39, if the lack of conformity relates to facts of which he knew, or of which
he could not have been unware, and which he did not disclose. Indeed, this
appears to be the case, since it clearly transpires from the file and evidence
that the Seller knew and could not be unaware （of the non-conformity of the
consignment to ） contract specification.
This provision, even assuming that it may apply in the circumstances,
in any way require the tribunal to reject the counterclaim if its examination
might delay that of the main claim. It simply states that the counterclaim for
setting off is always admissible except only that the tribunal may find it
appropriate to serve the counterclaim from the main claim lest a concurrent
examination of counterclaim should excessively delay the judgment on the merits.
In the present case, the main Claim and the counterclaim, in accordance with the
Terms of Reference, have been examined together so as to be the subject of a
single award, and there is no reason to separate them.
The Tribunal awarded the Seller the full amount of its claim and set it
off against part of the counterclaim filed by the Buyer
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