1. To request a judgment on the Respondent paying the two overdue payments for the goods, which are USD1,372,445.10 in total, to the Applicant (the total payment for the first batch of goods is USD646,191, minus the prepayment having been made by the Respondent, the Respondent is still defaulting on its payment of USD581,571.90; the total payment for the second batch is USD878,748, minus the prepayment made by the Respondent, the Respondent is defaulting on its payment of USD790,873.20), that is RMB8,611,407 in total (calculated according to the intermediate conversion price of RMB6.2745 for USD to RMB promulgated by the Bank of China on March 7, 2013);
2. To request a judgment on the Respondent paying the interest of the overdue payment for the goods mentioned above from the deadline to the actual payment date, temporarily calculated as RMB 1,251,930 (wherein the interest of the price of the first batch of goods, as calculated temporarily from the second day (December 23, 2010) following the payment deadline to March 7, 2013, amounts to RMB543,454; the interest of the price of the second batch of goods, as calculated temporarily from the second day (January 21, 2011) following the payment deadline to March 7, 2013, amounts to RMB708,476. The total amount of the interests mentioned above is RMB 1,251,930; it is requested to calculate up to the date when the Respondent actually performs the obligation to make the total payment);
3. To request a judgment on the Respondent compensating the Applicant RMB464,816 for exchange losses caused by overdue payment (wherein the exchange loss of the first payment for the goods is RMB216,403, and that of the second payment for the goods is RMB248,413; it is requested to calculate up to the date when the Respondent actually performs the obligation to make the total payment);
4. To request a judgment on the Respondent bearing the lawyer’s fee of the Applicant, which is in total RMB250,000 (this RMB250,000 is a temporarily calculated amount in case the lawyer’s fee actually paid exceeds RMB250,000, to request a judgment on the Respondent bearing the cost actually paid by the Applicant);
5. To request a judgment on the Respondent bearing the arbitration cost of this case.
1. The Respondent and the Applicant had long-term contract relationship and the two parties had reached agreement on quality standards and warranty period.
2. The products purchased by the Respondent from the Application have quality defects. The Respondent requested many times the Applicant to bear quality assurance liabilities and obtained no result.
3. The Respondent is entitled to request the Applicant to adopt remedial measures including repair, replacement or refund according to the quality warrants provided by the latter, and be entitled to request the Applicant to offer discount and providing substitutes according to the United Nations Convention on Contracts for the International Sale of Goods (referred to as the "CISG" hereinafter).
4. The assertion of the Respondent for remedies, including requesting the Applicant to reduce the price with the reason of existence of quality defects, is a demurrer. According to stipulations set out in Clause 44 of Judicial Explanations on Hearing Sales Contracts promulgated by the Supreme People’s Court of China, "in case the Seller requests the Buyer making payment after performing the delivery obligations, while the Buyer raises objection with the reason that the Seller has breached the contract first, the People’s Court shall handle repsectively according to the following situations: (I) it is deemed as demurrer if the Buyer refuses to pay penalty for the breach or refuses to compensate for losses or argues that the Seller shall adopt remedial measures such as offering discounts; (II) in case the Buyer argues that the Seller shall pay penalty for the breach and compensate for loss, or requests cancellation of the Contract, it shall raise counterclaim", the assertion of the Respondent requesting a reduce of price due to the defects existing in the Applicant’s products in this case is a demurrer instead of a counterclaim.
5. The Respondent shall not bear any default liability for the payment not made for the goods. The Applicant failed to perform the obligation of quality warranty in the first place, which led to the Respondent’s deducting from the payment not made for the goods in order to compensate for the losses caused by defective products. According to the stipulations set out in Clause 80 of CISG, the Applicant shall not argue that the Respondent has failed to perform the obligations set out in the contract or has breached the contract. Therefore, the Respondent shall not bear any default liability due to interest loss and exchange loss caused by the Respondent’s not paying for the goods.
(I) The Respondent shall pay the Applicant two outstanding payments for the goods which is USD1,372,445.10 in total;
(II) The Respondent shall pay the interest for the overdue payment to the Applicant as much as USD74,991, along with the interest for the overdue payment calculated from March 8, 2013 to the actual payment date with the annual interest rate as 2.53% and the principal as USDl,372,445.10.
(III) The Respondent shall pay the Applicant RMB633,489.67 as the exchange loss caused by the Respondent’s overdue payment.
(IV) The Respondent shall compensate the Applicant RMB230,000 as the lawyer’s fee paid by the Applicant for the case;
(V) The arbitration cost of the case is RMB225,782; the Applicant shall bear 10%, i.e. RMB22,578.20, and the Respondent shall bear 90%, i.e. RMB203,203.80. Whereas the Applicant has fully prepaid the arbitration cost, the Respondent shall pay the Applicant RMB203,203.80;