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Lawyers, other representatives, expert(s), tribunal’s secretary

Arbitral Award

[1].
Shanghai Branch of China International Economic and Trade Arbitration Commission (which has been re-named as Shanghai International Economic and Trade Arbitration Commission, also called the Shanghai International Arbitration Center, hereinafter referred to as "the Commission") accepted the dispute arbitration between the two parties in regard to the above-mentioned "Sales Contract" on March 20, 2013 in accordance with the arbitration clause in the two "Sales Contract" of No. S69020054 and No. S69020055, respectively (hereinafter referred to as "the Contract"), between the Claimant China Electric Equipment Group (Shanghai) Solar Science & Technology CO., Ltd (hereinafter referred to as the "Claimant" and the Respondent SUNVALLEY SOLAR, INC. (hereinafter referred to as the "Respondent" as well as the written application for arbitration submitted by the Claimant on March 7, 2013. This Case No. is SG2013015. The arbitration procedure of this case applies to "Arbitration Rules of Shanghai Branch of China International Economic and Trade Arbitration Commission" (Hereinafter referred to as "Arbitration Rules").
[2].
The Secretariat of the Commission (Hereinafter referred to as "the Secretariat" sent the Notice of Acceptance/Arbitration, with "Arbitration Rules" and "Roster of Arbitrators" attached to the Claimant and Respondent on March 20, 2013, and it forwarded the application for arbitration and appurtenant material submitted by the Claimant to the Respondent at the same time.
[3].
On April 11, 2013, one signed Bin Li who called himself to be the corporate counsel of the Respondent SUNVALLEY SOLAR, INC sent an English E-mail to the Commission that confirmed they had received the arbitration documents of this case and applied for suspending the arbitration procedure or extending the defense deadline of the Respondent.
[4].
The Claimant submitted its reply opinion on this E-mail. The main content of the reply opinion: Mr. Bin Li is not duly authorized and entrusted by the Respondent, so in the circumstances of the case, he has no right to apply to the Secretariat for suspending the arbitration procedure or extending the defense deadline of the Respondent; Mr. Bin Li hasn't put forward any justifiable reasons for applying for extending the defense deadline; there is neither contract nor legal grounds for Mr. Bin Li's proposed application for suspending the arbitration procedure, therefore, please reject Mr. Bin Li's proposed application for suspending the arbitration procedure or extending the defense deadline. The Secretariat forwarded the aforementioned reply opinion submitted by the Claimant to the Respondent, but the Respondent didn't make any reply later.
[5].
In accordance with the provisions of Arbitration Rules, the arbitration tribunal of this case comprises three arbitrators. The Claimant selected Ms. Lanye Zhu as the arbitrator, but the Respondent didn't select any arbitrator, thus the chairman of the Commission appointed Ms. Suo Qiu as the arbitrator. Due to a lack of agreement between the two parties on the chief arbitrator, thus the chairman of the Commission appointed Mr. Jian Han as the chief arbitrator. After three above-mentioned arbitrators signed the "Statement of Arbitrators Accepting the Selection/Appointment", an arbitration tribunal was constituted by them for trying this case on July 19, 2013. The Secretariat sent a notice of composition of the arbitration tribunal to the two parties on the same day.
[6].
After consulting with the Commission, the arbitration tribunal decided to try this case in Shanghai on August 20, 2013. The Secretariat sent the notice of trial to both parties.
[7].
On August 20, 2013, the arbitration tribunal carried on this case in Shanghai. The Claimant appeared, but the Respondent failed to appear. According to the provisions as stated in Clause 2 of Article 34 of "Arbitration Rules", the arbitration tribunal heard this case by default. In the trial, the Claimant stated its arbitration request and its reason and basis and presented the relevant evidences; the arbitration tribunal checked the original evidences submitted by the Claimant and conducted the inquiry and investigation; the Claimant also made the final statement.
[8].
After the trial, the Claimant submitted the "Statement of Attorney" and supplementary evidence, the Secretariat forwarded the above-mentioned materials to the Respondent, meanwhile entrusted by the arbitration tribunal, it informed the Respondent of hearing by default, it also gave the Respondent an opportunity to submit the defense or cross-examination of evidences. However, the Respondent made no reply.
[9].
All materials related to this case have been effectively delivered by the Secretariat to the Claimant, the Respondent and the arbitration tribunal in accordance with the provisions of "Arbitration Rules".
[10].
The hearing of this case has been closed, the arbitration tribunal made this award in accordance with the contract and the applicable laws. Now the facts of this case, the opinion of arbitration tribunal and content of the award are as follows.

I. Facts

[11].
The Claimant and the Respondent signed the two "Sales Contract" of No. S69020054 and S69020055, respectively. Due to the dispute arising in the process of executing these two "Sales Contract" between the two parties, the Claimant applied to the Commission for arbitration according to the arbitration clause related to the dispute as stated in the two contracts of "Sales Contract", the requests were as follows:

1. Request for the arbitration of the Respondent paying the Claimant the amount of unpaid payment for goods of USD 1,000,045 in total;

2. Request for the arbitration of the Respondent paying the Claimant the interests of unpaid payment from the deadline day of payment to the actual pay day. Temporarily calculated from January 11, 2013 of the second day of the deadline day of payment to March 7, 2013, the temporarily calculated amount was RMB 912, 017 yuan (Request for being calculated to the day that the Respondent has actually fulfilled all payment obligation) ;

3. Request for the arbitration of the Respondent compensating the Claimant for the currency exchange loss of temporarily calculated amount of RMB 372,117 yuan which was caused by the overdue payment of the Respondent (Request to calculate to the date when the Respondent actually fulfills all payment obligations) ;

4. Request for the arbitration of the Respondent assuming the counsel fee RMB 250,000 yuan for the Claimant. (RMB 250,000 yuan is the temporarily calculated amount, when the actual counsel fee exceeds RMB 250,000 yuan, request for the arbitration of the Respondent assuming the actual counsel fee for the Claimant) ;

5. Request for the arbitration of the Respondent assuming the arbitration fees of this case.

[12].
In the Agent Opinion which was submitted by the Claimant after court hearing, the Claimant changed the amount of unpaid payment for goods of the first arbitration request into USD 1,000,000; the second arbitration requests the computing interval of interests changing into temporarily calculated August 20, 2013, the temporarily calculated amount was RMB 1,097,180.98 yuan; in the third request of arbitration, the computing interval of currency exchange loss was changed into up to August 20, 2013, the temporarily calculated amount was RMB 465,200.00 yuan; in the fourth request of arbitration, the counsel fee was changed into RMB 185,955.80 yuan.
[13].
In its Application for Arbitration and Statement of the Procurator, the Claimant said:
[14].
The Claimant of this case concluded and signed many copies of sales contract on solar energy battery pack with the Respondent in 2010. The disputed contract of this case is the Sales Contract of No. S69020054. The date of signing on the first page of the Sales Contract was October 6, 2010, the signing date on the last page was October 26, 2010. The total price of the contract was USD 1,403,200. The Article 4.2 of the contract appointed that the Respondent shall pay the 10% the advance payment antecedently, the balance shall be paid off within the 50 days of shipping date listed on bill of landing.
[15].
The Claimant received the advance payment of the Respondent, totaling USD 140,320.00 on October 28, 2010.
[16].
On November 21, 2010 (the date of bill of lading), the Claimant has sent solar battery module to the Respondent under the contract, the total price was USD 1,403,200.00. The shipment arrived discharging port, also the Port of Long Beach located at Los Angeles on December 25, 2010. Later, the Claimant has provided the relevant invoice, packing list, the bill and the policy of insurance of freightage for the Respondent.
[17].
According to the appointment of Article 4.2 of No. S69020054 Sales Contract, the Respondent shall pay off the payment for goods within 50 days of shipping date listed on the bill of landing. Therefore, the payment deadline for the payment for goods shall be January 10, 2011. On the above deadline, the Respondent failed to pay the total payment for goods according to the Sales Contract.
[18].
The Claimant and the Respondent also signed the Sales Contract of No. S69020055. The date of signing on the Contract was November 3, 2010, the signing date of the Respondent was November 9, 2010. The total price under the contract was USD 274,400. Article 4.2 of the Contract appointed 20% of advance payment. On November 9, 2010, the Claimant received 20% of advance payment paid by the Respondent, totaling USD 54,880, the exact amount after deducting handling charge of USD 15 was USD 54,865.
[19].
On November 18, 2010, the Claimant received the remaining 80% of payment for goods under the No. S69020055 Sales Contract, totaling USD 219,520. In the bank slip submitted by the Claimant as the proof, the printed Entry Amount was the exact amount of the Claimant on that day, totaling USD 482,385. As the requirement of account executive, the financial staff of the Claimant wrote two amounts on the bank slip, respectively were USD 262,880 and USD 219,520. Among which, USD 262,880 was the payment under No. S69020054 disputed contract. The two written amounts were totaling USD 482,400. Compared with the Printed Entry Amount, the excessive USD 15 was the handling charges. Even deduct the advance payment of USD 190,320.00 which the Claimant received on the October 28, 2010, and USD 262,880.00 which the Respondent paid on November 18, 2010, the Respondent still default USD 1,000,000.
[20].
The Claimant sent the lawyer's letter to the Respondent on December 19, 2012, requesting the Respondent to pay the owed payment for goods. However, so far, the Respondent still failed to repay the payment for goods, also failed to pay the loss of the Claimant caused by this.
[21].
The Claimant and the Respondent of this case are respectively entities established and existed in China and the USA, both countries are the member countries of United Nations Convention on Contracts for The International Sales of Goods (hereinafter referred to as "Convention"), this case shall apply to the "Convention". In addition, according to the provisions as stated in Clause 2 of Article 7 of "Convention", all problems not solved clearly in the Convention and falling within the scope of the Convention shall be solved in accordance with the general principles on which the Convention is based; in the absence of general principles, it shall be solved in accordance with the applicable laws as stipulated in the international private law. The Claimant regarded that in this case, in the absence of general principles, in accordance with the provisions as stated in International Private Law of the People's Republic of China where this arbitration resides, the applicable law shall be the law of the People's Republic of China.
[22].
According to the agreement of the relevant contracts in this case, "Convention" and the law of the People's Republic of China, the Claimant believed that: First of all, the failure behavior of the Respondent to pay the payment for goods within the prescribed period of time has already been a breach of contract, therefore the Respondent shall pay the Claimant the amount of overdue payment for goods. Next, the Respondent shall bear the relevant loss for the currency exchange loss caused to the Claimant by the overdue payment for goods. Finally, the counsel fee paid by the Claimant for this case, reduced interest income, etc. taken as the loss of the Claimant caused by the Respondent's breach of contract shall be fully paid by the Respondent. Due to the Respondent's breach of contract, the following losses are caused to the Claimant:

Overdue payment of disputed contract: USD 1,000,000.

Interest loss: Temporarily calculated as of August 20, 2013, the temporarily calculated amount was RMB 1,097,180.8 yuan.

Currency Exchange loss: As a Chinese company, the Claimant will convert it into Renminbi after receiving the foreign currency payment from the foreign buyers. Due to the failure of the Respondent to pay the Claimant the entire payment for goods in accordance with the contract, on the deadline day for payment (i.e. January 10, 2011), Bank of China's exchange rate for U. S. dollars to Renminbi slipped slightly compared to the exchange rate on the day that the Claimant submitted this application for arbitration, thus a currency exchange loss is made to the Claimant.

[23].
According to "the principle of complete compensation" as stipulated in Article 74 of "Convention" that is the applicable law of the disputed contract, the Respondent shall compensate the Claimant for the above currency exchange losses.
[24].
The conversion price of foreign exchange issued by Bank of China on January 10, 2011 is that USD 1 equals to RMB 6.6349 yuan. However, the conversion price of foreign exchange by Bank of China on August 20, 2013 is that USD 1 equals to RMB 6.1697 yuan, dropped by 0.4652 yuan. For the exchange rate loss made to the Claimant due to the Respondent's overdue payment, up to August 20, 2013, the temporarily calculated amount was RMB 465,200.00 yuan.
[25].
Counsel fee: The payment method as stated in the Contract for Legal Service is of conditional ceiling price, the ceiling price is RMB 250,000 yuan, when the total amount of the bill from the Claimant's lawyer is less than RMB 250,000 yuan, the Claimant will pay the counsel fee according to its lawyer's actual bill amount. As of the last bill from the Claimant's lawyer on September 3, 2013, the Claimant has received the bills from the lawyer of the total amount of RMB 185,955.80 yuan.
[26].
In accordance with Clause 2 of Article 47 of "Arbitration Rules" to which this case applies, the arbitration tribunal has authority to determine in the arbitral award according to the actual circumstances of the case that the unsuccessful party shall compensate the successful party for the reasonable expenses for handling the case, including the counsel fee.
[27].
The Claimant has paid the arbitration fee of this case, which is RMB 186,283.00 yuan. In accordance with Clause 1 of Article 47 of "Arbitration Rules", the Claimant requested the arbitration tribunal to determine that the Respondent shall bear all arbitration fee of this case.
[28].
Based on the above facts and reasons, in order to safeguard its legal rights and interests, the Claimant applied for arbitration and requested the arbitration tribunal to support all the claims of the Claimant.
[29].
The Claimant submitted the following evidences:

Evidence 1 / Sales Contract of No. S69020054. It proves the disputed contract between the Claimant and the Respondent as well as the payment obligations of the Respondent (Clause 4.2 of Article 4 of "Sales Contract" appoints that the Respondent shall pay 10% of the advance payment antecedently, the spare money shall be paid off within the 50 days of shipping date listed on bill of lading.

Evidence 2 / Bill of Lading No. PUDGS7201313, Evidence 3 / Packing List S69020054-1 and Evidence 4 / Cargo Transportation Insurance Policy No. PYIE201032118200E00337. It proves that the Claimant delivered the solar energy battery module to the Respondent according to the provisions as stipulated in the disputed contract of "Sales Contract" on November 21, 2010.

Evidence 5 / Sales Contract of No. S69020054-1. It proves that with regard to the goods delivered by the Claimant on November 21, 2010, the Claimant sent the advice of payment to the Respondent on the same day, which was USD 1,403,200.00 in total.

Evidence 6 / Export foreign exchange settlement voucher and notice of collection of Shanghai Rural Commercial Bank and Evidence 7 / SWIFT notice of collection of Shanghai Rural Commercial Bank. It proves that the Claimant received the advance payment from the Respondent, USD 140,305.00 in total, taken as the advance payment under the "Sales Contract" of No. S69020054, the Claimant has collected payment.

Evidence 8 / "Sales Contract" of No. S69020055, Evidence 9 / Bill of Lading No. EGFC10110146, Evidence 10 / Packing List No. S69020055—1, Evidence 11 / Commercial Invoice No. S69020055-1, Evidence 12 / Export foreign exchange settlement voucher and notice of collection of Shanghai Rural Commercial Bank and Evidence 13 / SWIFT notice of collection of Shanghai Rural Commercial Bank. It proves that the Claimant and the Respondent signed a "Sales Contract" of No. S69020055 with regard to buying and selling of solar energy battery module on November 3, 2010, with a total value of USD 274,400.00. The Claimant received the payments from the Respondent of USD 482,385.00 and USD 54,865.00 on November 9, 2010 and November 18, 2010, respectively. The two amounts were totaling USD 537,250.00. After deducting USD 274,400.00 that the Respondent was due to pay under the "Sales Contract" No. S69020055, the surplus of USD 262,850.00 was included into the disputed "Sales Contract" No. S6920054 in this case, taken as the money collected by the Claimant under this contract.Under the "Sales Contract" of No. S69020054, the Claimant has received USD 140,305.00 and USD 262,850.00, therefore the Respondent still owed the Claimant the relevant payment for goods of USD 1,000,045.

Evidence 14 / Lawyer's letter sent by the King & Wood Mallesons where the lawyer entrusted by the Claimant worked to the Respondent on December 19, 2012. It proves that the Claimant requested the Respondent to pay the overdue payment of USD 1,000,045.

[30].
After the trial, the Claimant supplemented the following evidences:

Evidence 15 / Contract for Legal Services signed between the Claimant and its lawyer. It proves the payment method of counsel fee by the Claimant to the lawyer.

Evidence 16 / Bill sent by the lawyer of the Claimant, dated on January 24, 2013; bill sent by the lawyer of the Claimant, dated on February 28, 2013; bill sent by the lawyer of the Claimant, dated on March 14, 2013; bill sent by the lawyer of the Claimant, dated on April 17, 2013; bill sent by the lawyer of the Claimant, dated on May 21, 2013; bill sent by the lawyer of the Claimant, dated on June 25, 2013; bill sent by the lawyer of the Claimant, dated on July 25, 2013; bill sent by the lawyer of the Claimant, dated on August 13, 2013 and bill sent by the lawyer of the Claimant, dated on September 3, 2013. It proves that up to September 3, 2013, the Claimant has paid the counsel fee of RMB 185,955.80 yuan in total, so as to recover arrears from the Respondent.

Evidence 17 / Confirmation letter given by the insurer. It proves that the insurer confirmed the authenticity of cargo transportation insurance policy with the insurance policy number of PYIE201032118200E00337.

Evidence 18 / E-mail content that King & Wood Mallesons where the Claimant's lawyer worked used when it sent the lawyer's letter to the Respondent on December 19, 2012. It proves that the King & Wood Mallesons where the Claimant's lawyer worked sent the lawyer's letter to the Respondent on December 19, 2012.

Evidence 19 / Receipt copy issued by the express company that King & Wood Mallesons where the Claimant's lawyer worked used when it sent the lawyer's letter to the Respondent on December 19, 2012. It proves that the King & Wood Mallesons where the Claimant's lawyer worked sent the lawyer's letter to the Respondent on December 19, 2012. (Due to more than three months after the delivery time, it can't query the mail's actual delivery report according to the number on the receipt).

[31].
The Claimant also submitted "Benchmark Interest Rate for Renminbi Loans in the Financing Institution" of The People's Bank of China (April 21, 1991 to July 6, 2012) and the conversion price between US dollar and RMB under the foreign exchange rate of Bank of China on January 10, 2010, CISG Advisory Council Opinion No. 6, Calculation of Damages under CISG Article 74), expert opinion under Article 74 of the Convention and court decision in China with regard to the exchange rate loss.
[32].
After trying this case, the arbitration tribunal found out the following facts:

The two parties signed the two Sales Contracts of No. S69020054 and No. S69020055 with regard to buying and selling solar energy battery module. The solar energy battery module was to be sold by the Claimant to the Respondent. The total amount of payment for goods under the Sales Contract of No. S69020054 was USD 1,403,200; the total amount of payment for goods under the Sales Contract S69020055 was USD 274,400.00.

The last signing date on the Sales Contract of No. S69020054 was October 26, 2010; the last signing date on the Sales Contract No. S69020055 was November 9, 2010.

[33].
After the two parties signed the two disputed Sales Contracts, the Claimant received the advance payment of USD 140,320.00 under the Sales Contract of No. S69020054 on October 28, 2010 (USD 140,305.00 was actually received after deducting the handling charge of USD 15) and remittance of USD 482,400.00 from the Respondent on November 9, 2010 (USD 482,385.00 was actually received after deducting a fee of USD 15), the advance payment of USD 54,880.00 under the Sales Contract of No. S69020055 on November 18, 2010 (USD 54,865.00 was actually received after deducting the handling charge of USD 15).
[34].
On November 20, 2010, the Claimant delivered the solar energy battery module under the Sales Contract of No. S69020055 to the Respondent, the discharge port was Vancouver, Canada. On November 21, 2010, the Claimant delivered the solar energy battery module under the Sales Contract of No. S69020054 to the Respondent, the discharging port was Port of Long Beach, Los Angeles, USA.
[35].
The Claimant has consigned original bill of lading under the two Sales Contracts of No. S69020054 and No. S6902005 to the Respondent. The cargo property rights have been handed over to the Respondent.
[36].
Later, the Respondent has never paid the Claimant any payment for goods.
[37].
The Claimant hired an attorney agent for handling this case. The payment of counsel fee was made in the form of ceiling price and paid on an hourly basis. The attorney agent of the Claimant sent the bills of agency fee to the Claimant for handling this case, which was the total amount of RMB 1,859,955.80 yuan.
[38].
The above-mentioned facts were proved by the evidences submitted by the Claimant and hearing record. The Respondent raised no objections to the authenticity, legitimacy and relevancy of the evidences.

II. Opinion of the arbitration tribunal

[39].
After the trial of the arbitration tribunal, making analysis of the case fact and relevant legal questions and forming the opinions as follows:

I) With regard to the Sales Contract of No. S69020054 and No. S69020055

1. The applicable law on the Sales Contract of No. S69020054 and No. S69020055

[40].
The Respondent of the case which is the buyer of Sales Contract of No. S69020054 and No. S69020055 when they were concluded and signed is the company entering to the register in USA, the Claimant as the seller is the company entering to the register in China. Therefore, the legal relation involved in the Sales Contract was foreign-related civil legal relationship. Both parties of the case failed to select the applicable law on the Sales Contract of No. S69020054 and No. S69020055 definitely.
[41].
The seller of the Sales Contract of No. S69020054 and No. S69020055, also the Claimant, is the company entering to the register and operating in China, the buyer involved in Sales Contract, also the Respondent, is the company entering to the register and operating in the USA. Both China and the USA are the high contracting parties of Convention. Clause 1 of Article 1 in Convention stipulates, the Convention applies to the cargo sales contract concluded by parties whose places of business are in different high contracting parties. Hereby, the Sales Contract of No. S69020054 and No. S69020055 shall be suitable for the Convention.
[42].
In addition, according to the provisions as stated in Clause 2 of Article 7 of "Convention", all problems not solved clearly in the Convention and falling within the scope of the Convention shall be solved in accordance with the general principles on which the Convention is based; in the absence of general principles, it shall be solved in accordance with the applicable laws as stipulated in the international private law.
[43].
The arbitration tribunal thinks, when deal with the dispute of the case, if the applicable Convention has no stipulation as the pursuant ordinary principle for certain problems involved in dispute, the applicable laws shall be confirmed by the closest connection principle, and as the relevant provision of the confirmed laws to solve.
[44].
In this case, the place of business, the offer place of contract, the place of cargo shipping and the place of arbitration of the Claimant all are China, the arbitration tribunal thinks that China has the closest relation with the Sales Contract of No. S69020054 and No. S69020055 involved in the case, if there is no general principle stipulated in the Convention, the relevant provision of Chinese law shall be applicable.

2. The Sales Contracts of No. S69020054 and No. S69020055 established and took into effect

[45].
The printing dates in the column of Signing Date of the second line in the outset of the Sales Contracts of No. S69020054 and No. S69020055 are October 6, 2010 and November 3, 2010 respectively. The arbitration tribunal notices that the lower part of the signature and seal of the Claimant in the inscription place of the two Sales Contracts doesn't indicate the signing time, however, there is signing time of October 26, 2010 and November 9, 2010 by handwriting respectively below the signature and seal of the Respondent.
[46].
Upon the investigation, the Claimant affirmed that they have sent two copies of Sales Contract to the Respondent successively by fax on October 6, 2010 and November 3, 2010, the Respondent signed at October 26, 2010 and November 9, 2010 successively, and then sent the Sales Contract back to the claimant, which meant the Respondent received the offer made by the claimant.
[47].
The 23rd stipulation of The Convention said that the time of establishment of Contract is when the acceptance of offer goes into effect. Therefore, the Sales Contract of No. S69020054 and S6902005 were established on October 26, 2010 and November 9, 2010 respectively. There was no evidence to prove that the legal situation of making the two copies of Sales Contract invalid existed. According to Article 8 and 44 of Contract Law of the People's Republic of China, the Sales Contract of No. S69020054 and S6902005 took effect since they were established, and the parties shall be legally binding.

3. The content relating to the merits of the dispute in Sales Contract No. S69020054

[48].
"1. This Contract is made by and between the Buyer and the Seller, whereby the Buyer, agrees to buy and the Seller agrees to sell the under-mentioned commodity according to the terms and conditions stipulated below:

Item Description of Goods Quantity Unit Price Total Amount (USD)
112(W) (PCS) (USD/W) (USD/PC)
1 SST250-60M 560,000 2,240 2.00 500.00 1120,000.00
2 SST295-72M 141,600 480 2.00 590.00 283,200.00
Total: USD 1,403,200.00

2. SPECIFICATION OF GOODS

1) Solar module is made with 6 inches mono crystalline silicon solar cells

2) The frame is 50mm and the connect of the junction box is like MC4

3) Power maximum: ± 3% watt tolerance

4) Maximum system voltage: DC600V

5) The Seller shall provide a flash report of every single module evidencing the out-put power of each module.

3. MANUFACTURE AND COUNTRY OF ORIGIN

Same as the Seller

4. PRICE & PAYMENT

4.1 Price Terms

CIF Long Beach

Total Price

USD1,403,200.00

4.2 Payment

10% down payment, 90% paid with net 50 days after shipping date showed in the B/L.

If by the time of shipping, Insurance credit to SUNVALLEY hasn't been approved, this contract will be terminated and 10% down payment will be returned to SUNVALLEY.

Seller shall deliver invoice to Buyer in connection with each delivery of Product after having full payment from buyer. Buyer shall pay Seller for each delivery according to the terms set forth in this sales contract.

4.3 BANKING CHARGES

All the banking charges occurred in China mainland should be born by the sellers while all the banking charges occurred outside China mainland should be borne by the buyers.

4.4 TAX & CUSTOMS

5. SHIPMENT

5.1 Unless otherwise agreed in writing the Seller shall deliver the contract goods in accordance with the INCOTERMS provided by the International Chamber of Commerce.

5.2 Port of Shipment

Port of Loading: SHANGHAI, CHINA

Port of Destination: Long Beach, CA USA

5.3 TIME OF SHIPMENT

All modules should be shipped out from shanghai port before 20/NOV/2010.

5.4 Insurance & Freight

CIF:

The SELLER shall be liable for freight payment and all fee arose from the transport between factory and Shanghai port. Insurance and sea Freight from Shanghai port to Long Beach shall be paid by the seller.

6. PACKING

7. WARRANTY

8. CLAIMS

9. FORCE MAJEURE

10. TERMINATION

10.2 This Agreement can only be terminated under the following conditions:

10.2.2 The Buyer fails to comply with its obligations of payment under this Agreement, and provided that the Buyer fails to remedy the default of breach within a period of thirty (30) days of receipt of written notice from the Seller.

11. ARBITRATION

All disputes in connection with this Contract of the execution thereof shall be settled friendly through negotiations. In case no settlement can be reached, the case may then be submitted for arbitration to the China International Economic and Trade Arbitration Commission Shanghai Commission in accordance with its arbitration rules. The arbitration shall take place in Shanghai and the decision of the Commission shall be final and binding upon both parties; neither party shall seek recourse to a law court or other authorities to appeal for revising of the decision. The arbitration fee shall be borne by the losing party.

12. OTHER

This Contract is executed in two versions each in Chinese and English, both versions are valid.

If two versions have difference, the English version governs.

Four (4) only originals of this Agreement are in existence and will become effective since being signed / sealed by both parties, with two (2) originals to be held by the Buyer, and two (2) originals to be held by the Seller."

[49].
The content relating to the merits of the dispute in Sales Contract No. S69020055 and Sales Contract No. S69020054 are same, except the following content:

"1.......:

Item Description of Goods Quantity Unit Price Total Amount (USD)
112(W) (PCS) (USD/W) (USD/PC)
1 SST250-60M 560,000 2,240 2.00 500.00 1120,000.00
Total: USD 274,400.00

2. SPECIFICATION OF GOODS

1) The Seller shall provide a flash report of every single module evidencing the out-put power of each module.

2) The frame of 250W is 50mm and the connect of the junction box is like MC4

3) Power maximum: ±3% watt tolerance

4) Maximum system voltage: DC1000V

4. PRICE & PAYMENT

4.1 Price Terms

FOB Shanghai

Total Price

USD274,400.00

4.2 Payment

20% down payment

80% net 30 days. If by panels are ready to be shipped, SUNVALLEY insurance credit hasn't been approved, SUNVALLEY should pay off the balance payment before delivery.

5. SHIPMENT

5.2 Port of Shipment

Pot of Loading: SHANGHAI, CHINA

Port of Destination: Vancouver, British Columbia, Canada

5.3 TIME OF SHIPMENT:

All modules should be ready at factory to be delivered to Shanghai port before 25/NOV.

FOB:

The SELLER shall be liable for freight payment and all fees arose from the transport between factory and Shanghai port. Insurance shall be procured by the buyer.

......"

II) In regard to the unpaid payment for goods and its interest

[50].
1. After both parties making the Sales Contract of No. S69020054 and S6902005, the Claimant has received the advance payment USD 140,320.00 under the Sales Contract of No. S69020054 and the advance payment USD 54,880.00 under the Sales Contract of No. S6902005 successively on October 28, 2010 and November 9, 2010.

On the basis of the appointment of Article 4.2 under the Sales Contract of No. S69020054, the period of 90% of payment for goods under the Sales Contract of No. S69020054 is within 50 days after the date of shipment indicated on the bill of lading (November 21, 2010), which is also the deadline of account payable, January 10, 2011. On the basis of the appointment of Article 4.2 under the Sales Contract of No. S69020055 is "80%net 30 days". On the basis of the appointment of Article 4.2 under the Sales Contract of No. S69020054, the period of 80% of payment for goods under the Sales Contract of No. S69020055 is within 30 days after the date of shipment indicated on the bill of lading (November 20, 2010), which is also the deadline of account payable, December 20, 2010.

From the analysis of the payment deadline of payments for good under the two copies of Sales Contract, the arbitration tribunal thinks that the Claimant has received USD 482,000 on November 18, 2010. USD 219,520 is 80% of the total price of cargo under the Sales Contract of No. S69020055, the rest USD 262,880 was the part of the payment for goods under the Sales Contracts of No. S69020054. Hereby, the Respondent has paid off the payment for goods under the Sales Contracts of No. S69020055, still owes USD 1,000,000 of the payment for goods [1,403,200-(140,320+262, 880)] under the Sales Contracts of No. S69020054.

Article 53 of The United Nations Convention on Contracts for the International Sale of Goods in 1985 stipulated that the buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention. Article 59 of United Nations Convention on Contracts for the International Sale of Goods stipulated that the buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller. Section 3 of the Convention which is "Remedial Measures for the Buyer Violating the Contract", Item (a) of Clause (1) in Article 61 and Article 62 stipulate that if the buyer fails to fulfill any obligation in the contract, the seller can request the buyer to pay the purchase price.

As the Claimant has dispatched the goods under the Sales Contract of No. S69020054 to the discharging port, and delivered the bill of lading of cargo to the Respondent, the ownership of the cargo has already been handed over to the Respondent, but so far the Respondent has owed the Claimant USD 1,000,000, on the basis of the above facts and the above stipulation of the Convention, the arbitration tribunal thinks that the behavior of the Respondent owing the Claimant USD 1,000,000 violates the appointment of the disputed Sales Contract, it is the behavior of breaching the contract, the Claimant has the right to demand the Respondent to pay the USD 1,000,000 of the payment for goods the Respondent has owed under the disputed Sales Contract. For the request of the Respondent paying back the owed payment for goods of USD 1,000,000 raised by the Claimant, the arbitration tribunal supports it.

[51].
2. Article 78 of Section 3 of the Convention stipulates that if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it.

On the basis of the above stipulation of the Convention, the Claimant has the right to request the Respondent to pay off the interest loss generated by the owed payment for goods of USD 1,000,000. The interests shall be calculated from the default date to the date of the arbitration made.

On the basis of the examination, the conversion ratio between USD and RMB was 1: 6.6349 on January 10, 2011 based on the publishing of Bank of China. Hereby, the payment for goods which the Respondent owed to the Claimant of USD 1,000,000 equaled to RMB 6,634,900 yuan. Besides, on the basis of the examination, during the period from January 11, 2011 to date which the arbitration made, the loan interest rate of the same period was 5.8596 per year. Calculating hereby, the interest of payment for goods that the Respondent shall pay to the Claimant is RMB (6,634, 900 x 2. 9167 x 5.85%) 1,132,093 yuan.

III) About the currency exchange loss

[52].
Article 74 of the Convention stipulates that damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract. According to the stipulation of this Article, and refer to the instruction of damage calculation of Article 74 made by the expert advisory committee of the Convention. The arbitration tribunal thinks that the Claimant is a Chinese company, the informal currency is RMB, which is different from the currency of USD under the disputed Sales Contract. Under normal conditions, if the Respondent pays on time, the Claimant will change the contract currency into RMB at once. In this case, for the existing currency exchange rate differentials, under the condition that the Respondent pays on time, the Claimant can obtain more RMB. In this case, the Claimant requests the Respondent to pay the loss of currency exchange rate differentials due to his breach of contract, which is consistent with the general principle of full compensation established in Article 74 of the Convention. Therefore, as for the Claimant requesting the Respondent to pay the loss of exchange rate differentials due to his breach of contract, the arbitration tribunal supports it.
[53].
Through examination, the currency conversion ratio between USD and RMB was 1: 6.1114 on January 10, 2011 based on the publishing of Bank of China. Calculating hereby, from January 10, 2011 to the date on which this arbitration was made, the loss of the exchange rate differentials caused by the Respondent to the Claimant is RMB [6,634,900-(6.1114x1,000,000)]520,900 yuan, the Respondent shall pay the loss of the currency exchange rate differentials to the Claimant.

IV) With regard to the assuming of the counsel fee

[54].
The counsel fee which the Claimant shall pay for this case is RMB 185,955.80 yuan. According to the stipulation of Clause 2 in Article 47 of Arbitration Rules, the arbitration tribunal thought that the counsel fee shall be paid by the Respondent.

V) With regard to the assuming of arbitration fees

[55].
According to the stipulation of Clause 1 in Article 47 of Arbitration Rules, the arbitration fees of this case is RMB 186,283.00 yuan, shall be fully assumed by the Respondent. The prepayment of the Claimant is RMB 186, 283.00 yuan, which shall be used as the above arbitration fee, the Respondent shall pay to the Claimant the advanced arbitration fee of RMB 186, 283.00 yuan.

III. Award

[56].
I) The Respondent shall pay the owed payment for goods of USD 1000,000 under the Sales Contract of No. S69020054 and its interest of RMB 1,132,093 yuan during the default of this payment for goods;

II) The Respondent shall pay to the Claimant the loss of currency exchange rate differentials of RMB 520,900 yuan due to the breach of contract.

III) The Respondent shall pay to the Claimant the counsel fee of RMB 185,955.80 yuan which is used for this case;

IV) The Respondent shall pay to the Claimant the arbitration fee of RMB 186,283.00 yuan.

For the above payment content of the award, the Respondent shall complete the payment within 30 days after the award has been made.

[57].
This award shall be final and go into effect since the date of making.
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