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Final Award

I. INTRODUCTION

A. Parties

1. Claimant

1.
Claimant Rubbermaid Commercial Products, LLC ("Claimant" or "Rubbermaid") is a Delaware limited liability company with its corporate headquarters in North Carolina and various other offices throughout the United States. Claimant is not registered under the laws of the People’s Republic of China ("PRC"). Claimant sells products for commercial and institutional markets worldwide.
2.
Claimant is represented in this Arbitration by Timothy F. Sweeney and Lynn Rowe Larsen of the Law Office of Timothy Farrell Sweeney, of Cleveland, Ohio.

2. Respondent

3.
Taizhou Yinshan Manufacturing Brushes Co., Ltd. ("Respondent" or "Yinshan") is a company registered under the laws of, and located in, the PRC. Respondent’s business address, based on the purchase orders described below, is in Taizhou, in the province of Zhejiang, in the PRC. Respondent is a former supplier to Claimant and manufactures certain products (using Claimant’s molds and tools) which are shipped to Claimant in the United States for distribution.
4.
As discussed below, Respondent has made no appearance in this Arbitration.
5.
Claimant and Respondent have been doing business with each other since at least 2003. (See Statement of Case at 2) The business relationship was conducted through a series of written purchase orders and a course of conduct associated with those orders. The current dispute arises out of this business relationship and focuses primarily on three such purchase orders: P.O. 4501578939 dated September 13, 2013; P.O. 4501578957 dated September 13, 2013; and P.O. 4501673721 dated November 5, 2013 (together the "Purchase Orders").

B. The Arbitration Agreement

6.
The Purchase Orders each have identical standard terms and conditions. The identical terms and conditions are also published on the Rubbermaid website. (Notice of Arbitration, Ex. 2)
7.
Section 10 of the Purchase Orders provides in relevant part:

...if you are a company registered under the laws of the People’s Republic of China ("PRC") or Hong Kong or Macau Special Administrative Regions ("SARs"), then (i) if the Company is not registered under the laws of the People’s Republic of China (excluding the Hong Kong and Macau SARs), any dispute arising out of or relating to this PO shall be determined by arbitration in New York, New York, USA by the International Centre for Dispute Resolution (the "ICDR") in accordance with its International Arbitration Rules in force when the notice of arbitration is submitted ("ICDR Arbitration").

The arbitral tribunal shall consist of three arbitrators, and the arbitration proceedings shall be conducted in the English language. In the case of the ICDR Arbitration, (A) each party shall appoint a person to serve as an arbitrator within ten days after the commencement of arbitration, (B) the parties shall then appoint the presiding arbitrator within ten days after selection of the party appointees, (C) if any arbitrators are not selected within these time periods, the ICDR shall, at the written request of any party, complete the appointments that have not been made, and (D) such arbitrators shall be freely selected, and the parties shall not be limited in their selection to any prescribed list.

The arbitral tribunal may award injunctive relief at its discretion according to the rules of ICDR.... The arbitration award shall be final and binding on all the parties, and a party may apply to a court of competent jurisdiction for enforcement of such award. The losing party shall bear all arbitration fees and costs, and shall compensate the other party’s costs related to the arbitration, including attorneys’ fees. You waive any objection based on forum non-conveniens and any objection to venue of any action instituted hereunder, and each party disclaims the United Nations Convention on Contracts for the International Sale of Goods.

8.
As Respondent is registered under the laws of the PRC and Claimant is not registered under the laws of the PRC, any dispute arising out of or relating to the Purchase Orders is to be determined by arbitration in New York, New York, USA, administered by the International Centre for Dispute Resolution ("ICDR"), the international division of the American Arbitration Association. The arbitration is to be conducted in accordance with the ICDR rules in force when the Notice of Arbitration is submitted. As the Notice of Arbitration was received by the ICDR on May 28, 2014, the applicable rules are the ICDR’s International Rules (effective as of June 1, 2009) (the "ICDR Rules").1
9.
The Parties also agreed that if a dispute is submitted to arbitration, the "losing party shall bear all arbitration fees and costs, and shall compensate the other party’s costs related to the arbitration, including attorney’s fees." (Purchase Orders, Section 10)
10.
The Purchase Orders further provide that they are to be interpreted in accordance with the law of the State of Delaware. (Purchase Orders, Section 10)

II. THE ARBITRAL PROCEEDING

A. Statement of Claim and Service on Respondent

11.
Claimant filed its Notice of Arbitration and Statement of Claim ("Statement of Claim") dated May 26, 2014 with the ICDR under cover of a letter dated the same day, which was received on May 28, 2014. Annexed to the Statement of Claim were various exhibits.
12.
Claimant has provided sworn testimony and supporting documentation concerning its attempts through counsel to serve the Statement of Claim on Respondent. (See, in particular, Affidavit of Lynn Larsen sworn to May 5, 2015) Claimant’s Statement of Claim was also communicated to Respondent by the ICDR. (Affidavit of Lynn Larsen, Ex. 6) These attempts are outlined in more detail below. (See Section III below)
13.
On June 12, 2014, the ICDR provided to Claimant’s counsel and to Respondent a communication requesting that Respondent file, pursuant to Article 3(1) of the ICDR Rules, its Statement of Defense to Claimant’s Statement of Claim on or before July 2, 2014. The ICDR also sought to set up a preliminary administrative conference call to discuss issues such as arbitrator selection.
14.
While Claimant’s counsel responded as to their availability for an administrative call, no response of any sort was received from Respondent. Accordingly, on July 3, 2014, the ICDR advised that it would not hold an administrative conference call but instead circulate information in writing concerning administrative matters.

B. Constitution of the Tribunal

15.
As noted above, Section 10 of the Purchase Orders requires that the dispute be resolved by a tribunal of three arbitrators, appointed in accordance with Section 10 and pursuant to the ICDR Rules. Section 10 requires that (1) each party is to appoint an arbitrator within ten days after commencement of the arbitration, (2) the parties shall then appoint the presiding arbitrator within ten days after selection of the party appointees, and (3) if any arbitrators are not selected within these time periods, the ICDR shall, at the request of any party, complete the appointments that have not been made.
16.
Given the Respondent’s failure to appear, the ICDR extended the date by which the parties were to make their appointments of arbitrators.
17.
On September 22, 2014, Claimant advised the ICDR of its selection of Mr. Richard H. Silberberg of the law firm Dorsey Whitney LLP as its appointee to the Tribunal.
18.
On September 23, 2014, the ICDR advised that, as Respondent had failed to appoint an arbitrator within the time specified in Section 10 of the Purchase Orders, the ICDR would make such appointment. Accordingly, by letter dated October 2, 2014, Mr. Frederick R. Fucci of the law firm Troutman Sanders LLP was invited to be appointed to the Tribunal. Mr. Fucci’s executed notice of appointment was received by the ICDR on October 9, 2014.
19.
Further, given that the parties had also failed to select a presiding arbitrator, the ICDR (in consultation with the co-arbitrators) proceeded to appoint a presiding arbitrator. On October 29, 2014, Mr. James Hosking of the law firm Chaffetz Lindsey LLP was appointed to the Tribunal. He subsequently assumed the role of Chairperson.

C. Preliminary Hearing and Procedural Order No. 1

20.
On November 4, 2014, the Tribunal issued a notice to all parties advising that a preliminary hearing was to be conducted telephonically on November 25, 2014 at 10.00 AM (New York time). The call was subsequently postponed, on notice to all parties, to 4.00 PM (New York time).
21.
As noticed, on November 25, 2014 a preliminary hearing was conducted by telephonic conference. In addition to the Tribunal and an ICDR representative, the preliminary hearing was attended by counsel for Claimant. No representative of Respondent attended.
22.
On December 23, 2014, the Tribunal issued its Procedural Order No.1, which established certain procedural rules and laid out a timetable for the Arbitration. Amongst other things, Procedural Order No. 1 addressed Respondent’s failure to file a Statement of Defense and its consequences. In particular (at paragraphs 4.1 to 4.3):

4.1 The ICDR has confirmed that the Claimant’s Notice of Arbitration and Statement of Claim were received on May 28, 2014. Pursuant to Article 2(2) of the ICDR Rules, the arbitral proceedings were deemed to commence from that date.

4.2 In accordance with Article 3(1) of the ICDR Rules, within thirty (30) days of the commencement of arbitration, the Respondent "shall submit a written statement of defense, responding to the issues raised in the notice of arbitration, to the claimant and any other parties, and to the administrator." Pursuant to Article 3(2), the Respondent may at the same time make counterclaims or assert setoffs to the Claimant’s claims. Respondent’s Statement of Defense should have been submitted by June 27, 2014.

4.3 The Respondent has not submitted any Statement of Defense. Respondent is already in default of Article 3(1).

23.
Procedural Order No. 1 went on to explain that:

4.4 Pursuant to Article 23, the Tribunal is empowered to proceed with the arbitration if the Respondent fails to file a Statement of Defense and may, if it further fails to proceed, make an award on the evidence before it. Article 23 reads in full:

(1) If a party fails to file a statement of defense within the times established by the tribunal without showing sufficient cause for such failure, as determined by the tribunal, the tribunal may proceed with the arbitration.

(2) If a party, duly notified under these Rules, fails to appear at a hearing without showing sufficient cause for such failure, as determined by the tribunal, the tribunal may proceed with the arbitration.

(3) If a party, duly invited to produce evidence or take any other steps in the proceedings, fails to do so within the time established by the tribunal without showing sufficient cause for such failure, as determined by the tribunal, the tribunal may make the award on the evidence before it.

4.5 Although Respondent is already in default, the Tribunal hereby directs that Respondent shall submit by no later than 30 days from the date of this Procedural Order, i.e., by January 22, 2015, its Statement of Defense.

24.
Finally, Procedural Order No. 1 explained the consequences if Respondent failed to file a Statement of Defense by January 22, 2015:

5.1 Claimant advised at the Preliminary Hearing that it is ready to file its Statement of Case and that, if the Respondent fails to comply with its final opportunity to file a Statement of Defense as provided for in paragraph 4.5 above, the Tribunal should proceed to issue an award on the evidence before it.

5.2 The Tribunal hereby directs that, unless the Respondent files its Statement of Defense in accordance with paragraph 4.5 above, the Claimant shall submit by January 30, 2015, its Statement of Case, including its legal submissions and authorities, as well as all documentary evidence, sworn witness statements and such other evidence as it wishes to submit to the Tribunal. As part of that submission, the Claimant should also brief why it should be entitled to an award on the evidence before the Tribunal and without the need for an evidentiary hearing.

5.3 Upon receipt of the Claimant’s Statement of Case and application for an award without an evidentiary hearing, the Tribunal will consider and make an order on next steps.

25.
Respondent failed to file its Statement of Defense by January 22, 2015 and did not otherwise take any steps to appear in the Arbitration. Accordingly, Claimant was to file its Statement of Case by January 30, 2015.

D. Claimant’s Statement of Case

26.
After having sought and obtained from the Tribunal various extensions of time (Respondent being copied on all communications), on May 6, 2015, Claimant filed its Statement of Case.
27.
Together with its Statement of Case, Claimant filed the following testimony:

a. Affidavit of Stacey Moore (Vice President of Legal Affairs, Global Supply Chain and Commercial Products for Newell Rubbermaid Inc.) ("Moore Affidavit");

b. Affidavit of ZHU Kun (a/k/a Jason Zhu) (Supervisor in charge of enterprise purchasing for Newell Rubbermaid Inc.) ("Zhu Affidavit");

c. Affidavit of FU Shitan (a/k/a Tomas Fu) (Project Manager in charge of enterprise purchasing in Asia for Newell Rubbermaid Inc.) ("Fu Affidavit II");

d. Affidavit of Troy Bohana (SAP Business Technical Director for Newell Rubbermaid Inc.) ("Bohana Affidavit");

e. Affidavit of Jeff Dugger (Senior Manager for Product Planning for Rubbermaid Commercial Products LLC) ("Dugger Affidavit"); and

f. Affidavit of Lynn R. Larsen (counsel to Claimant) ("Larsen Affidavit").

28.
The "affidavits" of Mr. Zhu and Mr. Fu were in fact submitted in the form of "notarial certificates" prepared in the PRC by the Shanghai Oriental Notary Public Office and in accordance with the Notary law of the PRC, in the original Chinese and with translations into English. The "notarial certificates" consist of questions posed and answered by each of the witnesses under oath in accordance with Chinese evidentiary standards. (Statement of Case, note 2; Procedural Order No. 2, ¶ 2.2)2
29.
Together with its Statement of Case, Claimant also filed various exhibits and legal authorities.
30.
In its Statement of Case, Claimant requested that the Tribunal proceed to make a final award in its favor. (Statement of Case at 12-13)

E. Procedural Order No. 2

31.
In accordance with the Tribunal’s Procedural Order No. 1, the Tribunal considered Claimant’s Statement of Case and the evidence filed therewith.
32.
After due consideration, on May 28, 2015, the Tribunal issued Procedural Order No. 2, which laid out the history of Respondent’s failure to participate in the Arbitration and confirmed that the Tribunal was willing to proceed to a final award without the need for an evidentiary hearing subject only to receiving additional submissions on certain specified issues.
33.
Paragraphs 3.1 -3.4 of Procedural Order No. 2 read as follows:

3.1 As noted above, Article 23 of the ICDR Rules permits the Tribunal to proceed to issue an award where Respondent has failed to file a Statement of Defense and, further, the ICDR Rules permit the Tribunal to issue an award without the need for an evidentiary hearing where the Tribunal is satisfied Claimant has made out its case on the evidence before it. The Tribunal has further considered the Delaware authorities on this issue cited in the Statement of Case which support this conclusion.

3.2 The Tribunal also notes that this conclusion is consistent with international arbitration practice and procedure. See e.g. Gary B. Born, International Commercial Arbitration (2d ed, Kluwer) at 2298 ("If a party defaults, the tribunal should proceed with the arbitration on an ex parte basis, first attempting to obtain the defaulting party’s participation and thereafter ensuring at every step that the defaulting party receives notice of the ongoing proceedings.") The Tribunal still must analyze the legal submissions and evidence placed before it by the non-defaulting party before rendering its award. See e.g. Born, ibid at 2299 ("The tribunal should, without substituting itself for the defaulting party, satisfy itself that the claimant ’s claims are well-founded in law and fact (or not). This procedure culminates in a reasoned award, setting forth the facts and the basis for decision in the same manner that an award in a contested proceeding would be rendered.")

3.3 Accordingly, having carefully reviewed the Statement of Case and evidence submitted with it, the Tribunal has determined that, subject to the following, it is willing to proceed to issue a final award without the need for an evidentiary hearing. However, the Tribunal directs that Claimant respond to the following requests for additional information:

(a) Claimant submits that the Tribunal is empowered to render an award despite the Respondent’s failure to appear and without the need for an evidentiary hearing. Statement of Case at Section V.A. Please address how this issue is handled as a matter of New York law (New York being the seat of arbitration).

(b) Please advise what Claimant understands to be Ms. Ella Zhang’s position at Respondent.

(c) Claimant advises that it gave notice of an intention to terminate Respondent in "the autumn of 2013." Notarial Certificate of Mr. Zhu at 3. Please advise when exactly Claimant gave its notice of termination and, if in writing, provide a copy of such notification. Further, was this a termination for cause or convenience pursuant to Section 2 of the Purchase Orders? Further, did Respondent at any time make a claim for "payment of the termination charge" as provided for in Section 2 of the Purchase Orders?

(d) Given that Claimant advised Respondent of its intention to terminate the agreement in "the autumn of 2013," it must have been obvious that Claimant would need a new manufacturer in place to ensure Goods were available without interruption. Please respond to the following:

(i) Why is it that Taizhou Lifeng Manufacturing Corp. ("Lifeng") was only retained as Respondent’s replacement in January 2014?

(ii) Why did Lifeng only agree to "meet supply requirements starting in July 2014"? Affidavit of Jeff Dugger at ¶16.

(iii) Claimant’s position is that "Lifeng could not meet the same delivery deadlines that Yinshan had failed to meet or maintain [Claimant’s] inventory levels without interruption." Statement of Case at 10. This is apparently because Lifeng "did not have the molds and tooling necessary to manufacture the goods and could not immediately commence manufacture." Affidavit of Jeff Dugger at ¶7. Mr. Zhu advises that Lifeng is having to manufacture new Molds and Tools. Notarial Cerificate of Mr. Zhu at 6. When did Claimant provide the specifications for Lifeng to commence manufacturing new Molds and Tools and what is a reasonable time for that process to be completed and Lifeng to be ready to supply the Goods?

(e) Claimant requests a declaration that "the Molds and Tools are the property of Rubbermaid Commercial Products LLC and that Yinshan is compelled to immediately deliver such Molds and Tools and to not use them for any purpose." Statement of Case at 20. The Tribunal understands that the basis for this request is Section 6 of the Purchase Orders. Has Respondent at any time asserted any basis for refusing to deliver up the Molds and Tools other than the request for payment of outstanding invoices? Please also state the legal basis on which the Tribunal should rely in ordering specific performance of the obligation in Section 6 of the Purchase Orders to return the Molds and Tools (as opposed to granting money damages) and also in ordering Respondent not to use the Molds and Tools for any other purpose.

(f) Claimant submits that with respect to its request for pre- and post-judgment interest, "[t]he applicable law is the substantive law in the State of Delaware." Statement of Case at 19. Please address whether the Tribunal should also consider New York law (New York being the seat of arbitration) and, if so, what New York law provides.

(g) With respect to Claimant’s calculation of lost profits on the Goods, please confirm that the calculation of the "cost" of Goods - i.e. the "price...[Claimant] would have had to pay [Respondent], or a replacement vendor, for the products if they had been delivered as expected" - is inclusive of all costs that Claimant would have had to bear (e.g. including shipping, packaging, duties, taxes, etc. as identified in Section 3 of the Purchase Orders).

3.4 Claimant may respond to the above questions by way of an additional brief and/or sworn evidence as it considers necessary. Claimant should file its response no later than 21 days from the date of this order, i.e. by June 18, 2015. Upon review of that supplemental filing, the Tribunal will decide what, if any, further steps are required prior to proceeding to an award.

34.
In paragraph 3.5 of Procedural Order No.2, the Tribunal made explicit that: "in posing the above questions it is fulfilling its duty to test the evidence before it and these questions should not be taken to be indicative of the likely outcome of the Arbitration."

F. Claimant’s Case Supplements

35.
On October 16, 2015, after seeking and obtaining various extensions of time, Claimant filed with the Tribunal, Respondent and the ICDR its "Supplement to Statement of Arbitration Case" (the "Case Supplement"). The Tribunal acknowledged receipt of Claimant’s Case Supplement on October 16, 2015.
36.
Together with its Case Supplement, Claimant filed the additional affidavit of Mr. Fu Shitan ("Fu Affidavit II") Again, this affidavit was filed in the form of a "notarial certificate" in Chinese and English, as noted above with respect to Mr. Fu’s first affidavit.3 The Case Supplement included additional exhibits.
37.
As anticipated in Procedural Order No. 2, the Tribunal then considered Claimant’s Case Supplement and additional evidence before issuing further directions. On November 10, 2015, the Tribunal advised that, having considered Claimant’s Case Supplement, unless additional submissions were received from either party by December 1, 2015, the Tribunal would declare the hearing closed for purposes of Article 24(1) of the ICDR Rules.
38.
On December 7, 2015, no additional submissions having been received from any party, the Tribunal declared the hearing closed for purposes of Article 24(1) of the ICDR Rules.
39.
On February 1, 2016, however, by notice sent to all parties, the Tribunal reopened the hearing for the limited purpose only of inviting Claimant to update the attorneys’ fees portion of its claim for recovery of costs, and giving Respondent ten days from the date of Claimant’s additional filing to make any response thereto.
40.
On February 3, 2016, Claimant filed a Second Supplemental Statement of Case ("Second Case Supplement") and supporting affidavit of counsel updating its claim for attorneys’ fees.
41.
On February 4, 2016, the Tribunal acknowledged receipt of Claimant’s Second Case Supplement and confirmed the Tribunal’s prior order that if Respondent wished to make any response thereto it must be filed within ten days. However, as those ten days fell on a weekend, the Tribunal granted Respondent until Monday, February 15, 2016 to file any response. The Tribunal reiterated that regardless of whether Respondent made any filing, the Tribunal would thereafter re-order the closing of the hearing and proceed to issue its award. Again, these communications were sent to all parties in accordance with the protocol in Procedural Order No. 1.
42.
On February 16, 2016, the Respondent having not made any filing, the Tribunal advised the parties that the hearing was closed for purposes of Article 24(1) of the ICDR Rules.

III. SERVICE AND ONGOING NOTIFICATION OF PROCEEDING ON RESPONDENT

43.
Before proceeding further, the Tribunal summarizes the exhaustive efforts made to serve Respondent with the Statement of Claim and ongoing efforts made by Claimant, Tribunal and the ICDR to advise Respondent of all steps in this proceeding.
44.
First, Claimant attempted to deliver by Federal Express its Statement of Claim (and accompanying evidence) to Respondent at the business address used throughout the business relationship, but Respondent refused delivery on June 3, 2014. (Larsen Affidavit, ¶¶ 3-4) Claimant further attempted delivery by email, facsimile and Federal Express on September 22, 2014. (Larsen Affidavit, ¶ 6) Claimant has advised that it attempted service again by Federal Express and by facsimile on September 26, 2014 but Respondent "refused to accept delivery" and the facsimile was not received due to an ongoing busy signal. (Larsen Affidavit at ¶¶10-11; Statement of Case at 4) Respondent’s refusal of properly-addressed Federal Express packages is supported by the transmission reports. (Larsen Affidavit, Exs. 1, 2 and 4)
45.
Claimant has provided sworn testimony that the business address, facsimile number and email addresses employed as described in the previous paragraph are all the same as those used during the parties’ business relationship. (Zhu Affidavit at 1; Fu Affidavit I at 1; Fu Affidavit II at 1-2; Larsen Affidavit at ¶¶5, 8 and 11) This is also supported by the Tribunal’s review of the communications exchanged between the parties during the business relationship, including letters, emails, invoices and other business documents generated by Respondent itself that have been provided as exhibits.
46.
Claimant has provided sworn testimony that it has not received any indication that the email transmissions to Ms. Ella Zhang of Respondent at ella@yinshan-brush.com have not been received. (Larsen Affidavit at ¶¶7 and 12) Claimant has explained that Ms. Zhang was a "sales engineer" at Yinshan (Fu Affidavit II at 2) and was the "key business contact with [Rubbermaid] in the written communication[s]" (Fu Affidavit II at 1). Mr. Fu further affirmed that during the business relationship between the parties, an email sent to Ms. Zhang would be forwarded to Ms. Hu of Respondent’s senior management group. (Fu Affidavit II at 2)
47.
Second, in Procedural Order No. 1, the Tribunal provided that all written communications in the Arbitration are to be delivered to Respondent by email, facsimile and by courier using the same contact information employed by Claimant as described above, including Ms. Zhang’s email address. (Procedural Order No.1, ¶3.3(b)) Further, "all notifications and communications arising in the course of this arbitration shall be deemed to have been validly made to the Parties if and when sent by electronic mail...". (Procedural Order No. 1, ¶3.2) The ICDR and Claimant have confirmed that all communications were duly transmitted as required by Procedural Order No. 1.
48.
Third, the Tribunal has already determined in Procedural Order No. 2 that all reasonable steps have been taken to notify Respondent of the Arbitration (at paragraph 3.6):

The Tribunal further notes that as ordered by the Tribunal in Procedural Order No. 1, on January 27, 2015, Claimant filed a sworn affidavit attesting to the steps it has taken to notify Respondent of the Arbitration. Having reviewed that affidavit and the evidence subsequently provided by Claimant and the ICDR, the Tribunal is satisfied that all reasonable steps have been taken to notify Respondent of the Arbitration. Claimant and the ICDR are directed to continue to use this same method of notification for delivery of this Procedural Order No. 2 and any subsequent orders of the Tribunal.

49.
The Tribunal confirms that all reasonable steps have been taken to notify Respondent of the Arbitration, the last of which was the notification given on February 16, 2016 that the hearing was declared closed.

IV. FACTUAL BACKGROUND

50.
The Tribunal has fully considered the factual background to the dispute based upon the submissions and evidence presented to it. By way of general summary only, the key facts are those that follow (with the evidence to be discussed subsequently).
51.
For more than ten years, and through orders placed as late as November 2013, Respondent was a supplier to the Claimant of certain kitchenware and related goods that were manufactured by Respondent in the PRC to Claimant’s specifications using molds and tools supplied by Claimant (the "Molds and Tools"). Once manufactured, the goods were shipped to Claimant and sold through its distribution channels in the United States. (Statement of Case at 5-6)
52.
The relationship was maintained through the giving and acceptance of purchase orders issued by Claimant and accepted by Respondent. Respondent accepted the purchase orders by issuing a sales confirmation, in which it confirmed the terms of each order including an anticipated shipping date. Once shipped, Respondent would issue a "commercial invoice" corresponding to the particular goods being shipped pursuant to each of the purchase orders. This method of contracting had been used by the parties for several years. The purchase orders included the Purchase Orders that are the subject of this Arbitration. (Statement of Case at 5-6; Case Supplement at 7-8)
53.
In September and November 2013, Claimant ordered certain products for manufacture by Respondent pursuant to the above-mentioned Purchase Orders. The products ordered were a diverse range of goods including spatulas, scrapers and an array of brushes. Respondent confirmed the Purchase Orders and agreed to ship the goods on or before December 20, 2013. (Statement of Case at 6)
54.
Sometime in late 2013, Claimant advised Respondent that it would not be placing further orders for goods and requested the return of Claimant’s Molds and Tools. Claimant did not terminate any purchase orders but simply advised that it would not be placing future orders and would be changing vendors. The parties subsequently discussed the logistics for winding-up the relationship in a series of telephone calls and meetings. (Statement of Case at 6-7; Case Supplement at 7)
55.
On November 7, 2013, Respondent agreed to deliver the previously-ordered goods and return the Molds and Tools if Claimant agreed to pay all outstanding invoices. (Statement of Case at 6-7) On December 20, 2013, Respondent apparently advised that the goods, as well as the Molds and Tools, were ready for delivery. (Statement of Case at 7; Case Supplement at 9)
56.
As part of the discussions, Respondent had agreed to provide a list of all unpaid invoices that would need to be satisfied before final delivery of goods and return of the Molds and Tools. On January 5, 2014, Respondent provided Claimant with a list of amounts allegedly owed under all invoices, totaling US$584,201.49, which included but was not limited to the three Purchase Orders at issue in this Arbitration. Of that amount, US$186,871.42 represented goods that had been ordered pursuant to the three Purchase Orders but allegedly not delivered (the "Goods"). Following further discussions, it was apparently agreed that Respondent would deliver all completed goods to the APL Ningbo Warehouse (the "Warehouse"), a third-party warehouse, to be shipped to Claimant on a vessel to depart on January 14, 2014. (Statement of Case at 7-9; Case Supplement at 9)
57.
On January 10, 2014, Respondent advised Claimant that a "quality issue" had arisen with respect to a portion of the final shipment, namely the Goods. At Respondent’s request, Claimant agreed that Respondent should remove the Goods and ship the remainder of the shipment as soon as possible. Believing that the removed Goods (once the quality issues were resolved) and the Molds and Tools would be delivered upon full payment, on January 17, 2014, Claimant paid the full amount of the US$584,201.49 to Respondent. (Statement of Case at 8; Case Supplement at 9)
58.
Having now paid what it understood to be the full amount due under all invoices, on January 17, 2014, Mr. Fu of Claimant sought to take delivery of the Goods as well as the Molds and Tools. Respondent refused to release them. Claimant made subsequent demands for delivery but these were also refused. (Statement of Case at 9; Case Supplement at 9) Claimant maintains that the paid for but undelivered Goods, as well as the retained Molds and Tools, still have not been delivered to Claimant. These are now the focus of this Arbitration.
59.
In the meantime, Claimant had selected another Chinese manufacturer, Taizhou Lifeng Manufacturing Corporation ("Lifeng"), to replace Respondent as manufacturer. When Respondent failed to deliver the Goods or the Molds and Tools, Claimant alleges that it had to turn to Lifeng to restock its inventory. However, in the absence of the return of the original Molds and Tools, Lifeng had to make new molds and tools for which Claimant had to pay half the costs. Further, as a consequence of the combined effect of the Goods not being delivered and the delay in production due to Respondent’s retention of the Molds and Tools, certain of Claimant’s products went out-of-stock with a resulting loss of revenue to Claimant. (Statement of Case at 9-10; Case Supplement at 8-9)
60.
Claimant seeks recovery of damages as well as certain declaratory relief. Claimant also seeks recovery of its costs of the Arbitration. (Claimant’s Notice of Arbitration at 8; Claimant’s Statement of Case at 11 and 20-21; Claimant’s Case Supplement at 12; Claimant’s Second Case Supplement)
61.
Finally, at some point after January 17, 2014, Respondent justified its refusal to release the Goods or the Molds and Tools on the basis that additional amounts are allegedly owed by Claimant under separate purchase orders. These unpaid amounts allegedly date back as far as 2004. In fact, sometime after this Arbitration was commenced (possibly September 2014), Respondent apparently sued Claimant in the PRC courts over these alleged unpaid amounts. (Case Supplement at 9-11) This will be discussed further below.

V. ISSUES FOR DETERMINATION

A. Tribunal’s Jurisdiction

62.
Claimant has confirmed that it has no objection to the appointment of the Tribunal and has confirmed the Tribunal's jurisdiction over the dispute to be resolved in this Arbitration. (Procedural Order No. 1 at ¶2.6) As Respondent has failed to appear, however, the Tribunal is obliged to conduct its own assessment of its jurisdiction to determine the claims presented by Claimant.
63.
In this respect, the Tribunal confirms that the arbitration agreement contained in Section 10 of the Purchase Orders is valid and binding for purposes of the Federal Arbitration Act, including Chapter 2 thereof, which implements the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
64.
For the reasons set out in Claimant’s Statement of Claim and the evidence subsequently submitted, the Tribunal confirms that because Claimant is a company incorporated in Delaware (and not in the PRC) and because Respondent is a company registered in the PRC, then the arbitration has been duly commenced in New York, New York in accordance with the ICDR Rules in force at that time.
65.
The claims asserted by Claimant are all "arising out of or relating to" the business relationship between the parties that was manifested in the series of purchase orders, and encompasses each of the specific Purchase Orders. While each of the Purchase Orders contains a separate arbitration provision, the provisions are identical. The Tribunal confirms that the matters in dispute - namely, whether the Claimant should be compensated for the undelivered Goods and the unreturned Molds and Tools - arise out of the overall business relationship as manifested in the series of purchase orders. Accordingly, the Tribunal confirms that it has jurisdiction to determine the dispute.

B. Authority to Proceed in Light of Respondent’s Failure to Appear

66.
This raises two related issues.

1. Adequacy of Notice Given to Respondent

67.
The Tribunal has already set out above the extensive efforts made to serve the Statement of Claim on Respondent and to provide it with all filings in the Arbitration. (See Section III above) The Tribunal concludes that such efforts were more than reasonable. Indeed, given that all filings were also sent to Respondent care of Ms. Zhang’s email address that had been successfully used for several years through the parties’ relationship, the only reasonable conclusion that the Tribunal can reach is that Respondent received the filings but has consciously chosen not to participate in the Arbitration.
68.
The Tribunal concludes that the Statement of Claim was validly served on Respondent. Further, the Claimant has fulfilled its obligations to give notification of communications for purposes of Article 16(4) of the ICDR Rules and Section 3 of Procedural Order No. 1.
69.
Finally, for purposes of Article V of the New York Convention, as enacted in the United States in Chapter 2 of the FAA, the Tribunal concludes that Respondent has been put on notice of the Arbitration proceedings and has been given every reasonable opportunity to present its case.

2. Authority to Proceed to a Final Award

70.
Claimant has already briefed the Tribunal on its authority to proceed to a final award in the absence of participation of the Respondent. (Statement of Case at 11-13; Case Supplement at 2-3)
71.
Further, the Tribunal already made explicit in the course of the Arbitration that it was authorized to proceed without Respondent’s participation and that it would do so if Respondent continued to fail to appear. (Procedural Order No. 1 at ¶4.4 and ¶¶5.1-5.3; Procedural Order No. 2 at ¶¶3.1-3.2) Indeed, the Tribunal gave multiple opportunities for Respondent to make filings or otherwise appear in the proceeding.
72.
For the reasons set out in Procedural Order No. 2 (and quoted above at ¶33), the Tribunal confirms that it is authorized to proceed with making this Award in the absence of Respondent’s participation. This conclusion is consistent with the explicit provision in Article 23 of the ICDR Rules, and also with New York and Delaware law, the New York Convention and the Federal Arbitration Act.
73.
Accordingly, as provided in Procedural Order No. 2, the Tribunal has undertaken an investigation in order to "satisfy itself that the claimant’s claims are well-founded in law and fact (or not)" such that it can issue "a reasoned award, setting forth the facts and the basis for decision in the same manner that an award in a contested proceeding would be rendered" (Procedural Order No. 2 at ¶3.2, quoting Gary B. Born, International Commercial Arbitration (2d ed., Kluwer) at 2298) The Tribunal’s conclusions follow.

C. Breach of Contract: Goods Paid For But Not Delivered

74.
For purposes of this part of the claim, the Tribunal must determine whether Claimant has discharged its burden to prove that Respondent accepted each of the three Purchase Orders that covers the Goods, that Respondent was paid for the Goods, but that Respondent has failed to deliver the Goods. In addition, the Tribunal must consider the relevance of Respondent’s subsequent claim (not asserted in this Arbitration) that Claimant owes certain amounts under other purchase orders.
75.
First, the Purchase Orders provide that "[y]our commencement of work on the goods subject to this purchase order,...shipment of the goods or your commencement of the performance of the services to be rendered hereunder... shall be deemed to be an effective mode of acceptance." (Section 2)
76.
There is ample evidence that Respondent accepted the Purchase Orders and agreed to make delivery of the Goods. Claimant’s witnesses have sworn that Respondent confirmed the Purchase Orders in writing and agreed to ship the goods to Claimant on or before December 20, 2013. (Zhu Affidavit at 2; Fu Affidavit at 2) Further, Claimant’s Mr. Dugger (Senior Manager for Production Planning) has sworn that Respondent confirmed each of the Purchase Orders and has provided email confirmations from Respondent’s Ms. Zhang together with sales confirmations for each. (Dugger Affidavit at ¶¶2-4 and Ex. 2) Having reviewed the sale confirmations, it is clear that Respondent confirmed the Purchase Orders in September and December 2013, in which it also provided various anticipated shipping dates, the last of which being December 20, 2013. (Confirmation for PO4501673721 contained in email from E. Zhang dated December 5, 2013 (Dugger Affidavit, Ex. 2))
77.
Further, Respondent issued Invoice No. MT0423C-47/13 dated December 11, 2013 covering the Goods in the amount of US$186,871.42. (Moore Affidavit, Ex. 6) Invoice No. MT0423C-47/13 was included as one of thirteen invoices sent by Respondent’s Ms. Zhang to Claimant’s Mr. Fu on January 5, 2014 in response to a request for all unpaid invoices. (Moore Affidavit, Ex. 6) The Tribunal concludes that Respondent accepted the Purchase Orders.
78.
Second, Claimant alleges that after giving notice of its intention not to issue further orders to Respondent, discussions ensued about delivery of the final shipment and return of Claimant’s Molds and Tools. Claimant alleges that Respondent agreed to deliver the final shipment of goods to the Warehouse and that it would release the final shipment and the Molds and Tools upon Claimant’s payment of all outstanding invoices. This was the compromise reached after Respondent advised that it would not accept a letter of credit. (Email from E. Zhang to J. Zhu dated December 31, 2013 (Moore Affidavit, Ex. 7))
79.
On January 10, 2014, Respondent advised that a "quality issue" had arisen with several items and the parties agreed that those items could be removed from the Warehouse and shipped separately. This is supported by Claimant’s witness testimony (Fu Affidavit at 5; Zhu Affidavit at 5) and contemporaneous documents (email string between E. Zhang and S. Xiang from January 10, 2014 to January 17, 2014 (Moore Affidavit, Ex. 8)).
80.
Claimant has advised that it thought it was reasonable to make full payment on the goods in order to have the Molds and Tools returned, even though some of the goods were still to be delivered. Accordingly, on January 17, 2014, Claimant paid the full amount of US$584,201.51 to Respondent by wire transfer. (Fu Affidavit at 5; Zhu Affidavit at 5) While one could question Claimant’s judgment in making the full payment before delivery in full, its decision can be explained by its need to have the Molds and Tools returned. In any event, it is clear that the US$584,201.51 wire transfer was made. (Bank Statement (Moore Affidavit, Ex. 9))
81.
Third, also on January 17, 2014, having now paid Respondent, Claimant’s Mr. Fu went to Respondent’s plant to take possession of the remaining Goods, Molds and Tools. Respondent refused to furnish either. Claimant made subsequent email demands but these were denied. (Fu Affidavit at 5; Zhu Affidavit at 5) The correspondence suggests that, at first, rather than outright refusing to hand over the Goods, Molds and Tools, Respondent advised that its factory was closed for the Chinese New Year holiday. (Moore Affidavit, Ex. 10) This led to further demands for delivery of the Goods, Molds and Tools, but these were refuted by Respondent; the Goods, Molds and Tools were never delivered. (Statement of Case at 9)
82.
Fourth, in response to the Tribunal’s questions, Claimant has advised that in January 2014, Respondent declined to hand over the Goods, Molds and Tools because it alleged that Claimant had failed to satisfy other invoices relating to other purchase orders. (Case Supplement at 9) Claimant’s Case Supplement reads (at 9-10):

When Rubbermaid Commercial products insisted that such Goods, Molds and Tools be delivered, Yinshan stated that it believed some invoices issued 10 years prior were still owed and refused to honor its promises. (Fu Supp. Aff. at p. 4.) This claim for additional amounts owed was completely inconsistent with the accounting both parties had signed off on over the several weeks of discussions prior to the wire transfer...Such a claim for additional amounts owed was also not supported by Rubbermaid Commercial Products’ accounting records and is believed to be a false assertion made purely for the purpose of withholding the Molds and Tools. Rubbermaid Commercial Products requested that Yilshan [sic] provide invoices or an accounting to support its demand for additional funds, and Yinshan refused to do so. (Fu Supp. Aff. at pp. 4-5)

83.
Claimant argues that this new claim of unpaid invoices is contrary to Respondent’s representation on January 5, 2014 that the sum total of all monies due was US$584,201.49. (Case Supplement at 9) Further, Mr. Fu has testified that in January 2014 Claimant requested that Respondent provide invoices to support its claim for unpaid amounts due but none were provided. (Fu Affidavit II at 4) He has further affirmed that Claimant has denied that there are any unsettled invoices. (Fu Affidavit II at 4-5)4
84.
Subsequent to this Arbitration being commenced, Respondent filed suit against Claimant in the PRC seeking to recover US$192,424.30 allegedly owed on invoices dating back to 2004. (Complaint of Taizhou Yinshan Manufacturing Brushes Co., Ltd. dated September 16, 2014 (Case Supplement, Ex. C) (in Chinese and English) (the "Yinshan Complaint")) The Yinshan Complaint attaches various invoices and email correspondence that appear to confirm Claimant’s allegation that the allegedly unpaid invoices date back more than ten years and arise out of purchase orders other than the Purchase Orders relating to the Goods. The Tribunal notes that even some of the correspondence attached to the Yinshan Complaint suggests that the old invoices were disputed at the time (in 2004-05).
85.
The Tribunal is not in a position to rule on whether these old invoices are in fact still owing, nor has it been briefed on possible defenses based on applicable statutes of limitation, waiver, or otherwise. Ultimately, however, the Tribunal does not need to do so. Rightly or wrongly, Respondent has chosen to pursue its claim in a different forum — the PRC courts — and not to raise any argument in this Arbitration by way of a defense to any of Claimant’s claims (e.g. that Claimant itself was in breach), or as a set-off or counter-claim.5 Respondent has effectively waived any rights it may have had to pursue these claims in this Arbitration. Accordingly, the Tribunal concludes that the issue of the allegedly unpaid invoices does not affect Claimant’s entitlement to recovery.
86.
Finally, for the above reasons, the Tribunal concludes that Respondent breached the Purchase Orders by accepting payment for the Goods but failing to deliver them. As such, Claimant is entitled to damages as will be discussed below.

D. Breach of Contract/Conversion/Declaratory Relief: Failure to Return Molds and Tools

87.
Claimant also seeks an award of liability and damages for Respondent’s failure to return the Molds and Tools. This is pursued both under a theory of breach of contract (breach of the Purchase Orders) and the tort of conversion. In addition, Claimant seeks a declaration for what it calls specific performance.

1. Breach of Contract

88.
Section 6 of the Purchase Orders reads:

You shall consider all commercial, financial or technical information and documents (including any drawings, specifications or other documents) furnished by us or that you prepared based upon information we provided to you to be confidential, in perpetuity, and you shall not disclose any such information or documents to any other person or use such information or documents for any purpose other than performing this PO. No confidential information disclosed in any manner or at any time by you to us shall be deemed secret or confidential, and you shall have no rights against us with respect thereto. All tools, dies, specifications, drawings, designs or other property furnished or paid for by us in connection with this Order ("Company Property") will (i) be and remain the tangible and intellectual property of the Company and be marked as such; (ii) be used only by you and only in performance of this PO; (iii) not be moved from your premises without our written consent; (iv) be kept free of all liens, claims, and encumbrances; (v) not be modified; and (vi) be maintained in good working order. You will bear all risk of loss or damage to Company Property until it is returned to us. Upon request you will deliver all Company Property in good condition, ordinary wear and tear expected, to any location designated by us. You hereby assign to us, as a work-for-hire or otherwise, all rights, title and interest in any and all intellectual property rights with respect to any drawings, information, ideas, or expressions of information that you create in performing under this PO.

89.
Claimant alleges that at the outset of the parties’ relationship, Claimant paid Respondent to manufacture the Molds and Tools (Statement of Case at 5; cf Statement of Claim at ¶29) in order to allow Respondent to produce "the products of the corresponding standard required by the purchase orders." (Zhu Affidavit at 2; Fu Affidavit at 2) The Molds and Tools were kept at Respondent’s manufacturing facility but were owned by Claimant. (Zhu Affidavit at 2; Fu Affidavit at 2) Claimant has provided a list of molds it claims were supplied. (Moore Affidavit, Ex. 1; Statement of Case at 5)
90.
Accordingly, and consistent with the unambiguous language of Section 6 of the Purchase Orders, the Tribunal concludes that the Molds and Tools remained the property of Claimant and that Respondent was obliged to return the Molds and Tools "upon request." Further, Respondent "bear[s] all risk of loss or damage to" the Molds and Tools until they are returned.
91.
Claimant has also alleged, and the Tribunal accepts, that the parties discussed the return of the Molds and Tools in late 2013 as part of the winding-up of the parties’ relationship. Claimant’s witnesses have testified that at the November 7, 2013 meeting between the parties, Respondent agreed to deliver the remaining Goods and return the Molds and Tools after receiving payment on the outstanding invoices. (Zhu Affidavit at 3; Fu Affidavit at 3)
92.
While the affidavit evidence is not entirely clear on this point, the demand for return of the Molds and Tools and the expectations of both parties that they would be picked up by Claimant is clearly supported by contemporaneous documentary evidence. On December 5, 2013, Ms. Zhang of Respondent emailed Mr. Fu and others of Claimant specifically stating that "RCP [Rubbermaid Commercial Products] will remove the moulds shortly." (Email of E. Zhang to S. Xiang and T. Fu dated December 5, 2013 (Moore Affidavit, Ex. 3)) Similarly, on December 20, 2013 E. Zhang advised Claimant that all of its orders were ready and "the moulds ha[ve]been sorted, pls advise when you plan to remove the moulds from the factory." (Email from E. Zhang to T. Fu dated December 20, 2013 (Moore Affidavit, Ex. 4))
93.
In particular, the December 20, 2013 demand from Respondent that Claimant pick up the Molds and Tools, appears inconsistent with any suggestion that Respondent had any reason not to deliver up the Molds and Tools. The Tribunal accepts that, on the evidence presented, Respondent agreed there was "no dispute as to [Claimant’s] ownership of the Molds and Tools and [Respondent] promised to return them upon receipt of payment of all invoices" due from Claimant. (Statement of Case at 7)
94.
As discussed above, the Tribunal has accepted that Claimant paid the outstanding invoices on January 17, 2014. However, also on January 17, 2014, Respondent refused to allow Claimant to take possession of either the remaining Goods or the Molds and Tools. The Molds and Tools have still not been returned. (See ¶¶78-81 above)
95.
Finally, the Tribunal need not consider whether the allegedly unpaid older invoices that are the subject of the Yinshan Complaint being litigated in the PRC could have entitled Respondent to refuse to allow recovery of the Molds and Tools. As already discussed (see ¶¶82-85 above), since Respondent has chosen to pursue this claim in another forum and declined to appear in this Arbitration, Respondent’s allegations do not affect Claimant’s claims. However, the Tribunal does note that Section 6 of the Purchase Orders states that ownership of the Molds and Tools remains with Claimant at all times, that Respondent must keep the Molds and Tools "free of all liens, claims and encumbrances" and "deliver" the Molds and Tools "upon demand." On its face, therefore, this is inconsistent with any argument Respondent might have asserted claiming a set off or other right to retain possession.
96.
The Tribunal concludes that Respondent breached Section 6 of the Purchase Orders by refusing to return the Molds and Tools. The damages arising from that breach are discussed below in Section V.E.

2. Claim for Conversion

97.
As an alternative, Claimant also relies on the same facts to make a claim that Respondent is "liable to [Claimant] for converting its Molds and Tools." (Statement of Case at 17) As the Tribunal has already found there to have been a breach of contract, it is not strictly necessary to decide the alternative tort claim. However, for the sake of completeness, the Tribunal reaches the following conclusions.
98.
As Claimant has briefed, "[c]onversion is an ‘act of dominion wrongfully exerted over the property of another in denial of his right, or inconsistent with it.’" (Statement of Case at 17, quoting Arnold v. Soc. for Savings Bancorp, Inc., A.2d 533, 536 (Sup. Ct. Del. 1996), quoting Drug, Inc. v. Hunt, 35 Del. 339, 353 (Sup. Ct. Del. 1933)) Claimant must accordingly establish that at the time of the conversion: (1) Claimant had a property interest in the Molds and Tools, (2) Claimant had a right to possession of the Molds and Tools, and (3) Respondent refused to deliver the Molds and Tools. (Statement of Case at 18)
99.
For the reasons stated above with respect to Claimant’s breach of contract claim, the elements of the tort of conversion have been made out. Accordingly, the Tribunal concludes that, in addition to its liability for breach of contract, Respondent is liable to Claimant for conversion of the Molds and Tools. Claimant’s claim for damages is addressed below in Section V.E

3. Declaratory Relief Requested

100.
Claimant also asserts a claim for what it calls "declaratory" relief relating to the Molds and Tools (Statement of Case at 20; see also Case Supplement at 12):

Finally, [Claimant] seeks a declaration that the Molds and Tools are the property of Rubbermaid Commercial Products LLC and that Yinshan is compelled to immediately deliver such Molds and Tools and to not use them for any purpose.

101.
In response to a question from the Tribunal, Claimant provided additional submissions clarifying that declaratory relief is appropriate in addition to any damages that might be awarded. (Case Supplement at 3-5) In short, Claimant asserts that it:

is entitled to damages and declaratory and injunctive relief to provide a full remedy for [Respondent’s] breach. A damages award can redress the past harm suffered by [Claimant] when it had to purchase new molds and tools to enable manufacture of its products going forward and when it went out of inventory on certain products due to [Respondent’s] failure to deliver the Molds and Tools (or the Goods). The damage is ongoing, however, as long as [Respondent] wrongfully withholds the Molds and Tools which are proprietary.

102.
Claimant also introduces a new argument that the purpose of the protection afforded to Claimant in Section 6 of the Purchase Orders is to "prevent[] a supplier like [Respondent] from retaining the tools and continuing to manufacture (and sell) products to Claimant’s specifications without authority to do so." Further, Claimant "has information that just such improper conduct is taking place and that [Respondent] is using its Molds and Tools to sell products manufactured from them in violation of the parties’ contracts and [Claimant’s] rights." (Case Supplement at 5)
103.
Claimant concludes by arguing that the Tribunal (Id.):

has authority under the parties’ contracts to compel [Respondent] to surrender the Molds and Tools and to award damages for injuries proximately caused by [Respondent’s] refusal to do so in January, 2014, as required and promised. Simply awarding injunctive relief or damages, without the other, fails to provide [Claimant] with a full remedy. Accordingly, both legal and injunctive relief are proper under the circumstances of this case.

104.
The declaratory relief requested by Claimant would consist of orders that: (1) the Molds and Tools are the property of Claimant, (2) Respondent must deliver up the Molds and Tools and (3) Respondent is enjoined from using the Molds and Tools for any purpose.
105.
As a matter of general arbitration law, whether under the Federal Arbitration Act or State law (New York or Delaware), an arbitral tribunal has authority to order the sort of declaratory and injunctive relief sought by Claimant. (See, e.g., Sperry Int’l Trade, Inc. v. Israel, 689 F.2d 301, 306 (2d Cir. 1982) ("New York law gives arbitrators substantial power to fashion remedies that they believe will do justice between the parties.")) Similarly, the Tribunal is also explicitly authorized pursuant to the Purchase Orders to provide injunctive relief (Section 10).
106.
In considering whether to exercise its authority to grant the relief sought, the Tribunal confirms that each of the three prongs requested by Claimant flows from the plain meaning of Section 6 of the Purchase Orders. In particular:

a. That the Molds and Tools shall "be and remain the tangible and intellectual property of [Claimant] and be marked as such" is set out in Purchase Orders, Section 6, third sentence, clause (i);

b. That the Molds and Tools shall "upon request" be deliver[ed]...to any location designated" by the Claimant is set out in Purchase Orders, Section 6, fourth sentence; and

c. That the Molds and Tools are to "be used only by [Respondent] and only in performance of’ each of the Purchase Orders is set out in Purchase Orders, Section 6, third sentence, clause (ii).

107.
While Claimant has done little to develop its entitlement to relief beyond relying on Section 6 of the Purchase Orders, it has provided citation to several Delaware law authorities. (See Case Supplement at 4) None of those authorities is inconsistent with granting the relief requested. Further, the Tribunal agrees that the damages awarded by the Tribunal will not make Claimant "whole" with respect to Respondent’s refusal to return the Molds and Tools. Even with respect to the damages awarded for Claimant’s out-of-pocket costs paid to Lifeng to create replacement Molds and Tools, the Tribunal accepts that Respondent remains in breach by refusing to return the Molds and Tools - a term clearly accepted by Respondent. No evidence was presented, and the Tribunal makes no ruling on, Claimant’s general assertion that Respondent is continuing to use the Molds and Tools to manufacture products unlawfully. However, the Tribunal concludes that Claimant is entitled to the additional relief sought.6
108.
Accordingly, the Tribunal concludes that, consistent with the express obligations in Section 6 of the Purchase Orders, Claimant is entitled to orders that: (1) the Molds and Tools have always been, and remain, the property of Claimant; (2) Respondent is to deliver the Molds and Tools to Claimant at a location designated by Claimant within seven (7) days of any demand by Claimant; and (3) Respondent is enjoined from using the Molds and Tools for any purpose (the Purchase Orders now having been satisfied (or to the extent unsatisfied, having been the subject of an award of damages)).

E. Damages

109.
Claimant has articulated claims for damages for each of the heads of liability above, namely: (1) damages for Goods paid for but not delivered; (2) damages for failure to return Molds and Tools (whether on a contract or tort theory); and (3) damages for lost profits as a consequence of (1) and (2).

1. Damages for Goods Paid For But Not Delivered

110.
For the reasons articulated in Section V.C above, Respondent is liable to Claimant for the Goods covered by Invoice No. MT0423C-47/13 in the uncontested sum of US$186,871.42, which Goods should have been delivered at the latest on January 17, 2014. Claimant seeks recovery of the full amount of US$186,871.42. (Statement of Case at 19; Invoice No. MT0423C-47/13 (Moore Affidavit, Ex. 6))
111.
Claimant relies on the Delaware Uniform Commercial Code ("UCC"), Section 2-711(1) which states (in relevant part):

Where the seller fails to make delivery... then with respect to any goods involved, the buyer may cancel and whether or not he or she has done so may in addition to recovering so much of the price as has been paid (a) "cover" and have damages under the next section as to all the goods affected...; or (b) recover damages for non-delivery as provided in this Article (Section 2-713).

112.
Claimant, having elected neither to cancel the affected Purchase Orders nor to have entered into a "cover contract", seeks recovery of the purchase price (US$186,871.42) as well as certain consequential damages discussed below. Subject to discussion of consequential damages below, the Tribunal concludes that Respondent is liable to Claimant in the sum of US$186,871.42.

2. Damages for Failure to Return Molds and Tools

113.
For the reasons articulated in Section V.D.1 above, Respondent is liable to Claimant for its failure to return the Molds and Tools as a breach of contract. The Molds and Tools should have been delivered at the latest on January 17, 2014, the same day that payment was made by Claimant.
114.
Claimant alleges that the failure to return the Molds and Tools "is a separate and additional breach of the parties’ contracts, beyond the breach for failure to deliver the Goods." Claimant seeks recovery of damages for this breach of contract of "the price paid to replace the Molds and Tools of US$80,730.00, plus the consequential damages of being unable to meet the customer orders due to the time delay of getting a new vendor up and running without the Molds and Tools." (Statement of Case at 16)
115.
As was discussed above, the price of US$80,730.00 in fact represented only that portion of the cost of replacing the Molds and Tools that was paid to Lifeng, i.e., 50% of the actual replacement cost. (See ¶59 above) The Tribunal accepts this evidence that Claimant was able to mitigate its losses occasioned by Respondent’s breach by having Lifeng carry part of the replacement costs. The Tribunal also notes that this amount appears reasonable compared to the cost of the Molds and Tools many years ago when the parties began their relationship. (Statement of Claim at ¶29 (referring to a US$125,000 investment in Molds and Tools, although it is not known whether this matches all the Molds and Tools at issue in this Arbitration.))
116.
Accordingly, subject to discussion of consequential damages below, the Tribunal concludes that Respondent is also liable to Claimant in the sum of US$80,730.00 for failure to return the Molds and Tools in breach of Section 6.7

3. Incidental and Consequential Damages

117.
Claimant also seeks recovery of US$490,212 for "incidental and consequential damages" arising out of both the failure to deliver the Goods and the failure to return the Molds and Tools. While Claimant distinguishes between each of the above claims for direct damages, its consequential loss theory is apparently premised on the combined effect of both breaches. (See Statement of Case at 14-17; Case Supplement at 7-8; Dugger Affidavit at ¶¶17-18 and Exhibits thereto)
118.
As set out above, the starting point for Claimant’s analysis is Section 2-711 of the Delaware UCC. That section in turn refers to Section 2-713 (Buyer’s remedies for non-delivery or repudiation) which provides (in relevant part) that "the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this Article (Section 2-715), but less expenses saved in consequence of the seller's breach."
119.
Section 2-715(1) clarifies that "incidental damages" resulting from the seller’s breach include, amongst other things, "any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach." Section 2-715(2) provides that "consequential damages resulting from the seller’s breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise...".
120.
Under this head, Claimant seeks an award of "its net profits lost as a result of being rendered unable to meet its customers’ orders" (Statement of Case at 16) due to (1) "going out of stock on products [Respondent] should have delivered" (i.e., the Goods) (id.) and (2) "being unable to meet customer orders due to the time delay of getting a new vendor up and running without the Molds and Tools" (id.). Claimant seeks recovery of US$490,212 for the "net profit loss suffered due to" Respondent’s breaches. This is calculated based on "the lost revenue, less the cost that would have been incurred for purchasing such goods for sale to [Claimant’s] customers." (Statement of Case at 17)
121.
Claimant’s calculation of its net lost profits is set out in Mr. Dugger’s affidavit and summarized in Exhibit 3 thereto. In short, the calculation is based on the evidence that Claimant went out of stock for each of the products listed in Exhibit 3 in the period January-August 2014. Each of the products listed in Exhibit 3 was supplied by Respondent and manufactured using the Molds and Tools. In addition, all but one of the products listed was also one of the Goods for which delivery was not made in January 2014. (Dugger Affidavit at ¶¶8-15) Claimant asserts that reliance on pre-breach inventory projections rather than actual prior shipments or actual cancelled orders "provides a more conservative and accurate calculation of loss." (Dugger Affidavit at ¶15) In addition, Claimant asserts that its calculation is "conservative" because the damages claimed only include lost profits from January 1, 2014 through June 30, 2014, whereas in fact Claimant remained out of stock for certain products in July and August. However, Mr. Dugger testifies that Lifeng had agreed to meet supply requirements starting in July 2014. (Dugger Affidavit at ¶16)
122.
The Tribunal concludes that Claimant has established both limbs of the test for recovery of "consequential damages" for purposes of Section 2-715 of the UCC.
123.
First, Claimant relies on Kunststoffwerk Alfred Huber v. R.J. Dick, Inc., 621 F.2d 560 (3d Cir. 1980) to conclude that "where goods are sold to one in the business of reselling them, ‘resale is one of the requirements of which the seller has reason to know within the meaning of subsection 2(a).’" Although applying Pennsylvania law, the case is based on the Official Comments to the UCC. Accordingly, as a matter of law, Respondent had reason to know that Claimant was relying on delivery of the Goods and the Molds and Tools in order to meet inventory needs based on customer demand. This is also supported by the factual record in which the Claimant explicitly told Respondent of its urgent need for the Goods "as we are out of stock." (Email from T. Fu to E. Zhang dated January 22, 2014 (Moore Affidavit, Ex. 10)) This is also supported by witness testimony. (Zhu Affidavit at 2-3; Fu Affidavit at 2-3; Dugger Affidavit at ¶3)
124.
Second, Claimant has made out a reasonable case that the losses relating to the undelivered Goods and the Molds and Tools could not be avoided by means of a cover contract. Claimant’s case is that since August 2013 it was working with its new supplier Lifeng to establish a "supplier transition plan." But that plan was "based on an assumption that Yinshan would (as promised and contractually obliged) deliver sufficient Goods in January, 2014 to meet supply needs through June, 2014 and would return the Molds and Tools at that time so that manufacture of goods needed after June, 2014 could immediately commence." (Case Supplement at 7) It was not until Respondent’s refusal to deliver the Goods and Molds and Tools in January 2014 that Claimant realized that its transition plan was in jeopardy. (Zhu Affidavit at 5-6; Fu Affidavit at 5-6; Fu Affidavit II at 2-3) In response, it did try to mitigate its losses by placing an order with Lifeng on January 29, 2014 for new Molds and Tools to enable it to manufacture replacement stock. (Fu Affidavit II at 5; Moore Affidavit, Ex. 11) Claimant’s witness Mr. Fu asserts that "according to the industry practice...Lifeng produce[d] the mould and tool within a reasonable period." (Fu Affidavit II at 5)
125.
Having established that it is entitled to recovery of lost profits as consequential damages, Claimant must also establish that Respondent’s breaches were the proximate cause of the claimed losses and that those losses have been properly quantified. In this respect, Claimant relies again on the evidence of Mr. Dugger. Mr. Dugger’s testimony is that Claimant went out of stock of each of the products listed in Exhibit 3 to his Affidavit in January through August of 2014 and that "due to a lack of stock, [Claimant] was not able to fill customer orders during those months." (Dugger Affidavit at ¶14) All of these products were manufactured by Respondent using Molds and Tools which were not returned to Claimant. (Id. at ¶10).
126.
As to the lost profits claimed, Mr. Dugger has supported his calculations based on the inventory projections by product line modeled on actual data for prior years. (Dugger Affidavit at ¶¶12-15 and Ex. 3) The historic sales data used as the basis for the projections has also been included in Mr. Dugger’s Exhibit 4. In Exhibit 3, Mr. Dugger calculates the "net profit loss...by deducting the cost of the products from the lost revenue." (Dugger Affidavit at ¶18) The "lost revenue" is based on the price Claimant "charges its customers multiplied by the number of units that were not sold due to inventory stock shortages." (Id. at ¶11) The "cost" of the products equals what Claimant "would have had to pay [Respondent], or a replacement vendor, for the products if they had been delivered as expected to meet the inventory needs." (Id. at ¶17) In response to a question from the Tribunal, Claimant has confirmed that "the ‘cost’ of such Goods includes all costs that Claimant would have had to bear, e.g., including shipping, packaging, duties, taxes, etc. as identified in Section 3 of the Purchase Orders." (Case Supplement at 8) In other words, Claimant has relied on the agreed "unit prices" as being all-inclusive of the "costs" of production, which is consistent with Section 3 of the Purchase Orders and with a comparison of the unit prices cited in the invoices put into evidence. (See Moore Affidavit, Ex. 2)
127.
Given that Respondent has chosen not to appear in the Arbitration, there are limitations on the extent to which the Tribunal can investigate the damages evidence presented by Claimant. While acknowledging this limitation, the Tribunal has carefully considered the evidential record and concludes that Claimant has presented a reasonable basis for calculating its lost profits in the circumstances. The Tribunal also notes Claimant’s submission that its claim is "conservative" because of its "voluntary" reduction of the time period for which recovery of losses is sought.
128.
Accordingly, the Tribunal concludes that Claimant is entitled to recovery of US$490,212.00 as consequential damages for lost profits.

F. Interest, Costs and Other Claims

129.
Claimant also seeks relief in the form of (1) recovery of its costs, including legal fees, and (2) interest on damages awarded.

1. Recovery of Costs

130.
Section 10 of the Purchase Orders provides that "[t]he losing party shall bear all arbitration fees and costs, and shall compensate the other party’s costs related to the arbitration, including attorneys’ fees." (Section 10, second to last sentence) Relying on that language, Claimant seeks recovery of its legal fees and expenses, including attorneys’ fees, amounts paid to the ICDR as administrative fees and as arbitrator compensation and expenses. (Statement of Case at 11)
131.
In its Statement of Case, Claimant quantified its "legal fees and expenses" at that time as being "at least [US]$21,127.88." (Statement of Case at 11 and 19) These sums were supported by witness and documentary testimony. (Larsen Affidavit at ¶13 and Ex. 5) At the invitation of the Tribunal, Claimant updated its attorneys’ fees and expenses in its Second Case Supplement. Claimant’s counsel has sworn that Claimant has been billed attorneys’ fees and expenses totaling US$45,167.97. In checking the monthly summary annexed to the affidavit, there appears to have been a slight miscalculation in the fees invoiced as, together with expenses, these total US$45,079.78. The Tribunal adopts this adjusted number.
132.
Claimant also seeks recovery of "all AAA/ICDR fees paid." (Second Case Supplement at 2) The ICDR has confirmed that, as at the date of the Award, the amount incurred by Claimant consists of administrative fees of US$6,200.00 and arbitrator compensation and expenses of US$44,593.25. Of course, as Respondent has defaulted, Claimant has had to bear the full costs of the Arbitration to date.
133.
Accordingly, the costs related to the Arbitration, including attorneys’ fees and expenses, total US$95,873.03.
134.
The Tribunal has broad discretion to fix the costs of arbitration. Article 31 of the ICDR Rules authorizes the Tribunal to "apportion such costs among the parties if it determines that such apportionment is reasonable, taking into account the circumstances of the case." Further, Article 31 identifies a non-exclusive list of "costs" that includes the fees and expenses of the arbitrators, the fees and expenses of the administrator (the ICDR) and the "reasonable costs for legal representation of a successful party."
135.
With respect to attorneys’ fees and expenses, the Tribunal concludes that the aggregate amount of US$45,079.78 is reasonable in the circumstances, particularly bearing in mind that Claimant had to incur the additional costs associated with answering the Tribunal’s questions in the absence of an appearance by Respondent as well as the expense of continuing to serve Respondent with filings subsequent to its default.
136.
The Tribunal concludes that Claimant is the successful party and, in accordance with both Section 10 of the Purchase Orders and Article 31 of the ICDR Rules, Respondent is ordered to reimburse Claimant for the full amount of costs incurred in the Arbitration, i.e. US$95,873.03.

2. Interest

137.
In its initial filings, Claimant sought recovery of pre-Award and post-Award interest based on the Delaware statutory rate of 5.75% per annum. (Statement of Case at 19-20)
138.
In Claimant’s Case Supplement, however, Claimant asserts that, as the arbitration clause itself, as opposed to the entirety of the Purchase Orders, is silent as to governing law, the Tribunal should apply the substantive law of New York as the law of the seat of arbitration. (Statement of Case at 5) Claimant relies on the New’ York statutory interest regime applicable to judgments. (NY CPLR §§ 5001-5004) Accordingly, Claimant asks the Tribunal to apply pre-Award interest at a rate of 9% per annum (non-compounding) to any damages awarded, to be calculated from the date the breach of contract cause of action accrued. Claimant also seeks application of the same 9% per annum for post-Award interest on the total Award sum.
139.
The Tribunal agrees with Claimant that, because the parties chose New York as the seat of the Arbitration, New York law should apply to the calculation of interest on damages awarded. The Tribunal further agrees that pre-Award interest, applied by analogy to NY CPLR §§ 5001(b), should run from January 17, 2014, the date that any of the causes of action discussed above first arose. Accordingly, Claimant is entitled to interest on all damages awarded (other than costs) at 9% per annum (non-compounding) from January 17, 2014 to the date of this Award.
140.
The Tribunal further rules that Claimant will be entitled to post-Award interest at 9% per annum (non-compounding) on the entire Award sum (including costs) from the date of the Award until final payment.

3. Other Claims

141.
Finally, for the avoidance of doubt, the Tribunal has carefully considered all other claims, evidence and arguments raised by the parties.8 To the extent they have not already been ruled on, they are dismissed.

VI. AWARD

142.
The undersigned Arbitrators, having been designated in accordance with the arbitration agreement entered into between the above-named Parties as contained in the Purchase Orders dated September 13, 2013 and November 5, 2013, and having been duly sworn, and having duly heard the proofs and allegations of the Claimant, do hereby, AWARD,ORDER and DECLARE that:

(a) Respondent Taizhou Yinshan Manufacturing Brushes Co., Ltd. ("Respondent") breached its obligations to Claimant Rubbermaid Commercial Products, LLC ("Claimant") with respect to:

(i) Failing to deliver to Claimant certain Goods (as defined herein), as required by the Purchase Orders and as confirmed by Respondent in writing, by January 17, 2013 at the latest; and

(ii) Failing to deliver up to Claimant certain Molds and Tools (as defined herein), ownership of which has always been and remains with Claimant, such delivery to have been made no later than January 17, 2013.

(b) In the alternative to (a)(ii) above, from January 17, 2013, Respondent converted certain Molds and Tools (as defined herein) for its own use by refusing to return such Molds and Tools to Claimant as their rightful owner.

(c) Respondent is liable to pay to Claimant the following amounts by way of damages for the breaches described above:

(i) in relation to (a)(i) above, the sum of US$186,871.42 ;

(ii) in relation to (a)(ii) above, the sum of US$80,730.00 ; and

(iii) in relation to each of the above breaches, by way of incidental and consequential damages, the sum of US$490,212.00.

Such damages, in the aggregate, total US$757,813.42. ("Damages")

(d) Respondent will pay Claimant pre-Award interest on the Damages at 9% (nine percent) per annum, calculated from January 17, 2014, the date the causes of action leading to the Damages accrued, until the date of this Award.

(e) The administrative fees and expenses of the International Centre for Dispute Resolution ("ICDR") totaling US$6,200.00, and the compensation and expenses of the Arbitrators totaling US$44,593.25, shall be borne entirely by Respondent. Therefore, Respondent shall reimburse Claimant the sum of US$50,793.25, representing said fees, expenses, and compensation previously incurred by Claimant, upon demonstration by Claimant that these incurred costs have been paid in full.

(f) Respondent will further reimburse Claimant for attorneys’ fees and expenses in the amount of US$45,079.78.

(g) Respondent will pay Claimant post-Award interest on all sums awarded to Claimant in this Award (i.e. the sum of (c), (d) and (e) above) at 9% (nine percent) per annum, calculated from the date of the Award until the date of payment.

(h) Claimant is entitled to a declaration in the following terms:

(i) The Molds and Tools (as defined above) have always been, and remain, the property of Claimant;

(ii) Respondent is to deliver the Molds and Tools to Claimant at a location designated by Claimant within seven (7) days of any demand by Claimant; and

(iii) Respondent is enjoined from using the Molds and Tools for any purpose whatsoever (the Purchase Orders now having been satisfied (or to the extent unsatisfied, having been the subject of an award of damages)).

(i) All other claims and requests for relief are dismissed.

(j) This Final Award may be executed in counterparts, each of which shall be deemed an original, and all of which shall constitute together one and the same instrument.

We hereby certify that, for the purposes of Article I of the New York Convention of 1958, on the Recognition and Enforcement of Foreign Arbitral Awards, this Final Award was made in New York, New York, United States of America.
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