Buyer and seller expressly agree that any controversy or claim arising out of, in connection with or relating to this contract, or the interpretation, performance or breach thereof, shall be settled by arbitration in the City of New York before the American Arbitration Association (AAA), or its successors, in accordance with the International Arbitration Rules of the American Arbitration Association, as those Rules may be in effect at the time of such arbitration proceeding, which Rules are hereby deemed incorporated herein and made a part hereof, and under the laws of the State of New York. The number of arbitrators shall be three....
The language of the arbitration shall be English.... The arbitration award shall be final and binding on the parties and judgment upon such arbitration award may be entered in the Supreme Court of the State of New York or any other court having jurisdiction thereof. Buyer and seller hereby recognize and expressly consent to the jurisdiction over each of them of the American Arbitration Association or its successors, and all of the courts of the State of New York. The parties agree that arbitration awards may be released by the AAA to the North American Export Grain Association, Inc., for distribution to the interested public. Buyer and seller agree that this contract shall be deemed to have been made in New York State and be deemed to be performed there, any reference herein or elsewhere to the contrary notwithstanding.
(a) Luzar’s request for an order requiring Tradiverse to return the 10% deposit immediately to Luzar was denied; provided, however, the Tribunal reserved jurisdiction to decide on this request as part of its decision on the merits;
(b) Tradiverse was ordered to deposit US$700,530.00 in escrow with the 1CDR within seven (7) business days from the date of the transmittal of the Interim Award to the Parties, under terms established by the ICDR, pending the completion of this arbitration and further order from the Tribunal; and
(c) A decision on an award of costs and legal fees in connection with Luzar’s request for interim measures, including the costs of the escrow account, was reserved until the final award.
(a) PRICE: $16.00 plus CBOT October 2018 Soymeal per short ton.
(b) SHIPMENT: September 15-30, 2018, both dates inclusive. Trains to arrive September 17, 2018 and September 24, 2018, (NAEGA No. 2 uses the term Delivery).
(c) LOADING:... Buyer to give minimum seven (7) days pre-advice of vessel’s readiness to load.
(d) PAYMENT TERMS: Ten percent (10%) cash before September 1, 2018. Balance cash against mates receipt. If the 10% cash not received before pre-advice, then seller can refuse to accept pre-advice and cancel contract.
Q: So at that point the contract’s over?
A: At that point the contract’s over.
Tr. 109. While Tradiverse may not have intended to cancel the Contract, its use of the term default delivered that message.
Mr. Cymrot: In your opinion preadvice had to be given by September 10th?
The Witness: Certainly by close proximity to the train. It could be the 10th, 11th, the 12th I would imagine and you’d still be right in between those two trains without much problem...
A. Tradiverse’s claims for damages in excess of $700,530.00 and lost profits and its claim for legal fees and costs of $181,853.15 are denied in their entirety;
B. Tradiverse shall pay to Luzar:
a. US$700,530.00 as reimbursement of its 10% deposit;
b. Interest on the reimbursement at the rate of 2.5% per annum over New York Prime Rate simple interest from September 10, 2018; and
c. $140,739.68 as reasonable legal fees and costs of this proceeding;
C. Luzar’s claims for other damages, lost profits, and punitive damages are denied; and
D. The administrative fees of the ICDR totaling $25,750.00 and the compensation of the arbitrators totaling $98,694.89 (less amounts advanced) are to be borne by Tradiverse. Therefore, Tradiverse has to pay Luzar an amount of $62,222.44.
The total award of $900,492.12 plus interest is to be paid on or before thirty (30) days from the date of this Final Award.
This Final Award is in full settlement of all claims submitted to this Arbitration. The Tribunal has considered all arguments and evidence submitted by the Parties even if not specifically discussed. All claims not expressly granted herein are hereby denied.
This Final Award may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall constitute together one and the same instrument.