Chu Beiping
Shi Qiang
Li Lei
CHU BEIPING & CO.
Room 1318-1319, Tower A of Mingshi
Fortune Center, No. 20 Gangwan Street
Zongshan District, Dalian 116001
P.R. China
- and-
H. Barry Vasios
Vincent Foley
Marisa Marinelli
HOLLAND & KNIGHT LLP
31 West 52nd Street
New York, New York 10019
U.S.A.
Mr. Lianjun Li
REED SMITH RICHARDS BUTLER
20/F Alexandra House
18 Chater Road
Central, Hong Kong
P.R. China
Mr. Manuel García Barragán Martínez
GARCIA BARRAGAN ABOGADOS, S.C.
Río Guadiana No. 11
Colonia Cuauhtémoc
06500 México, Distrito Federal
México
Mr. Louis B. Kimmelman
Chairman of the Arbitral Tribunal
SIDLEY AUSTIN LLP
787 Seventh Avenue
New York, NY 10019
U.S.A.
"Any dispute, controversy or claim arising out of or in connection with this contract, or breach, termination or invalidity thereof, shall be settled, if no amicable solution can be found, exclusively by arbitration in accordance with Rules of Arbitration of the International Chamber of Commerce ("ICC"). The arbitration tribunal shall consist of three arbitrators. Each party shall appoint one arbitrator, and the two arbitrators shall appoint the third as presiding arbitrator. If the two arbitrators fail to agree on the third arbitrator, then the presiding arbitrator shall be appointed by the ICC. The proceedings, to be held in the English language, shall be governed by the applicable law in the State of New York. The place of arbitration shall be Manhattan, New York."
[Terms of Reference ¶ 27]
"Any dispute, controversy or claim arising out of or in connection with this contract, or breach, termination or invalidity thereof, shall be settled, if no amicable solution can be found, exclusively by arbitration in accordance with Rules of Arbitration of the International Chamber of Commerce ("ICC"). The arbitration tribunal shall consist of three arbitrators. Each party shall appoint one arbitrator, and the two arbitrators shall appoint the third as presiding arbitrator. If the two arbitrators fail to agree on the third arbitrator, then the presiding arbitrator shall be appointed by the ICC. The proceedings, to be held in the English language, shall be governed by the applicable law in the State of New York. The place of arbitration shall be Manhattan, New York.
[Terms of Reference ¶27]
"Respondent agrees that: (i) this dispute shall be finally settled through arbitration conducted under the ICC Rules; (ii) the arbitral tribunal shall consist of three arbitrators; (iii) the place of the Arbitration is New York City, New York, United States of America; and (iv) the language of this arbitration proceeding is English."
[Terms of Reference ¶[28]
"I HEREBY CONFIRM THAT WE ARE READY TO NEGOTIATE DETAILS AND THE ASSIGNMENT OF THE ORDER; THANK YOU FOR YOUR OFFER AND WE SEEK OUT US$455/TON TO CLOSE IMMEDIATELY. WE ARE OPEN TO YOUR COUNTEROFFER. THIS IS THE IDEAL PRICE SOUGHT; I HOPE YOU CAN GET IT.
* * *
WE NEED TO FIND AN OPERATION THAT IS QUICK, AND THAT IS WHY WE ARE ASKING FOR YOUR HELP."
[Exhibit D-01]
"I am confirming the order at a price of US$455/TM CFR Tampico or Altamira for 30,000 TM of HBI.
Payment via letter of credit against shipping documents."
[Exhibit D-01] In this email Morales also told Respondent who the seller of the HBI was (Claimant). [Exhibit D-01]
"On your side you have the AHMSA Order generated and the draft of the contract. We will continue to wait for your comments, but we urgently need to conclude this operation since we continue to receive offers and the time factor is quite tight."
[Exhibit D-03]
[Exhibit C-08]
"Vessel is accepted and confirmed for ALTAMIRA."
[Exhibit C-11]
"We have three points they are not going to concede and we need to accept if not we don’t have an order.
1-. The bank emitting the LC is Sterling Bank, confirmed by Commerzbank in Hong Kong, cost of confirmation by Rock.
2. AHMSA cannot accept to have the contract under Chinese law, Mexican or American Law ok.
3. IN case the material is not shipped in 45 days Rock should cancel the LC in order to liberate the funds back to AHMSA.
Please review the whole contract but this three points are most important."
[Exhibit C-15] The draft sent by Respondent with the above email had the same quantity and price of HBI as the prior draft and provided for payment by an irrevocable letter of credit issued by Sterling Bank, Houston, Texas that may be confirmed with Commerzbank of Hong Kong. This draft also stated that the terms and conditions for opening the letter of credit should be "reasonably acceptable to SELLER and SELLER’S bank." Furthermore, the letter of credit was to have "a term of 85 days from its issuance." The draft provided for ICC arbitration in New York, and deleted Chinese law as the governing law. [Exhibit C-15]
"1- Attached please find the contract final revisions from AHMSA [Respondent], they cannot change this anymore and want Rock [Claimant] to send signed so they can countersign tomorrow.
2- AHMSA will need a letter from Rock confirming the LOI will be made in case documents don’t arrive on time. This is also not optional as they don’t want demurrages due to lack of BL.
3- LC was accepted and the only revision is regarding the number of days it is to remain open. We need to make this as short as possible to cut the cost of the opening of the LC and also the cost of the confirmation. Commerzbank cost of confirmation of 0.55% per year + EUR 300."
[Exhibit C-17]
"First, We confirm that LOI will be made in case documents don’t arrive on time so that discharge can go on.
Second, please let AHMSA send a LC draft for our view firstly before the LC is established.
Also please make AHMSA issue the LC according to our LC application that had sent to them and put only "Altamira" as the discharge port other than "Tampico or Altamira", other terms please conform to our LC application.
Third, please find attached our contract.
There still some small revision:
a. For the LC term, we tried our best to reduce it, 85 days is the minimum term in order to solve the business.
b. Page 4, 8th paragraph about the discharge port, we add "Altamira", which is agreed by AHMSA.
c. Page 6, LOSS OF CARGO, we revise it since all the things are going to be determined on the loading port.
Appreciate AHMSA’s counter signed contract and their LC draft ASAP."
[Exhibit C-18]
"This is our best offer, it was already reviewed with Venezuela and with our bank.
I hope that with this we can receive the revised and signed contract and the LC may be opened as soon as possible."
[Exhibit D-15]
"Since we could not reach an agreement in terms of the purchase/sale operation of HBI or the letter of credit on the deadline to carry out the operation, I hereby inform you that purchase order no. 4500887897 has been canceled and rendered null and void."
[Exhibit D-19]
"(a) What is the applicable substantive law?
(b) Whether there is a binding contract between the Parties?
(c) If there is a binding contract, what is the content of the contract, and whether the Respondent breached the contract?
(d) Whether the Respondent is liable for the Claimant’s loss and damages? If the answer is affirmative, what is the quantity of damage due to the Claimant?
(e) And such other issues as may be raised by the parties in the course of the proceedings."
[Terms of Reference ¶17]
(a) First, Claimant asserts that a binding contract existed between the parties "as early as July 5 [2011]." [Claimant’s Post-Hearing Mem. at 4]
(b) Second, Claimant asserts, alternatively, that a written contract was concluded between the parties on July 19, 2011. [Claimants’ Post-Hearing Mem. at 8]
"For the LC term we tried our best to reduce it, 85 days is the minimum term in order to solve the business."
[Exhibit D-16] Thus, Claimant understood that Respondent was seeking a shorter term for the letter of credit.
"There still some small revision: a. For the LC term, we tried our best to reduce it, 85 days is the minimum time in order to solve the business."
[Exhibit C-18] The email ended with the following statement:
"Appreciate AHMSA’s countersigned contract and their LC draft ASAP."
[Exhibit C-18]
[Exhibit D-15] Thus, the parties’ conduct on and after July 19 confirms that the term or duration of the letter of credit (and other letter of credit terms) had still not been finally agreed.
"This is our best offer, it was already reviewed with Venezuela and with our bank.
I hope that with this we can receive the revised and signed contract and the LC may be opened as soon as possible."
[Exhibit D-15]
(a) Pursuant to Article 17(1) of the ICC Rules, the CISG is the law to be applied to the dispute in this case regarding an alleged sale of goods transaction;
(b) Claimant’s claim for breach of contract is hereby dismissed in its entirety;
(c) Claimant is ordered to reimburse Respondent for Respondent’s paid-up share of the ICC arbitration costs in the case, totaling US$ 89,000;
(d) The parties shall bear their own respective legal and other costs incurred during the course of the arbitration; and
(e) All other claims in this case are hereby dismissed.
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