ICC court comprising of 80 countries, considers and monitors the work arbitral tribunals well within its purview. The court also organizes and supervises arbitration cases held under ICC Rules of Arbitration. International court of Arbitration was established in 1923 and has a record of several thousands of arbitrary cases from various linguistic backgrounds of more than 100 countries. ICC court of arbitration secretariat is based at headquarters of ICC, in Paris.
Its one of the important clause is being “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration”. Convention on International Sale of Goods, provides that seller has to supply goods of quality, quantity along with description per se in contract of sale, which adjusts German Contract of sale that both the parties of the contract must guarantee mutual benefits of contractual duties.
(CISG Art. 35,46). This adjustment has been in German law of sale in order to bring the order of international sales law. There are not much differences between German contract of sale and an English contract of sale under the Sales of Goods Act 1979 apart from the fact that there is a law of obligation to transfer the goods from seller to buyer (§ 433, BGB). The theory of “culpa in contrahendo” which means that the duty of performing contracts in good faith; In the present case, vendor (Hi-Tech co, Germany) and vendee (Comp.
co, UK) have entered into a contract of sale abiding by the Contract of Sale of goods Act 1979 under English Law. By virtue of contract of sale, both the parties have to keep the terms of contract and must execute the respective duties that is in agreement with contract of sale. viz. , Part-II, formation of contract, part-III, effects of contract, part-IV, performance of contract , Part-V, rights of unpaid seller against the goods, part-VI, actions for the breach of contract and Part-VII, supplementary.
By non-complying to the term of contract of performance, (Part-IV), vendor (Hi-tech co) has evoked the damages for non-delivery to vendee (Comp. co) wherein by the cause of neglect or refusal to supply goods, the buyer can demand and can claim damages for non-delivery. (clause 51, 1-3, CSG). Also evokes the clause 52 of CSG of specific performance. Therefore the above contract of sale has developed a conflict in contract of sale thus necessitating the implications of conflicts of law, litigation and arbitration.
It can be stated here that since the contract is under English law although the vendor (Hi-tech) is German based, the arbitration and conflict laws are supposedly should be resolved in English law only as there is no mentioning of jurisdiction clause and regional laws in the contract pertaining to the present case [Hi-tech vs Comp. co] of contract of sale. Conflict law When a conflict among sale arises, it is always a question as to which law should be applied, if the parties are from two different countries.
Per se, no country agrees to suffer the loss on the pretext of applying the rules of foreign laws, instead, prefers to apply its own law. However, according to the facts of case which vary from case to case, the verdict or decrees issued by courts of law always take the lead in solving disputes and conflicts that arise out of contract of sale. Law suit The provisions of Arbitration Act 1996 (revised) are applicable for filing a law suit in the capacity of claimant for Comp. co against Hi-tech. However, it is important to consider, whether arbitration clause is existent in contract of sale of goods.
In this case, presuming that it is existent, a law suit for claiming for non-performance of a contract can be filed and an arbitrator can be appointed with arbitration agreement. The definition of arbitration agreement : "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not [RSBC, 1996 chapter 233 7 (1)] . The following are also some of the provisions that are related to filing a lawsuit against Hi-tech.
An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement [RSBC, 1996 chapter 233 7(2)] An arbitration agreement must be in writing [RSBC, 1996 chapter 233 7(3) An arbitration agreement is in writing if it is contained in (a) a document signed by the parties, (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or (c) an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by the other [RSBC, 1996 chapter 233 7(4)]
The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract [RSBC, 1996 chapter 233 7(5)] The purpose of filing a law suit against Hi-tech, was in order resolve the dispute that has arisen due to non-delivery of goods that was scheduled to be dispatched within 15 days of agreement. [date of agreement: 15/10/2005, delivery date : 1/11/2005] This has given a cause of rise to breach of contract necessitating appointment of arbitrators to resolve the conflict.