Mr. President and the member of the Tribunal , we are on behalf of respondent , CONTROLS , and we wish to have the following conclusion in this arbitration.

1. To decide that SUPERB did not have the legal ground to avoid the contract.
2. To decide that SUPERB did not have legal authority to sell the control system for $250,000 on 4 April 1997 and that the control system was not sold by appropriate means.
3. To decide that CONTROLS is exempt from any damages SUPERB may have suffered as a result of the delayed installation of the control system.
4. To order that RELIABLE should be joined as a defendant in this arbitration to support CONTROLS.

To begin this arbitration, Respondent, CONTROLS insists that there are 4 big issues to be discussed . They are: 1. The RESPONDENT, CONTROLS need not to

pay damages to SUPERB.

2. SUPERB was not able to exercise the right to avoid the

contract

3. SUPERB has no right to sell the control system.

4. RELIABLE should be joined to this arbitration.

Now, we are going to explain these in one by one:

The 1^st issue is that: The RESPONDENT, CONTROLS need not to pay damages to

SUPERB

In other word, C has no obligation to pay damages as a result of

the delayed installation of the system.

There are 2 reasons for this , and they are

1. there was no delay of the installation.
2. C is qualified under Article 79 CISG

.

For the 1^st issue : The RESPONDENT, CONTROLS need not to pay damages to

SUPERB

There are 2 reasons for this ,

The reason a: C will insist that there was no delay of the installation

Because,

C made the request to make additional period by 30^th Oct. on 19 Sep. in order to perform its obligation under Article 48.

However CONTROLS requested SUPERB to make known whether SUPERB would satisfied with this additional period of time, SUPERB did not make any comply until it ilegally avoided the contract on 9 October.

.

To be act in the good faith of Art.7 CISG, C insists either it satisfy

or not to the date of 30 Oct., S should make some kinds of response

for this .

But S did not reply to C .

Thus, 9 October 1996 is no more legal appointed date and CONTROLS should not be claimed of delayed installation until 30 October 1996 and of course should not be demanded to pay damages as a result of delayed installation.

The reason b C need not to pay damages

Because C is qualified under Article 79(1) and (2)(a) CISG

There are 2 impediments in this case , and each of them applies to

Art.79(1) CISG

And therefore , C should be exempted to pay damages

The 2 impediments are:

One: air plain accident

Two: R’s failure to make new installation team.

The impediment defines in Art. 79(1) requires 3 important matters, such as:

And C insist both air plane accident and R’ s failure meet these 3 matters.

Because:

For the air plane crush,

accident.

Since the accident occurs suddenly, there is no way to govern this

. Therefore, airplane crash as an accidents or impediment is certainly

beyond the control.

August 1996 naturally could not be taken into account at the time of

conclusion of the contract.( memo p.4 )

• the occurrence of airplane crash was impossible to avoid or overcome

Therefore, the airplain crush is an impediment apply to Art.79.

In addition, there was the second impediment caused by the R’s failure,

C insists that problems occurred upon another installing team of R

prevented R to make its performance and so prevented C to make its

obligation.

Consider with the 3 impotant matters required in Art.79(1)

C insists this situation also applies to the Art.79(1).

Because:

• It was RELIABLE's personal contract and the problems belonged

RELIABLE assemble the new team from the personnel on other

contract, and the personnel fall into the problems.

• Since it was not clear whether RELIABLE or could not could complete its job

own convenience.

From these 2 impediments, C applies to the Art.79(1) and should be exempted for paying damages as a result of delayed installation.

Furthermore, C was not wholly responsible due to the damages with S’s suffer, because it was S who suggested C to use R as an installation firm.

S should have known that R has a limited capacity with only two installation teams and therefore S could have known it would be hard for R to make installation when one team stuck into the problem.

However, S suggested R ,and under its trust, C used R.

Therefore, choosing R as a installation team (supplier) is not wholly responsible due to C and C is not wholly responsible due to the damages of S.

The 3^rd issue is that: SUPERB has no right to sell the control system

C insists that S does not have the right under the Art.88 CISG

There are 5 reasons and which are:

1. S does not applied to the Art.86(1)
2. Unreasonable delay of restitution was occurred by C
3. The notice of the sale is not reasonable
4. The sale was not by appropriate means.
5. Art.88does not corresponds to this case.

Reason a: S does not applied to the Art.86(1)

• it is necessary for the party to be applied to Article 85 or 86 to exercise

C argues that Art 86(1) is not appropriate for S.

" If the buyer has received the goods and intends to exercise any

right under the contract or this Convention to reject them, he must

take such steps to preserve them as are reasonable in the

circumstances. He is entitled to retain them until he has been

reimbursed his reasonable expenses by the seller."

Because: C does not failed to perform its obligation by 9 Oct.

S can not avoid the contract and therefore can not reject

the control system and this article is not for retaining the goods until party was paid its reasonable expenses.

In here, C argues that “ reasonable expense” dose not apply to the advanced payment, and since S insists they want to take back the advanced payment, Art.86(1) does not apply to the right to retain the goods for taking back the advanced payment.

Therefore, S’s situation does not applies to Art.86(1).

Reason b. Unreasonable delay of restitution was not occurred by C

C insists that unreasonable delay in taking back the goods or

advanced payments , which applies to the Art 88 is occurred

because S did not make the reaction to the letter send by C on 17

Feb.( respondents Exhibit 5) In short, it was S who made the

unreasonable delay.

With out S’s reply, unreasonable delay was occurred by S and so

from Art.80, S losses its right to request damages or right to rely on

a failure of C.

Reason c. The notice of the sale is not reasonable

To define the reasonable notice, it should be given to the other

party to react speedly and remedy its fault

C already replied on 20 March to the letter of 13 March by S

Therefore it was S’s turn to reply, but S did not make this .

Since C made its reaction in good faith, and there is no more notice

about selling the system by S, C argues the letter of 13 March is

not enough for the reasonable notice.

Reason d. . The sale was not by appropriate means

Because:

Control system was able to be the price of $290,000, but S sold

it at the price of $250,000

and

C was also ready to take back $330,000 if S agreed to this , but

it was S who rejected this

Therefore S was able to get higher price if it did not sell by the

broker. And so C insists system was not sold by an appropriate

means.

Furthermore, C will ask S that why S sold the system on 4^th April ?

S have already known that the price of system was diminishing day

by day. C insists that it was S’s fault that the price of system became

$40,000 less than C’s estimates. Therefore, C , by telling this

situation of the system to S, should not be request the balance of

$157,000.

Reason e. Art.88 does not correspond to this case.

Art.88(1) CISG present the right to sell the goods only if there has an

unreasonable delay by the other party in taking back goods and the

party was taking back the costs of preservation.

Therefore, Art.88(1) does not mean to grant the right of selling the

goods in order to reimburse the advanced payment, but the cost of

preservation. Thus , of S would exercise the right under this article,

it should be the price of $3,000 which was calculated by S as the

price of their preserving and selling the system.

From these 5 reasons , C claims that S does not applies to the Art.88

The 4^th issue is that :

RELIABLE should be joined to this arbitration.

This is on the ground of 2 big issues.

1. It is necessary for having R join in this arbitration .

There are 2 points for this and

Point a: it is very important part of the contract that completing

installation of the system.

Since R taking this installation part, C and R jointly having the

obligation in this contract.

Therefore,

R is needed to join in this arbitration as the one of the member of

the party.

Point b: C insists it should be exempted under Art.79(2)(a) and so as R

by Art.79(2)(b).

In order to prove this, and because S has no definite circumstance

evidence about the R’s position, C needs R to be joined as a party.

 

2. Tribunal can make R to join in this Arbitration from the contract clause of

1. if R agree to join
2. if C agree for R to be joined
3. if there raise no new question of law of fact
4. if R is defined as a supplier

requirements a),b), and c) are proved by Claimant’s Exhibit No.1

paragraph 24 of the contract clause and also by Respondent’s Exhibit

No.1and 7

Requirement d) : also fulfilled because R is going to join in the

arbitration to have argument of exemption , and

this issue of exemption has been raised at the

beginning of this arbitration of and therefore this is

not a new question of law.

Further, both S and C agreed to have R as a role of

“ supplier “ in here, and so there raise no new fact

either.

Requirement e): R should be regard as a supplier

“ supplier” is a general definition which refer to

someone who supplies goods or services. So, C insists

that R is a supplier in this case since it takes part of

supplying installation.

Because C stands at the week as one who was damaged by illegal avoidance from Claimant, and also would be suffered if C ‘s requirements were denied .

Therefore, dear Tribunal, my client C respectfully asks to have the conclusion as:

1. To decide that SUPERB did not have the legal ground to avoid the contract.

1. To decide that SUPERB did not have legal authority to sell the control system

for $250,000 on 4 April 1997 and that the control system was not sold by

appropriate means.

2. To decide that CONTROLS is exempt from any damages SUPERB may have suffered as a result of the delayed installation of the control system.
3. To order that RELIABLE should be joined as a defendant in this arbitration to support CONTROLS.