Claimant (Applicant): Turkey AK company  

Respondent: Zhejiang HX International Trade Co., LTD. 

Case type: contract dispute 

Case summary: 

We worked as the lawyer of claimant. And this is a CIETACarbitration case, heard at CIETAC Shanghai sub-commission. 

Background of the deal: 

It was agreed that the applicant, as theseller, would sell lead concentrate to the respondent, as the buyer, with a total amount of 1200 wet metric tons, which was allowed to be shipped in installments. Later, in actual performance, the goods were transported in two batches. The gross weight of the first batch is 573.680 metric tons, and the gross weight of the second batch is 570.280 metric tons. The typical composition analysis of the goods agreed in the contract is 45% - 55% Pb and 200-300gr/ton Ag. The contract also stipulates that the price calculation method of goods is that when the Pb content is not less than 50% but less than 56%, the price of goods is 58% of the average price of CASH SETTLEMENT in the LME price calculation period; When the Pb content is not less than 45% but less than 50%, the goods price is 56% of the average price of CASH SETTLEMENT in the price calculation period of LME. The contract also stipulates the calculation method of Ag price. For the solution of the difference between the composition test results of both parties, it is agreed in the contract that if the difference between the AHK composition test results of the seller and the CCIC composition test results of the buyer is less than 0.5%, the average value shall prevail; If the difference is greater than 0.5%, China's AHK company will carry out the third composition test. The third composition test and the average value of the test results closer to the third composition of the buyer and seller shall prevail. At the same time, the cost of the third composition test will be borne by the party whose composition test results deviate from the third composition test. 

Performance of transaction contract andgeneration of disputes: 

After the signing of the contract, both partiessuccessfully performed the contents of the first batch of contract, but disputes occurred during the performance of the second batch. The applicant prepared the second batch of goods according to the requirements of the contract and sent them to Ningbo Port. According to the composition test conducted at the loading port, AHK concluded that the Pb content was 45.88%, and the Ag content was 328 grams per metric ton. However, the CCIC composition test conclusion of the buyer in Ningbo Port is that the Pb content is 44.56%, and the Ag content is 301 grams per metric ton. Therefore, both parties arranged the third arbitration test of AHK China, and the results showed that the Pb content was 45.34%, and the Ag content was 315 grams per metric ton.
Therefore, the results of the third test are closer to those of the applicant. At the same time, for the purpose of proof in this arbitration, the applicant has paid the third test fee and obtained the official text of the third test report. The applicant issued the FINAL COMMERCIAL INVOICE No. 48775 to the respondent in accordance with the contract based on the results of the applicant's inspection at the port of shipment and the third inspection, and required the respondent to pay the balance of USD 37741.61, which the respondent has not paid. 

The parties' efforts to resolve disputes: 

The applicant has repeatedly urged forpayment by email, fax, letter, etc. The respondent has been refusing to perform the payment obligation of the balance payment, which has constituted a breach of contract. 

Arbitration claims: 

1. The respondent paid USD 37741.61 for thegoods to the applicant; 

2. The respondent paid the delayedperformance interest to the applicant until the date of payment for the goods, which is tentatively calculated to be USD 643.37 until the date of application for arbitration; 

3. The respondent shall reimburse theapplicant for the travel expenses incurred for handling the case; 

4. The respondent paid AHK USD 714 for thearbitration and testing fee; 

5. The respondent shall bear thearbitration fee of the case. 

Arbitration result: The arbitration tribunal supportedmost(98%) claims of the claimant.