法律英语-仲裁代理词.doc

法律英语期末考试 题 目 Arbitration Statement of Attorneys 学 院 法 学 院 专 业 法律硕士 学生姓名 陈 磊 学 号 S110386 年 级 研 一 指导老师 黄 力 华 教务处制表二一二年 九月十三日Arbitration Statement of AttorneysDear arbitrators,Charlie Law firm accepted the commission of the applicant-Equapack, and assigned me as their arbitration agent. According to the Arbitration Rules and the requirements of the arbitral tribunal, I attended todays court proceedings. Now on the basis of the case I make the following agent advices: 1. the applicant was misled by the respondent when they were subjected to purchase the machines. The applicant mentioned in the offer that the machines they need could be expected to be used over a wide range of products, both fine goods and coarser goods, and presented that both price and prompt delivery would be essential elements of their purchasing decision. (Claimants Exhibit No.1) However, what the respondent has recommended to the applicant are Model 14 auger-feeder packaging machines, which have been discontinued in favor of Model 16. The respondent based only on the demands made by the applicant and recommended the applicant for the 14 machines which had been discontinued. According to the common sense, we know that the products are discontinued because of poor sales, defects or the emergence of new alternative products. In July 2002, the applicant gave the respondent an offer to buy some machines, the applicants are strongly recommended to buy Model 14 auger-feeder packaging machines which were first introduced in 2000 and had been discontinued. Respondents intention is obvious that is to sell the old products and make a profit. The applicant as a food packaging company lacks in understanding of the upgrading of the machines, and purchased Model 14 auger-feeder packaging machines by the misleading. 2. The respondent did not fulfill the obligations to make a reasonable and adequate description of the machines. In the contract of sale, the buyer has a right to know. Buyers shall have the right to demand business operators, in light of the different conditions of commodities or services, to provide their prices, origin, manufacturers, usage, functions, standards, grades, main ingredients, date of production, term of validity, certificates of inspection, operation instructions, after-sale services or information relating to contents, standards and costs of the services. In the contract between the applicant and the respondent, the respondent did not make a reasonable and adequate description of the machines. 3. The respondent did not make an explanation of the machines use and performance. On July 3, 2002, in the respondents new offer to the applicant, it mentioned that “We are a premier manufacturer of equipment for the food packaging industry.” It meant that the respondent was very familiar with the food packaging industry, that it must know different foods need different packaging machines very well. When the applicant told the respondent that what the applicant packaged products for A2Z contains salt, the respondent did not take any measures, nor did tell them the Model 14 auger-feeder packaging machines cant package salt. From the beginning to the end, the respondent did not describe that. “In your letter of 3 July 2002 responding to my inquiry you stated that we should need an auger-feeder because it could pack both coarse and fine goods. You did not say that there were any products for which the machines you proposed should not be used. When I telephoned you on 23 July 2002 in order to inquire about the shipping date, I specifically told you that one of the products that would be packed using the machines was salt. You did not tell me that machines could not be used for packaging salt. Moreover, when you replied to the inquiry by telefax the following day, you did not even mention salt.”(Claimants Exhibit No.6) To say the least, assuming that the respondent had informed the applicant Model 14 auger-feeder packaging machines should not be used for salt. They should also wait for the applicant to respond to them, rather than rely on the price to recommend them to purchase Model 14 machines. If the machine cant be used, how about cheap price and packaging speed these are dependent on that the machines can be used reasonably and normally.4. The respondent didnt give the applicant a reasonable description of the industry standards of packaged food.Although the respondent pointed out that Model 16, which is designed to pack salt, uses high-grade stainless steel. Thats the industry standard. However, the industry standard was only known by the respondent. The applicant as a food-packaging company must not understand the industry standard of packaging machines. For this, the respondent did not make a reasonable explanation to the applicant. 5. The respondent did not provide the applicant with the instructions of the use of the machine.As we all know, in the contract of sale, the seller has the obligation to make reasonable and adequate description for buyers. For example, in the contract of the water heater sale, the seller should specify installation instructions; precautions. In this case, the respondent did not provide the instructions of the machines to the applicant. “All of our literature and our website make it clear that machines built to pack salt, as is our Model 17, use a high-grade stainless steel.”(Claimants Exhibit No.7) There were no relevant instructions come up with the machines which the respondent sold to the applicant. Thirdly, The respondent provided the product does not meet the standards and there were defects in the products. In the use of machinery, the applicant found that “Although the machines worked reasonably well at the beginning, they were slower for most products than had been Equapacks previous experience with similar machines.” “Furthermore, since the machines were packaging foodstuffs, there was concern that the food itself might become contaminated and it was decided that they should no longer be used.” From the expert testimony, we can know that “The lower rate for the finer product is due to the fact that the metal parts of the product paths within the machine are not highly polished; higher productivity, approaching 180 bags per minute could be achieved for the finer products with polished products components in the products paths. I am aware that similar machines are available with highly polished and chromium plated product paths.” “The Model 14 machines that I saw could be used in production line packaging, though the production rates for products other than coffee beans were noticeably below the average industry rate of 180 bags per minute for both coarse and fine products.” Although the Model 14 machines can still be used for product packaging, but its speed is below the industry average. The applicant had proposed the request of the speed to the respondent and this illustrates the importance of time. The machines which were provided by the applicant could not meet the general packaging requirements, and nor reach the general speed of the packaging. 6. The respondents actions constitute a fundamental breach of the contract, and the applicant is entitled to terminate the contract. The non-conformity of the six Model 14 auger-feeder packaging machines was so serious as to constitute fundamental breach as defined in CISG, article 25.That “A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result.” Consequently, Equapack had the right to avoid the contract pursuant to CISG, article 49(1)(a) and did