1. Cooperate Ltd, the CLAIMANT, is renowned for making exceptionally creative hats and unique 'theatrical' coats and other pieces of clothing. All garments are made by highly talented budding artists. The company sells these goods in its shops in Melbourne, Wellington, London, Toronto, New York, and Tokyo, as well as online.
2. Amlie is a successful businesswoman and a famous actress and movie director who is currently in Australia promoting her latest movie, some scenes of which were filmed in the Australian outback last year. She wants to buy one of Cooperate Ltd's hats and coats. She visits Cooperate Ltd's Melbourne shop and finds what she wants.
3. However, the hat which Amlie wants cannot fit her head. Unfortunately, she is not happy with the coat's colour either. Amlie asks Cooperate Ltd's shopkeeper Pippi that one hat be made for her 'just like that' only one size larger and that also the coat be made for her in a very specific shade of purple and says that she will fax her credit card details once Cooperate Ltd notifies her that the hat and the coat are ready. Pippi agrees and measures Amlie's head and notes the measurements together with the requested shade of purple and the date on which Amlie visited the Melbourne shop on the back of the photo of Amlie which she autographed and gave Pippi.
4. Pippi tells Amlie that the hat will cost AUD$15,295.00 and that the coat will be AUD$37,000.00. Pippi also mentions to Amlie that if something goes wrong with the contract, they will settle their dispute by arbitration in Australia. Amlie agrees and confirms this in writing.Subsequently, they both nominate arbitrators who will sit on the arbitral panel.
5. That same afternoon Amlie sends Aline, her personal assistant, to Corporate's Melbourne shop to order on her behalf a significant number of items for 'The Amlie' Ltd, her well-known chain of exclusive boutiques located throughout France and in several other states whose regular customers are celebrities and other prestigious clientele. Because Amlie is highly impressed by the exquisiteness and intricacy of Cooperate Ltd's garments she orders, through Aline, for her business twenty hats, 'one size fits all', thirty coats small-size, and fifteen coats medium-size, twenty five costumes small-size, forty evening gowns small-size and ten evening gowns medium-size.
6. Cooperate Ltd is delighted to have such a good customer and agrees to supply the ordered clothes and hats. Delivery is to be CIF (Marseille) Incoterms 2020 by 16 September 2021.
7. The parties make no reference to what the governing law of their contract will be. However, they do agree in writing to resort to arbitration in Australia if something goes wrong with this sales contract and they both nominate arbitrators who will sit on the arbitral panel.
8. Cooperate Ltd first made the hat and the coat for Amlie and sent her an email informing her that the hat and the coat were ready and requesting her credit card details and mailed the hat and the coat to her Marseille address.
9. After that, Cooperate Ltd started working on 'The Amlie' Ltd's order. Due to the size of the order and the agreed delivery date Cooperate Ltd employed several new artists to help meet the deadline. However, by the end of August it became evident that Cooperate Ltd would not be able to honour the agreed delivery date. On 1 September, Cooperate Ltd telephoned 'The Amlie' Ltd and asked to speak with the owner. Amlie's secretary told Cooperate Ltd's representative that the owner was away, but when Cooperate Ltd's representative advised her about the likelihood of delay in delivering the ordered hats and clothing, the secretary assured Cooperate Ltd's representative that delivery in October would be fine.
10. When the hats and other garments were ready, Cooperate Ltd made sure that they were carefully packed and then each package placed in a container. The company organized a truck to deliver the garments to the port. On 10 October a truck collected the container. However, on the way to the port the driver was forced to break suddenly on a wet, slippery road. The truck swerved out of control and overturned. The container burst open on one side and most of the garments spilled out onto the road. The garments were shoved hastily back into the container to clear the road as quickly as possible. This all took place during heavy rainfall. Consequently, the spilled boxes were wet from the rain before they were put back into the container.
11. The container was transported from the scene of the accident directly to the port where it was loaded on board the Skippy on 13 October. The master of ship issued a bill of lading which Cooperate Ltd's representative took, along with draft and other necessary documents, to the bank for the bank to remit to Marseille. The documents and draft were presented to the buyer for acceptance on 20 October. The buyer's employee accepted the sight draft drawn by the seller on 20 October.
12. The Skippy arrived in Marseille on 22 October 2021 and 'The Amlie' Ltd was advised that the garments were ready to be cleared through customs. Amlie was relieved at this news as she was worried and annoyed about the delay in delivery. She was particularly annoyed because her employee accepted the sight draft drawn by the seller two days earlier.
13. A truck was sent to collect the garments. When the container was opened at the buyer's premises it was discovered that most of the garments had become moldy and stained during the voyage.It appears that this was the result of being re-packed into a close environment while still wet and soiled from the road accident. In addition, it was also discovered that there was the shortfall in the number of coats delivered (five small-size coats were missing) and that there were the additional twenty XXL evening gowns (still properly packed) which 'The Amlie' Ltd in fact has never ordered. Amlie was so upset by this discovery that she ordered her staff to dump the entire load of garments into the harbor.
14. 'The Amlie' Ltd has now brought the case against Cooperate Ltd to be heard by arbitration in Australia claiming damages equivalent to the total contract price, plus damages for loss of the profits it had expected to make by reselling the hats and clothes ordered from Cooperate Ltd.
15. As far as the garments that Amlie ordered personally during her visit to Cooperate Ltd's Melbourne shop, Amlie has never replied to Cooperate Ltd's email message. After Amlie received the hat and the coat and tried them on she determined that they did not look as good on her as she thought they would. She was particularly displeased with the colour of the coat, which she thought was two shades lighter than the colour she had ordered.She initially intended to use the coat for one of the scenes in her new movie and now 'my image would be utterly distorted if I wore this' she moaned to Aline. Amlie capriciously asked her personal assistant to return both the hat and the coat to Cooperate Ltd, denying that she had any responsibility to pay for the two garments and demanding damages and other remedies 'as Cooperate Ltd breached the contract', she claimed.
16. Cooperate Ltd is distraught. The company invested thousands of dollars in exclusive materials and numerous hours of artists' creativity and hard work into making the hat and the coat for Amlie, and the hats and other garments for 'The Amlie' Ltd.Cooperate Ltd also spent a substantial amount of money to ship the ordered goods.
17. Cooperate Ltd denies any liability and requests the Tribunal to order both Amlie personally and her company 'The Amlie' Ltd pay fully the RESPONDENT for all losses it suffered under both contracts and to also pay the RESPONDENT's costs incurred in this arbitration.
18. The question is in this case Cooerate Ltd is breach the contract or not(with an emphasis on the CISG)