Need Analysis of this case - 1)You are the chair of the three-person arbitration panel named to hear this dispute and determine the appropriate outcome. You have convened the panel for a post hearing conference and announced your conclusion regarding the appropriate ruling on the case. One of the other panel members has agreed with your proposed resolution; the third member disagrees. please write the majority decision of the panel (a) determining which party prevails in the dispute; (b) stating the reasons underlying your conclusion; (c) setting forth your reasoning for rejecting the non-prevailing party's position; and (d) providing the appropriate relief to the prevailing party.

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ABC FILM CO. Claimant

v.

XYZ-PACKAGING Respondent

STATEMENT OF CLAIM

I. Parties

1. ABC Film Co. (hereafter referred to as "ABC Film") is a corporation organized under the laws of ABC. It has its principal office at 214 Commercial Ave., Oceanside, ABC. ABC Film is a producer of polypropylene film used for packaging food products.

2. XYZ-Packaging (hereafter referred to as "XYZ-Packaging") is a corporation organized under the laws of Newgarth. It has its principal office at 395 Industrial Place, Capitol City, Newgarth. XYZ-Packaging is a printer and manufacturer of flexible packaging products for foodstuffs and the like.

II. Facts

3. In November 2016, Ms. Glenda Pigeon, Sales Manager of ABC Film, telephoned Ms. Gwendolyn Green, Purchasing Manager of XYZ-Packaging, to discuss the possibility of furnishing XYZ-Packaging with the Oriented Polypropylene film that it used to manufacture packaging products. After a period of discussions, Ms. Pigeon submitted a final offer in writing. In view of the quantities that ABC Film could expect to sell to XYZ-Packaging each year, it offered XYZ-Packaging a discount of eight percent from its list price for the order that was anticipated. (Claimant's Exhibit No.1) It was noted in the letter conveying the offer that the price was unusually low and that it was, in fact, the lowest price ABC Film had ever given any customer for a purchase. The usual price offered by ABC Film to favored customers was stated to be a discount of four percent from its list price.

4. XYZ-Packaging accepted the offer; and a contract was signed on 15 December 2016 for 200 tons of 1100 mm wide, 30-micron thick, opaque white OPP (Oriented Polypropylene) film (to ASTM Standard D2673-99). The film was to be shipped from Oceanside CIF to Capitol City Port in four equal shipments on or prior to the 10th of the months of January, February, March, and April 2017. The total contract price was $353,927. Payment for each installment was due 30 days after shipment. (Claimant's Exhibit No.2) The film was shipped and paid for as contracted.

5. On 3 April 2017, Gwendolyn Green telephoned to Glenda Pigeon to discuss a new order. She told Ms. Pigeon that XYZ-Packaging had received a large order for packaging to be used for a wide range of pasta sauces. As a result, they would need 1350 tons to be delivered over a nine-month period of time. After the telephone conversation, she sent Ms. Pigeon by telefax a confirmation of the contract that had been concluded between the two firms during the telephone conversation. The terms were to be the same as in the contract of 15 December 2016, with adjustments for the dates of shipment and the fact that ABC Film's list price had risen to $1,900 in the meantimein line with those of the industry. (Claimant's Exhibit No.3)

6. The same day, 3 April 2017, ABC Film sent its own confirmation form in which the price set forth was $2,615,809, i.e., ABC Film's then current list price of $1,900 less four percent plus CIF charges. A four-percent discount from list was ABC Film's "best price," as it had previously indicated that XYZ-Packaging would receive. (Claimant's Exhibit No.4) When Ms. Green received the confirmation form on 6 April 2016, she replied by telefax to Ms. Pigeon that the price should have reflected an eight-percent discount. (Claimant's Exhibit No.5) Ms. Pigeon in turn replied by telefax on 9 April 2017 that the eight-percent discount from ABC Film's list price had been granted for the first purchase by XYZ-Packaging, but that it had never been intended or agreed that such a discount would apply to all future orders. (Claimant's Exhibit No.6)

7. Ms. Green replied by telefax on 10 April 2017 that XYZ-Packaging had considered purchasing its requirements of film from ABC Film only because ABC Film had agreed to give XYZ-Packaging an eight-percent discount on its purchases. Unless ABC Film gave XYZ-Packaging an eight-percent discount from list, it would have to consider seriously returning to its previous supplier for its future requirements of polypropylene film. She requested Ms. Pigeon to reply immediately. (Claimant's Exhibit No. 7)

8. Ms. Pigeon replied on 12 April 2017 that, as she had already explained, the discount granted in the contract of 15 December 2016 had been a one-time discount to encourage XYZ-Packaging to initiate purchasing from ABC Film. She regretted if there had been a misunderstanding in this regard, but that it would not be possible for ABC Film to grant such a discount on each order. She reminded Ms. Green that ABC Film already had prices that were at the lower end of those in the industry. She regretted that XYZ-Packaging was thinking of ending the relationship between the two firms that had begun so well. (Claimant's Exhibit No.8)

9. Since XYZ-Packaging had not replied to Ms. Pigeon's fax of 12 April 2017, Ms. Pigeon sent a new fax on 27 April 2017 inquiring as to XYZ-Packaging's intentions. (Claimant's Exhibit No.9) Ms. Green replied on 2 May 2017 that XYZ-Packaging had returned to Polyfilm GmbH as its supplier of polypropylene film. (Claimant's Exhibit No. 10)

10. The telefax sent by Ms. Green to Ms. Pigeon confirming the contract for 1350 tons of polypropylene film concluded during the telephone conversation of 3 April 2017 referred back to the contract of 15 December 2016 and stated that the "Payment, shipping, and similar terms of your conditions of sale are to be as in the contract of 15 December 2016, with the obvious adjustments of dates," thereby incorporating those terms into the new contract.

11. ABC Film's gross margin on the manufacture of polypropylene film of the contract quality is twenty-two (22) percent.

III. Arbitration clause and Applicable Law

12. The contract of 15 December 2016 contained in its clause 12 the following provision:

"12. Choice of Law. This contract is subject to the commercial law of ABC."

13. ABC is a party to the United Nations Convention on Contracts for the International Sale of Goods. The Convention is, therefore, part of the commercial law of ABC. Consequently, the Convention is the law governing the formation of the contract of sale as well as the rights and obligations of the parties as seller and buyer. Furthermore, the rules of private international law, or conflicts of law, of both ABC and Newgarth provide that the law governing a contract of sale, as well as its formation, is that of the seller. Since the seller is from ABC, the governing law would be that of ABC even if there were no choice of law clause. ABC has two laws of sale, of which the Convention is the law governing international sales of goods.

14. The contract of 15 December 2016 contained in its clause 13 the following provision:

"13. Arbitration Any controversy or claim between ABC Film Co. and XYZ-Packaging arising out of or relating to this contract shall be determined by arbitration in accordance with the rules of the German Arbitration Association by a panel of three arbitrators with the place of arbitration being Vindobona, Danubia, and the language of the arbitration English. "

15. Since there is no organization by the name of the German Arbitration Association and the is the only arbitration institution in Germany generally available for international commercial arbitration, it is obvious that the name of the arbitral institution in the arbitration clause is a mistranslation of the name of the Deutsche Institution fur Schiedsgerichtsbarkeit e.V.

IV. Legal Conclusions

16. The arbitral tribunal has jurisdiction in accordance with the arbitral clause found in clause 13 of the contract of 15 December 2016, incorporated by reference in the contract concluded by telephone on 3 April 2017 and confirmed by the exchange of confirmations the same day. The contract was for 1350 tons of 1100 mm wide, 30-micron thick, opaque white OPP (Oriented Polypropylene) film (to ASTM Standard D2673-99) to be delivered in nine monthly installments to be shipped on or before the 10th of the month commencing 10 May 2017. The price was $1,900 per ton with a discount of four percent plus CIF charges Oceanside to Capitol City Port for a total of $2,615,809. XYZ-Packaging breached the contract by its telefaxes of 10 April and 2 May 2017.

V. Relief

17. ABC Film requests the Tribunal to find:

- the Tribunal has jurisdiction to consider the dispute between ABC Film and XYZ-Packaging;

- ABC Film and XYZ-Packaging concluded a contract for the sale of 1350 tons of polypropylene film during the telephone conversation between Ms. Green and Ms. Pigeon on 3 Apri12017;

- The contract price for the goods was $2,615,809 CIF Oceanside to Capitol City Port, which included a four percent discount from ABC Film's then current list price;

- XYZ-Packaging breached the contract by its telefax of 10 April 2017 in which it announced that it would not take delivery of the contracted for goods except for a price of $2,359,800 plus CIF charges and 2 May 2017 in which it stated that it had contracted with Polyfilm GmbH for the polypropylene film that it had expected to purchase from ABC Film.

18. Consequently, Equafi1m requests the Tribunal to order:

- XYZ-Packaging to pay ABC Film the sum of $575,477.98 as damages, being the lost profit ABC Film would have earned on the contract;

-XYZ-Packaging to pay interest at the prevailing market rate in ABC on the said sum from the date payment was due, i.e., 30 days from the 10th day of May, June, July, and August 2017 to the date of payment to ABC Film;

-XYZ-Packaging to pay all costs of arbitration, including costs incurred by the parties.

Claimant's Exhibit No.1

ABC FILM CO.

214 Commercial Ave.

Oceanside, ABC

7 December 2016

Ms. Gwendolyn Green

Purchasing Manager

XYZ-PACKAGING

395 Industrial Place

Capitol City, Newgarth

Dear Ms. Green:

I wish to express my pleasure at the prospect that our two firms will enter into a long-term relationship. I know that you will be more than satisfied with the OPP that you will receive from us. Furthermore, you can be sure that, in view of the quantity you have indicated XYZ-PACKAGING purchases each year, you will always receive our best price. As you know, our list prices are in any case consistently among the lowest in the industry.

To recapitulate our telephone conversation of this morning, you are placing a first order for a four months supply of 50 tons per month 1100 mm wide, 30-micron thick, opaque white OPP (Oriented Polypropylene) film (to ASTM Standard D2673-99), list price $1,800 per ton. Shipment will be Oceanside on or before the tenth day of the month of January, February, March, and April 2017. You will be billed CIF Capitol City Port. You will receive a discount of eight percent from our list price, which is an unusually low price. In fact, it is the best price we have ever given any customer for any purchase. Our usual price for favored customers is a discount of four percent from our list price.

Since this is the first order you are placing with us, we will send you a formal contract for your signature.

Sincerely,

(Signed)

Glenda Pigeon

Sales Manager

Claimant's Exhibit No.2

Contract (Excerpts)

ABC Film Co. agrees to sell and XYZ-PACKAGING agrees to buy 200 tons 1100 mm wide, 30- micron thick, opaque white OPP (Oriented Polypropylene) film (to ASTM Standard D2673-99) at $1,656 per ton plus CIF charges.

1. Price is $353,927 CIF Oceanside to Capitol City Port.

2. Shipment to be in four equal installments of 50 tons each. The first shipment to be made on or before 10 January 2017 with subsequent shipments to follow at one-month intervals on or before 10 February 2017, 10 March 2017, and 10 April 2017.

3. Payment is to be made in installments by transfer to the account ABC Film Co., account number 00123456789 in the ABC Commercial Bank, Oceanside Branch. Payment is due 30 days after notification by ABC Film Co. of delivery to the port for shipment.

***

12. Choice of Law. This contract is subject to the commercial law of ABC.

13. Arbitration. Any controversy or claim between ABC Film Co. and XYZ-Packaging arising out of or relating to this contract shall be determined by arbitration in accordance with the rules of the German Arbitration Association by a panel of three arbitrators with the place of arbitration being Vindobona, Danubia, and the language of the arbitration English.

(Signed)(Signed)

Sales Manager Purchasing Manager

ABC FILM CO.XYZ-PACKAGING

15 December 2016

Claimant's Exhibit No.3

XYZ-PACKAGING

395 Industrial Place

Capitol City, Newgarth

3 April 2017

Ms. Glenda Pigeon

Sales Manager

ABC FILM CO.

214 Commercial Ave.

Oceanside, ABC

By fax

Dear Ms. Pigeon:

I am pleased to confirm our telephone conversation of today in which it was agreed that XYZ-Packaging would purchase 1350 tons of 1100 mm wide, 30-micron thick, opaque white OPP, quality as in current contract. Payment, shipping, and similar terms of the contract of 15 December 2016 are to apply.

Shipment is to take place on or before the 10th of the months of May 2017 through January 2018. Since your list price has risen to $1,900 per ton in line with price movements in the industry, the discounted price we are to pay will be increased accordingly.

I will have a purchase order sent to you within the next week.

Sincerely,

(Signed)

Gwendolyn Green Purchasing Manager

Claimant's Exhibit No.4

ABC FILM CO.

214 Commercial Ave.

Oceanside

ABC

3 April 2017

Ms. Gwendolyn Green

Purchasing Manager

XYZ-PACKAGING

395 Industrial Place

Capitol City, Newgarth

Dear Ms. Green:

We hereby confirm that we have received your order for 1350 tons of 1100 mm wide, 30-micron thick, opaque white OPP (Oriented Polypropylene) film. Price CIF Oceanside to Capitol City Port is $2,615,809, including a discount of four percent from our current list price of $1,900 per ton. Payment is to be made for each shipment within 30 days after notification by ABC Film Co. of delivery to the port for shipment. Shipment to be in nine monthly installments. First shipment on or before 10 May 2017. All other provisions in contract dated 15 December 2016 to apply.

(Signed)

Glenda Pigeon

Sales Manager

Claimant's Exhibit No.5

XYZ-PACKAGING

395 Industrial Place

Capitol City, Newgarth

6 April 2017

Ms. Glenda Pigeon

Sales Manager

ABC FILM CO.

214 Commercial Ave.

Oceanside, ABC

By fax

Dear Ms. Pigeon:

I have received your confirmation of our contract, and it has a major error in the price. You will remember that you had agreed that XYZ-Packaging would receive an eight-percent discount from your list price.

It appears that the price that has been inserted into your confirmation form represents a four-percent discount.

I would ask you to confirm that the correct price for this order is $2,359,800 plus CIF charges.

Sincerely,

Gwendolyn Green

Purchasing Manager

Claimant's Exhibit No.6

ABC FILM CO.

214 Commercial Ave.

Oceanside, ABC

9 Apri12017

Ms. Gwendolyn Green

Purchasing Manager

XYZ-PACKAGING

395 Industrial Place

Capitol City, Newgarth

Dear Ms. Green:

It appears that there has been some confusion in our communications for which I am truly sorry. We are very pleased with the prospect that our two firms have entered into what promises to be a long-term relationship. I wrote you in my fax of 7 December 2016 that XYZ-PACKAGING would receive our best price, and we intend to carry through on our promise.

To show our appreciation for our new relationship, we were able to offer you a special eight-percent discount from our list price for your first order. As you will recall, that is the largest discount we have ever given to any customer, but that our normal best price is a discount of four percent from list.

I am sure you will appreciate that a four-percent discount from our list price, which remains as favorable price as you will find, is extremely advantageous for you.

We are happy to be able to report that we have booked space for shipment of the first quantity of 150 tons of polypropylene film during the period of 25-28 Apri12017. You should be in a good position to meet your own commitments.

Sincerely,

(Signed)

Glenda Pigeon

Sales Manager

Claimant's Exhibit No.7

XYZ-PACKAGING

395 Industrial Place

Capitol City, Newgarth

10 April 2017

Ms. Glenda Pigeon

Sales Manager

ABC FILM CO.

214 Commercial Ave.

Oceanside, ABC

By fax

Dear Ms. Pigeon:

As you know, we have had a long-standing and satisfactory relationship with Polyfilm GmbH, from whom we have been purchasing our requirements of film. We decided to commence buying from ABC Film Co. exclusively because of the advantageous price that you offered us by means of an eight-percent discount from your list price.

If you do not intend to keep your commitment to us to give us an eight-percent discount from your list price, we will have to consider seriously returning to Polyfilm GmbH for our future requirements of polypropylene film.

I await your immediate response.

Sincerely,

Gwendolyn Green

Purchasing Manager

Claimant's Exhibit No.8

ABC FILM CO.

214 Commercial Ave.

Oceanside, ABC

12 April 2017

Ms. Gwendolyn Green

Purchasing Manager

XYZ-PACKAGING

395 Industrial Place

Capitol City, Newgarth

Dear Ms. Green:

As I have already explained to you in my telefax of 9 April 2017, the discount of eight percent from our list price that we gave to you in the contract of 15 December 2016 was a one-time discount to encourage XYZ-Packaging to initiate purchasing from us. We were sure that once you had made a first purchase from us, you would become a long-term customer.

The price we quoted you last December was so much below both our own list price and the industry price at the time that there could have hardly been an expectation on your part that it would apply to all purchases from us in the future. We are still prepared to grant to XYZ-Packaging our best price, which reflects a four-percent discount from our list price. Considering that our list price is consistently at the lower end of those in the industry, we are sure that you will agree that you will find no better arrangement for your needs of polypropylene film.

I look forward to hearing from you shortly.

Sincerely,

(Signed)

Glenda Pigeon

Sales Manager

Claimant's Exhibit No.9

ABC FILM CO.

214 Commercial Ave.

Oceanside, ABC

27 April 2017

Ms. Gwendolyn Green

Purchasing Manager

XYZ-PACKAGING

395 Industrial Place

Capitol City, Newgarth

Reference: My telefax 12 April 2017

Dear Ms. Green:

It has now been over two weeks since my last telefax to you in regard to the contract concluded by us on the telephone on 3 April 2017. I had hoped to hear from you by return message that you accepted our explanation of our pricing policy. To my disappointment that has not been the case..

We have cancelled the booking for 25-28 April 2017, but we have been promised space scheduled to sail 5 May 2017.

I would ask you to communicate to me your intentions so that we can confirm the booking.

Sincerely,

(Signed)

Glenda Pigeon

Sales Manager

Claimant's Exhibit No. 10

XYZ-PACKAGING

395 Industrial Place

Capitol City, Newgarth

2 May 2017

Ms. Glenda Pigeon

Sales Manager

ABC FILM CO.

214 Commercial Ave.

Oceanside, ABC

By fax

Reference: Your telefax of 27 April 2017

Dear Ms. Pigeon:

I need not repeat what I already told you in my fax of 10 April 2017. Although we have been completely satisfied with the quality of the Oriented Polypropylene that you have been shipping to us, it offers us no particular advantage as against the Oriented Polypropylene we have been receiving from Polyfilm GmbH in the past.

When you offered us a discount of eight percent from your list price, and your list price is in line with what is normal in the industry, we thought it would be worthwhile to commence purchasing from you. A discount of four percent is not enough, however.

As a result, we have placed an order with Polyfilm GmbH for the polypropylene film that we had expected to purchase from you.

Sincerely,

Gwendolyn Green

Purchasing Manager

ABC FILM CO.

Claimant

v.

XYZ-PACKAGING

Respondent

STATEMENT OF DEFENSE

1. Parties

1. XYZ-Packaging (hereafter referred to as "XYZ-Packaging") is a corporation organized under the laws of Newgarth. It has its principal office at 395 Industrial Place, Capitol City, Newgarth. XYZ-Packaging is a printer and manufacturer of flexible packaging products for foodstuffs and the like.

2. ABC Film CO. (hereafter referred to as "ABC Film") is a corporation organized under the laws of ABC. It has its principal office at 214 Commercial Ave., Oceanside, ABC. ABC Film is a producer of polypropylene film used for packaging food products.

II. Facts

3. As noted in the statement of claim, a period of discussions initiated by ABC Film culminated in a letter dated 7 December 2016 signed by Glenda Pigeon, Sales Manager of ABC Film. It was stated in the letter that, because of the amounts that ABC Film expected to sell to XYZ-Packaging, XYZ-Packaging would always receive its best price. The letter went on to say that the price XYZ-Packaging was to receive represented an eight-percent discount from ABC Film's then-current list price. (Claimant's Exhibit No.1) The contract of 15 December 2016 for the first installment of what XYZ-Packaging expected to purchase from ABC Film implemented what had been promised in the letter. (Claimant's Exhibit No.2) The promised quantities of polypropylene film were delivered in conformity with the contract and paid for.

4. As indicated in the statement of claim, at the end of March 2017, XYZ-Packaging received a large order for packaging to be used for a wide range of pasta sauces. Consequently, on 3 April 2017 Gwendolyn Green telephoned to Glenda Pigeon to place a new order for the 1350 tons XYZ-Packaging would need over the coming nine-month period of time to fulfill all of its needs. After the telephone conversation, Ms. Green sent Ms. Pigeon by telefax a confirmation of what he thought had been agreed on the telephone. The terms were to be the same as in the contract of 15 December 2016, with adjustments for the amounts, dates of shipment, and the fact that ABC Film's list price had risen to $1,900 in the meantimein line with those of the industry. (Claimant's Exhibit No.3) Most importantly for this dispute, Ms. Green thereby indicated her understanding that it had been agreed that XYZ-Packaging would continue to receive the eight-percent discount as provided in Ms. Pigeon's letter of 7 December 2016 and implemented in the contract of 15 December 2016. (Claimant's Exhibits Nos. 1 and 2)

5. The same day, 3 April 2017, ABC Film sent its own confirmation form in which the price set forth was $2,615,809, i.e., ABC Film's then current list price of $1,900 less four percent plus CIF charges. (Claimant's Exhibit No.4)

6. The remainder of the relevant correspondence was as set forth in the statement of claim. When Ms. Green received the confirmation form on 6 April 2017, she replied by telefax to Ms. Pigeon that the price should have reflected an eight percent discount. (Claimant's Exhibit No.5) Ms. Pigeon, in turn, replied by telefax on 9 April 2017 that the eight-percent discount from ABC Film's list price had been granted for the first purchase by XYZ-Packaging, but that it had never been intended by ABC Film that such a discount would apply to all future orders. (Claimant's Exhibit No.6)

7. Ms. Green replied by telefax on 10 April 2017 that XYZ-Packaging had considered purchasing its requirements of film from ABC Film only because ABC Film had agreed to give XYZ-Packaging an eight-percent discount on its purchases. Unless ABC Film gave XYZ-Packaging an eight-percent discount from list, it would have to consider seriously returning to its previous supplier for its future requirements of polypropylene film. She requested Ms. Pigeon to reply immediately. (Claimant's Exhibit No.7)

8. Ms. Pigeon replied on 12 April 2017 repeating that the discount granted in the contract of 15 December 2016 had been a one-time discount to encourage XYZ-Packaging to initiate purchasing from ABC Film. (Claimant's Exhibit No.8)

9. As a result of ABC Film's disavowal of its earlier commitment to grant XYZ-Packaging an eight-percent discount from list, XYZ-Packaging realized that it did not have a contract for the 1,350 tons of film that it needed and that it did not make sense to negotiate with ABC Film further. As a consequence, it purchased the necessary quantities from its former supplier, Polyfilm GmbH. It so informed XYZ-Packaging on 2 May 2017. (Claimant's Exhibit No. 10)

III. Lack of jurisdiction of the arbitral tribunal

10. The arbitral tribunal has no jurisdiction in this dispute for two reasons:

- The arbitration clause in the contract of 15 December 2016 refers to the rules of a non-existing arbitral institution;

- No contract was concluded between ABC Film and XYZ-Packaging for the sale of the 1,350 tons of polypropylene film, and perforce no arbitration agreement relating to that contract was concluded between them.

11. The arbitration clause in the contract of 15 December 2016 provides for arbitration under the rules of the German Arbitration Association. That organization does not exist, as is admitted by ABC Film in the statement of claim, para. 15. ABC Film claims that the name "German Arbitration Association" was simply a mistranslation of Deutsche Institution fur Schiedsgerichtsbarkeit e. V. and that it was that organization that was intended. If ABC Film intended to refer to the rules of DIS when preparing the contract of 15 December 2016, it certainly would have used the official English name of the organization, . That it did not do so indicates clearly that it was not intended. Since there was no effective agreement to arbitrate, the arbitral tribunal constituted by the has no jurisdiction.

12. When Ms. Green and Ms. Pigeon discussed the possibility of a further purchase of 1,350 tons of polypropylene film on the telephone of 3 April 2017, and when Ms. Green sent her telefax of the same date (Claimant's Exhibit No.3), it was anticipated that a contract would be concluded on the same terms as those in the contract of 15 December 2016except for the amount of film to be purchased, the increase in the list price, and the shipping dates. If the contract had been concluded, the arbitration clause would have been included, for whatever it was worth. However, it is evident that there was no agreement on an essential term, namely the price. This will be discussed further below. Since no contract was concluded between Ms. Green and Ms. Pigeon, representing XYZ-Packaging and ABC Film respectively, there was no agreement on an arbitration clause.

13. Although XYZ-Packaging contests the applicability to this dispute of the clause contained in section 13 of the contract of 15 December 2016, it is willing to have a tribunal of three persons consider its assertion that there is no jurisdiction and for the tribunal to meet in Vindobona, Danubia.

IV. Applicable law

14. The law applicable to the formation of the alleged contract of sale, as well as to the substance of any contract that might have been concluded, is the domestic law of ABC. The contract of 15 December 2016, prepared by ABC Film, provided that it was "subject to the commercial

law of ABC." (Claimant's Exhibit No.2) The wording of that provision indicates clearly that it was intended to designate the domestic law of ABC and not the United Nations Convention on Contracts for the International Sale of Goods.

15. It is also clear from the communications between Ms. Green and Ms. Pigeon following the telephone conversation of 3 April 2016 that it was anticipated that any contract that might be concluded would be subject to the same law as was the contract of 15 December 2016. (Claimant's Exhibit No.3 and 4)

16. This is significant because the law governing the formation of contracts in ABC, the law desired by the claimant, ABC Film, is very strict in its requirement that the quantity and the price of the goods that are the subject of an alleged contract of sale must be clearly determined or determinable at the time of the formation of the contract. The fact that there was a dispute as to whether the price of the polypropylene film that is the subject of this arbitration was to be calculated at a discount of four percent or eight percent from ABC Film's list price precludes the conclusion of a contract under the domestic law of ABC.

V. No contract of sale was concluded between ABC Film and XYZ-Packaging

17. It has already been pointed out that, under the domestic law of ABC, no contract of sale could be considered to have been concluded because of the extremely strict requirement that the quantity and the price of the goods be clearly determinable at the time of the conclusion of the contract. The same result is to be reached under the United Nations Convention on Contracts for the International Sale of Goods. Article 14 provides:

"(1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price."

18. Since neither the telephone conversation between Ms. Green and Ms. Pigeon nor the subsequent exchange of telefaxes made clear what the price would be or how it would be determined, there was no contract of sale under Article 14 of the Convention.

VI. Damages

19. On the assumption that there was a contract of sale and that XYZ-Packaging was in default in its obligations under the contract, XYZ-Packaging denies that ABC Film would be due by way of damages lost profit in the amount of $575,477.98.

20. XYZ-Packaging denies that any interest would be payable on any damages that might be assessed against it either prior to the date of award or subsequent to that date until the date on which the award would be satisfied. Furthermore, any interest that would be awarded should not be at the commercial rate in ABC.

VII. Conclusion

21. XYZ-Packaging requests the tribunal to declare:

- it has no jurisdiction to consider the dispute between ABC Film Co. and XYZ-Packaging SA.

22. As a subsidiary argument and only if the tribunal finds that it has jurisdiction to consider the dispute, XYZ-Packaging requests the tribunal to:

- declare as a preliminary matter that the domestic law of ABC governs the formation of any contract of sale alleged to have been concluded based on the terms found in the contract of 15 December 2016;

- find that no contract of sale was concluded between ABC Film and XYZ-Packaging based on the telephone conversation of 3 April 2017 between Glenda Pigeon of ABC Film and Gwendolyn Green of XYZ-Packaging or their subsequent correspondence;

- find that no damages by way of lost profit are due to ABC Film;

- find that the calculation of lost profits in the amount of $575,477.98 has not been adequately demonstrated;

- find that no interest, whether pre- or post-award, would be due on any amount awarded as damages;

- award the costs of arbitration, including attorneys' fees, to XYZ-Packaging.