“[Charter Alpha] source the material all over the world and use the resources of Steel Park Limited when sourcing material from Turkey and the transaction is vice versa; when Steel Park needs to source material from the Far East to Europe, they use Charter Alpha. Steel Park and Charter Alpha mainly bring suppliers and buyers together and take commissions from suppliers. All trade commissions are divided 50/50 in between. Charter Alpha follows up and liaises with Buyer in Hong Kong and forwards them to Steel Park and Steel Park follows up and liaises with Seller, and vice versa.”
“We confirm accept USD478/mt … CFR FO CQD Hong Kong for 15,000 mt (+/-5 pct) … We will send the Contract Draft for you and the mill’s perusal … The L/C will be issued within 1 week after contract being signed by both parties”
“By the way, ctr draft to be establish by SteelPark, Uk who is my associate and will tender Habas’ letter confirming her official agent status. LC will be opened direct to Habas’ designated advising bank … ctr will be made from this end and will tender draft soonest”
“VSC Steel Company Limited/Hong Kong as Buyers, herewith confirm having purchased and Steel Park Limited, herewith acting as agents on behalf of [Habas] as Sellers herewith confirm having sold the following material at the terms and conditions indicated hereafter: … Steel Park Limited is merely acting as agent for [Habas], therefore quality claims, if any, should be directed to seller ([Habas]).”
“To satisfy your query, pls find enclosed letter from Habas for your record. Trust attached can meet with your requirement.”
“(e) Under GOVERNING LAW, we request to REVISE the term to read “This agreement is governed by the BRITISH LAW.” (i.e. Instead of “Turkish Law” proposed by the seller or “the laws of Kong Kong” as proposed by the buyer”) … (g) Please also provide the space for the signature(s) by the Authorized Signatories of the Manufacturer – “HABAS SINAI VE TIBBI GAZLAR ISTIHSAL ENDUSTRISI A.S.” and arrange the Manufacturer to sign in the Contract.”
“The important thing here is arbitration cls. Couldn’t we make any change on this? Please review and write me back urgently.”
“Habas revised and signed the contract to us. See the comment only for arbitration and governing law issues. Others are all ok Also don’t worry for material description I spoke to them and vsc will insert it to lc so they will name it “Prime high tensile steel deformed bars. (it is not a big issue) Also shipment period don’t worry last date of shipment I put 25th Jan so shipment will be done between 15 to 25 and will be guaranteed after Chinese new year. Others are all ok I am waiting signed contract to send to them.”
“For your easy ref, I have amend the ctr draft with VSC’s comment for your doing needful. Understand Habas is not willing to change the arbitration and governing law. To bridge the biz, VSC now willing to accept Quote Any controversy or claim out of or relating to this contract or any alleged breech [sic] thereof, will be settled with the International Chamber of Commerce in Paris in accordance with the rules applied by that organization Unquote Hope abv can satisfy all parties. … Pls revert with a signed ctr copy within our closing today.”
“(1) If a party to arbitral proceedings takes part, or continues to take part, in the proceedings without making, either forthwith or within such time as is allowed by the arbitration agreement or the tribunal or by any provision of this Part, any objection (a) that the tribunal lacks substantive jurisdiction, … he may not raise that objection later, before the tribunal or the court unless he shows that, at the time he took part or continued to take part in the proceedings, he did not know and could not with reasonable diligence have discovered the grounds for the objection.”
“Recalcitrant parties or those who have had an award made against them [who] often seek to delay proceedings or to avoid honouring an award by raising points on jurisdiction etc which when they have been saving up for this purpose or which they could and should have discovered and raised at an earlier stage.”
“… it may be thought unlikely that P could be bound and entitled by virtue of a law which governed the contract with the third party only because A, in excess of his actual authority, agreed to its selection as the applicable law. The problem is similar to that raised by the question of capacity and can be resolved in a similar way. Where the agent exceeds his authority in choosing the law to govern his contract with the third party, P should only be regarded as entitled or bound if he would be so under the law applicable in the absence of choice”
“If one applied without modification the normal definition of the governing law to the questions of capacity, one would arrive at the result that a minor could, by agreeing to the choice of a system of law as the law of the contract, confer contractual capacity upon himself. For this purpose, it is submitted, the criterion should be the connection of the contract with a given system of law, i.e. the system of law with which the contract is most closely connected.” (3) Article 8(2) of the Rome Convention (now reproduced in identical terms in Article 10(2) of the Rome 1 Regulation (EC No 593/2008)) which recognises an exception to application of the putative applicable law to determine the validity of the contract under Article 8(1) in the following circumstances: “2. Nevertheless a party may rely upon the law of the country in which he has his habitual residence to establish that he did not consent if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in the preceding paragraph.”
“…The facts of The Parouth were similar to those of the present case the question being whether there was a binding contract between the parties. The court held that that question would be decided by an English court in accordance with putative proper law which, since there was an English arbitration clause, would in all probability be held to be English law. Accordingly the case fell within R.S.C. Order 11, rule 1(1)(f) . Mr. Gross sought to distinguish The Parouth on the ground that in that case the question was whether there was a contract at all, whereas in the present case it is common ground that there was a contract; the question here is whether the contract contained an arbitration clause. I accept that this is a distinction on the facts. But it makes no difference to the principle stated and applied by the court in the Parouth, by which we are of course bound, as was the judge.”
“Dicey’s rule as to the formation of a contract as a whole must (perhaps a fortiori) apply to the formation of a disputed part.”
“... the manner of foreign corporations entering into binding contracts is as regards matters of formal validity under English law governed, like questions of capacity to contract, by the law of the place of incorporation... [citing the Overseas Companies Regulations]... The substance of these provisions is that a foreign corporation may make a contract in any manner permitted by the law of the place of incorporation and by any person who by that law is acting under the authority (express or implied) of that corporation. A document may be executed in any manner permitted by such law and, if it is expressed to be executed by the company, it will have the same effect as a document executed by an English company. If a document purports to be signed by persons having express or implied authority (under that law) of the company, the documents will be deemed to be duly executed by such foreign company.” (Emphasis in original.)
“If the Seller fails to deliver the goods to the Buyer or fails to deliver on time... the Buyer may terminate this contract and claim against the Seller for the difference between the prevailing market price and the contract price hereof, without prejudice to other claims or remedies which the Seller has in addition to or in the alternative to that claim.”