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CISG-online number
5781
Case name
New York State Dept. of Health v. Rusi Technology Co., Ltd.
Jurisdiction
USA
Court
Supreme Court of the State of New York, Albany County
Judge
Richard M. Platkin (Sole judge)
Date of decision
25 January 2022
Case nr./docket nr.
907022-21
Claimant 1
Respondent 1
Seller 1
Buyer 1
Category of goods
54: Medicinal and pharmaceutical products
Goods as per contract
2,000,000 KN-95 masks
Price
9'600'000.00 USD (U.S. Dollar)
CISG applicable
yes, Art. 1(1)(a)
CISG applied
yes, in assessing whether the parties reached an agreement on an arbitration clause
Key CISG provisions interpreted and applied
Art. 6; Art. 8(1); Art. 8(2)
Key CISG provisions applied
Art. 8(3)
Relevant CISG provisions not cited
Art. 14(1)
Non-provision-specific issues addressed
Formation of party agreement on dispute resolution clause; Incorporation of standard terms into CISG contracts
This decision cites the following other CISG-online cases 8
Decision published in 3
Comments on this decision 3
Full text of decision 1
by Ulrich G. Schroeter
The present decision was rendered upon an application by a U.S. buyer (the New York State Department of Health), who requested the Court to permanently stay a pending CIETAC arbitration that had been initiated by the seller (Rusi Technology Co., Ltd.; place of business: Hong Kong, China). In deciding the matter and eventually granting the requested stay, the Court addressed two interesting points:
First, the Court (in para. 17 of the decision) declared the CISG to be applicable, because "[b]oth the United States and China have adopted the Convention" (see Art. 1(1)(a) CISG). In doing so, it seemingly accorded no relevance to the fact that the seller was based in the Hong Kong Special Administrative Region of China, and that the status of Hong Kong under the CISG in March 2020 (when the parties' sales contract was concluded; see Art. 100 CISG) has been the subject of diverging views in both international CISG case law and in legal writings.
Second, the Court had to determine whether the parties had agreed on a CIETAC arbitration clause (paras. 23–28 of the decision). This was challenging because the parties in essence had concluded a contract in two language versions which contradicted each other in various points: The version in Chinese chose Chinese law (excluding the CISG) and CIETAC arbitration, stating that the Chinese text shall prevail in the event of any conflict between the language versions. By contrast, the English version chose New York law (not excluding the CISG) and ICC arbitration in New York, stating that the English text shall prevail in the event of any discrepancies between the two versions. The Court interpreted the agreement applying Art. 8(1), (2) and (3) CISG and concluded that CIETAC arbitration had not been agreed upon between the parties.