[30] “In view of the above, the Arbitral Tribunal assesses the question on the applicability of the General Conditions as follows.
[31] “On 6 June 2002 the seller confirmed for the first time an order to the buyer In both its fax and the confirmation (contract no. 1) reference was made to the applicability of the General Conditions. Moreover, the fax itself contained a notice that the General Conditions contained an arbitration clause. The buyer accepted the confirmation by return fax. In its return fax it has not rejected the applicability of the General Conditions.
Pursuant to the CISG parties concluded contract no. 1. The same applies to the other contracts as the same manner of trade was repeated with each transaction.
[32] “The next question is whether by signing the faxed confirmation with respect to contract no. 1 and not stating that it rejected the General Conditions, the buyer also accepted the application of the General Conditions. It has been established that this confirmation contained a mere reference to the General Conditions and was faxed first and only the faxed copy was signed by the buyer. It can be assumed that the faxed copy excluded the reverse side of the confirmation setting out the General Conditions. As a result the buyer could not have been aware of the full content of the General Conditions.
[33] “It can be derived from the Principles and the PECL that a mere reference only to general conditions does not suffice, but that the general conditions must somehow be attached to or incorporated into the contract. It has been established above this was not the case with respect to contract no. 1. In principle, this leads to the conclusion that General Conditions did not apply to contract no. 1. The Arbitral Tribunal will now consider whether the same can be concluded for the disputed contracts. In view of the CISG, regard is to be had to the intent of the buyer to agree to these General Conditions. As set out above this is a matter of interpretation and regard is to be had to the international character, a uniform application and good faith.
[34] “The Arbitral Tribunal considers that in principle the proposal of the seller to apply the General Conditions was clear from the confirmations. Moreover, the invoices of the contracts concluded before the disputed contracts contained a clear reference to the existence of an arbitration clause in the General Conditions. As a result, it must be held that the buyer knew or could not have been unaware of the intent of the seller to apply these conditions to the disputed contracts. Moreover, since the seller repeated its statement on the application on each confirmation, a reasonable person acting in international trade would have understood the intention of the seller.
[35] “It is also considered that, although the buyer was not aware of the content of the General Conditions when it entered into contract no. 1, it was aware of its content when it entered into the disputed contracts. As set out above the seller has sent the confirmations for contracts no. 1, no. 2 and no. 3 by regular mail. From the facts stated above it can be derived, or at least assumed, that by the time the buyer entered into the disputed contracts, it had received the confirmations of these contracts, or at least a few of them, and was thus aware or could have been aware of the content of the General Conditions. The seller had thus expressly referred to the General Conditions and provided a copy thereof.
[36] “Nevertheless, the buyer continued with the practice developed between it and the seller to sign the faxed copy of the confirmation. Pursuant to Art. 9(1) CISG regard is to be had to such practices developed between parties and such practices are binding. The buyer has not deviated from this practice once nor has it informed the seller after receipt of the General Conditions that it did not wish the application of these conditions or wished to apply its own general conditions, if any. By not informing the seller that it did not accept the General Conditions, the buyer created in any case the expectation that it agreed to the application of the General Conditions. In view of this conduct of the buyer the principle of good faith entails that the seller may have relied on the signature of the buyer on the confirmations to include acceptance of the General Conditions.
[37] “Considering the above, the Arbitral Tribunal concludes that pursuant to the CISG the General Conditions apply to the disputed contracts.