International Centre for Dispute Resolution International Arbitration Tribunal, Power Electric Distribution Inc. vs. Hengdian Group Linix Motor Co., Ltd., ICDR Case No. 50 155 T 00886 11
International Centre for Dispute Resolution International Arbitration Tribunal, Power Electric Distribution Inc. vs. Hengdian Group Linix Motor Co., Ltd., ICDR Case No. 50 155 T 00886 11
On the other hand, Power Electric failed to satisfy its burden to establish that its standard terms and conditions became a part of the purchase-order-contracts at issue. The totality of the evidence leads the Panel to conclude that Linix’s e-mail acceptances of those Power Electric purchase orders entered into evidence did not constitute acceptances of the warranty and/or indemnity provisions of Power Electric’s standard terms and conditions (even as to those orders).6 While many, though not all, of Power Electric’s e-mails to Linix submitting purchase orders also attached Power Electric’s standard terms and conditions, neither the face of the purchase order nor the e-mail indicated that the purchase order was conditioned upon acceptance of Power Electric’s standard terms and conditions. Instead, virtually every Power Electric e-mail in the record that forwards a Power Electric purchase order to Linix asks only (and specifically) that Linix “confirm price and delivery” per the attached P.O. The return e-mail confirmation cannot reasonably be interpreted as confirming anything other than that which was requested, i.e., confirmation of price and delivery of the stated quantity of the product identified on the purchase order. The terms and conditions themselves also limited their applicability to the order “on the front side hereof.” However, the terms and conditions were always forwarded to Linix as a separate two-page e-mail attachment. They were not on the reverse side of any purchase order. Therefore, these standard terms and conditions were neither expressly incorporated by reference into any purchase order nor expressly made applicable by their own terms to any purchase order. There was no evidence of course of dealing or other circumstances satisfying Power Electric’s burden to demonstrate Linix’s acceptance of these terms.
[...]
6From the evidence, the Panel is unable to determine the extent to which the relevant purchase orders were or were not accompanied by statements of standard terms and conditions.