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The nature of the dispute which gives rise to the

The nature of the dispute which gives rise to the claim is the breach of the three sale contracts for a multiple supply of seamless pipes (sold by Chinese Co.g to Italian Co.) which were not in conformity to the contracts entered between the parties.
I. THE RELEVANT FACTS
In 2008 Italian Co. entered with Chinese Co.g into three different sale and purchase agreements (contract n. HZ080311 sub Exhibit 1, contract n. HZ080618 sub Exhibit 2, contract n. HZ080627 sub Exhibit 3) for the sale and purchase of certain quantities of seamless carbon steel pipes.
In particular:
with the contract n. HZ080311 (entered by the parties on 11.03.2008, sub Exhibit n. 1), Chinese Co.g sold to Italian Co. about 700 Tons[ Having regard to the contract n. HZ080311, the pipes sold to Italian Co. were shipped divided in two lots, one of 348.99 Tons for a partial price of USD 353,526.87 (Exhibit n. 4) and the other of 338.891 Tons for a partial price of USD 350,543.517 (Exhibit n. 5). The 1st lot of pipes sold according to the contract n. HZ080311 were shipped on 23.04.2008 by the motor vessel Xin Yan Tian (see Exhibit 6) and arrived at the port of Genoa on 5.06.2008. The 2nd lot of pipes sold according to the contract n. HZ080311 were shipped on 27.06.2008 by the motor vessel Fifth Ocean (see Exhibit 7) and arrived at the port of Genoa on 29.07.2008.] of seamless carbon steel pipes for an agreed price of USD 716,625.00 (FOB from the port of Tianjin sub Exhibits n. 6 and 7).
with the contract n. HZ080618 (entered on 18.06.2008, sub Exhibit n. 2), Chinese Co.g sold to Italian Co. about 600 Tons[ Having regard to the contract n. HZ080618, the pipes sold to Italian Co. were divided in four lots, the 1st of 299.938 Tons for a partial price of USD 353,642,65 (Exhibit n. 8), the 2nd of 101.166 Tons for a partial price of USD 116,745.56 (Exhibit n. 9), the 3rd of 100.282 Tons for a partial price of USD 117,229.66 (Exhibit n. 10) and the 4th of 101.728 Tons for a partial price of USD 118,920.03 (Exhibit n. 11). The 1st lot of pipes sold according to the contract n. HZ080618 were shipped from Chinese Co.g to Italian Co. on 15.08.2008 with the motor vessel CSCL Hong Kong (see Exhibit 12) and arrived at the port of Genoa on 15.09.2008. The 2nd lot of pipes sold according to the contract n. HZ080618 were shipped from Chinese Co.g to Italian Co. on 5.09.2008 with the motor vessel Sabalan (see Exhibit 13) and arrived at the port of Genoa on 8.10.2008. The 3rd lot of pipes sold according to the contract n. HZ080618 were shipped from Chinese Co.g to Italian Co. on 18.09.2008 with the motor vessel Cosco Africa (MV Bamboo) (see Exhibit 14) and arrived at the port of Genoa on 14.10.2008. The 4th lot of pipes sold according to the contract n. HZ080618 were shipped from Chinese Co.g to Italian Co. on 26.09.2008 with the motor vessel Cosco Seattle (MV COSMOS) (see Exhibit 15) and arrived at the port of Genoa on 22.10.2008.] of seamless carbon steel pipes for an agreed price of USD 702,900.00 (FOB from the port of Tianjin sub Exhibit n. 12, 13, 14 and 15).
with the contract n. HZ080627 (entered on 27.06.2008), Chinese Co.g promised to sell to Italian Co. about 200 Tons[ Having regard to the contract n. HZ080627, the pipes to be delivered to Italian Co. were divided in two lots, both of about 100 Tons. The 1st lot of pipes provided by the contract n. HZ080627 of 99,004 Tons for USD 118,705.80 (see Exhibit n. 16) were shipped from Chinese Co.g to Italian Co. on 20.10.2008 (see Exhibit 17) with the motor vessel Cosco Indian Ocean (M/V Jin He) and arrived at the port of Genoa on 24.11.2008. The 2nd lot of pipes (about 100.000 Tons) promised by Chinese Co.g according to the contract n. HZ080627 has never been delivered to Italian Co..] of seamless carbon steel pipes for a total price of USD 239,800.00 (FOB from the port of Tianjin sub Exhibit n. 17).
All the three contracts expressly specify that the pipes sold by Chinese Co.g and purchased by Italian Co. had to comply with specification GB/T 8163-1999[ See clause n. 1, page 1 sub Exhibits 1, 2 and 3.] (see Exhibits 1, 2 and 3).
The specification GB/T 8163-1999 means that pipes had to be seamless[ See website abstract sub Exhibit n. 18, website address:
http://www.dfmg.com.tw/liture/china/%E4%B8%AD%E5%9C%8B%E6%A8%99%E6%BA%96%E5%8C%96/991214.htm].
The total price paid by Italian Co. to Chinese Co.g for the purchase of the pipes agreed with the contracts n. HZ080311, HZ080618 and HZ080627 was USD 1,529,314.087 - errors and omission excepted - (see Exhibits n. 4, 5, 8, 9, 10, 11 and 16).
In addition to the purchase price, the Buyer supported other costs (freight for the transportation from China to Italy, brokerage commission, insurance, custom duties and charges, bank charges, transportation costs from the port of Genoa to the depot “Interporto of Arquata” at Arquata Scrivia – Italy –, the transportation costs from the “Interporto of Arquata”[ See website of Interporto di Arquata: http://www.mgasinterporto.it/ ] to Italian Co.’s customers)[ Having regard to the contract n. HZ080311 the other costs supported by Italian Co. up to December 2008 were equal to USD 247,118.81 and € 169,034.50 errors and omission excepted. Having regard to the contract n. HZ080618 the other costs supported by Italian Co. up to December 2008 were equal to USD 160,971.14 and € 87,030.77 errors and omission excepted. Having regard to the contract n. HZ080618 the other costs supported by Italian Co. up to December 2008 were equal to USD 20,070.04 and € 10,303.66 errors and omission excepted.].
Up to the end of December 2008, Italian Co.’s total purchase costs were as follows:
Having regard to the contract n. HZ080311: USD 951,189.197 plus € 169,034.50 - errors and omission excepted - (Exhibit n. 19);
Having regard to the contract n. HZ080618: USD 867,509.04 plus € 87,030.77 - errors and omission excepted - (Exhibit n. 20);
Having regard to the contract n. HZ080627: USD 138,775.84 plus € 10,303.66 - errors and omission excepted - (Exhibit n. 21).
For a total purchase costs (all other costs included up to December 2008) of USD 1,957,474.077 plus € 266,368.93 (errors and omission excepted).
Soon after the arrival of the pipes purchased from Chinese Co.g, Italian Co. started to sell the same to its customers.
In particular Italian Co. sold:
On 17th June 2008 Tons 29.440 to Trafileria Ceruti S.p.A. for a total price of € 30,912.00 - errors and omission excepted - (Exhibit 22);
On 1st September 2008 Tons 18.552 to T.L.S. Trade Logistic Service for a total price of € 22,076.88 - errors and omission excepted - (Exhibit 23);
On 17-20th October 2008 Tons 117.210 to Acciai Tubi S.p.A for a total price of € 128,782.00 - errors and omission excepted - (Exhibits 24, 25, 26 and 27);
On 8-10th October 2008 Tons 54.060 to Ferrotubi e Derivati S.r.l. for a total price of € 59,952.00 - errors and omission excepted - (Exhibits 28 and 29).
Some pipes sold by Italian Co. were rejected by certain customers. In particular, Acciai Tubi S.p.A. and Ferrotubi e Derivati S.r.l. claimed that the pipes manufactured by Chinese Co.g and sold and delivered by Italian Co. were welded pipes instead of seamless.
Therefore Acciai Tubi S.p.A. and Ferrotubi e Derivati S.r.l. asked Italian Co. to recollect all the pipes delivered and to pay back to the customers what Italian Co. was paid by Acciai Tubi S.p.A. and Ferrotubi e Derivati S.r.l. for the sales (see Exhibits n. 24, 25, 26, 27, 28 and 29).
In addition to that, one customer sent to Italian Co. two different survey reports performed on the pipes sold by Italian Co. (one ordered by Castellan Maria & C. spa[ A customer of Acciai Tubi S.p.A., which, in turn, purchased the pipes manufactured and sold by Chinese Co.g, see Exhibit n. 30.] and the other one by Acciai Tubi S.p.A.[ See Exhibit n. 31.]).
Both surveys showed that the pipes sold them by Italian Co. was welded.
Follows a request made by Italian Co., on 21st October 2008, Chinese Co.g, as manufacturer and seller of the pipes, released to Italian Co. a formal declaration confirming, under its own liability, that all the pipes sold to Italian Co. with the contracts n. HZ080311, HZ080618 and HZ080627 were seamless (see Exhibit n. 32).
On 23rd October 2008, Italian Co. asked to the “Istituto Italiano della Saldatura”[ An independent surveyor body, see website http://www.iis.it/. ] to verify the consistency of the pipes purchased from Chinese Co.g. The test report made by “Istituto Italiano della Saldatura” confirmed the conclusion of the precedent analysis made by Acciai Tubi and Castellan Maria & C. spa (see Exhibit n. 33).
On the basis of such claims and surveys procured by its customers and by Italian Co. itself, Italian Co. had nothing to do but:
to claim to Chinese Co.g that the pipes sold were not in conformity with the specification GB/T 8163-1999 (seamless pipes) as promised by the producer;
to accept the cancellation of the sale contracts entered with Acciai Tubi S.p.A. and Ferrotubi e Derivati S.r.l. also accepting to recollect such pipes from the customers’ depot at Italian Co.’s own expense (see Exhibits n. 19 and 20).
Through a letter dated 10th November 2008[ See Exhibit n. 34.], Italian Co. replied to Chinese Co.g’s declaration claiming, once again, that the sold pipes were welded instead of seamless. With the same letter, Italian Co. invited Chinese Co.g to participate with an appointed surveyor to a joint inspection on the pipes which were all stored in the depot “Interporto of Arquata” at Arquata Scrivia (Italy). Alternatively Italian Co. required to Chinese Co.g to appoint the S.G.S. Italia S.p.A. (a certified International quality surveyor, hereinafter “SGS”, see www.it.sgs.com) as a common surveyor for both parties to ascertain the pipes consistency.
Failing any reply from Chinese Co.g, Italian Co. encharged the SGS in order to ascertain the consistency of the pipes sold by Chinese Co.g to Italian Co.[ The SGS analyzed n. 1 pipe section from n. 3 lots of different diameter chosen from the pipes sold by Chinese Co.g to Italian Co. with the contracts n. HZ080311 and HZ080618 (see Exhibit n. 35, page 1). The pipes sold by Chinese Co.g to Italian Co. with the contract HZ080627 were not analyzed by SGS because such pipes was received by Italian Co. later, on 24.11.2008. ].
SGS survey confermed the results showed by all the previous surveys performed on the sold pipes (see Exhibit n. 35).
Italian Co. then asked Chinese Co.g[ See Exhibit n. 36.]:
to confirm that the pipes which, at that time, have not been delivered[ The pipes promised by Chinese Co.g to Italian Co. according to the contract n. HZ080627.] and which were supposed to be delivered in the next weeks to Italy, were in conformity with the contract n. HZ080627 and with Chinese Co.g’s declaration of quality sent to Italian Co. on 21st October 2008. This to avoid that the pipes to be delivered were, once again, not in conformity with the promised characteristics;
to compensate the damages which Italian Co. was, and still is, suffering due to the material difference of the pipes sold by Chinese Co.g to Italian Co.;
to instruct Italian Co. to sell the pipes on the European market as welded pipes and to compensate Italian Co. for any price difference it might have been occurred.
On 4th December 2008 Chinese Co.g rejected the SGS’ report purely affirming that the pipes sold to Italian Co. were in conformity with GB8163 - 1999 standard (see Exhibit n. 37) and therefore seamless. Chinese Co.g also offered to the Buyer the amount of RMB 120,000.00 (equal to about € 13,211.00, see Exhibit n. 38) which, as it is self-evident, was not acceptable by Italian Co..
On the sole aim to partially mitigate the damage suffered and to limit the financial and the storage costs incurring, Italian Co. was forced to sell the pipes delivered by the Seller as welded pipes at a lower price. In particular, Italian Co. sold 606.873 Tons to a German company called RWH Roehren – Und Walzstahlhandel GM for a total price of € 467,292.21 - errors and omission excepted - (see Exhibit n. 39).
Unfortunately once again also the pipes sold by Chinese Co.g to Italian Co. according to the contract n. HZ080627 (delivered at the port of Genoa on 24.11.2008) were not in conformity with the standard promised by the Seller in such contract.
This was also claimed by Italian Co. on 15th January 2009 (see Exhibit n. 40).
The day after, Chinese Co.g replied offering, once again, the amount of RMB 120,000.00 already offered before (see Exhibits n. 38 and 41).
Despite Italian Co.’s efforts, Chinese Co.g has never compensated Italian Co. for the damages which the Buyer has suffered and is still suffering.
II. THE DAMAGES SUFFERED BY ITALIAN CO.
Due to Chinese Co.g’s breach of the sale and purchase contracts, Italian Co. has suffered and is still suffering a huge damage which can be synthesized as follow:
The total purchase price for the pipes equal to USD 1,529,314.087[ Errors and omission excepted.] already paid in full to Chinese Co.g;

the other purchase costs (as freight for the transportation from China to Italy, brokerage commission, insurance, custom duties and charges, bank charges, transportation costs from the port of Genoa to the depot “Interporto of Arquata” at Arquata Scrivia (Italy), the transportation costs from the “Interporto of Arquata” to Italian Co.’s customers and others) supported by Italian Co. up to 31st December 2008 equal to USD 428,159.99 and € 266,368.93[ Errors and omission excepted.].
the daily storage cost (insurance included), starting from the beginning of January 2009 on;
To this damage calculation must to be deducted the price paid to Italian Co. by Trafileria Ceruti S.p.A., T.L.S. Trade Logistic Service and RWH Roehren – Und Walzstahlhandel GM equal to € 520,281.09[ Errors and omission excepted.] for the sale of a part of the pipes purchased from Chinese Co.g.
It is worthy to say that RWH purchased the pipes on “as is” consistency and no claim can be raised by RWH for any material difference.
On the contrary, Trafileria Ceruti S.p.A. and T.L.S. Logistic Service, as well as its customers, may eventually claim Italian Co. for damages.
This should be the case, Italian Co. reserves, from now, all its contractual rights to raise against Chinese Co.g all the appropriate claims before this honourable Arbitration Commission for the recovery of any further damages which Italian Co. may suffer in consequence of Chinese Co.g’s breach of the contracts.
III. THE JURISDICTION OF THE PRESENT DISPUTE
The contracts n. HZ080311, HZ080618 and HZ080627 entered by Italian Co. and Chinese Co. (sub Exhibits n. 1, 2 and 3) provides for China International Economic and Trade Arbitration Commission in Shanghai, by the clause 11 which states that “All disputes arising from the execution of, or in connection with this Contract, shall be settled amicably through friendly negotiation. In case no settlement can be reached through negotiation, the case shall then be submitted to China International Economic and Trade Arbitration Commission Shanghai Commission for arbitration in accordance with its arbitration clause. The site of Arbitration shall be Shanghai. The award rendered by the said commission shall be final and binding upon both parties”.
In the light of the above, since parties agreed to devolve any eventual dispute arising in connection to the execution of the contracts n. HZ080311, HZ080618 and HZ080627 to the China International Economic and Trade Arbitration Commission of Shanghai (hereinafter “CIETAC”), then CIETAC and, particularly, the Shanghai Commission has jurisdiction in relation to the present dispute.
IV. THE APPLICABLE LAW AND THE RELEVANT ARTICLES OF CISG IN RELATION TO THE PRESENT DISPUTE
In all the three contracts n. HZ080311, HZ080618 and HZ080627 (sub Exhibits n. 1, 2,and 3), Italian Co. and Chinese Co.g failed to stipulate an applicable law, in case of eventual disputes which may arise in connection with the execution of such contracts. Therefore, since the Seller's place of business is in China and the Buyer's is in Italy and both China and Italy are Contracting States of the “United Nations Convention on Contract For The International Sale of Goods” signed in Vienna in 1980 (hereinafter just “CISG”), according to article 142 of the Civil Code of the People's Republic of China, the CISG has priority to be applied to this case[ See Award 20 September 2006 CIETAC, CISG/2006/02.].
Since the present request for Arbitration refers to a non-conformity of the goods sold by Chinese Co.g to Italian Co., having regard to the specifications expressed in the three sale and purchase contracts, the relevant articles of CISG to apply are:
the art. 35 and 36 in relation to the non conformity of the goods, sold by Chinese Co.g to Italian Co.;

the art. 45, 46, 49 and 50 in relation to the remedies at disposal of the buyer in case of breach of contract perpetrated by the seller;

the art. 74 and 76 in relation to the damages which may be asked to the defaulting party;
the art. 81 in relation to the effect of the avoidance of the contracts.
Complying with art. 35, point 1), of CISG “The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract”.
Further to that, art. 36 of CISG states that “The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time. The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or characteristics”.
Complying with art. 45 of CISG “If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may:
(a) exercise the rights provided in articles 46 to 52;
(b) claim damages as provided in articles 74 to 77.
The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies.
No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract”.
Under art. 46 is affirmed that “The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement.
If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made either in conjunction with notice given under article 39 or within a reasonable time thereafter.
If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair, unless this is unreasonable having regard to all the circumstances. A request for repair must be made either in conjunction with notice given under article 39 or within a reasonable time thereafter”.
Complying with art. 49 of CISG “The buyer may declare the contract avoided:
(a) if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or
(b) in case of non-delivery, if the seller does not deliver the goods within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 47 or declares that he will not deliver within the period so fixed.
(2) However, in cases where the seller has delivered the goods, the buyer loses the right to declare the contract avoided unless he does so:
(a) in respect of late delivery, within a reasonable time after he has become aware that delivery has been made;
(b) in respect of any breach other than late delivery, within a reasonable time:
(i) after he knew or ought to have known of the breach;
(ii) after the expiration of any additional period of time fixed by the buyer in accordance with paragraph (1) of article 47, or after the seller has declared that he will not perform his obligations within such an additional period; or
(iii) after the expiration of any additional period of time indicated by the seller in accordance with paragraph (2) of article 48, or after the buyer has declared that he will not accept performance”.
Under art. 50 of CISG is affirmed that “If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in accordance with article 37 or article 48 or if the buyer refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price”.
Further to that, in comply with art. 74 of CISG “Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract”.
In comply with art. 76 of CISG “If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under article 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under article 74. If, however, the party claiming damages has avoided the contract after taking over the goods, the current price at the time of such taking over shall be applied instead of the current price at the time of avoidance.
For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods”.
Further to that, art. 81, point (2) of CISG provides that “A party who has performed the contract either wholly or in part may claim restitution from the other party of whatever the first party has supplied or paid under the contract. If both parties are bound to make restitution, they must do so concurrently”.
V. THE MERIT OF THE CASE
Since this preliminary phase of the present arbitration procedure, is a matter of fact that:
all the pipes sold by Chinese Co.g to Italian Co. according to the contracts n. HZ080311, HZ080618 and HZ080627 are welded and not seamless as promised by Chinese Co.g according to such contracts (see Exhibits n. 30, 31, 33 and 35),
and
Chinese Co.g was aware or could not have been unaware that the pipes sold to Italian Co. were welded instead of seamless, as manufacturer of the pipes as well as affirmed by the same Chinese Co.g with the letter sub Exhibits n. 37 and 41.
Therefore, Italian Co. is now entitled to ask Chinese Co.g for full relief for all the damages, including loss of profit, arising from the breach of the contract as better specified above, further to any other damages, expenses, fees and interest, which Italian Co. may suffer or supported as a consequence of the breach perpetrated by Chinese Co.g, as we reserve to better specify and prove, and/or to be ascertained by the Arbitration Commission.
VI. PROTECTION OF EVIDENCE
Due to Chinese Co.g breach of contract, about 732 Tons of pipes remained unsold and they are warehoused in a depot sited in Arquata Scrivia (Italy). This circumstance is causing to Italian Co. a huge damage which is increasing day by day since financial and warehousing costs are accruing.
Italian Co. can now produce four different surveys (carried out by four different independent surveyors appointed by Italian Co. itself and by its costumers) which give a preliminary evidence of the non conformity of the said pipes to each of the sale contracts entered by Italian Co. and Chinese Co.g (see Exhibits n. 30, 31, 33 and 35).
Being Chinese Co.g claiming that the pipes sold to Italian Co. are seamless, it is now necessary, within the present procedure, to acquire further official evidence of the real consistency of such pipes through an independent survey appointed by this honourable Arbitration Commission.
Art. 18 of CIETAC’s rules provide as follows: “When a party applies for the protection of evidence, the CIETAC shall forward the party’s application for a ruling to the competent court at place where the evidence is located”.
The “party” which applies for the protection of evidence is Italian Co..
The “place where the evidence is located” is the warehouse named “Interporto di Arquata” (address: Via A. Gramsci, 52) in the nearby of the city of Arquata Scrivia (Italy).
Under the Italian law (Law n. 218/1995, art 69[ See art. 69 of Law 218 dated 31.015.1995 sub Exhibit n. 42 (abstract from Law 218/1995).]) the protection of evidence requested by a foreigner Jurisdictional Authority must be forwarded to the Court of Appeal in the district where the evidence is located.
Since the city of Arquata Scrivia is within the district of the Court of Appeal of Turin (Torino – Italy), then the application for protection of evidence made by Italian Co. shall be forwarded to the Court of appeal of Turin (Torino – Italy).
In this regard Italian Co. asks to this honourable Arbitration Commission to forward this application for the protection of evidence to the Court of Appeal of Turin (Torino – Italy).
According to the Italian Civil Procedural Code, the protection of evidence procedure is regulated by art. 696 and/or 696 bis and it is called “Consulenza Tecnica Preventiva”[ See art. 696 and 696 bis of the Italian Civil Procedure Code sub Exhibit n. 43 (abstract form the Italian Civil Procedure Code).].
The “Consulenza Tecnica Preventiva” consists in a survey performed by a qualified surveyor nominated by the Court before the proceedings for the decision on the merits starts and when: (i) there is a matter of urgency (as the accruing of damages) and (ii) when a further delay may cause an increase in costs or damages.
This is the present case, where there is the necessity to reduce to the minimum the financial and warehousing costs of pipes which Italian Co. is supporting being prevented to sell the pipes before the judicial assessment of their material consistency.
For this reason Italian Co. is now ask the Arbitration Commission to forward this request of pre-judicial assessment of fact to the Court of Appeal (Corte di Appello) of Turin under the terms of art. 18 of CIETAC’s arbitration rules and art. 69 of Italian Law n. 218/1995.
As far as the protection of evidence is concerned, Italian Co. respectfully point out to the Arbitration Commission that the scope of the pre-judicial procedure is to definitely ascertain the consistency of all the pipes sold by Chinese Co.g to Italian Co., according to the contracts n. HZ080311, HZ080618 and HZ080627 which are warehoused in the depot of Interporto of Arquata (Italy) and, particularly, to assess if such pipes are welded or seamless.
Only after the survey, Italian Co. (or Chinese Co.g) shall have the possibility to sell these pipes reducing the huge financial and warehousing costs which are increasing day by day.
VII. ITALIAN CO.’S REQUESTS
On the basis of the above, Italian Co. respectfully asks to the “Arbitration Commission”:
In principality:
to ascertain that the pipes sold by Chinese Co.g to Italian Co., according to the contracts n. HZ080311, HZ080618 and HZ080627, are welded instead of seamless as promised by Chinese Co.g to Italian Co.; and consequently
to declare that Chinese Co.g breached the contracts n. HZ080311, HZ080618 and HZ080627 in force with Italian Co.;
to declare the termination (or the cancellation for breach) of the contracts n. n. HZ080311, HZ080618 and HZ080627 and consequently:
with reference to the pipes which Italian Co. has already sold, order to Chinese Co.g to indemnify the Buyer for any damages suffered. Indemnification shall be compounded by the difference between the sale price paid to Italian Co. by RWH, Trafileria Ceruti S.p.A. and, T.L.S. Trade Logistic Service, and the sale price which Italian Co. would have achieved by the sale of seamless pipes in Europe if Chinese Co.g would have fulfilled its obligations under the contracts n. HZ080311, HZ080618 and HZ080627;
with reference to the pipes still unsold by Italian Co.:
to order to Chinese Co.g to refund the purchase price paid in full by Italian Co. to Chinese Co.g according to the contracts n. HZ080311, HZ080618 and HZ080627;
to order to Chinese Co.g to indemnify Italian Co. for all the further costs and damages suffered and which Italian Co. is still suffering as a consequence of Chinese Co.g’s breach (as freight for the transportation from China to Italy, brokerage commission, insurance, custom duties and charges, bank charges, transportation costs from the port of Genoa to the depot “Interporto of Arquata” at Arquata Scrivia – Italy -, the transportation costs from the “Interporto of Arquata” to Italian Co.’s customers and others);
once Italian Co. shall be refunded and indemnified in full, to declare that such pipes belonged to Chinese Co.g;
to indemnify Italian Co. for the loss of profits incurred as a consequence of the claimed breach taking into account the purchase costs (all included) and the sale price which Italian Co. would have achieved should the pipes sold by Chinese Co.g to Italian Co. be in compliance with the contracts n. HZ080311, HZ080618 and HZ080627 .
In the alternative:
to ascertain that the pipes sold by Chinese Co.g to Italian Co., according to the contracts n. HZ080311, HZ080618 and HZ080627, are welded instead of seamless; and consequently
to reduce the purchase price originally agreed and paid by Italian Co. to Chinese Co.g. Price reduction to be compounded by the difference of the price paid to Chinese Co.g for the purchase of seamless pipes and the price of welded pipes which Italian Co. may have achieved on the Chinese market at the date of the sales or by any other difference which may be considered appropriate by this Arbitration Commission taking into account that the pipes sold by Chinese Co.g are welded and not seamless;
to indemnify Italian Co. for all the damages suffered and which Italian Co. is still suffering as a consequence of Chinese Co.g’s breach of contracts which Italian Co. shall quantify during this proceeding.
In any case:
order to Chinese Co.g to keep harmless and indemnify Italian Co. in case Trafileria Ceruti S.p.A., T.L.S. Trade Logistic Service and/or any other third party may raise claim(s) against Italian Co. as a consequence of the Chinese Co.g’s breach of contract;
Fees and cost, none excluded, of the present procedure.
Now therefore Italian Co. respectfully requests this Arbitration Commission to:
register this Request for Arbitration;
acknowledge receipt of this Request and indicate names and contact details of Arbitrators to be appointed by Italian Co. from the panel of Arbitrators as provided by art. 21 of CIETAC’s rules;
communicate copy of this Application for Arbitration to the Respondent Chinese Co.g Huazhong Steel Tube Co. Ltd., at the address supplied above;
set in motion the Arbitration procedure;
accept Italian Co.’s application for the protection of evidence and forward Italian Co.’s application to the Court of Appeal (Corte di Appello) of Turin under the terms of art. 18 of CIETAC’s arbitration rules for the pre-judicial assessment of facts (as better specified at paragraph VI above).
Herewith Italian Co. declares its willing to receive all the communications related to the address of “Conte & Giacomini Avvocati” law firm, Viale Padre Santo 5/11b, Genoa (Italy), zip code 16122, telephone n. 0039–0108315280, fax n. 0039–0108315285, e-mail address: info@contegiacomini.net.
Soon after the appointment of the Arbitrators, Italian Co. shall take domicile before a Chinese attorney in order to facilitate all the notifications and communications needed during the Arbitration procedure.
Being part of the Exhibits here attached drafted in Italian language, Italian Co. herewith declares its availability, if it is considered necessary by the Arbitration Commission, in submitting to this honourable Arbitration Commission a corresponding version of such Exhibits in Chinese or in other languages.
With kind regards
In attachment Italian Co. produces the following Exhibits:
Contract n. HZ080311 entered by Italian Co. and Chinese Co.g on 11.03.2008;
Contract n. HZ080618 entered by Italian Co. and Chinese Co.g on 18.06.2008;
Contract n. HZ080627 entered by Italian Co. and Chinese Co.g on 27.06.2008;
Commercial invoice issued by Chinese Co.g on 10.04.2008;
Commercial invoice issued by Chinese Co.g on 7.06.2008;
Bill of Lading n. ZCXGGOA0005 related to the M/V Xin Yan Tian;
Bill of Lading n. ZCXGGOA0008 related to the M/V Fifth Ocean;
Commercial invoice issued by Chinese Co.g on 28.07.2008;
Commercial invoice issued by Chinese Co.g on 24.08.2008;
Commercial invoice issued by Chinese Co.g on 29.08.2008;
Commercial invoice issued by Chinese Co.g on 31.08.2008;
Bill of Lading n. ZCXGGOA0011 related to the M/V CSCL Hong Kong;
Bill of Lading n. ZCXGGOA0014 related to the M/V Sabalan;
Bill of Lading n. ZCXGGOA0015 related to the M/V Cosco Africa;
Bill of Lading n. ZCXGGOA0016 related to the M/V Cosco Seattle;
Commercial invoice issued by Chinese Co.g on 6.10.2008;
Bill of Lading n. ZCXGGOA0019 related to the M/V Cosco Indian Ocean;
Website Abstract “Announcement of Newly approved National Standards of P.R. China”;
Italian Co.’s costs in relation to the contract n. HZ080311;
Italian Co.’s costs in relation to the contract n. HZ080618;
Italian Co.’s costs in relation to the contract n. HZ080627;
Invoice (“Fattura”) n. 243 dated 17.06.2008 issued by Italian Co. to Trafileria Ceruti S.p.A.;
Invoice (“Fattura”) n. 301 dated 1.09.2008 issued by Italian Co. to T.L.S. Trade Logistic Service;
Invoice (“Fattura”) n. 347 dated 17.10.2008 issued by Italian Co. to Acciai Tubi S.p.A. and credit note (“Nota di credito”) n. 373 issued by Italian Co. to Acciai Tubi S.p.A. on 30.10.2008;
Invoice (“Fattura”) n. 349 dated 20.10.2008 issued by Italian Co. to Acciai Tubi S.p.A. and credit note (“Nota di credito”) n. 374 issued by Italian Co. to Acciai Tubi S.p.A. on 30.10.2008;
Invoice (“Fattura”) n. 350 dated 20.10.2008 issued by Italian Co. to Acciai Tubi S.p.A. and credit note (“Nota di credito”) n. 355 issued by Italian Co. to Acciai Tubi S.p.A. on 21.10.2008;
Invoice (“Fattura”) n. 351 dated 20.10.2008 issued by Italian Co. to Acciai Tubi S.p.A. and credit note (“Nota di credito”) n. 354 issued by Italian Co. to Acciai Tubi S.p.A. on 21.10.2008;
Invoice (“Fattura”) n. 332 dated 8.10.2008 issued by Italian Co. to Ferrotubi E Derivati S.r.l. and credit note (“Nota di credito”) n. 381 issued by Italian Co. to Ferrotubi E Derivati S.r.l. on 10.11.2008;
Invoice (“Fattura”) n. 336 dated 10.10.2008 issued by Italian Co. to Ferrotubi E Derivati S.r.l. and credit note (“Nota di credito”) n. 383 issued by Italian Co. to Ferrotubi E Derivati S.r.l. on 12.11.2008;
Survey report made by Studio Tecnico Mario Cuzzolin S.r.l. ordered by Castellan Maria & C. S.p.A.
Survey report made by Acciai Tubi S.p.A..
Letter (Declaration) sent by Chinese Co.g to Italian Co. on 21.10.2008;
Survey report made by “Istituto Italiano della Saldatura” ordered by Italian Co.;
Letter sent by Italian Co. to Chinese Co.g on 10.11.2008;
Survey report made by S.G.S. (certificate n. 0811140255);
Letter sent by Italian Co. to Chinese Co.g on 18.11.2008;
E-mail message sent by Chinese Co.g to Laura Gallione (Italian Co.) on 4.12.2008;
E-mail message sent by Chinese Co.g to Laura Gallione (Italian Co.) on 15.12.2008;
Invoices n. 391, 393, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 408, 409, 411, 414, 417,418, 419, 420, 422, 423, 425, 426 issued by Italian Co. to RWH Roehren – Und Walzstahlhandel GM;
Letter sent by Italian Co. to Chinese Co.g on 15.1.2009;
E-mail message sent by Chinese Co.g to Laura Gallione (Italian Co.) on 16.01.2009;
Art. 69 of the Law 218 dated 31.05.1995 (abstract);
Art. 696 and 696 bis of the Italian Civil Procedure Code (abstract).