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| A French seller and a Spanish buyer had contacts through an agent in order to conclude a contract for the sale of goods. After the agent had confirmed the deal, the seller sent a letter to the buyer in which it made express reference to the agent’s document and accepted the deal with some additional conditions and terms. The buyer responded with a fax in which it agreed to the proposed terms and asked that more additional terms be added as part of the agreement.
After arbitral proceedings had taken place between the parties at the ICC in Paris in relation to the transaction and an arbitral award had been issued, the buyer challenged the exequatur requested by the seller, also alleging that no arbitration clause had been agreed upon since no sales contract was ever concluded between the parties. The Court observed that the issue as to whether a contract had been concluded had to be solved on the basis of the law applicable to the transaction, which in the case at hand was CISG as both parties were nationals of States in which CISG is in force. The Court held that, regardless of whether the buyer’s fax could be qualified as an acceptance with additional terms concluding the contract according to Art. 19(2) and 19(3) CISG, or as a counter-offer according to Art. 19(1) CISG followed by the execution of the contract by the seller through typical acts of performance under Art. 18(3) CISG, a contract of sale had, in any case, been concluded. The Court made also reference to the principle of freedom of form expressed in Art. 11 CISG. |