Reproduced with permission of Camilla B. Andersen & Ulrich G. Schroeter eds., Sharing International Commercial Law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill Publishing (2008) 552-581
Andrea Vincze [*]
China as a strengthening and already influential worldwide economic and market power has gradually become the center of attention since the early 1990s when the country has started to open up for foreign trade. Among others, that entailed the need for a uniform legislation and legal practice for international sales disputes, the number of which has largely increased due to the latter opening.
Chinese contract law was quite complex and unique before 1 October 1999 when the new Chinese Contract Law entered into force. This new set of rules unified the previously separate regulation of domestic contracts (Law on Technology Contracts) and contracts involving foreign interest (Law on Contracts Involving Foreign Interests). Following signature of the CISG on 30 September 1981 and ratification on 1 December 1986, the CISG entered into force in China on 1 January 1988, China having been the tenth Contracting State to the CISG.
Thus, considering application of the CISG in China, two different periods may be distinguished: The first one between 1 January 1988 and 30 September 1999 during which the Law on Contracts involving Foreign Interests and the CISG applied to contracts involving foreign interests, and the second one since 1 October 1999 when the new, uniform Chinese Contract Law became applicable to such contracts alongside the CISG. Without the CISG, Chinese domestic legislation, by itself, was not comprehensive enough because it did not cover several important features of international sales. The CISG has corrected those vacancies and, due to global and uniform acceptance and [page 552] application thereof, has had numerous positive impacts on promoting foreign trade and supporting further economic development of China.
Among such positive impacts, the significance of court and arbitral practice plays an important part. Although the CISG as an international convention shall prevail over domestic legislation, Chinese courts tended to apply both the Law on Contracts Involving Foreign Interests and the CISG, thereby 'customizing' the CISG to the Chinese law and ideas. The new Chinese Contract Law is suitable for restricting such practice and gives priority to the CISG.
Therefore, mutual interaction between Chinese domestic legislation, legal practice and the CISG is evident. Among further benefits of the CISG we can mention that Chinese parties in foreign trade transactions have started using universally accepted contractual stipulations and actors of foreign trade have become increasingly confident in the Chinese legal system in general and commercial dealings with Chinese entities.
Recent WTO statistics  show that China's rank in world merchandise trade is no. 3 in exports and no. 7 in imports, with a share of 7.3% in world exports and 6.12% in world imports in 2005. Most export and import trading partner countries in the top five  are CISG Contracting States, therefore, the relevance of CISG is extremely significant in China.
The majority of disputes involving the CISG were decided by CIETAC (China International Economic and Trade Arbitration Commission), amounting to almost 200 cases since 1988. The Foreign Trade Arbitration Commission, predecessor of CIETAC, the most permanent arbitral institution in China, was established in 1956. After the adoption of the 'opening-up' policy in China, it was renamed Foreign Economic and Trade Arbitration Commission and received its current name in 1988, the year when the CISG entered [page 553] into force in China. Today, CIETAC is the most influential arbitration institution not only in China but also on a global level.
This study will focus on a narrow segment of CIETAC's extensive CISG practice. The purpose of this paper is to examine the practice of CIETAC regarding decisions on conformity of goods in international sales governed by the CISG.
CONFORMITY OF THE GOOD IN THE CISG
Article 35 CISG includes rules relating to the conformity of the goods to be delivered by the seller to the buyer, in three partial provisions.
The first one includes a general provision stipulating that '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, the goods delivered by the seller shall conform with the contract in quantity, quality, description, package and other aspects.'
The second paragraph details the meaning of conformity of goods under the CISG, i.e. the goods must be fit for the purposes for which goods of the same description would ordinarily be used, fit or any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement, the goods must possess the qualities of goods which the seller has held out to the buyer as a sample or model, and the goods must be contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods. However, Article 35(2) CISG also stipulates that the parties ay agree otherwise. Thus, in some cases, where the parties deviated from the provisions in Article 35(2) CISG, the goods may still be conforming, even though the CISG stipulates otherwise.
The third paragraph of Article 35 CISG grants a further exemption from the strict rules included in Article 35(2) CISG by stating that the seller shall [page 554] not be liable for the non-conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of any lack of conformity stipulated in Article 35(2) CISG.
After this brief introduction, CIETAC's practice relating to the most important conformity requirements will be examined in detail.
CONFORMITY WITH THE QUALITY, QUANTITY AND DESCRIPTION REQUIRED BY THE CONTRACT
Probably the most general requirement relating to quality of the goods is included in Article 35(1) CISG. Although it seems to be general indeed at first sight, it involves numerous different issues, as demonstrated by several CIETAC arbitral awards. As the parties are free to determine the exact content of their contract and are given practically unlimited choices relating to what kind of goods are to be sold, there is an extremely large selection of contractual specifications on quality, quantity and description. However, certain aspects occur more frequently than others, and certain tendencies have already developed in CIETAC's practice as well. It must be noted that quantity issues shall not be dealt with separately in this study for the following reasons: firstly, in the awards examined, sole quantity issues could [not] be found because if there were any, quality issues were also involved at the same time; and secondly, the quantity issues occurring in the CIETAC awards subject to this study were quite simple, without any specific or unique problems. Yet, such quantity issues will be presented briefly where applicable.
Hereinafter, certain contractual specifications and tendencies relating to the quality and description of the goods will be analyzed.
GENERAL CONFORMITY ISSUES
The present subparagraph deals with 'general conformity issues', i.e. cases where several quality issues were involved. At the same time, this subparagraph [page 555] gives a comprehensive insight to quality issues through a relatively complex case, involving, among others, suitability for purposes for which goods of the same description would ordinarily be used, general usability, fitness for a particular purpose and similar issues.
The Broadcast equipment case
A good example for a case involving both the general conformity of the goods to specifications in the contract (Article 35(1) CISG) and to the requirements for normal use (Article 35(2)(a) and (b) CISG) is the so-called, 'Broadcast equipment case'. In this case, the People's Broadcasting Station assigned the Buyer to procure certain broadcasting equipment, i.e. one RDS encoder, one set of RDS central equipment, 500 of Axcess 3000 Chinese receiver, and RDS system operation and management software, upon which the Buyer concluded a corresponding contract with the Seller. The three parties also signed a contract attachment including certain specifications, inter alia requiring the equipment to be capable of providing paging service to 1,000 customers and have an expansion interface to expand business, to comply with the international FM radio standard, and to guarantee the operation of the Chinese paging system of FM stereophonic broadcasting with a supplementary RDS channel as well as the paging system being equipped with operation and management software.
After delivery, three test runs took place. During the first one, only the English paging system, not the Chinese one, was examined and found to be appropriate. During the second test, it was discovered that, in contrast with the English software, the Chinese operation software could not be used in the system. The third test found that the software, which was different from the one most frequently used at Chinese radio stations, was inappropriate for operation in the system.
The Buyer stated that the Seller delivered goods not in conformity with the contractual specifications on quality because, as shown during the test runs, the receivers delivered did not fulfil the technical conditions stipulated in the contract. The Buyer also had the equipment examined by an expert [page 556] inspection bureau which found that the failure to operate was caused by the goods originally delivered. The Buyer further stated that the contractual attachments must be interpreted as including that the main purpose of the contract was to commence broadcasting which was eventually frustrated, as shown by the tests, and that the Seller therefore had committed a fundamental breach of the contract.
The Seller stated that both the English and the Chinese systems were capable of sending and receiving messages, and since the equipment proved to be operating properly during the first test, the parties had signed an agreement to 'confirm' the system. During installation of the equipment it was again confirmed that the system could send and receive Chinese messages, although the software was different from the one regularly used at Chinese radio stations. The parties had agreed upon an improvement of the software, which was offered by the Seller through installation of a top-quality software commonly used in China, at the Seller's own expense, but the Buyer had rejected this offer. The Seller stated that although there were problems with the software, it was not stipulated anywhere in the contract that any exact type of software was to be delivered by the Seller and, thus, the one delivered conformed to the contract. Relating to the receivers, the Seller argued that it was indeed entitled to alter and improve it because the only requirement was the duty to comply with international standards and contractual requirements.
The arbitral tribunal found that the contract did not include any specifications on function, quality and technical requirements; however, the tripartite attachment did provide that the equipment had been recommended by the Seller and that the purpose of the equipment was to launch broadcasting services. Therefore, a special feature of this case is that, in lack of express contractual stipulations relating to particulars of the goods, the tribunal based its decision on the contract attachment and the technical documents delivered by the Seller, as well as records of the tests. The first test did not unveil any deficiencies, yet the third one showed that certain functions were missing and that the Chinese paging system could not be launched. In addition, the Seller had notified the Buyer about the fact that the necessary adjustments could not be performed by the competent company, and subsequently another one had not succeeded either.
Upon the latter facts, the tribunal found that the Seller had committed a fundamental breach of contract since it was unable to provide an operating system in spite of three adjustment attempts and, therefore, the equipment [page 557] did not conform to the specifications included in the contract attachment and the relating technical documentation. The approach taken by the tribunal in basing the decision on 'secondary' documents and subsequent events and inspections is a very good example of aware and appropriate application of the CISG.
The BOPP film case
A similar case to the Broadcast equipment case is the BOPP film case  where the goods were also found to be non-conforming upon non-compliance with the contractual specifications. However, in the latter case, the tribunal additionally held that although such defects affected sale and use, they did not make it impossible to sell or use the goods.
Yet, I find this award somewhat controversial because the tribunal based its decision solely on the inspection report submitted by the Buyer, without having paid much attention to the Seller's statement that many of such defects could well have been caused by improper storing and transportation, a view which was confirmed by the manufacturer as well.
CASES WHERE NON-CONFORMING QUALITY OF THE GOODS WAS BASED ON EXISTENCE OR LACK OF EXACT CONTRACTUAL STIPULATIONS ON STYLE OR APPEARANCE OF THE GOODS
This set of contractual requirements may apply to any type of goods in general, yet, in the awards examined, they were particularly significant where clothing items were involved. In the following cases, certain important characteristics of clothing items, as stipulated in the contract, were involved, in addition to an interesting issue relating to the connection between price and quality. [page 558]
The Down jacket and winter coat case
The Down jacket and winter coat case  is a typical case where non-conforming quality of the goods was substantiated by the tribunal based upon the specifications included in the contract. In two separate contracts, the Buyer had ordered from the Seller down jackets and winter coats with detailed specifications. Yet, the Buyer objected to the style, down content and processing of the down jackets delivered as well as the colouring of both down jackets and winter coats.
The Buyer stated that it had ordered European style jackets and that the actual measurements of the ones delivered were non-conforming. The tribunal found no contractual provision on style and measurement and ruled that there is no international standard relating to what 'European style' means. Therefore, although the Seller admitted that there had been 'some problems' with the goods, the tribunal found the Buyer's claim relating to the non-conforming style unfounded.
The Buyer also stated that the down content of the jackets was only 20% instead of the normal standard, i.e. 30%. The tribunal ruled that different down contents entail different price levels and that the lower price stipulated in this case obviously referred to the lower down content level. In contrast with this decision, the tribunal in the Steel cylinders case  found that, failing a contractual stipulation by the parties, the low price for steel cylinders included in the contract could not be read as referring to the quality of the goods, i.e. a lower price cannot indicate whether or not the parties intended to sell brand new goods. In the latter case, the tribunal accordingly ruled that the Seller should have delivered brand new cylinders.
It must be noted that this argument dealt with by the arbitral tribunal in the Down jacket and winter coat case concerned a specific issue beyond the style or appearance of the goods, involving the interesting question whether the price stipulated in the contract may be considered as an implied reference to the acceptable quality of the goods. [page 559]
After rejecting the Buyer's claims already discussed, the tribunal ruled in favour of the Buyer in relation to the processing of the down jackets. Down was leaking on the inside and the outside of the jackets, which, as the court ruled, could not be justified even though the price was low, since the goods were intended for export sale.
The Seller did not contest and the tribunal also accepted the Buyer's claims relating to the colouring of the jackets and the winter coats that differed from the colour samples included in the contract.
Thus, in this case, the most controversial issue was whether a lower price impliedly referred to lower quality. Evaluation of this issue, as seen relating to the Steel cylinders case referred to, is not unanimous. In my opinion, it is wiser to make such decision by considering the nature of the goods, exact circumstances of the case including the entire business relationship, negotiations, practices and usages because agreeing upon a lower price should not, by itself, mean that, in return for receiving a lower price, the buyer agreed to receive goods of lower quality.
The Shirts case
A similar case is the Shirts case  which the tribunal decided after considering whether contractual stipulations relating to conformity of the goods existed. The Buyer had ordered 10,000 printed long-sleeved shirts, 10,000 printed short-sleeved shirts and 10,000 plain short-sleeved shirts. The Buyer failed to pay the price and when the Seller commenced arbitration for that reason, the Buyer presented in its answer that upon delivery the Buyer had found that the quality of the goods was not conforming because eg colour, printing, types and sizes of the garments delivered were not satisfactory. Furthermore, the Buyer claimed that it had not received the total quantity set forth in the contract and the actual numbers of items received were completely disproportionate.
The arbitral tribunal confirmed the Buyer's latter statement on quantity as the number of goods sold had been clearly set forth in the contract. However, the tribunal found the Buyer's quality claims unfounded because there [page 560] had been no contractual stipulations relating to the exact quality specifications of the goods and the Buyer could not present any relating evidence either. In this case, no documents other than the contract we available upon which further particulars relating to quality could have been established (as in the Broadcast Equipment Case), therefore, the tribunal made a right decision relating to the respective circumstances.
CONFORMITY WITH PARTICULAR CONTENT LEVEL REQUIREMENTS SPECIFIED IN THE CONTRACT
In numerous CIETAC awards, special chemical substances or composite materials have been involved. In such cases, the required content levels played an important part regarding the conformity of the goods, subject to Article 35(1) CISG.
The Flanges case
In the Flanges case, in assessing the non-conformity of the goods delivered, the tribunal relied on extensive arguments and test results submitted by the parties, as well as the report of experts appointed by the tribunal. The approach taken by the tribunal focused on the determination of the non-conformity of the goods based on the non-compliance of the goods with standards agreed upon by the parties, among them the contractual stipulations as to different chemical content levels. The tribunal also distinguished between 'latent' and 'non-latent' defects. In doing so, it qualified defects that were visible on the surface and defects which could be known to be inconsistent with the standard and contract by normal fast-test of chemical composition as 'non-latent defects' which could have easily been detected by simple spot tests. In contrast, defects relating to normalizing heat treatment and mechanical functions of the flanges were qualified as 'latent defects', testing of which would have been possible but would have resulted in the destruction of a large amount of products due to the nature of that certain kind of testing. As to this kind of latent defect, the Buyer could only rely on the Seller's warranties [page 561] on the quality of the goods, i.e. on the Mill test reports provided by the Seller to the Buyer with each order. As this case mostly involved the issue of inspecting the goods and relating quality matters, no further details are presented here.
The manner in which the tribunal distinguished between 'latent' and 'non-latent' defects as well as the way in which it determined whether these could have been tested is very interesting. The reasoning of the tribunal is very clear and detailed on this, and its approach may be very useful in similar cases as well.
The Linseed cake case
Similarly to the latter award, the issue of content level was involved in the Linseed cake case. Here, the parties concluded a contract for linseed cakes including the stipulation 'Profat (on dry basis) -- 42% min. and moisture -- 12.5% max'. After certain difficulties in performance due to the Gulf War, the Buyer's customer agreed to take over the goods on the condition that the goods would be inspected before loading. When inspecting the goods, the Buyer's customer found that they contained too high a level of erucic acid, as a result of which the Buyer could not perform the contract.
The Buyer referred to the Seller's promise to deliver goods without defects and the fact that, in recent years, the quality of Chinese linseed cake had been poor because cheap products had been mixed in. The Buyer also presented an inspection certificate which, however, subsequently was not accepted by the tribunal because the data shown were not those of the goods actually delivered. The Seller stated that the contractual stipulations were unambiguous as to which exact quality was expected from the Seller, that a sample had been received and approved by the Buyer and that an original inspection report confirmed the appropriate quality of the goods. [page 562]
The arbitral tribunal supported the Seller's arguments and rejected the Buyer's objections relating to the level of erucic acid. It ruled hat the Buyer had worried about the latter only after the conclusion of the contract, and that the parties had never agreed upon any requirement relating to erucic acid; on the contrary only the Profat and moisture levels had originally been agreed upon and the required sand silica content had subsequently been added. Thereupon, the tribunal rightly ruled that the Buyer could not object to the erucic acid level, the permissible level of which had not at all been stipulated in the contract, and that the goods had been in conformity with the contractual stipulations regarding all specifications.
COMPLIANCE WITH INTERNATIONAL OR GENERAL INDUSTRY STANDARDS
The issue of compliance with industry standards has many direct aspects. It may or may not be expressly addressed in the contract, entailing the question whether such a requirement is applicable only if it is referred to in the contract or also failing an express contractual provision. This question arose in quite a few cases before CIETAC arbitral tribunals, some of which were faced with a clash of various different views. The issue may involve the application of Article 35(1) CISG as to whether mandatory application of an industry standard was stipulated in the contract, Article 35(2)(b) CISG as to whether compliance with an industrial standard -- either included in the contract or otherwise applicable -- is required in order to deliver conforming quality of goods, or, eventually, Article 35(2)(d) CISG if industry standards apply to containing or packaging requirements.
In the cases examined below, three different aspects of applying industry standards were dealt with.
The Heliotropin case
The Heliotropin case  involved issues relating to the general conformity of the goods. Yet, in this case the tribunal went further in interpreting the meaning [page 563] of Article 35(1) CISG when it declared that the stipulation of quality shall include not only what is stipulated in the contract, but also that the goods must conform to the relevant standards, national standards or industry standards published in the country of origin of the goods. Further specific issues of this case will be dealt with below.
The Old boxboard corrugated carton case
Another case involving international quality standards is the Old boxboard corrugated carton case  where the Buyer ordered from the Seller European old corrugated cartons (EURO OCC) with strict content level specifications. When the goods arrived, the Buyer detected defects relating to content levels and raw material, and stated that the latter frustrated the planned production of so-called brown paper. The Seller contested the defects and claimed that the Buyer had not communicated in advance its intent to produce brown paper, which would have required material of better quality.
The Seller stated that the basis for a decision by the tribunal must be the inspection report which, however, did not include any data on the weight and the respective content levels of the goods which had been objected to by the Buyer. Therefore, the Seller argued that the Buyer's claims were unfounded, to which the Buyer reacted by stating that his claims were merely based upon non-conforming content levels, rather the weight or raw material. The Seller also stated and the Buyer agreed that, since there is no Chinese law requiring mandatory inspection of OCC or providing for any mandatory inspection standards, the inspection bureau should use the quality and quantity requirements mutually agreed upon by the parties. The Buyer also argued that the inspection report had merely confirmed the non-conformity of the goods to the contract and to the letter of credit, but had not stated whether any European standard for OCC (being a stricter standard) had been applied. The Seller stated that the European standard may not be or have been used for the latter reason. However, the Buyer claimed that, due to the inspection report's lack of reference to the European standard and the fact that the standard used in the contract and the letter of credit had been the European [page 564] standard, the inspection report should be interpreted as confirming the goods' non-conformity to the European standard.
Upon the above argumentation, the arbitral tribunal fond that there is no uniform quality standard for OCC in the industry. Therefore, the tribunal ruled that the goods delivered did not conform to the specific quality requirements agreed upon by the parties in the contract and in the letter of credit, and that this finding had also been evidenced by the inspection report prepared according to the requirements of the contract.
In this case, the question was whether an industry standard not specifically referred to by the parties must be applied mandatory. The approach taken by the tribunal, i.e. to examine whether any uniform quality standard exists in the respective industry, seems to be appropriate. Yet, the question is what 'uniform' quality standard means and whether one can distinguish between 'uniform' and 'not uniform' standards, and if so, what the basis of such distinction can be. In addition, is a 'uniform' standard automatically applicable and is a 'non-uniform' standard applicable only if the parties expressly agree upon it? In answering these questions, regard has to be taken on the nature of the respective industry practices as well as exact circumstances of the case at hand.
The Rebar coil case
Another award in which industry standards were involved, among others, is the Rebar coil case. The Buyer ordered coil steel with special contractual stipulations on quantity and diameter, prescribing that the goods must conform to standard 25G2S. The Seller delivered the goods in two shipments, both of which were objected to by the Buyer on the following grounds: Relating to the first shipment, the quantity of the coil steel was less than the contracted amount, all the crew steel was delivered with the same diameter value which caused the weight of the goods to exceed the contractual weight, and the standard was A400S rather than 25G2S. Relating to the second shipment, the quantity of both the coil steel and the crew steel was less than the [page 565] contracted quantity, the diameter of the crew steel was of two kinds, and the same problem with the standard occurred again.
After the Buyer had objected several times, the Seller acknowledged some of the defects but always denied that it had seriously violated the contract. Attempts of the parties to negotiate the dispute amicably finally failed. As the Seller did not submit any arguments to the arbitral tribunal relating to the dispute, the arbitral tribunal based its decision exclusively on the Buyer's submissions and the inspection report prepared by the China Shenzhen Commodity Inspection Bureau. The inspection report included additional data, i.e. that in the first delivery not all goods had stickers on them and that the stickers which had been attached indicate that the goods conformed to standard 25G2S although they actually conformed to standard A400S only. In addition, relating to the second delivery, the invoice by the Seller provided that the steel coils delivered conformed to standard 25G2S although they, again, in truth only conformed to standard A400S. Upon the above submissions and the findings of the inspection report, the tribunal found the quality of the goods to be inconsistent with the contractual stipulations.
However, this award should be approached with caution because the decision of the arbitral tribunal may have been different if the Seller had submitted its own contentions.
COMPLIANCE WITH SHIPPING REQUIREMENTS SET OUT IN THE CONTRACT
Compliance with appropriate shipping requirements is often of great importance, especially when perishable or sensitive goods are sold and delivered. Such requirements may include shipping at specific temperatures, in appropriate vehicles and containers, according to route specifications and maximal shipping time etc.
Similarly to industry standards, shipping requirements may also be stipulated in the contract, in which case Article 35(1) CISG is involved, or they may be implied, i.e. when the nature of the goods involved requires special shipping conditions (e.g. frozen goods may not be shipped in simple refrigerating containers, paper may not be shipped in wet or damp containers etc.), in which case Article 35(2)(a) and/or (b) CISG may be applicable. The following [page 566] cases involved goods of a special nature requiring special care, but also related to the issue of appropriate general shipping conditions.
The Jasmine aldehyde case
In the Jasmine aldehyde case, the tribunal ruled that the non-conformity of the goods had been caused by improper shipping conditions. The Buyer had ordered jasmine aldehyde from the Seller requiring a direct shipping route, and had communicated several times with the Seller stressing the importance of shipping in cool conditions, as the quality of the goods sold may seriously deteriorate unless appropriate temperature is ensured. The Seller had assured the Buyer about the shipment to take place in appropriate temperature conditions. In spite of the Buyer's requests and warnings, the jasmine aldehyde had not been shipped directly but via Hong Kong where the temperature was relatively high. As a result, when opening the container, the goods were found to have melted. The Seller did not contest that it had indeed promised appropriate shipping conditions but added that it had informed the Buyer that the temperature at the shipping port had been appropriate at the time of loading and that it had telephoned the carrier regarding the temperature requirement. The Seller made an interesting and highly questionable argument by stating that 'neither the contract of sale, nor Chinese contract law, nor international custom or convention imposes such a duty upon the Seller to call the carrier's attention to the temperature'.
The tribunal found that, in light of the above requests, promises and facts, the Buyer had unambiguously expressed that shipping under appropriate temperature conditions was of great significance, which the Seller beyond doubt had understood. Yet, the Seller had not made every effort to ensure the required shipping conditions because notifying the carrier on the phone had not been sufficient to ensure them and, in addition, the Seller had failed to ship the goods directly, as requested by the Buyer. Thereupon, the tribunal found that the Seller was liable for the deterioration of the goods' quality.
The Jasmine aldehyde case is a classic example of non-performance of the Seller's duties arising out of clear and express communications by the [page 567] Buyer. The submission by the Seller relating to the Seller's duty to call the carrier's attention to the temperature requirements can be negated easily and was probably the most crucial point in making the decision, since the Seller had to arrange for shipment being aware of the fact that shipping at a certain temperature was of great importance to the Buyer. As the Seller thereby acknowledged that the duty to ship the goods at certain temperature did exist and also because contractual stipulations prevail over any law, convention or customs, the Seller's duty to perform conformingly would have required notification of the carrier.
The Cow's liver fungus case
The issue of appropriate shipping temperature was also involved in the Cow's liver fungus case  where the Buyer ordered so-called AA cow's liver fungus without specifying packaging and shipping methods in the contract. The Seller delivered the goods in refrigeration at -14%C.
This was objected to by the Buyer stating that the goods had been damaged as a result of the refrigeration and that pursuant to Article 35(2)(d) CISG, the goods must be shipped or package in the manner usual for such goods. In contrast with that, the Seller referred to the second phrase of Article 35(2)(d) CISG arguing that they must be shipped in a manner adequate to preserve and protect the goods. Thus, the buyer's and the Seller's views relating to the same CISG provision clashed.
Both parties submitted numerous expert opinions relating to temperature requirements for storing or packaging cow's liver fungus, yet, the tribunal refused to apply them as evidence for certain procedural reasons. The tribunal actually opined that, in lack of contractual stipulations relating to the containing and shipping temperature, the cow's liver fungus had to be contained in a manner usual for such goods, though the question was whether -14%C was the usual containing and shipping temperature. Based upon the expert opinions, the tribunal found that it is not necessary to store or ship cow's liver fungus at -14%C and that pursuant to Article 35(2) CISG, the Seller was liable for [page 568] the non-conforming shipping and storing. However, as damage could not be substantiated by the Buyer, relating non-conformity claims were rejected.
As seen, the Cow's liver fungus case was the exact opposite of the Jasmine aldehyde case because in the Cow's liver fungus case there was no contractual stipulation relating to a temperature requirement. Therefore, the tribunal inspected whether there is any general requirement or industry practice relating to the allegedly exact shipment temperature of cow's liver fungus. The tribunal found that the temperature value referred to by the Buyer was not a mandatory one and rightly pointed out that as far as the shipping temperature is appropriate for maintaining good condition of the goods, the exact temperature value does not matter.
SPECIAL ISSUES REGARDING THE INTERCONNECTION BETWEEN QUANTITY AND QUALITY
The Indonesian round logs case
A very interesting case involving quantity and quality issues is the Indonesian round logs case  where the Buyer ordered from the Seller Indonesian Merbau round logs, stipulating specific quality requirements as well as a diameter and length measurement method in the contract. The latter method was a so-called cross-measurement method differing from the Malaysian measurement method which was subsequently applied by the Buyer. Upon receipt, the goods were inspected by the China Commodity Inspection Bureau upon [page 569] the Buyer's request, which found shortages in quantity and volume as well as serious quality defects. The Seller did not accept the inspection results and sent its experts to the Buyer's warehouse, who after a thorough examination found that the quantity of the goods was actually 8.18% more than the contracted quantity. In addition, the extra volume was intended to counter-balance the defective items and to be deducted from the surplus amount, in order to make up for the defective logs. This as also shown in the Buyer's cargo receipt document. The Buyer further presented that the goods had been inspected for a second time in the warehouse belonging to the YZ Company, applying the Malaysian measurement method.
The arbitral tribunal held that it did not quite understand why the Buyer had instructed the YZ Company to inspect the logs according to the Malaysian measurement method rather than the cross-measurement method stipulated in the contract. Thus, it was a rather unambiguous case, for the simple reason that contractual stipulations shall prevail.
As a result, the tribunal confirmed that the Buyer had not only failed to effectively verify the quantity and quality of the goods as had been intended, but had also caused the Seller to send experts in order to conduct another measurement, which had been executed according to the cross-measurement method in accordance with the contract and had produced a result showing that there was a surplus in the volume rather than a shortage as claimed by the Buyer. In addition, the tribunal ruled that since the Seller had expressed its willingness to take back the goods if they proved to be defective, but the Buyer had simply sold a large amount of the allegedly defective logs, the Buyer had anyway lost its rights relating to the enforcement of quality claims. Thus, the tribunal found that the inappropriate inspection of the goods negated the Buyer's claims relating to the alleged non-conforming quality. [page 570]
THE REQUIREMENT TO BE FIT FOR ANY PARTICULAR PURPOSE EXPRESSLY OR IMPLIEDLY MADE KNOWN TO THE SELLER AT THE TIME OF THE CONCLUSION OF THE CONTRACT
This requirement set forth in Article 35(2)(b) CISG has been involved in several awards made by CIETAC tribunals. In addition to the cases analyzed below, the fitness for a particular purpose has been dealt with in many other cases as well, and, as seen in the preceding paragraphs, the issue can often not be separated from other requirements on the quality of the goods. The following awards were selected for a separate examination at this place because a major and essential aspect involved therein was the fitness for a particular purpose.
The Channel steel case
In the Channel steel case, the Buyer ordered channel steel with exact specifications as to width, height and length, allowing minor differences. Upon inspection of the goods, the Buyer detected defects, namely that the height of 38.64% of the goods was lower than the height stipulated in the contract. The Buyer notified the Seller and subsequently sent the goods back to the Seller. The Seller insisted that the goods, which had been subject to a mandatory inspection prior to shipping, had been found to be in conformity with the contract. The Buyer referred to Article 35(2)(b) CISG stating that the goods must be 'fit for any particular purpose expressly or impliedly made known to the seller' and argued that stipulating exact height requirements in the contract amounts to the formulation of a specific purpose which, as a result, the Seller had been aware of.
The arbitral tribunal took into consideration the inspection report submitted by the Buyer. The Seller did not object to the inspection report but insisted that the quality of the goods had been conforming for the reasons outlined above. The tribunal found that the contract's strict requirements relating to size of the goods, allowing only for a minor deviation, clearly indicated that the goods were indeed intended for a special purpose. As such requirements were set forth in the contract, the arbitral tribunal ruled that the [page 571] Seller should have been aware of the fact that the goods were to be purchased for a particular use, therefore, it must have been obvious to the Seller that delivering goods not in conformity with the contractual specifications would constitute a breach of contract. Therefore, the tribunal found that the Seller had delivered non-conforming goods.
The Old boxboard corrugated carton case
Another case where the issue of a particular purpose was involved is the Old boxboard corrugated carton case  where the Seller stated that the Buyer had failed to communicate in advance that it intended to produce so-called brown paper out of the goods purchased from the Seller. The Seller argued that if it had known of this specific purpose, obviously, it would have delivered goods of better quality, suitable for producing brown paper. On different grounds, however, the tribunal found that the goods delivered did not conform to the contractual requirements, as has already been discussed in more detail above.
The Channel steel case and the Old boxboard corrugated carton case highlight the simple requirement that, in order to being able to enforce a claim relating to non-fitness for a particular purpose, the latter must be communicated to the other party. Both tribunals took the right approach when establishing that the particular purpose must be communicated at least impliedly (Old boxboard corrugated carton case) and that implied communication of such purpose is well enough (Channel steel case).
CONFORMITY WITH A SAMPLE OR MODEL
Conformity of the goods with a sample or model may not seem to be an issue raising significant concerns or problems because one may think that there is nothing easier than comparing the goods delivered with the respective sample or model. However simple this may sound in practice, several problems and specific issues may arise regarding the samples or models themselves, their availability or the circumstances of acceptance thereof, agreement of [page 572] the parties relating to samples or models and actual conformity or non-conformity thereof to the goods delivered. CIETAC arbitral tribunals have dealt with several cases where simple and complex, comprehensive and particular issues of conformity with a sample or model were in dispute.
The Agricultural products case
The Agricultural products case  involved requirements relating to the conformity of the goods with a sample provided. In that case, the Seller and the Buyer had concluded a contract for the delivery of non-spoiled food. Upon arrival of the goods, the Buyer made several complaints: After an instant examination, the Buyer objected to the difference in size and the low quality of the mushrooms delivered compared to the sample which had been provided and the contractual specifications, and furthermore complained about the fact that the rolls of dried bean-milk cream had been nibbled by worms, were of low quality and could not be resold.
Concerning the mushrooms, the Seller argued that specifications included in faxes exchanged between the parties should prevail over the specifications included in the contract, and that the mushrooms delivered conformed to the telefax specifications. In addition, as compared to products of other companies and to the samples, the non-conformity of the mushrooms delivered could not be substantiated, and the different packaging had not directly caused that the goods could not be resold. Concerning the rolls of dried bean-milk cream, the Seller stated that the inspection certificate confirmed perfect condition of the goods and they had not been stored for long after their production, and that the Seller therefore should not be held liable for external circumstances causing an eventual deterioration of quality of the goods. Furthermore, the Seller stated that quality and other condition of the goods had been determined according to an inspection conducted at almost the end of the warranty period, thereby questioning the quality of the export.
During the first oral hearing, the Buyer further presented that the Seller in the faxes had promised delivery of 'mushrooms of this year (1995), with much better quality than that of the samples you received', 'a comparatively [page 573] better kind of spring mushrooms, in comparatively small but even size. However, they don't smell as fragrant as the winter mushrooms.' Relating to the packaging issue, the Buyer stated that it had not de facto accepted the packaging. Upon the arrival of the rolls of dried bean-milk cream at the port on 28 September, the Buyer had immediately found that the goods were of bad quality and not in conformity with the samples. The Buyer further stated that the Seller must have had detected the quality problem during the inspection and acceptance of the goods, and that the inspection report, the preparation of which the Seller had not objected to, had been made within the warranty period.
The Seller replied that, as the inspection report had not been made within 30 days of delivery and as the Buyer had not invited an independent person to conduct the inspection as required by the contract, the inspection report should not be considered by the tribunal. Finally, relating to quality of the mushrooms, the Seller added that the parties had agreed in their faxes to the delivery of fresh and thick mushrooms with better colour and fragrance than those of the samples, without any requirement for size and stem, but had merely required mushrooms of similar size to be packed in the same box.
The arbitral tribunal considered the mushrooms and the rolls of dried bean-milk separately. Concerning the mushrooms, the tribunal found that the parties had very different ideas about quality the mushrooms. Yet, as the Buyer had rejected the samples and the Seller had promised to deliver mushrooms of better quality than that of the samples, the final quality criteria had been to deliver 'fresh and thick mushrooms, better colour and fragrance than those of the samples, no size requirement and those of the similar size to be packed in one packing'.
Since the fact that a sale by sample had taken place was not questionable, upon the above findings the tribunal ruled that the goods delivered by the Seller did not conform to the contract. The tribunal would probably have come to the same conclusion even if it had been substantiated beyond doubt that a sale by sample had taken place. In addition, the mushrooms delivered would not only have been of lower quality that the sample but as the Seller subsequently promised delivery of mushroom of even better quality than that of the sample, non-conformity of the delivered goods stands beyond doubt.
Relating to the rolls of dried bean-milk, the tribunal ruled that the non-conformity of the goods had been evident and had also been confirmed by [page 574] the inspection report, and that the Seller had failed to present appropriate evidence explaining the defects found.
The Heliotropin case
In the Heliotropin case, the issue arose whether sales by or without a sample took place. The Buyer purchased from the Seller Heliotropin, a special perfumery ingredient, containing not less than 99% aldehyde. The parties agreed that the contract should enter into force after the Seller had sent and the Buyer had approved of a sample of the goods. The sample was approved of by the Buyer but upon the later arrival of the goods, the Buyer objected to the quality of the goods stating that the colour and flavor of the Heliotropin did not conform to the sample. The Buyer refused to take delivery and notified the Seller about the defects several times, additionally sending an inspection certificate which confirmed the defects. The Seller did not react in a manner considered appropriate by the Buyer, refused to take the goods back and generally failed to assist the Buyer in resolving the problem. The Buyer asserted that the sale at hand was a typical sale by sample because of the entry into force requirement stipulated in the contract, the fact that a sample had indeed been sent and approved of by the respective parties, and because a sample had also been retained in the Seller's factory. In addition, the Buyer argued that sales by sample typically take place relating to goods where flavour and colour are of significance, just as in case of Heliotropin.
The Seller denied that the present sale was a sale by sample stating that it was rather a sale by description with conditions, meaning that the approval of the sample merely constituted a condition for the contract's entry into force. A sale by sample had not anywhere been mentioned by the parties, and it did not belong to the parties' duty in a sale by sample to approve of and store the sample, as had happened here. In any case, the Seller insist that the goods delivered did conform to the alleged sample because the contract, in the Seller's view, provided for merely the aldehyde content of the Heliotropin to be of the same quality as the sample (i.e. to be no less than 99%), but had to be interpreted as not referring to the colour and flavour of the substance. [page 575]
The arbitral tribunal found that, given the special nature of Heliotropin as a perfumery ingredient, the flavour of the goods was especially significant. The tribunal held that Heliotropin is the technical term for Piperonyl, and as the origin of the goods was China, concluded that the Seller's warranty included the Standard of Piperonyl QB-783-81 issued by the Ministry of Industry of the People's Republic of China. The arbitral tribunal furthermore held that the sample referred to in the contract was to be the basis for an inspection of the colour and flavour of the goods, and that this contractual clause did not refer to the standard sample provided by the Ministry of Industry described in Standard QB-783-81, but the sample sent by the Seller and approved by the Buyer. Therefore, providing a sample was not merely the contract's condition of entry into force, but rather a basis for the goods' inspection. Based on the latter arguments, the tribunal found that the goods delivered did not conform to the contract.
The major role of samples was confirmed in this case as well, just as it had been done with respect to the mushrooms involved in the Agricultural products case. Once the parties agree upon delivery of any goods according to a sample, the features of the goods delivered subsequently must conform exactly to the latter. Yet, if there is any misunderstanding between the parties relating to the sample, the tribunal must search for the original intention of the parties, as was rightly done in the Agricultural products case.
The Handicrafts case
The question what the basis for making the decision should be if the original sample was not retained by any of the parties arose in the Handicrafts case  where the Buyer ordered handbags and baskets. The Buyer argued that 55% of the goods delivered were non-conforming regarding appearance, size and sewing, to which the Seller objected and stated that the Buyer's representative had approved of quality of the goods at the shipping port. The Buyer argued that it had never entrusted that person with the inspection of the goods. In addition, the Seller stated that the goods conformed to the applicable Chinese standards. [page 576]
The tribunal ruled that in lack of the original sample, the question whether the goods delivered were conforming could only be answered by comparing the goods actually delivered with the specifications in the contract, the Buyer's samples, materials admitted by the Buyer, and the Seller's sample handbags. The tribunal had an easier task in this case since there was no misunderstanding between the parties relating to the sample and all documents and objects required for deciding about the conforming of the goods compared to the sample were available. Upon this comparison, the tribunal found that the Seller was liable for a part of the defects.
CONFORMITY WITH CONTRACTUAL AND GENERALLY REASONABLE PACKAGING REQUIREMENTS
An issue also connected with the requirement of appropriate packaging is the conformity with contractual and generally reasonable packing requirements. In many cases, the two cannot be separated, and, similarly to what has been stated in the section on shipping requirements, they may be. Where packaging requirements are concerned, both express or implied contractual requirements are governed by the same specific provision, namely Article 35(2)(d) CISG.
The Polypropylene case
In the Polypropylene case, damages to the goods had been caused by non-conforming packaging. The Buyer had ordered polypropylene with the following specification: '25 kilograms each bag, packed with one-layer brown paper lined with PE film; the packing shall be strong enough to be suitable for sea, land, and inland waterway transportation, and each 15 tons of the goods shall be loaded in a 1x20 foot container'.
However, the Buyer noticed upon receipt that the goods were delivered in a bulk vessel, instead of a container ship, as a result of which the containers could not be discharged onto land without extra costs. Upon delivery of the goods to the warehouse of the Buyer's client, an inspection took place [page 577] which discovered that the quantity delivered was less than what had been ordered, and that a large amount of the goods had been damaged or lost due to inappropriate packaging, i.e. the use of three layer brown paper. Another inspection conducted a few months later discovered that further bags had broken and even more goods had become contaminated as a direct result of the inappropriate packaging, i.e. 'a kind of three-layer brown paper that is neither strong enough nor sufficiently humidity proof for the polypropylene to be transported for a long distance and stored for a long time'. The Seller never expressly denied that the packaging had been non-conforming but kept referring to the fact that the inspection of the goods should have taken place at the port of entry rather than the warehouse of the Buyer's client, and that the Seller shall not be liable for any defect or damage after trans-shipment of the goods by the Buyer.
The arbitral tribunal ruled in favour of the Buyer, stating that the contractual agreement of the parties on packaging was clear; in addition, as the Seller had been trading with Chinese companies for a long time, it should have known that Chinese companies usually resell such goods and that they might be trans-shipped, which also emphasizes the necessity for using appropriate packaging. Yet, the Seller had failed to perform the latter obligation. In addition, an invoice presented by the Seller indicating that the goods had been packaged in one-layer brown paper lined with PPE film was not true. The tribunal ruled that the damage to the goods had directly been caused by the inappropriate packaging without PE lining and strong tensible fibres.
The tribunal was right in establishing that the packaging requirement stipulated in the contract prevails over the duty to inspect the goods at the port of entry, yet, it must be noted that this was also because of the industry practice that Chinese companies usually resell such goods. Otherwise, no order should be set up as to which duty is 'more important' than the other, or only if specific circumstances of the case justify that there is a particular requirement, as in the case at hand. [page 578]
The Agricultural products case
In the Agricultural products case, as stated above, the Buyer objected to the fact that the mushrooms were not packaged in the manner stipulated in several contractual documents. The arbitral tribunal found that the mere fact that the packaging requirement set out in the contract was not met entailed non-conformity of the goods delivered.
EXCEPTIONS FROM THE GENERAL RULE -- EXEMPTIONS TO SELLER'S LIABILITY FOR CONFORMITY OF THE GOODS UNDER ARTICLE 35(3) CISG
Pursuant to Article 35(3) CISG, the seller is not liable for an lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity, even if otherwise he was liable under the specific conformity requirements under Article 35 CISG. The relating CIETAC awards presented below are quite simple examples of the latter, emphasizing two different aspects of seller's exemption from liability.
The Hydraulic press case
In the Hydraulic press case  involves a typical exemption possibility, i.e. if the buyer accepts the goods with the respective defects. In this case, the Buyer listed several defects of the machines delivered which were all contested by the Seller in detail. However, the arbitral tribunal shortened the whole dispute by finding upon presentations of the parties that the Buyer had already had purchased the same type of machine with the same defects a year earlier. Thereupon, the tribunal concluded that the Buyer had been aware of defects of the machine and as it did not mention any objection in the contract regarding such defects, the Buyer had impliedly accepted them. Therefore, [page 579] the tribunal ruled that the Seller was exempted from liability for delivering goods with certain defects.
The Indium ingot case
In the Indium ingot case, the summary in the Pace CISG database includes a reference to the CISG provision on exception to seller's liability for non-conformity. There, the Buyer requested Claimant to act as foreign trade agent for the supplier of indium ingot, with whom the Buyer had already negotiated itself. The Claimant was merely to act as a foreign trade agent. With regard to the fact that Claimant itself was unaware of the goods and their quality, Claimant and the Buyer included in their contract, among others, a clause stipulating that 'pursuant to the contract concluded by the Buyer and the supplier, Claimant was not at all liable for the quality and quantity of the goods' and that responsibility for quantity and quality of the goods was to be taken by the Buyer. Upon arrival of the goods at the airport, the Buyer inspected the goods and issued a certificate of quality confirming the conforming quality of the goods. Subsequently, upon a further inspection, the Buyer then objected to quality of the goods.
The Buyer stated that the rough inspection undertaken at the airport had only been a preliminary examination unsuitable for discovering any quality defect and that it had not been the same 'examination' mentioned in the contract and generally applied in international sales of goods. Claimant insisted that it was not liable for quality of the goods, a stipulated by the parties in the contract, and also due to the fact that the Buyer had found the quality of the goods to be conforming upon their inspection at the airport. In addition, Claimant argued that even if the quality of the goods had been non-conforming, Claimant was exempt from liability.
The arbitral tribunal accepted Claimant's opinion and ruled that the contractual stipulations clearly resulted in Claimant's exemption from and the Buyer's liability for any lack of quality of the goods. Thus, the award in this case had nothing to do with the nature of the goods or the previous relationship between the parties in determining whether defective goods were acceptable [page 580] (like in the Hydraulic press case); rather, it was based on the mere contractual stipulation that the foreign trade agent shall not be liable for any quality defects. The Hydraulic press case includes a more CISG-related issue, while the basis of the Indium ingot case was another contractual characteristic determining the relationship between the parties involved.
As seen in the CIETAC awards presented in this study, the major Chinese arbitration association has developed an extensive practice relating to conformity of the goods under the CISG. CIETAC has been dealing with CISG issues for a long time during which accurate and exemplary awards have been made. It is important to express that CIETAC tribunals have made several awards of great significance, and that the CISG jurisprudence of CIETAC has created several tendencies which are continuously being followed. As referred to in an example in this study as well, CIETAC has also published numerous commentaries on its arbitral awards, in the form of case studies in the English language posted on the CIETAC website, and its case law has furthermore been reflected in analyses by arbitrators and scholars which have been published, for example, in the CISG database of Pace University.
Being a major arbitration institution not only in China but worldwide, the role of CIETAC is expected to increase further. It is no understatement that, given the economic potential of China entailing acceleration of international sale of goods at an even more rapid pace, CIETAC's jurisprudence on the CISG can be expected to become a leading and authoritative voice on the interpretation of the CISG, within a short time as well as on the long run. [page 581]
* Fellow of the Institute of International Commercial Law and Visiting Adjunct Professor at Pace Law School (USA); research areas: CISG, international commercial arbitration, ICSID arbitration.
1. Zeller, B (1999) 'CISG and China' in Will, M (ed) (1999) CISG and China: Theory and Practice Faculté de droit, Université de Geneve 7 at 22.
2. September 2006, available at: <http://stat.wto.org/CountryProfile/WSDBCountryPFView.aspx?Language=E&Country=CN>.
3. Top 5 import partners: United States, 25 States of the European Union, Hong Kong, Japan, the Republic of Korea; top 5 export partners: Japan, the Republic of Korea, Chinese Taipei, 25 States of the European Union and Canada.
4. Wu, D (2005) 'CIETAC's Practice on the CISG' (2) Nordic Journal of Commercial Law at 3, available at: <http://www.njcl.fi/2_2005/article2.pdf>.
6. Article 35(1) CISG.
7. This study analyzes CIETAC awards posted in English on the CISG website of Pace University School of Law (available at: <http://www.cisg.law.pace.edu>) until 31 December 2006.
8. CIETAC Award, 22 May 1996 [CISG/1996/5] (Broadcast equipment case), available at: <http://cisgw3.law.pace.edu/cases/960522c1.html>.
9. CIETAC Award, 8 September 1997 [CISG/1997/27] (BOPP film case), available at: <http://cisgw3.law.pace.edu/cases/970908c1.html>.
10. JIAN, Han 'Contract Unclear as to Technical Standards for Goods', available at: <http://www.sccietac.org/cietac/en/content/content.jsp?id=911>.
11. CIETAC Award, 22 March 1995 [CISG/1995/05] (Down jacket and winter coat case), available at: <http://cisgw3.law.pace.edu/cases/950322c1.html>.
12. CIETAC Award, 19 January 2000 [CISG/2000/08] (Steel cylinders case), available at: <http://cisgw3.law.pace.edu/cases/000119c1.html>.
13. CIETAC Award, 4 January 1995 [CISG/1995/02] (Shirts case), available at: <http://cisgw3.law.pace.edu/cases/950104c1.html>.
14. CIETAC Award, 29 March 1999 [CISG/1999/14] (Flanges case), available at: <http://cisgw3.law.pace.edu/cases/990329c1.html>.
15. The so-called companion Flanges case of 30 March 1999 [CISG/1999/16], available at: <http://cisgw3.law.pace.edu/cases/990330c2.html> involved similar issues and parallel conclusions were drawn by the tribunal.
16. CIETAC Award, 9 January 1993 [CISG/1993/03] (Linseed cake case), available at: <http://cisgw3.law.pace.edu/cases/930109c1.html>.
17. CIETAC Award, 10 July 1994 [CISG/1993/09] (Heliotropin case) <http://cisgw3.law.pace.edu/cases/930710c1.html>.
18. CIETAC Award, 8 March 1996 [CISG/1996/12] (Old boxboard corrugated carton case), available at: <http://cisgw3.law.pace.edu/cases/960308c1.html>.
19. CIETAC Award, 20 November 1997 [CISG/1997/32] (Rebar coil case), available at: <http://cisgw3.law.pace.edu/cases/971120c1.html>.
20. CIETAC Award, 23 February 1995 [CISG/1995/01] (Jasmine aldehyde case) available at: <http://cisgw3.law.pace.edu/cases/950223c1.html>.
21. CIETAC Award, 30 March 19514 [CISG/19/04] (Cow's liver fungus case), available at: <http://cisgw3.law.pace.edu/cases/940330c1.html>.
22. Further cases involving Article 35(1) CISG include the Electric heater case of 30 March 1999 [CISG/1999/17], available at: <http://cisgw3.law.pace.edu/cases/990330c1.html>, the Air conditioner equipment case of 5 April 1999 [CISG/1999/19], available at: <http://cisgw3.law.pace.edu/cases/990405c1.html>, the PVC suspension resin case of 7 April 1999 [CISG/1999/20], available at: <http://cisgw3.law.pace.edu/cases/990407c1.html>, the Chemical cleaning product equipment case of 20 April 1999 [CISG/1999/23], available at: <http://cisgw3.law.pace.edu/cases/990420c1.html>, the Cysteine case of 7 January 2000 [CISG/2000/06], available at: <http://cisgw3.law.pace.edu/cases/000107c1.html>. See also JIAN, an 'Discovery of Defects in the Quality of the Goods after Resale', available at: <http://www.sccietac.org/cietac/en/content/content.jsp?id=913>.
23. CIETAC Award, 29 December 1999 [CISG/1999/33] (Indonesian round logs case), available at: <http://cisgw3.law.pace.edu/cases/991229c1.html>.
24. For a more detailed analysis of the case see the commentary by arbitrator Yanming Huang (2002) 'Grasp the Key to the Case' (17) Mealey's International Arbitration Report (August 2002) 1-24, available at: <http://cisgw3.law.pace.edu/cases/991229c1.html>.
25. CIETAC Award, 23 October 1996 [CISG/1996/48] (Channel steel case), available at: <http://cisgw3.law.pace.edu/cases/961023c1.html>.
26. Supra fn 18.
27. CIETAC Award, 18 September 1996 [CISG/1996/43] (Agricultural products case), available at: <http://cisgw3.law.pace.edu/cases/960918c2.html>
28. See supra fn 17.
29. CIETAC Award, 29 May 1996 [CISG/1996/26] (Handicrafts case), available at: <http://cisgw3.law.pace.edu/cases/960529c1.html>.
30. CIETAC Award, 23 July 1997 [CISG/1997/23] (Polypropylene case), available at: <http://cisgw3.law.pace.edu/cases/970723c1.html>.
31. See supra fn 27.
32. See also WEIMIN, Xie 'The Packing Clause', available at: <http://www.sccietac.org/cietac/en/content/content.jsp?id=907>.
33. CIETAC Award, 20 January 1994 [CISG/1994/02] (Hydraulic press case), available at: <http://cisgw3.law.pace.edu/cases/940120c1.html>.
34. CIETAC Award, 31 May 1999 [CISG/1999/27] (Indium ingot case), available at: <http://cisgw3.law.pace.edu/cases/990531c1.html>.