AMERICAN ARBITRATION ASSOCIATION

AMERICAN ARBITRATION ASSOCIATION

Case No. Moot 6

Superb Paper, Plc
Claimant

v.

Essential Controls, S.A.
Respondent

DEFENSE TO COUNTERCLAIMS
AND
REPLY TO REQUEST FOR JOINDER OF THIRD PARTY



MAY IT PLEASE THE TRIBUNAL

  1. The Claimant, Superb Paper, Plc, denies that it breached the contract of 10 June 1996 with Essential Controls, S.A. by avoiding the contract on 9 October 1996. The Respondent admits in paragraph 6 of the Statement of Defense that it estimated that it would take two weeks to complete the installation and testing. In its letter of 18 September 1996 (Claimant’s Exhibit No. 4) Claimant gave Respondent until 9 October 1996, i.e., three weeks, to complete the job. That was certainly a reasonable amount of time under the circumstances.
  2. The Claimant denies that it did not have legal authority to sell the control system on 4 April 1997. The contract had been avoided on 9 October 1996. Claimant and Respondent had a duty to make restitution concurrently. Respondent refused to do so for six moths, a period that constitutes unreasonable delay. Where there has been unreasonable delay in taking possession of the goods, the party in possession has the right to sell them by any appropriate means.
  3. The means used by the Claimant to sell the control system were appropriate. Claimant does not dispute that Respondent, as a firm in the business of selling and installing control systems (even though it was not authorized to install the system in Mediterraneo) may have been able to sell them for a better price than was Claimant. That is a factor that Respondent should have taken into consideration when it refused to made concurrent restitution. Claimant used the services of a broker who has experience in the sale of similar equipment in making the sale.
  4. Claimant resists the request of the Respondent to join Reliable Installation Co. in this arbitration. The request is not in accord with the arbitration agreement between Claimant and Respondent in the contract of 10 June 1996.
  5. CLAIMANT requests the Tribunal:

(Signed)______________
For Superb Paper, Plc.
Attorneys

15 September 1998_____
Date