MEMORANDUM FOR CLAIMANT

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Rheinische Friedrich-Wilhelms-Universität Bonn samples for future contracts. The letter sent to Mr. Black on 7 December 2000 announcing the first agreement between CLAIMANT and RESPONDENT points out that the discount of 8% is the highest discount ever given by CLAIMANT to any customer for any purchase. It is dealt with in a section separated from the announcement of the prospect of a long term relationship [cf. CLAIMANT’s Exhibit No. 1]. Therefore, Mr. Black could not have been unaware that the price stated in the written contract reflecting the 8% discount was an incentive offer only and not meant to govern all subsequent contracts to be concluded by the parties. 69. Since RESPONDENT knew that the 8% discount was unusually high and the list price already low [cf. CLAIMANT’s Exhibit No. 1], RESPONDENT could not have been unaware of its incentive nature. Also, as sales manager of a large international company, Mr. Black could not have been unaware that special discounts are given in the polypropylene market for special reasons such as first time orders [cf. Procedural Order No. 2, Clarification No. 40]. 70. In his letter of 7 December 2000 Mr. Storck pointed out that CLAIMANT’s discount to favored customers is 4%. In the same letter he promised that RESPONDENT would always receive CLAIMANT's best price, since a long term business relationship was expected [CLAIMANT’s Exhibit No. 1]. When Mr. Black subsequently called Mr. Storck to place an order with CLAIMANT, they moved along the expected line of a long term relationship. Thus, Mr. Black could expect Mr. Storck to keep his promise and receive the best price. A best price is received as long as no other customer is given a better price. CLAIMANT never granted a discount higher than 4% to any customer except on first orders as incentive offers [cf. Procedural Order No. 2, Clarification No. 38, Procedural Order No. 3, Clarification No. 5]. Therefore, a 4% discount was CLAIMANT’s best price and by granting 4% to RESPONDENT Mr. Storck kept his promise. Since RESPONDENT knew that CLAIMANT grants a 4% discount to favored customers, RESPONDENT could not have been unaware that a 4% discount reflected CLAIMANT’s best price. Consequently, Mr. Black could not have been unaware of Mr. Storck's intent to grant a 4% discount. c. Neither Mr. Storck nor any other reasonable person could have been aware of Mr. Black's intent to contract with a discount of 8% from the list price 71. Mr. Storck had no reason to believe that Mr. Black was only willing to contract with CLAIMANT in the event that an 8% discount was accepted. Mr. Black first revealed his 25
Rheinische Friedrich-Wilhelms-Universität Bonn intention as late as in his letter of 10 April 2001 [cf. CLAIMANT’s Exhibit No. 7]. 72. Furthermore, the written contract of 15 December 2000 does not mention the discount given. When Mr. Black referred to that written contract during their telephone conversation, Mr. Storck could not know that this reference meant to introduce an 8% discount as a requirement to contract [cf. CLAIMANT’s Exhibit No. 3]. 73. Consequently, Mr. Storck could not have been aware of Mr. Black's intent to conclude a contract with a discount of 8% while on the other hand Mr. Black could not have been unaware of Mr. Storck's intent to sell with an 4% discount. Thus, the agreement of the parties must be understood as including a 4% discount. 74. For the reasons given above [paras. 67 - 72], the agreement also includes a 4% discount if interpreted according to the understanding of a reasonable person of the same kind as RESPONDENT [Art. 8(2) CISG; cf. LG Hamburg, 26 September 1990 (Germany)] B. If the Tribunal finds that the parties' agreement did not fix the price, a contract has nevertheless been concluded including a 4% discount 75. In this event the price has to be determined according to Art. 55 CISG [cf. paras. 55 et seq.]. Pursuant to this provision, the parties are considered to have made reference to the price generally charged for such goods sold under comparable circumstances in the trade concerned [Art. 55 CISG]. The dispute between CLAIMANT and RESPONDENT did not arise with regard to the list price of the polypropylene film but with regard to the discount on that price. Nevertheless, there is no doubt that Art. 55 CISG is applicable not only to list prices but also to discounts as the award of discounts is a "comparable circumstance" for the purpose of Art. 55 [cf. Schlechtriem/Hager, Art. 55 note 8; Enderlein/Maskow, Art. 55 note 10]. Since CLAIMANT’s discount practice of granting a 4% discount to favored customers is much like the practice in the industry [cf. Procedural Order No. 2 Clarification No. 40], it is the practice "under comparable circumstances in the trade concerned" [cf. ICC Court of Arbitration, 8324/1995 (Fr); BG St. Gallen, 3 July 1997 (Ch); Witz et al, Art. 55 note 3]. Therefore, even if assuming the parties had not reached an agreement that includes a 4% discount, the contract between CLAIMANT and RESPONDENT would have been concluded including a 4% discount. 26
Page 1 and 2: On Behalf of TENTH ANNUAL WILLEM C.
Page 3 and 4: Rheinische Friedrich-Wilhelms-Unive
Page 9 and 10: Index of Authorities Rheinische Fri
Page 11 and 12: Derains, Yves / Schwartz, Eric A. D
Page 17 and 18: Witz, Wolfgang / Salger, Hanns Chri
Page 19 and 20: Belgium Rheinische Friedrich-Wilhel
Page 51: Rheinische Friedrich-Wilhelms-Unive
Page 61: Rheinische Friedrich-Wilhelms-Unive

MEMORANDUM FOR CLAIMANT

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