一个位于俄勒冈的干果生产商，在俄勒冈州的巡回法院对被告Dutch Tec Source B.V. (“DTS”) 提起了诉讼，DTS是一家荷兰食品加工设备的制造商，Meduri提出了两项主张——DTS违反适用特定目的默示性保证以及违反合同约定。Meduri主张其从DTS购买了一台机器，该机器本旨在每小时加工5000磅蓝莓，但未能如愿，生产的干果并不适合销售。DTS并未能赔偿Meduri或卸载机器。

在及时向联邦法院提起诉讼后，DTS向国际商会（“ICC”）的国际仲裁院提起了仲裁请求，仲裁地为阿姆斯特丹。DTS认为，当事人之间的经营合同包含了强制性的仲裁条款，同意根据ICC规则对任何争议进行仲裁。Meduri不同意此主张并认为双方之间的经营合同与DTS所依据的协议不同，经营协议并不包含仲裁约定。

俄勒冈州联邦法院认为，法院对合同成立（contract formation）的根本争议具有管辖权，在没有令人信服的理由说明仲裁庭对该异议具有管辖权的情况下。具体而言，法院考虑了早期的报价（包含详细的技术规范和仲裁条款）是否构成经营合同，后期的报价（包含部分细节和没有仲裁条款）本身是否是经营合同，并对前期报价进行了修改。

尽管双方在法律适用（applicable law）存在分歧，法院认为，根据编入了统一商法典（“UCC”）的俄勒冈州法律与联合国国际货物销售合同公约（“CISG”），均得出结论，商家之间的货物买卖合同不必包含所有的实质性条款，只需要包含一些基本条款（essential terms）。

因此，法院认为双方之间的运作合同是后面的那份合同，尽管该合同并未包含双方之间的所有约定。该合同并未包含仲裁约定，其也未准确无误地授权ICC解决仲裁事项。因此，法院准予了Meduri提起的禁止DTS对Meduri提起ICC仲裁的初步禁令，并驳回了DTS提起的将案件提交ICC解决并中止诉讼程序的请求。

1. 本案件涉及到CISG关于“合同的成立”内容，涉及到前后两个报价，以及哪个报价是最终成立的合同问题，引起前后两个矛盾的报价本身就导致了本案争议，企业需要特别注意这一看似非常简单的问题。

2. 构成有效报价的内容并非要完整，根据CSG规定，只要有关键条款就可以，并不需要有所有的合同条款，注意点需要引起注意。

3. 另外关于前后报价，到底哪个为合同依据，也是要看对方接受的条款与哪个报价有关（邀约和承诺，两个要约的情况下，承诺是针对哪个邀约并最终达成合意，估计应该是以后一份报价为依据）。

Plaintiff Meduri Farms, Inc. (“Meduri”), an Oregon-based dried fruit producer, filed a lawsuit in the circuit court of the state of Oregon against Defendant Dutch Tec Source B.V. (“DTS”), a Dutch food-processing equipment manufacturer, alleging two claims—breach of the implied warranty of fitness for a particular purpose and breach of contract. Meduri claimed that it purchased a machine from DTS that was meant to process 5,000 pounds of blueberries per hour, yet failed to do so, producing dried berries that were not fit for sale. DTS failed to reimburse Meduri or uninstall the machine.

After timely removing the action to federal court, DTS filed a request for arbitration with the International Court of Arbitration at the International Chamber of Commerce (“ICC”), seeking arbitration in Amsterdam. DTS argued that the operative contract between the parties contained a mandatory arbitration clause, under which they agreed to arbitrate any dispute pursuant to ICC rules. Meduri disagreed and argued that the operative agreement between the parties was different from that which was relied upon by DTS and did not contain an arbitration agreement.

At issue before the court were two motions: (1) a motion by DTS to stay the proceedings pending the arbitration before the ICC and (2) a motion for preliminary injunction filed by Meduri, seeking to enjoin DTS from pursuing the ICC arbitration against Meduri. According to DTS, Meduri’s motion for preliminary injunction failed both procedurally and on the merits. Procedurally, DTS argued that whether the parties are subject to arbitration is a gateway issue that should be decided by the arbitrator and not the court. Alternatively, DTS argued that if the court determined that it should decide the gateway issue, then it should deny the motion on the merits. Specifically, DTS argued that the operative contract between the parties expressly incorporated a set of conditions, which according to DTS, contained a mandatory ICC arbitration clause.

According to the Oregon federal court, a fundamental dispute regarding contract formation is presumptively for judicial resolution, absent other compelling reasons that could allow an arbitrator to consider such a challenge. Accordingly, the court took on the task of resolving the gateway issue of arbitrability. Specifically, the court considered whether an earlier offer (containing detailed technical specifications and an arbitration provision) was the operative contract, as modified by a later offer, or whether that later offer (containing minimal details and without an arbitration provision), was itself the operative contact.

Despite the parties’ disagreement over the applicable law, the court concluded that both under the law of the state of Oregon, which codified the Uniform Commercial Code (“UCC”), and under the United Nations Convention on the International Sale of Goods (“CISG“), the result was the same. According to both laws, a contract between merchants for the sale of goods need not contain all of the material terms and need only contain a few essential terms.

Accordingly, the court concluded that the operative contract between the parties was the later contract, despite not containing all of the terms of agreement between the parties. That contract did not contain an arbitration agreement, nor did it clearly and unmistakably delegate the question of arbitrability to the ICC. Thus, the court granted Meduri’s motion for preliminary injunction enjoining DTS from pursuing arbitration against Meduri before the ICC and denied DTS’s motion to refer the case to the ICC and stay the proceeding.

A version of this post originally appeared in the March 2018 edition of Baker McKenzie’s International Litigation & Arbitration Newsletter, which is edited by David Zaslowsky and Grant Hanessian.