The 2011 Version of the Standard Terms Has Been Validly Included into the SLA

103 The SLA is subject to the Standard Terms 2011. Following the second Procedural Order issued by this Arbitral Tribunal, it is to be assumed that the CISG is in principle applicable to the contract [Procedural Order No. 2, p. 57, para. 2]. In consequence, the CISG is applicable to the question whether standard terms have been validly included.

104 According to Art. 14(1) CISG, standard terms must be part of the offer, which must be accepted by the other party according to Art. 18 CISG [OGH, 31 Aug 2005; BGH, 31 Oct 2001; Schroeter, in: Schlechtriem/Schwenzer, Art. 14, para. 32 et seq.]. At hand, CLAIMANT’S offer referred to the Standard Terms 2011 (I) and RESPONDENT accepted it (II).

I. CLAIMANT’S Offer Referred to the Standard Terms 2011

105 An interpretation under Art. 8 CISG reveals that CLAIMANT’S offer referred to the Standard

Terms 2011. Pursuant to Art. 8(2) CISG, the understanding of a reasonable person of the same kind as the addressee is relevant for determining the intent to include the standard terms [OGH, 6 Feb 1996; RB Utrecht, 21 Jan 2009; Witz, in: Witz/Salger/Lorenz, Art. 8 para. 14; Achilles, Art. 8, para. 3; Huber, in: Huber/Mullis, p. 31; Brunner, Art. 8, para. 9].

106 The Standard Terms 2011 were included into the SLA since CLAIMANT put RESPONDENT on

notice as to the existence of the Standard Terms 2011 (1). Even if the Arbitral Tribunal should consider putting RESPONDENT on notice of the Standard Terms 2011 to be insufficient, they

were still included since CLAIMANT also made the Standard Terms 2011 sufficiently

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27

1. CLAIMANT Included the Standard Terms 2011 by Putting RESPONDENT on Notice As

to Their Existence

107 In order to incorporate standard terms, the offeror has to refer to the terms so that the other party could not have been unaware of the intent to include them into the contract according to Art. 8(2) CISG [OGH, 6 Feb 1996; Trib. Comm. de Nivelles, 19 Sep 1995; CSS v. Amphenol, US DC Maryland, 8 Feb 2011; LG Coburg, 12 Dec 2006; Eiselen, pp. 12 et seq.].

108 CLAIMANT sufficiently referred to the Standard Terms 2011. Art. 46 SLA expressly provides that “the agreement is subject to the seller’s standard terms” [Claimant’s Exhibit No. 6,

p. 20]. RESPONDENT alleges that this reference was directed to CLAIMANT’S

Standard Terms 2000 [Answer to Request for Arbitration, p. 33, para. 17] which had governed the FSA in 2008. However, CLAIMANT had revised its Standard Terms. The 2011

version applies to all contracts concluded from the beginning of July 2011 onwards [Claimant’s Exhibit No. 5, p. 17, para. 3]. The SLA was concluded on 20 July 2011 [Request for Arbitration, p. 6, para. 13]. CLAIMANT duly informed RESPONDENT about the overhaul of

the Standard Terms at a meeting in June 2011 [Claimant’s Exhibit No. 5, p. 17, para. 3]. Further, in both its following letters from 5 July 2011 and 18 July 2011, CLAIMANT reminded

RESPONDENT that the 2011 version of the Standard Terms would apply to all contracts

concluded from the beginning of July [Claimant’s Exhibit No. 5, p. 17, para. 3; Respondent’s

Exhibit No. 3, p. 40]. Consequently, when RESPONDENT signed the SLA on 20 July 2011, it

had to be aware that Art. 46 SLA referred to the Standard Terms 2011.

109 Thus, RESPONDENT is bound by the Standard Terms 2011 because it agreed to them, regardless of whether it actually read them. A commercial party experienced in international trade cannot expect not to be bound by terms it previously signed, simply because it did not comprehend the terms [MCC v. Ceramica, US Ct App (11th Cir), 29 Jun 1998]. RESPONDENT

is a hospital which is known worldwide and experienced in business transactions [cf. Claimant’s Exhibit No. 1, p. 9, para. 1]. Consequently, RESPONDENT could have expected the application of the signed set of rules. Thus, CLAIMANT’S Standard Terms 2011 became part of its offer.

110 Even if RESPONDENT could only be bound by the terms if it knew the content, it was then RESPONDENT’S responsibility to enquire the content of the Standard Terms 2011. Where a

party was aware of the offeror’s intent to include standard terms into a contract, it cannot claim to be surprised if they apply. To the contrary, it is the party’s responsibility to enquire the content of the standard terms [Kindler, p. 229; Magnus, p. 320; Berger, p. 17, para. 2].

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28 111 RESPONDENT alleges that it was on CLAIMANT to inform RESPONDENT because of a promise

given by Dr Vis to send the Standard Terms 2011 [Answer to Request for Arbitration, p. 33, para. 17]. However, shortly after his promise, Dr Vis suffered a stroke [Procedural Order No. 2, p. 63, para. 34]. RESPONDENT brings forward that Ms Meier who replaced Dr Vis should have sent the Standard Terms 2011 [Answer to Request for Arbitration, p. 33, para. 17]. However, Ms Meier did not know about the promise [Procedural Order No. 2, p. 63, para. 33]. In fact, taking into account the sudden hit and the severe impact of a stroke, it can be deemed impossible for Dr Vis to communicate current affairs to Ms Meier. 112 RESPONDENT on the other side was aware of the change in CLAIMANT’S negotiation team

[Respondent’s Exhibit No. 2, p. 38]. During the subsequent negotiations, RESPONDENT could be expected to ask for the text. Enquiring the text was also reasonable since CLAIMANT’S

website provided all information necessary. A banner showed a telephone number for questions concerning standard terms [Procedural Order No. 2, p. 63, para. 32]. Nevertheless, RESPONDENT never contacted CLAIMANT [Procedural Order No. 2, p. 63, para. 33].

113 In consequence, CLAIMANT put RESPONDENT on notice as to the existence of the Standard

Terms 2011, making the Standard Terms 2011 part of CLAIMANT’S offer.

2. Additionally, CLAIMANT Made the Standard Terms 2011 Sufficiently Available

114 Even if a higher standard had to be met in order to include the Standard Terms 2011, CLAIMANT would have fulfilled it. According to the “making-available-test”, finding mere

notice insufficient, it is also not necessary to physically send the standard terms to the other party. Instead, it is sufficient to make them otherwise available [BGH, 31 Oct 2001; Schroeter, in: Schlechtriem/Schwenzer, Art. 14, para. 49]. In its letter to RESPONDENT of 5 July 2011, CLAIMANT referred to its homepage, where the Standard Terms 2011 could be found [Claimant’s Exhibit No. 5, p. 17, para. 3]. The Standard Terms 2011 were available on CLAIMANT’S website in Mediterranean from 5 July 2011 at least until the conclusion of the SLA on 20 July 2011 [Claimant’s Exhibit No. 5, p. 17, para. 3].Making the Standard Terms 2011 available on the internet was sufficient for their inclusion into CLAIMANT’S offer (a). Moreover, making the Standard Terms 2011 available in Mediterranean was sufficient (b).

a) Making the Standard Terms 2011 Available on the Internet Was Sufficient

115 A way of making standard terms available is presenting them on the internet [Schroeter, in: Schlechtriem/Schwenzer, Art. 14, para. 49]. Considering the importance of the internet in

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29 everyday trade, it is sufficient to display the link where the standard terms can be downloaded if the other party has internet access [Eiselen, in: CISG-AC Op. 13, para. 3.5; Gruber, in: MüKo HGB, Art. 14, para. 32; Stiegele/Halter, p. 169; Karollus 2002, p. 551; Berger, p. 18]. 116 CLAIMANT sent RESPONDENT a letter referring to the new Standard Terms available on its

website including the respective link [Claimant’s Exhibit No. 5, p. 17]. The fact that RESPONDENT already obtained information from the Standard Terms 2011 on CLAIMANT’S

homepage [Procedural Order No. 2, p. 63, para. 33] shows that enquiry of the content through the internet was manageable for RESPONDENT. Consequently, via presentation on the internet, CLAIMANT made the Standard Terms 2011 sufficiently available.

b) Making the Standard Terms 2011 Available in Mediterranean Was Sufficient

117 Moreover, the Standard Terms 2011 were made available in a proper language. A party is made adequately aware of standard terms if they are written in any language sufficiently known to it [OLG Düsseldorf, 21 Apr 2004; Schroeter, in: Schlechtriem/Schwenzer, Art. 14, para. 62; Eiselen, in: CISG-AC Op. 13, para. 6.5].

118 Firstly, RESPONDENT is bound by the Standard Terms 2011 because it communicated to

CLAIMANT that it understood Mediterranean. If an assistant signalises knowledge of a certain

language, this knowledge will be ascribed to the parties [OGH, 17 Dec 2003; OLG Düsseldorf, 21 Apr 2004; Mankowski, in: Ferrari, introduction to Art. 14, para. 42]. During three business meetings leading to the conclusion of the FSA and SLA, an assistant doctor of Hope Hospital, who spoke and understood Mediterranean, had been present and communicated with CLAIMANT’S technicians in Mediterranean [Procedural Order No. 2, p. 63, para. 35]. Thus, CLAIMANT perceived that a person speaking Mediterranean was part of RESPONDENT’S team for the proton therapy facility deal. CLAIMANT could not foresee that said assistant would be absent during the period before the conclusion of the SLA. In any case, it would now rest with RESPONDENT to inform CLAIMANT about the absence of the person speaking Mediterranean. Consequently, CLAIMANT could reasonably expect RESPONDENT to sufficiently understand the content of the Standard Terms 2011.

119 Secondly, even if RESPONDENT did not understand Mediterranean, the standard terms were sufficiently available. In a longstanding and important business relationship it can be expected from either party to translate the respective standard terms [OGH, 17 Dec 2003; OGH, 31 Aug 2005; OLG Innsbruck, 1 Feb 2005]. A case decided by the Austrian Supreme Court in 2003 may serve as persuasive authority for such obligation [OGH, 17 Dec 2003]. In that case,

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30 the Austrian seller wanted to include its German standard terms. The standard terms were transmitted to the buyer from Hong Kong who was unable to understand German. However, the court decided that the buyer had a reasonable opportunity to translate the standard terms. Although there was a person speaking German in the buyer’s negotiation team, the court based the obligation to translate the standard terms on the important business relationship between the parties for several years. The court supported its finding by the financial volume of the parties’ contractual obligations of USD 7 million [OGH, 17 Dec 2003].

120 The facts can be compared to the case at hand. When the Parties concluded the SLA in 2011 they had already been in a contractual relationship for three years. Moreover, the value of the contractual obligation even adds up to USD 9.5 million [Respondent’s Exhibit No. 3, p. 39]. Further, thethirdtreatmentroomundertheSLA was crucial to optimise RESPONDENT’S cancer

treatment options [Claimant’s Exhibit No. 5, p. 17]. Hence, the contractual relationship between the Parties and the contract at hand had a considerable economic weight. Thus, the Arbitral Tribunal is invited to follow the persuasive authority of the Austrian Supreme Court to find that RESPONDENT could be expected to translate the text of the Standard Terms 2011.

II. RESPONDENT Accepted CLAIMANT’S Offer

121 By signing the SLA, RESPONDENT accepted CLAIMANT’S offer under Art. 18 CISG.

Consequently, the Parties agreed to include the Standard Terms 2011 into the SLA.