25 June 1997,
Plaintiff [seller], which trades in steel produced in South Korea, delivered to Defendant [buyer], whose place of business is in Switzerland, a total of 125.81 tons of stainless steel wire upon an order dated 7 February 1992, which was confirmed by the [seller] on 10 March 1992. It is in dispute between the parties whether the delivery took place in July or September 1992. Of the total purchase price, Deutsche Mark [DM] 366,174.51, the amount of DM 63,180 is still unpaid. The [buyer] notified the [seller] with ‘notices of substandard material’, dated 5 November 1992, and 6 April 1993, that specific, individually indicated quantities of the raw material could not be processed, and that it placed the substandard material at the [seller]’s disposal. At the same time, the [buyer] inquired about what should be done with these materials and also with the ‘semi-processed materials’ that was ‘possibly’ still in storage. In letters dated 2 December 1992, and 27 January 1993, the [seller] notified the [buyer] that, if the complaints [were] justified, the value of the material would be credited, and if further substandard material was found in the [buyer]’s stock, responsibility would also be taken if the complaint [was] justified. Both parties have obtained expert opinions regarding the suitability of the raw material, which, however, reached conflicting conclusions.
With its complaint, the [seller] demands that the [buyer] pay the outstanding purchase price plus interest. After the [buyer] had processed the extant raw material during the course of the litigation before the Court of First Instance at the end of 1995, it continued to pursue the avoidance of the contract in its brief dated 6 November 1995 only with regard to the substandard quantities indicated there. Alternatively, it declared a set-off against the claims for damages of DM 4,800, Swiss francs [Sfr] 2,850.50 and DM 75,578.53. …