United States District Court, D. Colorado
CEEG (Shanghai) SOLAR SCIENCE & TECHNOLOGY CO., LTD., Plaintiff,
LUMOS LLC, now known as LUMOS SOLAR LLC, Defendant.
Wiley Y. Daniel Senior United States District Judge
THIS MATTER comes before the Court on a petition by a Chinese company, CEEG Solar Science & Technology Company, LTD (“CEEG”), to enforce a foreign arbitration award by the China International Economic and Trade Arbitration Commission (“CIETAC”) that was entered against Defendant Lumos LLC (“Lumos”), a company founded in Boulder, Colorado. (ECF No. 2). Lumos has filed a motion to dismiss the petition. (ECF No. 22). After hearing argument from the parties at a hearing held on May 27, 2015 and carefully reviewing the parties’ submissions, I find that the petition is denied, the motion to dismiss is granted, and this case is dismissed.
By way of background, Scott Franklin is the President and CEO of Lumos, which was founded in Boulder, Colorado in 2007. Franklin appeared in person and testified at the May 27, 2015 hearing. Lumos provides solar energy products to consumers. CEEG is a Chinese company based in Shanghai that develops solar panel products.
On June 29, 2009, Lumos and CEEG entered into a Co-Branding Agreement where Lumos agreed to buy and CEEG contracted to sell certain solar technology products for a period of three years. (ECF No. 22-2). Pursuant to the Co-Branding Agreement, Lumos agreed to order a minimum number of CEEG products over a three-year period. The Co-Branding Agreement sets forth various terms including pricing, payment, packaging, and delivery. With respect to “Prices, ” the Co-Branding Agreement provides that the “[t]he price to be paid by LUMOS to CEEG for the Product refers to individual contracts.” (ECF No. 22-2). The Co-Branding Agreement also provides that “[t]he Seller warrants that all goods delivered conform in respect of quality, specification and packaging, with the stipulations in each contract, relying on datasheets of the goods and all other specifications between the two parties in written form.” (ECF No. 22-2).
Importantly, under the Co-Branding Agreement’s “Choice of Language” provision, the parties acknowledged and agreed
that they have mutually required that this Agreement and all documentation notices, judicial proceedings, and dispute resolution and arbitration entered into, given, instituted pursuant to, or relating to, this Agreement be drawn up in the English language. Any translations of this Agreement or its attachments that are provided are done solely for the convenience of Seller, and, in all cases, the English language version of such documents shall govern.
(ECF No. 22-2). Also, the Co-Branding Agreement’s “Dispute Resolution” provision reads:
All disputes in connection with this agreement or the execution thereof shall be settled through good faith negotiations. In case no settlement can be reached, the case may then be submitted for arbitration to the China International Economic and Trade Arbitration Commission Shanghai Commission in accordance with its arbitration rules. The arbitration shall take place in Shanghai and the decision of the Commission shall be final and binding upon both parties; neither party shall seek recourse to a law court or other authorities to appeal the decision. The arbitration fee shall be borne by the losing party.
(ECF No. 22-2).
At the May 27, 2015 hearing, Scott Franklin credibly testified that the Co-Branding Agreement was the “master agreement” that Lumos and CEEG initially entered into when they commenced their business relationship. (Bridge Tr. 14:17:18-14:19:16). The Co-Branding Agreement was the “umbrella” that set forth the terms for how Lumos and CEEG would operate and do business together. (Id.) It “outlined the terms, the pricing, the buying commitment, warranty, general business terms of our agreement.” (Id. at 14:18:44-14:18:50). Franklin further explained that the subsequent sales contracts were purchase orders that flowed from the Co-Branding Agreement. Franklin stated that pursuant to the Co-Branding Agreement’s Choice of Language provision, Lumos and CEEG always communicated in ...