Justice Jeffrey K. Oing
Jinglong Indus. & Commerce Grp., a Chinese corp., moved for dismissal of Singapore company, Hemlock Semiconductor’s complaint alleging lack of subject matter jurisdiction. The parties entered into a long term supply agreement wherein Jinglong agreed to buy, and Hemlock agreed to sell solar grade polycrystalline silicone at a specified annual quantity for a certain number of years. The agreement provided for advance payment to Hemlock of $35.4 million in installments, but Jinglong only made the first installment, and Hemlock asserted claims, including breach of contract. Jinglong argued General obligations Law §5-1402 did not apply as it only applied where there was a contractual choice-of-law provision under §5-1401, noting no such choice-of-law could have been made. It alleged the action was governed by Business Corporation law §1314(b) which precluded certain suits by one foreign corporation against another. Jinglong argued §5-1401 violated the commerce clause and was unconstitutional. The court found Jinglong failed to sustain its heavy burden of showing §5-1401 violated the commerce or due process clauses, and as it was not unconstitutional, Jinglong’s claim challenging §5-1402 failed. Thus, Jinglong was denied dismissal.