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CISG CASE PRESENTATION

Russia 6 December 2000 Arbitration Court [Appellate Court] for the Moscow Region (Gildia Ltd. v. Gaiski GOK) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/001206r1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20001206 (6 December 2000)

JURISDICTION: Russian Federation

TRIBUNAL: Federal Arbitration Court for the Moscow Region

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: KG-A40/5498-00

CASE NAME: Gildia Ltd. v. Gaiski GOK

CASE HISTORY: 1st instance Arbitration Court for the City of Moscow 24 August 1999; 2d instance Appellate Division of the Arbitration Court for the City of Moscow 13 January 2000 [affirmed]; 3d instance Arbitration Court for the Moscow Region 17 April 2000 [remanded]; 4th instance Arbitration Court for the City of Moscow (No. A4024122/99-8-244) 21 August 2000 [claim denied]; 5th instance: this proceeding [affirming denial of claim]

SELLER'S COUNTRY: Ukraine (plaintiff)

BUYER'S COUNTRY: Russia (defendant)

GOODS INVOLVED: [-]


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 74 ; 77

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Russian): Unavailable

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Federal Arbitration Court for the Moscow Region
Resolution of the Cassation Board
on the lawfulness and reasonableness of decisions
of the Arbitration Courts

6 December 2000 [No. KG-A40/5498-00]

Translation by Yelena Kalika [*]

The Trading House "Gildia Ltd." (Ukraine) commenced an action with the Arbitration Court for the City of Moscow against the public joint stock company "Gaiski GOK" to collect the Ruble equivalent of 45,622.26 Ukrainian Hrivnas of losses. The losses resulted from the payment to the Ukrainian budget of a fine for the delay in depositing the hard currency revenues received in connection with the sale of goods delivered to the Respondent under the contract No. 30/10-97 of 30 October 1997. The total price of the goods delivered was 365,902.44 Russian Rubles.

In the decision of 24 August 1999 the claims were sustained on the ground that in order to avoid liability the obligations should be fulfilled in due manner. The decision was upheld on the same grounds in the resolution of the Appellate Division of 13 January 2000. The above judicial acts were reversed in the resolution of the Cassation Division of 17 April 2000. The case was remanded. At the new trial the claims were denied in the decision of 21 August 2000 due to the absence of proof of the amount of losses.

The Claimant disagreed with the decision and filed a cassational complaint in which he asks to reverse the above decision and to remand the case due to the erroneous application of the material laws by the court.

After reviewing the lawfulness of the decision of 21 August 2000 in the absence of the duly notified Respondent, after hearing the Claimant's arguments and after evaluating the reasonableness of the claim, the court does not find any grounds for the reversal of the judicial act.

The lower court has fully, objectively and comprehensively reviewed and evaluated the factual matters by using relevant, admissible and truthful evidence in an adversary process (Articles 7, 52, 53, 56, 57, 59, 60, 124, 127 of the Arbitration Procedural Code of the Russian Federation) and the Cassation Board does not have any grounds for its reevaluation (Article 174 of the Arbitration Procedural Code of the Russian Federation).

However, the reasoning of the denial of the claim is erroneous.

As follows from Articles 15 and 393 of the Russian Federation Civil Code and Articles 74 and 77 of the Vienna Convention on Contracts for the International Sale of Goods, expenses carried by the Claimant in connection with the violation of Article 4 of the Ukraine Law "On the order of making payments in hard currency" do not constitute losses since such expenses must be carried by either a tax payer or any other subject of the public administrative relationship and not by a participant of the property turnover, a subject of the civil relationship.

In such circumstances the decision shall be sustained.

In accordance with Articles 171, 174-177 of the Arbitration Procedural Code of the Russian Federation, the court holds:

The decision of the Arbitration Court for the City of Moscow of 21 August 2000 on case No. A40-24122/99-8-244 is sustained. The cassational claim is denied.


FOOTNOTE

* Yelena Kalika, a law student at the Pace University School of Law, has studied at the Moscow State Law Academy, interned with a Moscow law firm, and is a Research Assistant at the Pace Institute of International Commercial Law.

All translations should be verified by cross-checking against the original text.

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Pace Law School Institute of International Commercial Law - Last updated October 7, 2003
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