Russia 9 February 2001 Arbitration proceeding 161/2000 [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010209r1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 161/2000
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Russian Federation (claimant)
BUYER'S COUNTRY: United Kingdom (respondent)
GOODS INVOLVED: Goods
APPLICATION OF CISG: Yes [Article 1(1)(b)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Russian): Rozenberg, Praktika of Mejdunarodnogo Commercheskogo Arbitrajnogo Syda: Haychno-Practicheskiy Commentariy [Practice of the International Commercial Arbitration Court: Scientific - Practical Comments] Moscow (2001-2002) No. 8 [53-55]
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
Translation [*] by Yelena Kalika [**]
1. SUMMARY OF RULING
1.1 Discrepancies in the arbitration clause of the contract in connection with the name of the arbitration tribunal do not preclude the Tribunal's competence to arbitrate a dispute following from such contract since it is clear that the parties intended to choose the Tribunal. [The parties' intent] is also evidenced by the fact that the Claimant [Seller] filed his claim with the Tribunal and the Respondent [Buyer] did not object to the Tribunal's competence upon receipt of the claim.
1.2 The relationships between the parties are governed by the CISG because the parties chose Russian civil laws as the applicable law. The CISG is a component part of Russian civil laws. That the United Kingdom is not a CISG Contracting State does not preclude the application of the CISG. The provisions of the Russian Federation Civil Code should be applied as a subsidiary statute based on Article 7 of the Russian Federation Civil Code.
1.3 Taking into consideration the Tribunal's Rules, it was found possible to arbitrate the dispute in the absence of the [Buyer] since the [Buyer] was duly notified of the proceeding.
2. FACTS AND PLEADINGS
[Seller], a Russian firm, brought the claim against [Buyer], a U.K. firm, in connection with partial non-payment for the goods delivered under a contract for the international sale of goods made on 4 April 1998. The [Seller] demanded the price not paid as well as penalties set forth in the contract. The [Seller] also demanded a reimbursement of arbitration fees. The [Buyer] received the claim but made no objections.
3. TRIBUNAL'S REASONING
The Tribunal's award contained the following main points.
3.1 Clause 12 of the contract sets forth that disputes arising in connection with the contract shall be arbitrated by the International Commercial Arbitrage at the Russian Federation Chamber of Commerce and Industry in Moscow.
Since, pursuant to the Rules of 1995, the International Arbitrage at the Russian Federation Chamber of Commerce and Industry was renamed the International Commercial Arbitration Tribunal, the Tribunal is of the opinion that, when signing the contract, the parties meant the Tribunal and not any other arbitrage.
[The parties' intent] is also evidenced by the fact that the [Seller] filed his claim with the Tribunal and the [Buyer] did not make any objections to the Tribunal's competence upon his receipt of the claim.
For this reason, the Tribunal came to the conclusion that it had the competence to arbitrate the present dispute.
3.2 The parties to the contract chose Russian civil laws as the applicable law.
Pursuant to Article 7 of the Russian Federation Civil Code, international treaties of the Russian Federation are a component part of the Russian substantive law. They supersede domestic civil laws. Based on the said Article of the Russian Federation Civil Code, the relationships between the parties arising in connection with this contract are governed by the CISG. The provisions of the Russian Federation Civil Code govern the issues not settled or only partially settled in the CISG.
3.3 After reviewing the issue of the [Buyer]'s absence at the proceeding, the Tribunal found that the [Buyer] received the claim on 11 October 2000. The claim was sent to the legal address stated in the contract.
Within 45 days after receiving the claim, the [Buyer] submitted no written explanations with the Tribunal as required by Article 19(2) of the Tribunal's Rules.
The notice of the hearing to be held on 9 February 2001, which was mailed to the above stated address of the [Buyer] on 22 December 2000, was returned with a mark "Recipient is no longer at this address."
The Tribunal's attempts to serve the notice on the [Buyer] through his Representative Office in Moscow produced no results.
In accordance with Article 12(5) of the Rules, any writing is deemed to be received, if it is sent by certified mail to the last known address [of the Addressee] or by any other method that provides for a registration of an attempt to deliver such mailing. Therefore, the Tribunal found it possible to arbitrate the present dispute in the absence of the [Buyer] on 9 February 2001.
3.4 When reviewing the claims on the merits, the Tribunal found that the materials of the case evidence that the [Seller] made delivery of goods under the contract for the total value stated in the claim. The Tribunal also found that the [Buyer] transferred a partial payment to the [Seller]'s account.
The [Buyer] made no objections to the claim.
The Tribunal came to the conclusion that the [Seller] duly performed his obligations under Article 30 CISG to hand over the goods in accordance with the requirements of the contract and the CISG. On the contrary, by not paying for the goods, the [Buyer] violated his obligation under Article 53 CISG to pay the price as required by the contract (clause 9) and the CISG.
For the above stated reasons, the Tribunal is of the opinion that the [Seller]'s claims are just, proven and should be sustained in the amount claimed.
3.5 In accordance with the terms of the contract (clause 9), the buyer must pay for the goods within 90 days from the date of delivery. Based on the date of delivery of the last lot of goods, the [Buyer] failed to make a timely payment.
The Tribunal thinks it is reasonable to impose penalties for the delay in payment in the amount of 1% daily from the price of the unpaid goods but not exceeding 10% of the price of the goods delivered. Thus, the [Buyer] must pay the penalties in the amount claimed by the [Seller].
3.6 Pursuant to Article 6(1) of the Regulations on arbitration fees and expenses, the [Buyer] must reimburse arbitration fees to the [Seller].
* This is a translation of the award in proceeding 161/2000, dated 9 February 2001, of the Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry reported in: Rozenberg ed., Arb. Praktika 2001-2002, No. 8 [53-55]. All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of the Russian Federation is referred to as [Seller] and Respondent of the United Kingdom is referred to as [Buyer].
** Yelena Kalika, JD Pace University School of Law, has studied at the Moscow State Law Academy, interned with a Moscow law firm, and is an Associate at the Pace Institute of International Commercial Law.Go to Case Table of Contents