Russia 27 April 2001 Arbitration Court [Appellate Court] for the Moscow Region [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010427r2.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: KG-A40/1946-01
CASE HISTORY: 1st instance Arbitration Court for the City of Moscow (A40-38829/00-40-355) 22 January 2001 [affirmed]
SELLER'S COUNTRY: [-] (claimant)
BUYER'S COUNTRY: [-] (respondent)
GOODS INVOLVED: Printed matter
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
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CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Russian): Unavailable
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
Case No. KG-A40/1946-01 of 27 April 2001
Translation [*] by Yelena Kalika [**]
of Cassation Board on lawfulness and reasonableness of decision of Arbitration Court
The Claimant "Es-Print" [Seller] commenced an action against the Respondent "Makhaon Company" [Buyer] to recover Finnish markka [Fmk] 26,850.00 of unjust enrichment (the cost of unreasonably retained goods).
By the decision of the Arbitration Court for the City of Moscow of 22 January 2001 on case No. A40-38829/00-40-355 the claim was denied.
An Appellate Division did not review the lawfulness and reasonableness of the decision.
The [Seller] disagrees with the decision of the court. He refers to the incorrect application of the rules of substantive law. The [Seller] asks for a new decision sustaining the claim.
At the hearing held by the Cassation Board the representative of the [Seller] argued for the claim.
There has been no reply to the [Cassation] Complaint.
After reviewing the materials of the case and discussing the arguments stated in the complaint as well as after hearing the arguments of the [Seller]'s representative, the court is of the opinion that the decision should not be reversed.
The court has established that the parties participated in an international commercial transaction. The contract No. F1-246/ISV/1-012 of 3 June 1998 contains an arbitration clause setting forth that any disputes shall be arbitrated by the Arbitral Tribunal at the International Chamber of Commerce in Stockholm, Sweden.
The court found that the contract was declared avoided and that the dispute was to be adjudicated by a Russian Arbitration Court pursuant to Article 212(2)(5) of the Russian Federation Arbitration Procedure Code.
The claim is based on the fact that the [Seller] manufactured and delivered to the [Buyer] some printed matter. The goods, which were received by the [Buyer] under customs declarations No. 175601 97 and 11718655, were only partially paid. The cost of the unpaid goods in the amount of Fmk 26,850.00, in [Seller]'s opinion, represents unjust enrichment. Therefore, the [Seller] asks to collect the said amount in accordance with Articles 61 and 64 CISG.
When denying recovery of the amount of unjust enrichment, the court stated that the goods were delivered under the contract. Therefore, Article 1102 of the Russian Federation Civil Code on unjust enrichment is not applicable.
The Cassation Board does not find sufficient grounds to reverse the judicial act.
In the materials of the case there is no evidence that the [Seller]'s representative, who notified the [Buyer] that the contract was avoided, had any authority to do so.
The [Seller] insists that the amount of unjust enrichment should be recovered. Taking his position into account, the subject of the claim has not changed.
Pursuant to Article 81(1) CISG, avoidance of the contract does not release parties from their obligations to pay damages which they may claim under the Convention.
The [Buyer] does not appeal the adjudication of the case by a Russian court.
In these circumstances, the decision meets the requirements set forth in the applicable substantive law. The court did not commit any violations of the rules of procedural law. The Cassation Complaint is denied.
Pursuant to Articles 171, 174, 175 and 177 of the Russian Federation Arbitration Procedure Code, the Federal Arbitration Court for the Moscow Circuit
The decision of the Arbitration Court for the City of Moscow of 22 January 2001 on case No. A40-38829/00-40-355 is upheld. The Cassation Complaint filed by the [Seller] is denied.
* All translations should be verified by cross-checking against the original text. For purposes of this translation Claimant "Es-Print" is referred to as [Seller] and Respondent "Makhaon Company" is referred to as [Buyer]. Amounts in the currency of Finland (Finnish markka) are indicated as [Fmk].
** 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.Go to Case Table of Contents