Serbia 10 May 2002 Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce in Belgrade, Serbia (Zinc coated tin case)
[Cite as: http://cisgw3.law.pace.edu/cases/020510sb.html.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: T-4/01
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Bulgaria (respondent)
BUYER'S COUNTRY: Yugoslavia (claimant)
GOODS INVOLVED: Zinc coated tin
Award of 10 May 2002 [Proceedings No. T -- 4/01]
Abstract prepared by Cukavac, Secretary of the Foreign
Court of Arbitration attached to the Serbian Chamber of Commerce and
Published in Serbian in the journal Arbitraza no. 1 (2001) 92-93
Translation [*] by Ugljesa Grusic, LL.M.
Edited by Dr. Vladimir Pavic, Milena Djordjevic, LL.M. [**]
CLAIMANT (Yugoslavia/Serbia) [Buyer] v. RESPONDENT (Bulgaria) [Seller]
On 19 November 1999, the Buyer ... concluded with the Seller ... a contract for sale of a certain quantity of zinc coated tin. In accordance with the contract, the Buyer made the advance payment, but the Seller failed to deliver the goods in the quantity equal to the advance payment, thus keeping a part of the advance payment without legal basis. The Buyer requested the restitution of the advance payment in the amount corresponding to the undelivered quantity of the goods, with domiciliary interest. The sole arbitrator granted the request.
From the statement of reasons
Pursuant to the [Yugoslav Private International Law], the law applicable to a contract is the law chosen by the parties, unless otherwise prescribed by this law or by a treaty. In the case at hand, the parties failed to agree on the applicable law, and the sole arbitrator determined the applicable law by taking into consideration the laws of Yugoslavia and Bulgaria and the rules of law contained in a treaty.
Pursuant to Article 20 of the [Yugoslavian] Law on Resolution of Conflict of Laws, the applicable law for a contract of sale of goods is the law of the country of the seat of the seller, which means that Bulgarian law is applicable, since the seller is from Bulgaria.
However, the national domestic law of Bulgaria is not applied in the case at hand, but rather the rules of law contained in the United Nations Convention on Contracts for the International Sale of Goods [CISG], since this Convention was ratified by Yugoslavia on 27 December 1984, and by Bulgaria on 1 August 1991. When ratified, the CISG became a part of internal law of both countries, which means that it became a part of Yugoslav and Bulgarian law, and, therefore, the rules of law contained in the Convention are applied to the case at hand.
Pursuant to Article 1 of the CISG, it is to be applied to contracts for sale of goods concluded between parties whose places of business are in different Contracting States, if the States in which the parties have their places of business are Contracting states.
In the case at hand, both Yugoslavia and Bulgaria are Contracting States, since they have ratified the CISG, which means that the provisions contained therein are a part of the internal law of the parties’ countries, and the United Nations Convention on Contracts for the International Sale of Goods is to be applied in the present case.
Pursuant to Article 30 of the CISG, a seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and the Convention.
In the case at hand, the Seller failed to deliver the goods in the quantity for which the advance payment had been made, but has rather performed a partial delivery of the goods.
Pursuant to Article 49 of the CISG, if the seller fails to perform any of his obligations under the contract, the buyer is entitled to declare the contract avoided if the non-performance of the contract amounts to a fundamental breach of the contract.
The seller failed to deliver the quantity of the goods, for which the Buyer had paid, as required by the contract, thus committing a fundamental breach of the contract, and the Buyer ... is entitled to all the remedies envisaged by the Convention for breach of the contract by the seller.
Therefore, the Buyer is entitled to declare the contract avoided, and request the restitution of the paid price in the amount of ..., because the Seller kept that amount without legal basis.
Consequently, it is justified to grant the Buyer’s claim
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of Yugoslavia / Serbia if referred to as [Buyer] and Respondent of Bulgaria is referred to as [Seller].
** Ugljesa Grusic, LL.M. (U. of Nottingham) is a Doctorate student at the University of Belgrade Faculty of Law. Dr. Vladimir Pavic is an Assistant Professor in Private International Law and Arbitration, and Milena Djordjevic, LL.M. (U. of Pittsburgh) is a Lecturer in International Commercial Law at the University of Belgrade Faculty of Law.Go to Case Table of Contents
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
25B [Definition of fundamental breach: substantial deprivation of expectation, etc.]; 30A [Seller’s obligation to deliver the goods, etc.]; 49A [Buyer’s right to avoid contract (grounds for avoidance): fundamental breach of contract]
25B [Definition of fundamental breach: substantial deprivation of expectation, etc.];
30A [Seller’s obligation to deliver the goods, etc.];
49A [Buyer’s right to avoid contract (grounds for avoidance): fundamental breach of contract]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Serbian): Unavailable
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents