Argentina _ April 2003 Juzgado Comercial [Commercial Court] Buenos Aires (Autoservicio Mayorista La Loma S.A. v. Quiebra v. Incidente de Verificacion (Cosvega SL) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030400a1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 44766
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Spain (plaintiff)
BUYER'S COUNTRY: Argentina (defendant)
GOODS INVOLVED: [-]
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:
9D2 [Usages and practices impliedly made applicable to contract]; 57A [Place for payment: in absence of agreement, payment at seller's place of business]
9D2 [Usages and practices impliedly made applicable to contract];
57A [Place for payment: in absence of agreement, payment at seller's place of business]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
Spanish: CISG-Spain and Latin America website <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/rargen14.htm>
CITATIONS TO TEXT OF DECISION
Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/sargen14.htm>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
(Proof of Claim)
Buenos Aires, April 2003
Translation [*] by Juan Manuel Falabella [**]
[Seller] brings this claim for the amount of US $23,025.63 as an unsecured claim (US $18,318.85 as capital and US $4,706.78 as interest) stating that the claim arises from the sale of goods to the [Buyer] and submits invoices and bills of lading as evidence thereof.
On pages 16/31 of the records, [Seller] submits the certificate of origin of the goods issued by the Chamber of Commerce, Industry and Shipping of Murcia, Spain. In addition, [Seller] submits a copy of the plant health certificate issued by the National Preservation Food Technology Centre in Molina de Segura, Murcia, Spain. [Seller] further states that the claim does not fall under the scope of application of economic emergency laws [*] currently in force.
Once the relevant service of process has been duly made, the trustee in bankruptcy answers on pages 34/5 expressing that, in a previous proof of claim filed at the time of the reorganization proceeding --which had been rejected since the claim has been got into after the reorganization proceeding was brought -- [Buyer] had accepted the claim. The trustee informs that the claim should be allowed, stating that such claim is excluded from the economic emergency laws and that it must be converted into Argentine currency at the free exchange rate the date of the bankruptcy order.
I. From the analysis of the evidence submitted by the [Seller], it is shown that the following documents have been filed: an invoice (Cost & Freight conditions, Buenos Aires, Argentina), a copy of the bill of lading (Port of Loading: Valencia; Port of Unloading: Buenos Aires), a copy of the plant health certificate, a copy of the certificate of origin of the goods issued by the Chamber of Commerce, Industry and Shipping, and a copy of the packing list.
In this regard, considering the favorable opinion reported by the trustee in bankruptcy, the existence and cause of the claim are hereby considered duly proved, thus, the proof of claim shall be allowed.
II. In relation to the nature of the claim, pursuant to Section 248 of the Reorganization and Bankruptcy Act, it shall be an unsecured claim.
III. As regards the currency in which the claim shall be allowed, there are two issues, different in nature, which are impossible to compare but which it is vital to distinguish: on the one hand, the claim and the governing law in relation to the merits of the credit regarding its kind and nature (international sale of goods) and, on the other hand, the reorganization proceedings governing the proof of claim, its kind and the claim filing procedure. In other words, on the one hand, there is the existence of the claim to be proved and, on the other, the role of such claim within the bankruptcy proceeding.
It is clear that the proof of claim of a Spanish exporter is governed by the Argentine Conflict of Laws on bankruptcy matters which state the applicability of the lex fori to the bankruptcy proceeding since it is the law of the domicile of the debtor (Sections 3, 4 and agreeing ones of the Reorganization and Bankruptcy Act). Nevertheless, it is necessary to determine (i) whether, in the framework of this bankruptcy proceeding, regarding the kind and nature of the claim and its governing law, the creditor holds an enforceable claim against the debtor, and (ii) the scope and amount of such claim, if applicable.
Both reports render identical opinions in relation to the law governing the claim. In fact, the contractual relationship between the parties, arising from the evidence herein, does not express any choice by the parties with regard to the governing law in case of conflict. That is to say, the evidence herein does not prove the existence of an express agreement on the choice of the local law as the governing law of the contract and this determines the fact that the contract shall be governed by its own material rules and the rules of local private international law shall only be applicable by default and, in case the parties have not chosen to settle their conflicts under a certain law, to determine the law governing the contract with respect to all those issues that parties have not considered by virtue of the exercise of their material autonomy.
According to what has been said, in this case, pursuant to the terms and conditions of the contract and considering the lack of reference made by the parties with respect to the governing law in the event of any controversy, the substance of the transaction shall be governed by the Argentine conflict of laws in connection with international contracts (in this case, the Vienna Convention on Contracts for the International Sale of Goods 1980, in force between Argentina and Spain and Sections 1209 and 1210 of the Civil Code.)
The submitted evidence confirms the existence of a claim duly proved in relation to its existence and enforceability, in which the parties agreed to an international sale of goods with clearly and intentionally stated terms and conditions, where it was consented to submit the transaction to a Cost & Freight clause, referring to the terms of the "International Rules for the Interpretation of Trade Terms" of the Paris International Chamber of Commerce.
It is worth mentioning that such "Terms" have the purpose of providing a set of optional international rules which state the interpretation of the main terms employed in contracts for the international sale of goods in relation to the delivery of goods, passing of risk, expense distribution as well as the documentary procedures necessary to cross the borders of the different countries. In this case, in connection with the agreement on the abovementioned clause (Cost & Freight), international custom dictates that the law of the place of shipping shall govern the case, and that such place is generally the same place of seller's domicile (cf. Boggiano, A. "Derecho Internacional Privado", T. II p. 384).
It is worth noting the fact that, when parties have not made any express reference to such rules as INCOTERMS 2000, as in this case, but a contract for the sale of goods is entered into with a simple reference to any of the terms of the aforementioned rules, the agreed clause shall govern the case if it does not clash with the rules and customs generally applicable to the corresponding transaction. It must be stated that the Vienna Convention on Contracts for the International Sale of Goods, governing this case, states in article 9 that parties are bound by any usage to which they have agreed and by any practices which they have established between themselves, but it is considered that parties have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.
In this case, although the place of performance has not been expressly agreed upon (Section 1212 of the Civil Code), it may be affirmed, unequivocally, that the place of performance is implicitly but clearly stated when, the seller having its domicile in Spain, the delivery of the goods is agreed in accordance with a Cost & Freight clause, shipment in Valencia. There is no doubt that the law of the agreed place of performance was the Spanish law and, by operation of Sections 1209 and 1210 of the Civil Code, the law of the place of performance governs the formation, nature, validity, obligations and any other issue, of any nature, related to the contract. It is further stated that, given the fact that, in this case, parties have not agreed on a clearly stated governing law and the issue has not been foreseen by the Vienna Convention, Argentine conflict of laws (lex fori) shall subsidiarily apply.
Since this is a contract entered into by a Spanish exported and an Argentine importer, the case is governed by Sections 1209 and 1210 of the Argentine Civil Code, which state the applicability of the law of the place of performance -- in this case, Spanish law -- to the formation, nature, validity and obligations of the contract, in relation to the issues not foreseen by the parties or the Vienna Convention.
However, such conflict of laws may be set aside, in our country and in this case, by operation of the police power laws deriving from economic emergency laws (Act No. 25561, Executive Order No. 214/02 and agreeing ones) that establish, in principle, for individuals, the "pesification" of those legal relationships arising under the Convertibility Act (Act No. 23982) since such rules are mandatory laws of the lex fori, which cannot be disregarded and shall prevail over parties' will. Nevertheless, this case is an exception provided by police power laws in Executive Order No. 410/02.
Indeed, [Seller]'s claim does not fall within the scope of the statutory currency conversion into pesos set forth in Section 1 of Executive Order No. 214/02 because it is a private sector transaction to pay a sum of money in foreign currency, for which performance the foreign law shall apply (Spanish law) since it is an event expressly considered in Executive Order No. 410/02, Section (1), subsection (e) and in Regulations A 3507, 3561, 3566 issued by the Central Bank of the Argentine Republic that excludes the obligations to pay a sum of money in foreign currency of the public or private sector from the currency conversion into pesos. Given the fact that Spanish law shall govern this case, the claim shall be allowed in foreign currency.
IV. With regard to the costs, each party shall bear its own pursuant to Section 202 of the Reorganization and Bankruptcy Act.
Now wherefore, it is ordered that:
1. The claim filed by the [Seller] be allowed for the amount of US $23,025.63 as an unsecured claim (Section 248 of the Reorganization and Bankruptcy Act), the amount which shall be converted into Argentine currency at the exchange rate of the bankruptcy order date, pursuant to the reasons hereinbefore and Section 127 of the Reorganization and Bankruptcy Act.
2. Each party shall bear its own costs.
María Elsa Uzal
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Spain, Cosvega S.L., is referred to as [Seller] and Defendant of Argentina, Autoservicio Mayorista La Loma S.A. is referred to as [Buyer].
Economic emergency laws: set of rules which declared the economic emergency and converted debts entered into in a foreign currency into debts in Argentine currency ("pesificación") at a fix statutory rate.
** Juan Manuel Falabella was a participant in the 16th annual Willem C. Vis International Commercial Arbitration Moot representing the School of Law, Universidad de Buenos Aires, where he will receive his law degree cum laude. He has attended the Summer Institute in International and Comparative Law, Stetson University, and has Sworn Legal Translation credentials, School of Modern Languages, Pontificia Universidad Católica Argentina. He is currently a Legal Assistant at the Buenos Aires law firm of Hope, Duggan & Silva.Go to Case Table of Contents