Serbia 9 May 2003 Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of
Commerce (Equipment installation case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030509sb.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: T-13/02
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Serbia
BUYER'S COUNTRY: France (respondent)
GOODS INVOLVED: Installation of steel construction and electric equipment
APPLICATION OF CISG: No [Article 3(2)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
3B [Services preponderant part of obligation]
3B [Services preponderant part of obligation]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Serbian): Click here for case text
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
Serbian:  Vladimir Pavić, Milena Djordjević, Primena Becke konvencije u arbitraznoj praksi Spoljnotrgovinske arbitraze pri Privrednoj komori Srbije, Pravo i privreda br. 5-8/2008, cited at pp. 578, 585.Go to Case Table of Contents
Award of 9 May 2003 [Proceedings No. T-13/02]
Translation [*] by Ugljesa Grusić, LL.M.
Edited by Dr. Vladimir Pavić, Milena Djordjević, LL.M. [**]
Claimant [Seller] v. Respondent [Buyer]
V. SUBSTANTIVE AND PROCEDURAL LAW
In the case at hand, the Sole Arbitrator should apply the substantive law chosen by the parties to govern their contractual relationship as provided in Article 46(1) of the Rules.
At the hearing of 9 May 2003, the representatives of the parties stated that they accept the application of the Yugoslav law in the present case.
When determining which rules of the Yugoslav law should be applied in the present case, the Arbitrator concluded that they should be primarily those contained in the UN Convention on Contracts for the International Sale of Goods (Vienna 11 April 1980, hereinafter: the Vienna Convention), which was ratified by Yugoslavia on 27 March 1985, and approved by France on 6 August 1982. After ratification, i.e., approval, an international convention becomes lex specialis in relation to national laws and is to be applied directly. The mandatory character and direct application of this Convention, and all other conventions that are ratified and have entered into force, is derived from Article 6 of the Constitution of the Federal Republic of Yugoslavia.
However, pursuant to Article 3(2), the Vienna Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labor or other services.
On the hearing of 9 May 2003, the representative of the [Seller] stated that, to the best of his knowledge, the subject of the contract was the installation of the equipment, while the representative of the [Buyer] stated that he was certain that the subject of the contract was exclusively the installation of the equipment, i.e., labor and services, regardless of what was written in the contract and the annex to it. Afterwards, it was clear that the Vienna Convention cannot be applied in the present case, and the Arbitrator did not apply it, regardless of the fact that it is a part of Yugoslav law and is directly applicable.
Therefore, the Arbitrator applied the Yugoslav Law on Contracts and Torts (Official Gazette of SFRY no 29/78 with later amendments, hereinafter: the Law).
VII. DISPUTED ISSUES AND EVALUATION OF EVIDENCE
If one looks at the submitted contract [...], one can conclude that it was concluded between the Respondent, referred to in the contract as "Buyer" and the Claimant, referred to in the contract as "Exporter", who contracted in its name, but for the account of a company Z, referred to in the contract as "Seller" [...] Article 1 of the contract defines its subject-matter as: installation of the steel construction, electric equipment and other equipment delivered by the Buyer, in accordance with Annex 1. Article 2 stipulates the price of the entire transaction, as defined in Annex 1 [...]
The second issue that arose between the parties was the question of classification of the contract [...]
Considering the concurring statements made by the parties at the hearing of 9 May 2003, regardless of the fact that the contract is not worded in those terms (especially its article 1, which sets out the subject-matter of the contract) the obligation of the [Seller] and its principal, company Z, exclusively consisted in installing the equipment in Belgium; or, if not exclusively, than preponderantly having in mind that it was only company Z that was required to deliver smaller pieces of equipment that it had produced.
|Belgrade, 9 May 2003
|Minutes taken by Ms. D||Single arbitrator|
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of Serbia is referred to as [Seller] and Respondent of France is referred to as [Buyer].
** Ugljesa Grusić, LL.M. (U. of Nottingham) is a Doctorate student at the University of Belgrade Faculty of Law. Dr. Vladimir Pavić is an Assistant Professor of Private International Law and Arbitration Law, and Milena Djordjević, 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