Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

Russia 26 May 2003 Arbitration Court [Appellate Court] for the Moscow Region [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030526r1.html]

Primary source(s) of information for case presentation: Case text

Case Table of Contents


Case identification

DATE OF DECISION: 20030526 (26 May 2003)

JURISDICTION: Russian Federation

TRIBUNAL: Federal Arbitration Court for the Moscow Region

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: KG-A40/3225-03

CASE NAME: Barse Trading Limited v. Selkhozpromexport

CASE HISTORY: 1st instance Arbitration Court for the City of Moscow (A40-37908/02-30-389) 23 January 2003 [affirmed]; 2d instance Appellate Division of the Arbitration Court for the City of Moscow 24 March 2003 [affirmed]

SELLER'S COUNTRY: Russian Federation (respondent)

BUYER'S COUNTRY: Cyprus (claimant)

GOODS INVOLVED: Barter transaction (coal is one of the products)


Classification of issues present

APPLICATION OF CISG: No, Convention held inapplicable to barter transactions

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 4

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (issues excluded): barter transactions]

Descriptors: Scope of Convention

Go to Case Table of Contents


Editorial remarks

Go to Case Table of Contents


Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=958&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Russian): Unavailable

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

Go to Case Table of Contents


Case text (English translation)

Queen Mary Case Translation Programme

Federal Arbitration Court for the Moscow Region of the Russian Federation
Case No. KG-A40/3225-03 of 26 May 2003

Translation by Yelena Kalika [*]

Translation edited by Mykhaylo Danylko [**]

The Federal Arbitration Court for the Moscow Region has found the following:

The firm "Barse Trading Limited" commenced an action with the Arbitration Court for the City of Moscow.† The action was brought against the state-owned enterprise the All-Russian International Trade Association "Selkhozpromexport" ("Selkhozpromexport").† The purpose of the action was to enforce contracts No. 260-2/1 (7204945700), No. 260-9/1 (2704235110) and to require the Respondent to deliver 6,061.41 tons of coal to the Claimant.

In its decision on case No. A40-37908/02-30-389 of 23 January 2003, the Arbitration Court for the City of Moscow denied all the claims, upholding the Respondentís allegation made before the Court rendered the decision that the statute of limitation had run out.

In its resolution of 24 March 2003, the appellate division of the Arbitration Court for the City of Moscow sustained the decision of the lower court of 23 January 2003 on case No. A40-37908/02-30-389.

In this cassational appeal of the decision of 23 January 2003 and the resolution of the appellate division of the Arbitration Court for the City of Moscow of 24 March 2003 on case No. A40-37908/02-30-389, the Claimant requests that the said judicial acts be reversed on the basis that they were rendered in violation of the rules of material law (the Constitution of the Russian Federation, the Convention on Contracts for the International Sale of Goods, a custom established between the businessmen in Cyprus, international trade practice, the Convention on the Statute of Limitation in the International Sale of Goods) were applied incorrectly. The Claimant also requests that the case be remanded.

There was no answer to Claimantís cassational complaint.

The lawfulness of a judicial act should be determined upon the Claimant's cassational complaint in accordance with Articles 274, 284-286 of the Russian Federation Code of Arbitration procedure.

During the hearing held by the court of review, the Respondent's representative argued that the cassational complaint should not be satisfied as the judicial decisions were lawful and reasonable and the claims in the cassational complaint were unreasonable.† The Claimant's representative, although duly notified of the time and place of the hearing, did not appear before the court.

After reviewing the materials of the case, after discussing the arguments set in the cassational complaint and after hearing the arguments of the Respondent's representative, the cassational division finds no grounds for reversal of the contested judicial acts.

When denying the claims, the court pointed out that the statute of limitation, set forth in the current laws for the obligations in controversy, had run out.† The statute of limitation was applied by the court in accordance with Article 199(2) of the Civil Code of the Russian Federation upon receipt of an application of "Selkhozpromexport" submitted prior to the court's reaching its decision.

The lawfulness of the conclusions made by the lower court was confirmed by the appellate division which reviewed the dispute anew in accordance with Articles 266 and 268 of the Arbitration Procedural Code of the Russian Federation.

The cassational division does not find any breach in application of material and procedural laws, which could serve as a ground for reversal, on the part of the court.

The claims set in the cassational complaint were closely reviewed by the court.† However they should be denied as unreasonable and since they contradict the materials of the case and the court's findings.

The Claimant's claim that, when adjudicating the case, the court should have applied the provisions of the Convention on Contracts for the International Sale of Goods [CISG] of 11 April 1980 is also without merits. As follows from the contracts in controversy and from the court's findings, the obligations of the parties arose from barter contracts.† The analysis of the text of the CISG gives no ground for concluding that its provisions govern, among other things, barter transactions.† Besides, due to the existing peculiarities of such transactions, not every provision of the Convention could be applied to them. The court's conclusion that, according to Article 166(1) of the Principles of Civil Law of the USSR and Republics, [internal] Russian law should be applied to this dispute resulting from an international commercial transaction is correct.

The Respondent's argument that the term of the statute of limitation should be determined in accordance with customs established between businessmen in Cyprus is unreasonable.

In accordance with Article 159 of the Fundamentals of Civil Law of the USSR and Republics (it was mistakenly cited to Article 566.2 of the Civil Code of the Russian Soviet Federative Socialist Republic 1964 in the decision of the court), which was in force at the time when the contracts in controversy were concluded, the issues of the statute of limitation shall be resolved in accordance with the laws of the State governing the relevant relationship. Therefore, the court's conclusion that the statute of limitation set by the Russian (Soviet) law should be applied is correct.

The Claimant's reference to the provisions of the Convention on the Statute of Limitation in the International Sale of Goods of 14 June 1974, which sets forth a four-year statute of limitation in the case of such contracts, is also unreasonable since the Russian Federation is not a signatory of the said Convention.

For the above reasons and in accordance with articles 284, 286-289 of the Arbitration Procedural Code of the Russian Federation, the Federal Arbitration Court for the Moscow Region holds:

The decision of 23 January 2003 and resolution of the appellate division of the Arbitration Court for the City of Moscow of 24 March 2003 on case No. A40-37908/02-30-389 are sustained. The cassational claim of the firm "Barse Trading Limited" is denied.


FOOTNOTES

* 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.

All translations should be verified by cross-checking against the original text.

** Mykhaylo Danylko is a Partner with the law firm Danylko, Kushnir, Soltys & Yakymyak, Attorneys & Counselors at Law, Kiev, Ukraine <http://www.dksylaw.com>. He holds a Masters of Laws (European Studies Program) from the Law School of International Science and Technology University, Kiev, Ukraine (July 2000); a Master of Management in Business of the Business School of International Science and Technology University (June 2002); and has received his LL.M. in International and Comparative Law at the Pace University School of Law.

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated September 23, 2004
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography