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CISG CASE PRESENTATION

Ukraine 10 October 2003 Tribunal of International Commercial Arbitration, Ukrainian Chamber of Commerce and Trade [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/031010u5.html]

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

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Case identification

ASSIGNED DATE OF DECISION 20031010 (10 October 2003)

JURISDICTION: Arbitration ; Ukraine

TRIBUNAL: Tribunal of International Commercial Arbitration at the Ukrainian Chamber of Commerce and Trade

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: Unavailable

CASE HISTORY: Unavailable

BUYER / SELLER: United States (claimant]

BUYER / SELLER: Ukraine (respondent)

GOODS INVOLVED: Unavailable


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 4

Classification of issues using UNCITRAL classification code numbers:

4A [Scope of Convention (issues covered): barter transactions]

Descriptors: Scope of Convention ; Barter transactions

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Russian): Gazeta "Advokatura", No. 4, 10 October 2003

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Tribunal of International Commercial Arbitration
at the Ukrainian Chamber of Commerce and Trade

Date assigned to case: 10 October 2003
[Date of case currently unavailable: assigned date is
date the case was published in Gazeta "Advocatura"]

Translation by Mykhaylo Danylko [*]

The Claimant, a US company, filed with the Tribunal of International Commercial Arbitration at the Ukrainian Chamber of Commerce and Trade (Tribunal) a claim against the Respondent, a Ukrainian company, in order to recover a debt.

The parties had agreed in their contract that Ukrainian law would be applicable [to their relations].

The subject of the contract was the barter of the goods equivalent in their costs.

The Claimant alleged that according to the provisions of the contract he delivered his agreed goods in October 1996, but the Respondent during the January-February 1997 failed to deliver to the Claimant its agreed goods in the sum equivalent to the cost of the goods delivered by the Claimant to the Respondent. The Respondent admitted this fact on 21 March 1997.

On 16 March 2001, the Claimant filed an action with the Tribunal and explained that he had concluded an assignment agreement on the debt of the Respondent. This assignment agreement was rescinded on 7 April 1998.

The Respondent believed that the claim should be dismissed since the certificate of verification of 21 March 1997 was signed during the period when the Claimant, as a party to the contract, was free from his obligation because from 15 March 1997 till 7 April 1998 the assignment agreement on the Respondent's debt concluded between the Claimant and the third party was in force, therefore the statute of limitation was not prolonged in virtue of Art. 20 of the UN Convention on Limitation of Actions 1974 [Limitation Convention].

Arbitrating the case on the merits, the Tribunal followed from the parties' agreement to apply to their disputes the material laws of Ukraine, the UN Convention on Contracts for the International Sale of Goods (Vienna 1980) [CISG], and the UN Limitation Convention (both countries are Contracting States to the mentioned Conventions).

Hearing the motion of the Respondent on the expiration of the statute of limitation regarding the Claimant's action, the Tribunal, on the basis of the circumstances of the case, found that considering the terms of deliveries of the goods and according to Art. 8 of Limitation Convention, the running of the statute of limitation starts from the day when accrued the right to demand, i.e., in the present case from 1 March 1997. Art. 8 of the Limitation Convention sets a four-year statute of limitation; thus it expired on 1 March 2001 in relation to the action of the Claimant.

The Tribunal found reasonable the allegation of the Claimant on the cessation of the statute of limitation referring to the fact that:

     -   A certificate of verification of settlement of the payments of 21 March 1997 was signed by the parties to the contract during the period when the Claimant already was not a creditor to the Respondent on the basis of the assignment agreement on the Respondent's debt concluded between the Claimant and the third party;
 
     - The title and the language of the certificate of 21 March 1997 as a certificate of verification of settlement of the payments with a specification in it of the cost and quantity of the goods delivered by both parties with the aim to deduce the balance of payments evidence that, on the moment of signing of the present certificate, the parties had an aim to revise the volume of mutual deliveries between the parties under the contract.

Pursuant to Art. 13 of the 1974 Limitation Convention, the running of the statute of limitation is interrupted by filing of action by the Claimant in accordance with the established procedure. In accordance with the stamp of registration of the incoming correspondence of Tribunal, the case materials were filed with the Tribunal in accordance with Art. 5.1 of the Rules of Tribunal, i.e., after expiration of the statute of limitation.

Under such circumstances, pursuant to Art. 25(1) of the Limitation Convention, the dismisses the claims of the Claimant.


FOOTNOTE

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

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

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Pace Law School Institute of International Commercial Law - Last updated June 17, 2004
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