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CISG CASE PRESENTATION

Serbia 9 July 2004 High Commercial Court [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040709sb.html]

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

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Case identification

DATE OF DECISION: 20040709 (9 July 2004)

JURISDICTION: Serbia

TRIBUNAL: High Commercial Court

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Pě. 1006/2004/1

CASE NAME: Unavailable

CASE HISTORY: Unavailable

CLAIMANT'S COUNTRY: Slovenia

RESPONDENT'S COUNTRY: State Union of Serbia and Montenegro

GOODS INVOLVED: [-]


Classification of issues present

APPLICATION OF CISG: Slovenia and the State Union of Serbia and Montenegro are Contracting States of the CISG. The contract did not specify the applicable law. The applicable rules of private international law pointed to the law of the State Union of Serbia and Montenegro. The Court applied the Law on Contract and Torts of the State Union of Serbia and Montenegro based on connections of the contract to that State and the fact that the parties pleaded that Law before the Court of First Instance.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 6

Classification of issues using UNCITRAL classification code numbers:

6A1 [Implied exclusion of Convention: pleading of otherwise applicable domestic law]

Descriptors: Choice of law

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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 (Serbian): Click here for excerpt of Serbian text [published at Paragraf Lex database of Serbian court decisions]

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

High Commercial Court in Belgrade

Judgment of 9 July 2004

Translation [*] by Marko Jovanovic, LL.M.
Edited by Dr. Vladimir Pavic, Milena Djordjevic, LL.M. [**]

[...]

RULING

Absent the explicit choice of law made by the parties, the implicit choice of law is to be applied. The implicit choice of law is deemed to have taken place when the parties have not expressly selected the applicable law but it can be concluded from the contract and from the facts of the case that they had an applicable law in mind and wanted its application. Such implicit choice of law may be evidenced in the choice of court of a certain State - the court in the State Union of Serbia and Montenegro and the application of its law.

REASONS FOR THE DECISION (EXCERPT)

Pursuant to Article 365 of the Law on Civil Procedure, the High Commercial Court has examined the judgment against which the Respondent has submitted a request for appeal and found that the Respondent's request is not grounded.

Since the Claimant is a company with its seat in the Republic of Slovenia, and the Respondent is a company with the seat in the State Union of Serbia and Montenegro, the case at hand is regarded as an international sale of goods.

Consequently, the issue of applicable law needs to be considered. Absent the explicit choice of applicable law, the legal doctrine and practice recur to the concept of implicit choice of law. The implicit choice of law is deemed to have taken place when the parties have not expressly selected the applicable law but it can be concluded from the contract and from the facts of the case that they had an applicable law in mind and wanted its application. The court shall determine the implicit choice of law if the indications thereof are beyond any reasonable doubt. The indications of the implicit choice of law are: 1) the choice of court of a certain State, 2) the fact that in their contract the parties invoke legal provisions of a certain national law or use specific terms that are characteristic to a certain national law, 3) the fact that the parties use model contracts or general terms of business based on a certain national law, 4) the choice of language of the contract, 5) the choice of currency, 6) the fact that the parties jointly contracted for the place of (mutual) performance or the conclusion of the contract, 7) the fact that the contracting parties have the same nationality or the seat, etc. Other circumstances, alone or combined, may also suggest the existence of the implicit choice of law. It is important, however, that the indications are strong, unambiguous and that they do not easily allow for different interpretations. It should not be disregarded that the essential trait of party autonomy consists in avoidance of uncertainty with respect to the choice of applicable law. Therefore, it would not make much sense to venture into examining a "choice" that gives rise to controversies and different interpretations.

In the case at hand, the implicit choice of law of the State Union of Serbia and Montenegro is evidenced by the choice of court from this territory and the fact that the parties jointly contracted for the place of mutual performance of obligations to take place here. Furthermore, not only did the parties refrain from objecting to the application of the law of the State Union of Serbia and Montenegro, i.e., the Law on Contracts and Torts during the proceedings before the Court of First Instance, but both of them even invoked its provisions. Therefore, the Court of First Instance has rightfully applied the law of the State Union of Serbia and Montenegro (the Law on Contracts and Torts in concreto) to the case at hand, bearing in mind the implicit choice of law made by the parties.


FOOTNOTES

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

** Marko Jovanovic, LL.M. (U. of Belgrade) is a Doctorate student at the University of Paris 1 - Panthéon Sorbonne and at the University of Belgrade. 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.

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Pace Law School Institute of International Commercial Law - Last updated September 9, 2009
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