Serbia 23 August 2004 High Commercial Court [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040823sb.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: Pě. 1937/2004/2
CASE HISTORY: Unavailable
LITIGANT'S COUNTRY: Yugoslavia (at time of the dispute State Union of Serbia and Montenegro)
COUNTER-LITIGANT'S COUNTRY: Germany
GOODS INVOLVED: [-]
APPLICATION OF CISG: Stating that the facts point to the application of the CISG via Article 1(1)(a) or 1(1)(b), the Appellate Court remanded the case back to the Court of First Instance for it to determine the applicable law.
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Serbian): Click here for excerpt from Serbian text (published as Paragraf Lex database of Serbian court decisions)
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
Decision of 23 August 2004 [Pz 1937/2004/2]
Translation [*] by Marko Jovanovic, LL.M.
Edited by Dr. Vladimir Pavic, Milena Djordjevic, LL.M. [**]
In a dispute arising out of international sale of goods the court must determine the applicable substantive law.
REASONS FOR THE DECISION (EXCERPT)
The dispute at hand arises out of an international sale of goods. The dispute contains a foreign element. The crucial question is what law should be applied, since the parties did not select the applicable law. The question is therefore to determine the applicable law.
The Court of First Instance applied the provisions of domestic law on the subject-matter, but it did not state the reasons for doing so.
Both legal doctrine and practice are familiar with the tacit exercise of party autonomy. The tacit exercise of party autonomy, or the implicit choice of law, is deemed to have taken place when the parties did not expressly select the applicable law, but it can be concluded from the contract and from the facts of the case that that they had an applicable law in mind and that they wanted the application of that law. However, if the court found that this was the case, it should have stated the reasons which led it to the conclusion that the parties had implicitly chosen the domestic regulation that would govern the subject-matter in a purely internal transaction.
The Appellate Court reminds of the existence of the United Nations Convention on Contracts for the International Sale of Goods which serves to govern the international sale of goods. This Convention was signed in Vienna on 11 April 1980 and it entered into force on 1 January 1988. Both Yugoslavia (at present: State Union of Serbia and Montenegro) and FR Germany are Parties to the CISG. Yugoslavia has been a party to the CISG since 27 March 1985 and Germany since 21 December 1989 (the dates indicated are the dates of ratification or accession).
Pursuant to Article 1 of the CISG, the Convention applies to contracts for the sale of goods between parties whose places of business are in different States: (a) when the States are Contracting States or (b) when the rules of private international law lead to the application of the law of a Contracting State.
When ratifying the CISG, Yugoslavia did not make any reservations within the meaning of Article 95 of the CISG, so the provision contained in Article 1(1)(b) is to be considered binding upon the courts in the State Union of Serbia and Montenegro, as it constitutes an integral part of the domestic legal system.
Several situations in which a court in the State Union of Serbia and Montenegro would have to apply the CISG on the basis of the rules of private international law can be identified (this, of course, if the CISG was not applied on the basis of Article 1(1)(a)).
Accordingly, since the dispute at hand arises out of international sale of goods, the Court of First Instance should determine the applicable law. At present, the facts of the case point to the application of the CISG either pursuant to Article 1(1)(a) or pursuant to Article 1(1)(b).
When the Court of First Instance determines the applicable law, it shall establish all legally relevant facts important for the application of that law and then, on the basis of that new and more exhaustive factual background, it shall render a new decision in this matter.
* 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 d 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.Go to Case Table of Contents