Russia 14 April 2005 Arbitration Court [Appellate Court] for the North West Area [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/050414r1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: A56-13238/04
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany
BUYER'S COUNTRY: Russia
GOODS INVOLVED: Reinforced concrete pipes
RUSSIAN FEDERATION: North-West Area Federal Arbitration Court
Case No. A56-13238/04 of 14 April 2005
Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/113],
CLOUT abstract no. 1113
Reproduced with permission of UNCITRAL
A German company (the seller) sued a Russian organization (the buyer), seeking the restitution of moneys forming part of the purchase price in a contract for the international sale of goods (reinforced concrete pipes). The court rejected the claim.
The court of appeal upheld that decision.
The German company contested the decision of the court of appeal, on the grounds that the respondent had misused its rights. The court of cassation upheld the decision of the court of first instance, on the following grounds.
On 6 September 2001, the parties had concluded an agreement, stating that "on the basis of the proposal made by the company, a contract will be concluded for the manufacture and delivery of reinforced concrete pipes". When the company did not receive payment for the finished goods, it asked the Russian organization for payment of the price under articles 53 and 62 CISG.
The lower courts rightly stated that there was no contract between the parties. In support of this conclusion, they indicated that the agreement between the parties dated 6 September 2001 could not be considered a contract or an offer by the seller under article 14 CISG, since it did not include precise details about the seller or buyer. The courts did not deem the letter sent by the Russian organization to be an acceptance, since the wording did not confirm the formation of a contract under the conditions stated in the agreement of 6 September 2001.
The lower courts concluded that the plaintiff had not submitted evidence proving that it had duly fulfilled its obligation to supply the goods or that the goods had been received by the respondent. In support of that conclusion, the courts referred to the fact that, according to information received from the Russian Federation Customs service, a different Russian company had obtained concrete pipes from a different seller. No bank documents were recorded relating to payment for the delivery referred to in the claim. The plaintiff had not proved that it had submitted its claim to the correct respondent, i.e. to the entity with which the plaintiff had actually concluded a contract under the conditions stated in the agreement of 6 September 2001.Go to Case Table of Contents
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
14 [Criteria for an Offer]; 53A [Obligation to pay price of goods]; 62A [Seller may compel performance of any of buyer's obligations]
14 [Criteria for an Offer];
53A [Obligation to pay price of goods];
62A [Seller may compel performance of any of buyer's obligations]
CITATIONS TO OTHER ABSTRACTS OF DECISION
CITATIONS TO TEXT OF DECISION
Original language (Russian): online database of court judgements <http://kad.arbitr.ru>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [first draft]
Queen Mary Case Translation Programme
Translation [*] edited by Yaroslava Sorokhtey, Dmytro Galagan [**]
Federal Arbitration Court of the Northwestern Region, comprised of the Presiding Judge Lavrinenko N.V., Judges Maryankova N.V. and Matlina E.O., in the presence of Mozgo O.A., the representative of [Seller] (power of attorney of September 27, 2004), and Filatova E.N. (power of attorney of May 19, 2004), the representative of the [Buyer], heard in the open court the cassation complaint of [Seller] on the decision of September 21, 2004 (Judge Vasilieva N.A.) and the appellate decision of December 1, 2004 (Judges Khairullina Kh.Kh., Kozhemyakina E.V., Nesmiyan S.I.) of the Arbitration Court of the City of Saint Peterburg and Leningrad Oblast in the case No. A56-13238/04,
[Seller] brought a suit at the Arbitration Court of the City of Saint Peterburg and Leningrad Oblast against the [Buyer] for the recovery of EUR 100,000, comprising part of the purchase price under the contract of September 6, 2001 for the supply of concrete pipes.
Court decision of September 21, 2004, upheld by the appellate decision of December 1, 2004, denied the claim.
In its cassation complaint [Seller] requests to reverse the decision and the appellate decision, and to render a new decision on satisfaction of the claim, referring to the abuse of law by the defendant. The cassation complainant alleges that the suit is brought against a proper defendant, and conclusions reached in the appealed court decisions are unfounded.
At the court hearing the representative of [Seller] confirmed the claims made in the cassation complaint and asked to grant the requested relief.
The representative of the [Buyer] asked to affirm the decision of the court and the appellate decision.
The legality of the court decisions was examined by the court of cassation.
As follows from the case, [Seller] and the [Buyer] on September 6, 2001 entered into an agreement (Case Vol. 1, p. 58, 59), which specified that “pursuant to a proposal offer made by [Seller], a contract on the manufacturing and supply of concrete pipes will be concluded. The total price under the contract is DM 2,256,000”.
Having received no payment for the goods, [Seller] brought an action at the Arbitration Court against the [Buyer] for recovery of EUR 100,000 under the Articles 53 and 62 of the United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on April 11, 1980.
While denying the claim, the Court rightfully pointed out the absence of contractual relations between the parties. To support this conclusion, the Court stated that the agreement of September 6, 2001 does not constitute an offer within the meaning of Article 14 of the Vienna Convention, since the agreement does not name the parties to the contract and there is no information regarding the supplier and the buyer. Also, the Court did not find the letter from the [Buyer] (Case Vol. 1, p. 70) to be an offer, since its text does not confirm the conclusion of a contract on the terms of the agreement of September 6, 2001.
By virtue of Article 65 of the Arbitration Procedural Code of the Russian Federation, each person involved in the case shall prove the circumstances which it refers to as the basis of its claims and objections.
Upon careful examination of the circumstances of the case the court came to the correct conclusion that the plaintiff had not presented evidence of the proper performance of the obligation to supply the goods and of the goods delivery to the defendant. To support its conclusion, the court referred to the fact that according to the Baltic Customs Office, concrete pipes were received by the LLC Spektr; however, not from the plaintiff, but from another seller, Shipford Limited (USA). Currency transaction passport for the transaction, which is a basis for this suit, was not issued.
The court also pointed out the lack of evidence of the fact that the action is brought against the proper defendant, that is, against a person with whom the plaintiff entered into contractual relations under the terms of the agreement of September 6, 2001, from whom the plaintiff, as it alleges, received acceptance.
In view of the abovementioned considerations, the cassation court does not find grounds to reverse the court decisions made according to the law and on the basis of the facts of the case.
The arguments presented in the cassation complaint are aimed at the re-assessment of the evidence, which is inacceptable by virtue of Article 286 of the Arbitration Procedural Code of the Russian Federation.
Pursuant to Articles 286, 287, 289 of the Arbitration Procedural Code of the Russian Federation, the Federal Arbitration Court of the Northwestern Region.
To affirm the decision of September 21, 2004 and the appellate decision of December 1, 2004 of the Arbitration Court of the City of Saint Petersburg and Leningrad Oblast in the case No. A56-13238/04, and to leave the cassation complaint of [Seller] without satisfaction.
* All translations should be verified by cross-checking against the original text.
**Dmytro Galagan is an intern at the Association for International Arbitration. He can be reached at email@example.com. Yaroslava Sorokhtey [bio to be added].Go to Case Table of Contents