Belgium 10 May 2006 Commercial Court Hasselt (Scanlift Nederland BV v. Belgium Coach Service BVBA) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060510b1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: A.R.06/1436
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Netherlands (plaintiff)
BUYER'S COUNTRY: Belgium (defendant)
GOODS INVOLVED: [-]
Reproduced from CISG-Belgium database
"An interest rate (such as the one provided by EU-Directive 2000/35) that does not only want to compensate the creditor, but that also wants to sanction late payment and that wants to give an incentive for timely payment, is not in accordance with the international context of the CISG.
"The interest rate should be determined in an international way and thus not by the lex contractus. Therefore, the interest rate of the ECB is used."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:
78B [Rate of interest]
78B [Rate of interest]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Dutch): CISG-Belgium database <http://www.law.kuleuven.ac.be/ipr/eng/cases/2006-05-10%20Hasselt.html>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
10 May 2006 [A.R.06/1436]
Translation by Kristof Cox [*]
This is a case about an international sale and a buyer who has paid untimely. In relation to interest, the seller invokes the Belgian Act of 2 August 2002 on compensation for delay in payment in commercial transactions.
The claim is justified lacking any defense except for what concerns the award of interest.
It is not self-evident that the Belgian Act of 2 August 2002 on compensation for delay in payment would be applicable, since this is a transaction between Defendant, a Belgian buyer, and Plaintiff, a Dutch seller.
There are two objections to this: if internal law were to be applied to determine the interest, than this would have to be the law of the lex contractus, in this case Dutch law. Dutch law has transposed Directive No. 2000/35 of 29 June 2000 concerning compensation for delay in payment in commercial transactions, differently from the Belgian Act of 2 August 2002, with respect to the interest rate. Furthermore, the interest rate, determined by the Directive, does not only have the intention to reimburse the creditor for the loss of funds, but is also intended as a sanction for late payment and an incentive to pay in a timely manner. The latter seems contradictory to the international context in which the CISG must be considered (cf. Van Houtte H., "Vergoeding wegens laattijdige betaling" in Van Houtte H., Erauw J. and Wautelet P. (eds.), Het Weens Koopverdrag, Intersentia, Antwerp, 1997, 279).
In these matters, article 78 of the CISG is applicable.
Article 78 CISG however, does not determine the rate for the calculation of interest. Learned authors are of the opinion that the concept has to be viewed in an international context and that the interest rate of the lex contractus (in this case Dutch law) should not be applied (Van Houtte H., "Vergoeding wegens laattijdige betaling" in Van Houtte H., Erauw J. and Wautelet P. (eds.), Het Weens Koopverdrag, Intersentia, Antwerp, 1997, 270). We agree with learned authors who suggest applying the interest rate of the European Central Bank (ECB) (Dursin E., Raakvlakken en afgrenzing tussen het Weens Koopverdrag en het gemeen recht, in "Internationale aspecten in de verschillende takken van het recht", De Boeck en Larcier, Brussels, 2005, 243). In these circumstances the Court applies the interest rate of the marginal loan facility of the ECB, being 3.50 + 2 = 5.50 %.
* Kristof Cox is a researcher at the Institute for International Trade Law at the Catholic University of Leuven (Belgium). He is preparing a Ph.D. on the effects of an arbitration award on third parties. Further, he regularly publishes articles and casenotes on the CISG and International Commercial Arbitration. Kristof Cox can be contacted at <firstname.lastname@example.org>.
All translations should be verified by cross-checking against the original text.Go to Case Table of Contents