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CISG CASE PRESENTATION

Netherlands 17 January 2007 Rechtbank [District Court] Arnhem (Hibro Compensatoren B.V. v. Trelleborg Industri Aktiebolag) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/070117n1.html]

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

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Case identification

DATE OF DECISION: 20070117 (17 January 2007)

JURISDICTION: Netherlands

TRIBUNAL: Rb Arnhem [Rb = Rechtbank = District Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Rolnummer 146453 / HA ZA 06-1789

CASE NAME: Hibro Compensatoren B.V. v. Trelleborg Industri Aktiebolag

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Sweden (defendant)

BUYER'S COUNTRY: Netherlands (plaintiff)

GOODS INVOLVED: Compensators


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 7(2) ; 8 ; 9 ; 11 ; 12 ; 18(1)

Classification of issues using UNCITRAL classification code numbers:

7C2 [Interpretation of Convention: recourse to general principles on which Convention is based];

8C [Interpretation of party's statements or other conduct (interpretation in light of surrounding circumstances): practices established by the parties, usages];

9C [Usages and practices: practices established by the parties];

11A [Formal requirements: writing or other formality for conclusion of contract not required];

18A [Acceptance of offer (time and manor): criteria for acceptance]

Descriptors: General principles ; Intent ; Usages and practices ; Formal requirements ; Acceptance of offer

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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

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1191&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Website of the Dutch courts <http://www.rechtspraak.nl/>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1191&step=FullText>

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

District Court (Rechtbank) Arnhem

17 January 2007 [146453; HA ZA 06-1789]

Translation [*] by Thorsten Tepasse [**]

Judgment of 17 January 2007 on the incidental plea concerning warranty in the dispute between:

HIBRO COMPENSATOREN B.V. [*],
seated in Barneveld (the Netherlands),
Claimant regarding claim for warranty,
Respondent in the incidental plea,
Proxy: Mr. J.M. Bosnak,
Attorney: Mr. J.A.M. Jonkhout,
hereafter referred to as [Buyer]

vs.

TRELLEBORG INDUSTRI AB [*],
seated in Trelleborg (Sweden),
Respondent regaring claim for warranty,
Claimant in the incidental plea,
Proxy: Mr. F.J. Boom,
Attorney: Mr. M.P.P. de Planque,
hereafter referred to as [Seller]

1. THE PROCEEDING

      1.1. Development of the proceeding so far:

-    The judgment of 26 July 2006 concerning the question of warranty;
- Summons concerning warranty of 26 August 2006 with submission;
- Pleading regarding the incidental plea on the competence of this Court with submission;
- Responding pleading regarding the incidental plea on the competence of this Court with submission.

      1.2. The judgment is handed down concerning the competence of this Court.

2. THE RULING ON THE INCIDENTAL PLEA

      2.1. In the main issue, [Buyer's successor] requested the Court to order [Buyer] to pay compensation for the damages [Buyer's successor] suffered due to the fact that the two Teguflex compensators [Buyer] delivered were defective because of a production fault. [Buyer] challenged this claim and requested to be allowed to demand warranty compensation from [Seller], the party that had supplied the compensators. This request was approved by judgment of 26 July 2006. By summons of 25 August 2006, [Buyer] demanded warranty compensation from [Seller].

      2.2. [Seller] filed an incidental plea requesting the Court to declare itself not competent to rule on the claim filed by [Buyer]. To support its position, it alleged that [Seller]'s General Terms and Conditions were applicable to the contract between [Buyer] and [Seller].

Art. 29 of these terms, hereafter referred to as the "Arbitration Clause" states:

"29. DISPUTES
All disputes, claims, controversies and differences arising out of or in connection with the Contract shall be finally settled by arbitration in accordance with the Swedish Arbitration Act in force at the time. Unless otherwise agreed, the language of the proceedings, the documentation and the award shall be in English. The proceedings shall take place in Sweden. (...)"

      2.3. [Seller] alleges that the Arbitration Clause contained in the general terms is an arbitration agreement in the form used in international trade, i.e., it is a usage the parties knew and which is widely known in international trade and regularly observed by parties to contracts of the type involved in the particular trade concerned. [Seller] and [Buyer] both take part in international trade, where forum selection and arbitration clauses are regularly used. [Seller] alleges that [Buyer] was aware of the general terms. [Buyer] disputed that [Seller]'s general terms were applicable to the contract.

      2.4. The Court would normally have jurisdiction over a claim concerning warranty on the basis of Art. 6 and 2 of the EG-Executieverordening [*].

      2.5. However, there is a threshold question to be decided whether the parties had agreed upon an arbitration clause that would bar this Court from ruling on [Buyer]'s claim. The question has to be answered on the basis of the substantive law which, pursuant to the Private International Law of the Court invoked, is applicable to the contract. In this case, no choice of any national body of laws has to be made, since the Netherlands and Sweden are both parties to the CISG. The CISG is applicable. The CISG is the substantive law that governs this sale of compensators. The formal and temporal applicability of this Convention is present.

      2.6. The question whether the parties agreed to include the [Seller]'s general terms in their contract has thus to be judged by the provisions of the CISG. To determine whether the parties had agreed upon the Arbitration Clause in the instant case, the general principles on which the CISG is based have to be taken into account, pursuant to Art. 7(2) CISG (HR [*] 28 January 2005, NJ [*] 2006/517).

General principles are to be found:

-    First: in Art. 8 CISG, concerning the interpretation of declarations of the parties;
-    Second: in Art. 11 CISG, which provides that agreements between parties may be established without formal requirements (from which it follows that there is no need for formal requirement to agree upon general terms or an arbitration clause); and
-    Third: in the general provisions regarding formation of the contract (Part II, Arts. 14-24 CISG).

      2.7. It is neither alleged nor has it been proven that [Buyer] explicitly accepted [Seller]'s general terms, which contained the Arbitration Clause. Pursuant to Art. 18(1) CISG, silence in itself cannot be considered as an acceptance.

-    Only if the parties act in their field of business and have frequent commercial relations with one another and under further prerequisites, can it be taken into account that the parties established a practice between themselves, by virtue of which the other party tacitly accepted the general terms.
 
-    At hand, it is neither alleged nor proven that there was a steady business relationship between the parties, even though they deal or dealt with each other. Consequently, it cannot be assumed that [Buyer] accepted [Seller]'s general terms tacitly or expressly. That is why [Seller]'s invocation of the arbitration clause, contained in its general terms, fails.

The [Seller]'s claim that the Court does not have competence thus has to be rejected. For these reasons, it is also not decisive if [Buyer] received [Seller]'s general terms, whether by fax or by letter, or if the use of general terms is typical in the field of business in which the parties operate.

      2.8. Since the incidental plea on the competence of the Court that [Seller] filed is unsuccessful, [Seller] bears the costs for this proceeding. On the part of the [Buyer] the costs amount to 1,421.00 EURO.

      2.9. The case is remitted to the Court to decide on the question concerning warranty.

3. THE DECISION

The Court holds,

-  Concerning the incidental plea on the competence of the Court:

      3.1. The reference to the incompetence of this Court is unfounded;

      3.2. [Seller] is ordered to bear the costs of this proceeding, on the part of [Buyer] amounting to 1,421.00 EURO;

-  Concerning the warranty:

      3.3. The case shall be processed on 28 February 2007 for answer to the warranty complaint.

This judgment was handed down by Mr. G. Noordraven in public on 17 January 2007.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Sweden is referred to as [Seller]; Defendant of the Netherlands is referred to as [Buyer]. Amounts in European currency are indicated as [EURO].

Translator's note on other abbreviations: AB = Aktiebolag [limited liability company under Swedish Law]; B.V. = Besloten Vennootschap [Limited liability company under Dutch Law]; EG-Executieverordening = Verordening nr. 44/2001 van de Raad van 22 december 2000 betreffende de rechterlijke bevoegdheid, de erkenning en de tenuitvoerlegging van beslissingen in burgelijke handelszaken [European Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial matters]; HR = Hoge Raad [Dutch Supreme Court]; NJ = Nederlandse Jurisprudentie [Law journal for Dutch court decisions].

** Thorsten Tepasse is a law student at the University of Osnabrück, Germany and participated in the 12th Willem C. Vis Moot with the team of the University of Osnabrück.

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Pace Law School Institute of International Commercial Law - Last updated April 17, 2008
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