Serbia 22 April 2008 High Commercial Court [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/080422sb.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: Pž. 6104/2007(1)
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Slovenia
BUYER'S COUNTRY: Serbia
GOODS INVOLVED: [-]
APPLICATION OF CISG: Yes to contract for sale of good; No to distribution contract
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
4A ; 4B [Scope of Convention (issues covered and excluded); contract for sale of goods covered, distribution contract excluded]
Descriptors:
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 from Serbian text of case [published at Paragraf Lex database of Serbian court decisions]
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
Unavailable
Go to Case Table of ContentsQueen Mary Case Translation Programme
Decision of 22 April 2008 [Pz 6104/2007(1)]
Translation [*] by Marko Jovanovic, LL.M.
Edited by Dr. Vladimir Pavic, Milena Djordjevic, LL.M. [**]
[...]
RULING
In an international sale of goods, if the applicable law is not selected and if the specific circumstances of the case do not point to the application of another law, the applicable law is the law of the place where Seller had its residence, i.e., the seat, at the time of reception of the offer, pursuant to Article 20(1)(1) of the Act on Resolution of Conflicts of Laws with Regulations of Other Countries, since Seller is the claimant.
REASONS FOR THE DECISION (EXCERPT)
On one hand, there is the Vienna Convention on Contracts for the International Sale of Goods. Article 1 of the CISG defines its sphere of application. Paragraph 1 of that Article states that the Convention applies to contracts of sale of goods between parties whose places of business are in different States when the States are Contracting States (Article 1(1)(a)) or when the rules of private international law lead to the application of the law of a Contracting State (Article 1(1)(b)). Article 1(2) of the CISG states that the fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealing between, or from information disclosed by, the parties at any time before or at the conclusion of the contract.
The Court must analyze the facts of the case in order to establish whether the contract between the parties provides for the application of the CISG and whether the parties have observed the provisions of the CISG in their business practice and it must disclose reasons for the decision on this question. If the dispute at hand arises out of a contract for the international sale of goods and the facts of the case show that the contract between the parties does not provide for the application of the CISG and that the parties did not observe the provisions of the CISG in their business practice, the court should then apply Article 20 of the Act on Resolution of Conflicts of Laws with Regulations of Other Countries. Pursuant to that provision, absent the choice of applicable law and if the specific circumstances of the case do not point to the application of another law, the law applicable to the contract of sale of moveable goods is the law of the place where Seller had its place of residence, i.e., the seat, at the time of reception of the offer.
Accordingly, pursuant to Article 20(1)(1) of the Act on Resolution of Conflicts of Laws with Regulations of Other Countries, since Seller is the claimant, the applicable law in the case at hand is the law of the place where Seller had its place of residence, i.e.. the seat, at the time of reception of the offer, which is the Slovenian law.
If the legal and business relationship of the parties does not arise from the contract for the international sale of goods but from a distribution contract, the CISG shall not apply. The applicable law shall be the domestic law, i.e., the law of Serbia, pursuant to Article 20(1)(20) of the Act on Resolution of Conflicts of Laws with Regulations of Other Countries.
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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Institute of International Commercial Law - Last updated September 9, 2009