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CISG CASE PRESENTATION

Serbia 30 September 2008 Foreign Trade Court attached to the Serbian Chamber of Commerce (Fresh plums case)
[Cite as: http://cisgw3.law.pace.edu/cases/080930sb2.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20080930 (30 September 2008)

JURISDICTION: Arbitration ; Serbia

TRIBUNAL: Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: T -2/2008

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Serbia (claimant)

BUYER'S COUNTRY: Bosnia and Herzegovina (respondent)

GOODS INVOLVED: Fresh plums


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(b)] Application of the CISG despite the choice of law clause calling for the Law on Contracts and Torts.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 9 ; 78 [Also cited: Articles 30 ; 31 ; 53 ]

Classification of issues using UNCITRAL classification code numbers:

9B [Implied agreement on international usage - application of 1992 UNCITRAL Model Law on International Credit Transfer of as lex mercatoria when deciding on the interest rate];

78A ; 78B [Interest on delay in receiving price or any other sum in arrears; Rate of interest - 1992 UNCITRAL Model Law on International Credit Transfer considered as lex mercatoria];

Descriptors: Payment of price ; Interest

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Editorial remarks

Excerpt from: Vladimir Pavic & Milena Djordjevic, Application of the CISG Before the Foreign Trade Court of Arbitration at the Serbian Chamber of Commerce - Looking Back at the Latest 100 Cases, 28 Journal of Law and Commerce 1, 12 (Fall 2009), available at: <http://www.cisg.law.pace.edu/cisg/biblio/pavic-djordjevic.html<

"[T]here has also been one case where the application of the CISG should have been avoided as contrary to parties' agreement, but the application of the CISG nevertheless occurred. Namely, the contract for sale of fresh plums between a Serbian seller and a Bosnian buyer contained the following provision: "the provisions of the Law on Contracts and Torts shall apply to all the issues not covered by this Contract."[34] The sole arbitrator erred by interpreting this provision as an imprecise agreement on the applicable law since "it was not clear which Law the parties have in mind" (although the same 1978 Yugoslav LCT was in force in both countries where parties had their places of business, albeit now in the guise of their own domestic laws). Hence, the arbitrator engaged in the conflict-of-laws analysis in order to determine the applicable law. The end result was the application of the Serbian law and primarily the application of the CISG, as part of the Serbian law. Although the outcome of the dispute would have been the same under the CISG and the LCT, since the claimant requested payment of the remainder of the price, which he is entitled to under both legal documents, the arbitrator's disregard for the express choice of the parties is striking. Fortunately, this was an isolated incident in the FTCA practice."

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Serbian): Click here for Serbian text of case

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Vladimir Pavic & Milena Djordjevic, Application of the CISG Before the Foreign Trade Court of Arbitration at the Serbian Chamber of Commerce - Looking Back at the Latest 100 Cases, 28 Journal of Law and Commerce 1, 12 (Fall 2009), available at: <http://www.cisg.law.pace.edu/cisg/biblio/pavic-djordjevic.html>

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Pace Law School Institute of International Commercial Law - Last updated October 25, 2011
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