Serbia 17 November 2008 Foreign Trade Court attached to the Serbian Chamber of Commerce (Printed and lined paper rolls case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/081117sb.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: T -01/08
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Serbia (Claimant)
BUYER'S COUNTRY: FYR Macedonia (Respondent)
GOODS INVOLVED: Printed and lined paper rolls
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
59A [Payment due at time fixed or determinable by contract or Convention]; 78A ; 78B [Interest on delay in receiving price or any other sum in arrears ; Rate of interest]
59A [Payment due at time fixed or determinable by contract or Convention];
78A ; 78B [Interest on delay in receiving price or any other sum in arrears ; Rate of interest]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Serbian): Click here for Serbian text of case
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English:  Vladimir Pavić, Milena Djordjević, 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, 47, 54Go to Case Table of Contents
Queen Mary Case Translation Programme
Award of 17 November 2008 [Proceedings no. T-1/08]
Translation [*] by Uroš Živkovic
Edited by Milena Djordjevic, LLM [**]
Claimant (Serbia) [Seller] v. Respondent (FYR Macedonia) [Buyer]
Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce in Belgrade, and its Sole Arbitrator […], record keeper […], in a dispute between [Seller] represented by Ms. X, attorney-at-law and [Buyer] concerning the claim in the amount of EUR 2,499.00 with interest and costs of the arbitral proceedings, upon the conducted oral hearing on 3 September 2008 and in accordance with the Article 36 paragraph 6 and Articles 47 and 49 of the Rules of the Foreign Trade Court of Arbitration, on 17 November 2008 makes the following:
|1.||[Seller]'s claim is granted and [Buyer] is ordered to pay to [Seller] the amount of EUR
2,499.00 for the principal debt within 15 days from the day of receipt of the Award, subject to court
enforcement in case of non-payment;
|2.||[Seller]'s claim for interest is granted and [Buyer] ordered to pay to [Seller] the interest at the
annual rate of 3,30%, starting from 24 March 2006 until the final payment, within 15 days from the day
of reception of the Award, subject to court enforcement in case of non-payment;
|3.||[Seller]'s claim for reimbursement of costs of arbitral proceedings is granted, and [Buyer] is ordered to pay to [Seller] the costs of arbitral proceedings in total amount of RSD 48,978.00.|
STATEMENT OF REASONS
1. Jurisdiction of the Foreign Trade Court of Arbitration attached to Serbian Chamber of Commerce
As attachment to its Statement of Claim submitted on 8 January 2008, [Seller] has provided the copy of the Export Sale and Purchase Agreement concluded between [Buyer] and [Seller] and its Annex of 17 November 2005 containing a clause in Article 9 calling for jurisdiction of the international arbitration in Belgrade in case of any and all disputes between the parties.
At a meeting held on 7 May 2008, the Board of the Foreign Trade Court of Arbitration determined that jurisdiction of the Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce is undisputable since the Article 9 of the Agreement between [Seller] and [Buyer] stipulates that all disputes are to be submitted before the international arbitration in Belgrade, i.e. that the arbitration agreement concluded between [Seller] and [Buyer] is contained in the case file.
The Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce in Belgrade, pursuant to the Article 20 paragraph 1 of its Rules, appointed […] as the sole arbitrator in this dispute on 7 May 2008. Failure by the parties to reach an agreement and appoint a sole arbitrator in a designated time period resulted in an appointment by the Chairman of the Court of Arbitration in accordance with the Article 21 paragraph 3 of the Rules.
The appointed Sole Arbitrator […] has accepted its function and mandate in the current proceedings.
2. Arbitral Proceedings
The Secretariat has duly notified [Buyer] on initiation of the arbitral proceedings, served [Seller]'s Statement of Claim and notice of the scheduled hearings in accordance with the Rules.
[Seller] has deposited the registration fee in the amount of RSD 11,246.00 and the costs of arbitration in the amount of RSD 24,732.00 within the specified time period.
[Buyer] duly received the Statement of Claim. [Buyer] presented no objections to the claim, failed to file an Answer to the Claim and provided no submissions to either [Seller] or the Court of Arbitration challenging the claim.
Both parties were notified on the hearing scheduled for 4 July 2008 that was delayed due to Sole Arbitrator's inability to appear.
The hearing was held on 3 September 2008 before the Sole Arbitrator of the Foreign Trade Court of Arbitration. [Seller] was represented by Ms. X at the hearing, pursuant to the enclosed Power of Attorney. [Buyer] failed to appear on the scheduled hearing despite being properly served with the notice.
3. [Seller]'s Claim
[Seller] submitted the Statement of Claim with appendixes on 8 January 2008 and enclosed Power of Attorney. The Export Sale and Purchase Agreement no. 118-2005 with an Annex of 17 November 2005 and the Export Certificate no. 5590 dated 3 June 2005 were attached to the Statement of Claim.
[Seller] claims that the parties entered into an export agreement based on which [Seller] as an exporter, exported and delivered the goods to [Buyer] in the total value of EUR 2,499.00 on 3 June 2005 - printed and lined paper rolls A-40 (58x80) - compressed, 1020 pieces produced by »9 Septembar« doo, Gornji Milanovac. [Buyer] received the goods.
The initial payment date in accordance with the Article 5 of the Agreement was set to be 90 days from the moment of the signing of the Agreement, but was later on amended by the parties and set to 23 March 2005 by the Annex concluded on 17 November 2005.
[Buyer] has neither paid for the goods received nor objected in oral or in writing to [Seller]'s request for payment.
[Seller] submitted its claim before the Foreign Trade Court of Arbitration in Belgrade on 8 January 2008.
The Sole Arbitrator scheduled the oral hearing for 3 September 2008 when the counsel for [Seller] made no amendments to its original claim and [Buyer] failed to appear despite being properly notified on the session. [Seller] stated that it suffered damages as a result of [Buyer]'s non-payment for the delivered goods.
4. Reasoning of the Sole Arbitrator Regarding the Claim
Having in mind that both Republic of Serbia and FYR Macedonia have ratified the Vienna Convention on the Contracts for International Sale of Goods (Vienna Convention), in rendering of the award, the Sole Arbitrator was guided by its Article 1a that stipulates the obligation of the buyer to pay the purchase price at the time and place specified within the contract.
It is evident that [Seller] suffered damages as a consequence of [Buyer]'s actions. As to the export Certificate, [Seller] has promptly and in due time delivered the goods to [Buyer] in accordance with the Agreement and the Annex. [Buyer] received the goods and made no objections to either the quality or the quantity of the delivery in due time or at a later stage.
In accordance with the stated applicable law and the facts of the case, the Sole Arbitrator has granted [Seller]'s claim.
Pursuant to the Statement of Claim, the interest was awarded from 24 March 2006 to the date of final payment. Having in mind that provisions of the Vienna Convention are silent as to the applicable interest rates, the Sole Arbitrator based its decision on the following arguments. The arbitrator took into account the arbitral practice in cases where the parties have not stipulated the applicable interest rate for the payment in foreign currency, which requires that in such case the rate to be applied in the calculation is the domicile interest rate of the country of the currency. Since the parties stipulated the payment in EUR - absent the agreement on the applicable interest rate - the Sole Arbitrator finds that applicable rate in the current case is the domicile interest rate of the European Central Bank, i.e. the interest rate paid for the deposits amounting to 3.30% annually, as stipulated in the European Central Bank Bulletin.
Regarding the costs of arbitration, the Sole Arbitrator, guided buy the principle that the costs are to be awarded based on the success on the merits, awarded [Seller] as the winning party with the deposited costs in the amount of RSD 11,246.00 for the registration fee, RSD 24,732.00 for the arbitration costs and attorney fees in the amount of RSD 13,000.00, which comprises the total sum of RSD 48,978.00.
5. Finality of the Award
Pursuant to Article 17 paragraph 3 of the Law on the Serbian Chamber of Commerce, Article 483 of the Law on Civil Procedure and Article 54 paragraph 1 of the Rules of the Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce, this arbitral award is final and it has the force of a final and enforceable decision of a court of the Republic of Serbia.
In Belgrade on 17 November 2008
* All translations should be verified by cross-checking against the original text.
** Uroš Živkovic is an associate at Motika law firm in Belgrade. Milena Djordjevic, LL.M (U. Pittsburgh) is a lecturer at University of Belgrade Faculty of Law.Go to Case Table of Contents