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CISG CASE PRESENTATION

Russia 26 February 2009 Judicial Division of the Supreme Arbitration Court of the Russian Federation, Moscow
[Cite as: http://cisgw3.law.pace.edu/cases/090226r1.html]

Primary source(s) of information for case presentation: UNCITRAL case abstract

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Case identification

DATE OF DECISION: 20090226 (26 February 2009)

JURISDICTION: Arbitration ; Russian Federation

TRIBUNAL: Judicial Division of the Supreme Arbitration Court of the Russian Federation, Moscow

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 16894/08

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Russia

BUYER'S COUNTRY: Switzerland

GOODS INVOLVED: Russian-grown wheat


UNCITRAL case abstract

RUSSIAN FEDERATION: Judicial Division of the Supreme Arbitration Court of the Russian Federation, Moscow
[No. 16894/08] 26 February 2009

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/145],
CLOUT abstract no. 1369

Reproduced with permission of UNCITRAL

Abstract prepared by A. I. Muranov, National Correspondent, D. L. Davydenko and D. D. Yalaletdinova

A contract for the supply of Russian-grown wheat had been concluded between a Swiss buyer and a Russian seller through an exchange of contracts by facsimile. The Swiss buyer later applied for the recognition and enforcement in the Russian Federation of an arbitral award by the Grain and Feed Trade Association (GAFTA) in London to recover damages, interest and costs from the Russian seller. The seller argued in particular that the contract was not concluded and the written arbitration agreement in the form of an arbitration clause in such contract was non-existent as well.

The court of first instance granted the claim. The court of second instance upheld this decision. In an application to the Supreme Arbitration Court of the Russian Federation, the Russian company requested that the court ruling should be set aside, basing its claims in particular on the argument that the foreign trade contract had not been concluded and that the original of this contract did not exist: the contract submitted by the Swiss company did not specify where it had been concluded or the applicable law. The Supreme Arbitration Court of the Russian Federation dismissed the application, on the following grounds.

Under the Russian Civil Code, a contract in written form can be concluded by drawing up a single document signed by the parties or by an exchange of documents by mail, telegraph, telex, telephoned telegram or electronic or other forms of communication that reliably established that the document came from the parties to the contract. In addition, pursuant to article 13 CISG, for the purposes of concluding a sales contract, “written form” should also be understood to mean a communication by telegram or telex. Consequently, the conclusion of a foreign trade agreement through the exchange of documents by facsimile, is not contrary to the requirements of Russian legislation or international treaties and does not entail the annulment of the contract owing to non-compliance with the form that it took. Moreover, the parties themselves had established in the contract that this contract, transmitted by facsimile, was deemed valid by them until the exchange of the originals, which had not taken place. The conclusion of the contract had been confirmed by the Russian company in a letter sent to the Swiss company's address containing notification of the impossibility of its fulfilment and a proposal for its voluntary termination.

Based on the above, the Russian company's argument about the absence of a contract and a written arbitration agreement concluded between the parties could not be taken into account.

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Classification of issues present

APPLICATION OF CISG: [-]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 13

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Russian): online database of court judgements <http://kad.arbitr.ru>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated August 26, 2014
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