Netherlands 15 April 2009 Rechtbank [District Court] Utrecht (Stainless steel case)
[Cite as: http://cisgw3.law.pace.edu/cases/090415n1.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 239001 / HA ZA 07-2031
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Netherlands / Italy
BUYER'S COUNTRY: Netherlands
GOODS INVOLVED: Stainless steel
APPLICATION OF CISG: No, excluded by the parties
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
6A [Exclusion of Convention: agreement of parties to exclude (express and implicit)]
Descriptors:
Reproduced with permission of European Journal of Contract Law (3/2009) 163
EDITOR: Sonja Kruisinga, Utrecht University
Rechtbank Utrecht (Stainless steel case) 15 April 2009
FACTS OF THE CASE
This case concerned a contract for the sale of stainless steel between a Dutch buyer and a Dut3ch/Italian seller. The buyer sued the seller and claimed that the steel that was delivered was not in conformity with the contract.
REASONING
The District Court of Utrecht held that, in principle, the provisions of the CISG were applicable to the current contract for the sale of goods, because the contracting parties had their places of business in different Contracting States. The District Court emphasized that this can only be different if the application of the CISG had been excluded by the contracting parties.
The District Court held, however, that the contract in question was governed by Dutch national law because both contracting parties had explicitly mentioned in their respective general conditions that Dutch law was applicable, while excluding the CISG. This position was confirmed, according to the District Court, by the fact that the contracting parties had also implicitly excluded the CISG because they had only referred to the provisions of Dutch national law in their pleadings.
COMMENT
The case shows that a choice of law clause that refers to the national law of a Contracting State to the CISG will only be sufficient to exclude the application of the CISG if this exclusion is explicitly mentioned.
Unfortunately, the District Court did not explicitly address the question as to whether the current general conditions had become part of the contract for the international sale of goods.
Go to Case Table of ContentsCITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
Unavailable
CITATIONS TO TEXT OF DECISION
Original language (Dutch): Website of the Dutch courts <http://www.rechtspraak.nl/>
Translation: Unavailable
CITATIONS TO COMMENTS ON DECISION
Unavailable
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