Serbia 17 August 2009 Foreign Trade Court of Arbitration attached to the Serbian Chamber of
Commerce (Vegetable fats case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/090817sb.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: T-15/07
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Serbia (claimant)
BUYER'S COUNTRY: Macedonia (respondent)
GOODS INVOLVED: Vegetable fats
APPLICATION OF CISG: No
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
6A [Exclusion of Convention by contract]
6A [Exclusion of Convention by contract]
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
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
Award of 17 August 2007 [Proceedings No. T-15/07]
Translation [*] by Milena Djordjevic, LL.M.
Edited by Dr. Vladimir Pavi [**]
Claimant (Serbia) [Seller] v. Respondent (Macedonia) [Buyer]
The Distribution Contract, concluded by Claimant and Respondent on 28 March 2006, contains the arbitration clause, provided in Article 37 that the contract shall be interpreted "in accordance with and in compliance with the state laws."
[Translator's note: The second sentence of Article 37 of the contract states: "United Nations Convention on contracts in international trade in products (CISG) shall not be applied."]
However, the parties have failed to specify the laws of which state they had in mind when making the contract. The Arbitral Tribunal is of the opinion that the applicable law should be therefore be determined on the basis of Article 48 paragraph 2 of the Rules of the Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce, i.e. on the basis of Article 50 paragraph 3 of the Serbian Law on Arbitration, which provide that the Tribunal should determine the law on the basis of the most appropriate conflict of laws rule. The Tribunal deems that, in this case, it is most appropriate to apply the conflict of laws rule that leads to the law of the State having the closest connection to the underlying contract. In this case, this is the law of the Republic of Serbia. The Claimant (distributor and seller) a legal entity established and registered in Serbia, so that the law of the Republic of Serbia is the law of the seller. Also, the Distribution Contract was concluded in Serbia. Serbian law is therefore deemed relevant, with the agreed dispute resolution court set to be the Arbitration Court of the Serbian Chamber of Commerce with seat in Belgrade. Moreover, given that the parties have relied in their written submissions on certain provisions of the law in force in the Republic of Serbia (the Law on Contract and Torts), it is without a doubt that both parties had Serbian law in mind as the applicable law.
When deciding to apply the law in force in the Republic of Serbia, the Tribunal decided not to apply the UN Convention on Contracts for the International Sale of Goods (Vienna convention), which forms the part of the law of the Republic of Serbia and which would be otherwise applicable on the bases of Article 1 of the Convention. The reason for this decision lies in the fact that the parties have, when drafting an otherwise incomplete clause on choice of law, explicitly excluded the application of the United Nations Convention on contracts in international trade in products, which despite its erroneous translation should be understood as an explicit exclusion of the Vienna Convention.
[Translator's note: By "erroneous translation", the tribunal is referring the Contract identification of the Convention as the "United Nations Convention on international trade in products ..." rather than correctly as the "United Nations Convention on Contracts for the International Sale of Goods".]
* All translations should be verified by cross-checking against the original text.
** Milena Djordjevic, LL.M. (U. of Pittsburgh) is a Lecturer in International Commercial Law at the University of Belgrade Faculty of Law. Dr. Vladmir Pavic is an Associate Professor in Private International Law and Arbitration.Go to Case Table of Contents