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CISG CASE PRESENTATION

Italy 19 April 1994 Florence Arbitration proceeding (Leather/textile wear case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/940419i3.html]

Primary source(s) for case presentation: Case text


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Case identification

DATE OF DECISION: 19940419 (19 April 1994)

JURISDICTION: Arbitration ; Italy

TRIBUNAL: Ad hoc Arbitral Tribunal - Florence

JUDGE(S): Vittorio Denti, Giorgio De Nova, Vincenzo Vigoriti

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: Società X v. Società Y

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (claimant)

BUYER'S COUNTRY: Japan (defendant)

GOODS INVOLVED: Leather/textile wear


Case abstract

ITALY: Arbitral Tribunal - Florence 19 April 1994

Case law on UNCITRAL texts (CLOUT) abstract no. 92

Reproduced with permission from UNCITRAL

A contract concluded by and Italian seller and a Japanese buyer for the supply of leather and/or textile wear contained a clause under which the contract was to be "governed exclusively by Italian law".

By majority, the arbitral tribunal decided that CISG did not apply to the contract, either because Japan had not yet ratified CISG or because the contract itself had been made subject exclusively to Italian law. In the view of the tribunal, the choice of Italian law by the parties amounted to an implicit exclusion of CISG (Article 6 CISG).

One of the arbitrators, dissenting, held that CISG did apply since the choice of Italian law confirmed that the parties intended to apply CISG pursuant to Article 1(1)(b) CISG and was not a declaration pursuant to Article 6 CISG.

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Classification of issues present

APPLICATION OF CISG: No [cf. dissenting opinion]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 1(1)(b) ; 6

Classification of issues using UNCITRAL classification code numbers:

1B2 [Basic rules of applicability: private international law points to Contracting State];

6A1 [Convention yields to contract: exclusion or modification of Convention by contract (implied)]

Descriptors: Applicability ; Choice of law

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Editorial remarks

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Citations to other abstracts, case text and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database [CLOUT abstract]

French: Revue de Droit des Affaires Internationales (1995) 1010

German: Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER) / Revue suisse de droit international et de droit européen (1996) 58

Italian: Diritto del Commercio Internazionale (1995) 455-456 No. 77

Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 255-256

CITATIONS TO TEXT OF DECISION

Original language (Italian): Diritto del Commercio Internazionale 1994, 867-873; Unilex database [excerpt] <http://www.unilex.info/case.cfm?pid=1&do=case&id=60&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Honnold, Uniform Law for International Sales (1999) 81 [Art. 6 (choice of law)]; Bonell/ Liguori, Uniform Law Review (1996-1) 147 [157 n. 55, n. 56]; Ferrari, International Legal Forum (4/1998) 138-225 [216 n.706 (criticism of implicit exclusion of CISG)]; Ferrari, 15 Journal of Law and Commerce (1995) 86-91; Klotz, International Sales Agreements - Canada (1997) 6 n.10, 15 n.55; Klotz, International Sales Agreements - International (1998) 5 n.10, 22 n.77; Petrochilos, Arbitration Conflict of Laws Rules and the CISG (1999) n.58; Spanogle/Winship, International Sales Law: A Problem Oriented Coursebook (West 2000) [opting-out/opting-in the CISG 74-76 (this case at 75)]

German: Piltz, Neue Juristische Wochenschrift (NJW) 1996 [2769 n. 19]; Piltz, [1999] Transportrecht, Beilage "Internationales Handelsrecht" (TranspR-IHR) 13 [14 n.12]

Italian: Cappuccio, Diritto del Commercio Internazionale (1994) 867-873; Liguori, Foro italiano (1996-IV) 145 [159-160 n. 76, n. 77]

Spanish: Castellanos, Autonomia de la voluntad y derecho uniforme en la compraventa internacional, thesis, Carlos III de Madrid (1998) 98-100

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Case text (English translation)

Queen Mary Case Translation Programme

Ad hoc Arbitral Tribunal - Florence

Arbitral Award 19 April 1994

Società X v. Società Y

Translation [*] by Alessia Oddone [**]

Translation edited by Angela Maria Romito [***]

I. BACKGROUND FACTS

1. Facts

On 1 June 1989, company X, [seller], having its registered office in Florence [Italy] and company Y, [buyer], having its registered office in Tokyo [Japan] entered into a contract for the supply of leather and/or textile wear, manufactured by [seller] and bearing the trademark [HM]; the contract granted [buyer] exclusivity rights for Japan and required [buyer] to purchase a minimum amount of goods for a period of five years, from 1 July 1989 to 30 June 1994.

[...]

II. TRIBUNAL'S REASONING

[...]

2. Applicability of Vienna Convention (CISG)

Since counsel for [buyer] in several occasions referred to the principles of the Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods [CISG] (ratified in Italy by Law 11 December 1985 n. 765 and in force since 1 January 1988), the majority of the Tribunal holds, without ascertaining whether the Convention is relevant to the merits of the dispute, that the applicability of the Convention must be excluded. This is because the Convention has not yet been ratified in Japan and also because clause 39 of the supply contract specifies that the contract is governed exclusively by Italian law.

[...]

One of the arbitrators, dissenting from the majority of the Tribunal, summarized his position as follows:

"The Arbitrator does not agree with the decision of the majority of the Tribunal, in particular for the following reasons:

a) because the majority has decided that the Vienna Convention does not apply to the contract between the parties; on the contrary, the Convention is applicable pursuant to Art. 1(1)(b) CISG, since the choice of Italian law as the governing law confirms the applicability of the Convention, rather than excluding it pursuant to article 6 CISG;

b) [...]"

[]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, company X, Claimant of Italy, is referred to as [seller]; company Y, Respondent of Japan, is referred to as [buyer].

** Alessia Oddone, LL.M. (University of London), Lawyer (Genoa Bar) currently working in London. The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.

*** Angela Maria Romito, Associate of the Institute of International Commercial Law, Pace University School of Law. Law degree (cum laude) 1994, University of Bari, Bari, Italy. Admitted to the Bar 1997. LL.M. University of Pittsburgh School of Law 2000-2001. CWES Scholarship. Researcher of European Union Law at the University of Bari. Lawyer at Studio Legale Romito.

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Pace Law School Institute of International Commercial Law - Last updated July 2, 2003
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