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CISG CASE PRESENTATION

Russia 3 March 1995 Arbitration proceeding 309/1993 (Implicit agreement on price case)
[Cite as: http://cisgw3.law.pace.edu/cases/950303r1.html]

Primary source(s) for case presentation: Michael R. Will; UNCITRAL abstract


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Case identification

DATE OF DECISION: 19950303 (3 March 1995)

JURISDICTION: Arbitration ; Russian Federation

TRIBUNAL: Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 309/1993

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Ukraine (respondent)

BUYER'S COUNTRY: Austria (claimant)

GOODS INVOLVED: [-]


Case abstract

RUSSIAN FEDERATION: Arbitration at Russian Federation Chamber of Commerce and Industry [No. 309/1993 of 3 March 1995]

Case law on UNCITRAL texts (CLOUT) abstract no. 139

Reproduced with permission from UNCITRAL

An Austrian [buyer] brought a claim against a Ukrainian [seller] for damages resulting from the [seller's] refusal to deliver a certain quantity of goods. The [seller] denied liability on the grounds that no such agreement had been reached between itself and the [buyer].

In settling this dispute, the tribunal noted that, under article 14 CISG, a proposal for concluding a contract should be sufficiently definite. It was considered to be such if it indicated the goods and expressly or implicitly fixed or made provision for determining their quantity and price. A telex communication from the [seller] regarding the delivery of the goods within a specified period indicated the nature of the goods and their quantity. However, it omitted to indicate the price of the goods or any means of determining their price. The indication in the telex that the price of the goods in question would be agreed ten days prior to the beginning of the new year could not be interpreted as making provision for determining the price of the goods, but was merely an expression of consent to determine the price of the goods at a future date by agreement between the parties. The [buyer], who confirmed the contents of the telex communication, thus expressed its consent to the price of the goods being made subject to further agreement between the parties.

The tribunal also noted that in this particular instance article 55 CISG, allowing the price of goods to be determined where it was not expressly or implicitly fixed in a contract or where a contract made no provision for determining it, was not applicable since the parties had implicitly indicated the need to reach agreement on the price in future.

Agreement on the price had not subsequently been reached by the parties. The [seller] indicated to the [buyer] that it was not possible to conclude a contract for the specified quantity of goods. Finding that no contract had been concluded between the parties, the tribunal dismissed the claim.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 8 ; 14 ; 55 [Also cited: Articles 7(2) ; 18(2) ; 23 ; 53 ; 61 ; 62 ; 76 ; 100 ]

Classification of issues using UNCITRAL classification code numbers:

8A [Interpretation of party's statements or other conduct: Intent of party making statement or engaging in conduct];

14A12 [Criteria for an offer (basic criterion - intention to be bound in case of acceptance): definiteness of key conditions (determination of price)];

55A [Enforceability of agreements that do not make provision for the price]

Descriptors: Intent ; Offers ; Acceptance of offer ; Open-price contracts

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Editorial remarks

Excerpt from Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at 342

"[T]he Russian Tribunal of International Commercial Arbitration rejected the gap-filling role of Article 55 where the parties agreed to fix a price ‘ten days prior to the beginning of the new year’ but were unable to do so. The subsequent failure of the parties to reach an agreement with respect to price went to the heart of the transaction and specifically defeated the formation of a contract."

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database [CLOUT abstract]

Italian: Diritto del Commercio Internazionale (1997) 731-732 No. 143

Polish: Hermanowski/Jastrzebski, [1997] Narodódow Zjednoczonych o umowach miedzynarodowej sprzedazy towarów. Konwencja wiedenska. Komentarz [CISG commentary], Warszawa: ABC 279-280

CITATIONS TO TEXT OF DECISION

Original language (Russian): Unavailable

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Honnold, Uniform Law for International Sales (1999) 156 [Art. 14: definiteness and price (prior to delivery and acceptance)]; Spanogle/Winship, International Sales Law: A Problem Oriented Coursebook (West 2000) [formation of the sales contract: the price 110-114 (this case at 113-114)]; Gabuardi, Open price contracts (June 2001); Pilar Perales Viscasillas in Ferrari, Flechtner & Brand ed., The Draft UNCITRAL Digest and Beyond, Sellier / Sweet & Maxwell (2004) 277-279 [Art. 55 issues]; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at p. 129

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Pace Law School Institute of International Commercial Law- Last updated May 19, 2009
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