Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

ICC Arbitration Case No. 7754 of January 1995 (Computer hardware case) [English text]
[Cite as: http://cisgw3.law.pace.edu/cases/957754i1.html]

Primary source(s) of information for case presentation: Case text

Case Table of Contents


Case identification

DATE OF DECISION: 19950100 (January 1995)

JURISDICTION: Arbitration ; ICC

TRIBUNAL: Court of Arbitration of the International Chamber of Commerce

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 7754 of January 1995

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Unavailable (claimant)

BUYER'S COUNTRY: Unavailable (respondent)

GOODS INVOLVED: Computer hardware


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(b)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article: 6 [Also cited: Articles 25 ; 35 ; 46(2) ; 48(1) ; 49(1)(a) ; 74 ; 78 ]

Classification of issues using UNCITRAL classification code numbers:

6A1 [Choice of law: implied exclusion of Convention]

Descriptors: Choice of law

Go to Case Table of Contents


Editorial remarks

Go to Case Table of Contents


Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=519&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (English): ICC International Court of Arbitration Bulletin [ICAB], Vol. 11/No. 2 (Fall 2000) 46-49; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=519&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: van Houtte, ICAB (Fall 2000) 24 n.18 [choice of law], 26 n.35 [CISG and concurrent national law], 28 nn.67 [price reduction, 31 nn.63, 66 [avoidance], 31 n.69 [loss of profit], 33 n.86 [burden of proof]; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.495

Go to Case Table of Contents

Case digest

ICC Arbitration Case No. 7754 of January 1995
[Case reported at ICAB, Vol. 11/No. 2 (Fall 2000) 46-49]

Facts. Buyer ordered computer hardware from seller, which was to be supplied by seller's supplier and assembled by buyer's customer. A modification to the hardware was made prior to deliver, which was unknown to buyer and buyer's customer. Buyer's customer informed seller that it could not accept the modification and requested that the hardware be in accordance with the initial documentation. In the meantime, buyer informed seller that only have of the amount of hardware initially ordered would be needed due to difficulties experienced by buyer's customer. Seller shipped an initial consignment of modified hardware to buyer, who accepted the equipment but refused to accept the rest. Buyer asserted that the contract was not binding because the letter of credit required under the contract had not been established and the final order required from buyer's customer had not been placed. The Arbitral Tribunal first addressed the issue of the existence, validity and content of the contract, finding that a binding contract existed under French law and the CISG. The Tribunal dismissed buyer's claim that no contract was formed due to the lack of the letter of credit. It was seller's obligation to deliver the goods by a certain date that required the establishment of the letter of credit and seller waived this condition by accepting payment from a third party.

Applicable law. Clause 9 of the contract states that any disputes would be settled "in accordance with French law". [page 46]

"The Vienna Convention on the International Sale of Goods (CISG) has been in force in France since its entry into force on 1 January 1998, that is, prior to the signature of the disputed contract." Article 1(1) of the CISG states that the Convention applies "when the rules of private international law lead to the application of the law of a Contracting State." Article 6 of the CISG states "the parties may exclude the application of this Convention or [] derogate from or vary the effect of any of its provisions."

"It is the opinion of the Tribunal that when the parties initially referred to 'French law' in the contract, what they had in mind was the domestic law of France." Based on the language of the contract, the Tribunal determined that "should there be a difference between a relevant provision of French domestic law and the corresponding provision of the CISG, the former should prevail." However, "no difference appeared between the French domestic law on sale and that laid down in the CISG on the issues under discussion in the present arbitration." [page 47]

CISG substantive provisions cited

Article 35 CISG: Conformity of goods. "Under the law of sale, the parties must deliver goods as stipulated in the contract." CISG Art. 35. The dispute in the present case involved a non-conformity between the contract goods and the goods tendered.

Article 49 CISG: Fundamental breach. The question before the Tribunal was whether the non-conformity was of such a magnitude or irreversibility as to warrant a rescission of the Contract." "Under French law as in most national legal systems, only a fundamental breach of the contract warrants rescission." [page 47]

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated February 15, 2007
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography