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CISG CASE PRESENTATION

ICC Arbitration Case No. 8213 of March 1995 (Steel billets case) [Partial award] [English text]
[Cite as: http://cisgw3.law.pace.edu/cases/958213i1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 19950300 (March 1995)

JURISDICTION: Arbitration ; ICC

TRIBUNAL: Court of Arbitration of the International Chamber of Commerce

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 8213 of March 1995

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Unavailable (respondent)

BUYER'S COUNTRY: Unavailable (claimant)

GOODS INVOLVED: Steel billets


Classification of issues present

APPLICATION OF CISG: Yes. CISG specified in contract.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 8 ; 9 ; 18 ; 35

Classification of issues using UNCITRAL classification code numbers:

8A ; 8C [Interpretation of party's statements or other conduct: intent of party making statement or engaging in conduct; Interpretation in light of surrounding circumstances];

9B [Implied agreement on international usage; standards];

18A [Criteria for acceptance: conduct indicating assent];

35A ; 35B [Conformity of the goods: quality required by contract; Requirements imposed by law]

Descriptors: Conformity of goods ; Usages and practices ; Intent ; Burden of proof

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Editorial remarks

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Citations to other abstracts, texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=520&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (English): ICC International Court of Arbitration Bulletin [ICAB], Vol. 11/No. 2 (Fall 2000) 49-52; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=520&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: van Houtte, ICAB (Fall 2000) 26 n.35 [CISG and concurrent national law], 29 n.54 [conformity of goods], 33 n.87 [burden of proof]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 9 para. 11

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Case digest

ICC Arbitration Case 8213 of March 1995
[Digest of presentation at ICAB, Vol. 11/No. 2 (Fall 2000) 49-52]

Digest by Albert H. Kritzer

Facts. The parties entered into two agreements for the supply of steel billets. Upon delivery, the goods were shipped to buyer's customer who encountered problems when processing them. Claimant buyer alleged that the goods were defective and not suitable for hot rolling, as required by the agreements. Respondent seller filed a counterclaim ascribing the fault to the customer's installation.

Applicable law. The Terms of Reference of the arbitration stipulates:

"(a) the Purchase Agreement dated . . . was governed by the law of the State of New Jersey, including the New Jersey version of the Uniform Commercial Code ('NJUCC'); and

"(b) the Purchase Agreement dated . . . was governed by the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) ('UNISG')." [page 50]

Burden of proof. The Arbitrator ruled: "The buyer, under each legal system, who claims goods delivered are defective bears the burden of proving both the existence of an express specification or an implied warranty and the breach by the seller of that specification or warranty. Neither of these codified commercial laws contains any provision which affects the general provisions of law placing the burden of proof on the claiming party. For the claims based on breach of the Purchase Agreements, the Arbitrator has considered the burden of proof to be on Claimant [buyer] and for the counterclaim, the burden is on Respondent [seller]. [page 50-51]

Conformity of goods [express and implied warranties]. Citing counterpart provisions of the CISG and the UCC (CISG Article 35(1), 35(2)(a), 35(2)(b); UCC Sections 2-313, 2-314, 2-315), the Arbitrator stated:

Usages and practices [Art. 9] / Intent [Art. 8]. The Arbitrator points out: "A further legal question is presented as to whether Respondent [seller] is obligated, under either or both governing laws, to comply with alleged steel industry standards and/or practices, that no billets should be delivered with such a high level of 'inclusions', even though no such express requirement on this [was] included in the Purchase Agreements.

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Pace Law School Institute of International Commercial Law - Last updated February 15, 2007
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