Russia 1 November 1996 Arbitration proceeding 309/1995 [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/961101r1.html]
DATE OF DECISIONS:
CASE NUMBER/DOCKET NUMBER: 309/1995
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Russia (claimant)
BUYER'S COUNTRY: Germany (respondent)
GOODS INVOLVED: Unavailable
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issues:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Russian): Rozenberg ed., Arbitrazhnaja praktika za 1996-1997 gg. [Arbitration practice in the years 1996-1997], Moskva (Statut) 1998, No. 32 [117-118]; Rozenberg,  Mezhdunarodnyj dogovor i inostrannoe pravo v praktike Mezhdunarodnogo kommertcheskogo arbitrazhnogo suda [The international contract and foreign law in the practice of the International Commercial Arbitration Court], Moskva: Statut 91-92
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English: Djakhongir Saidov, 7 Vindobona Journal of International Commercial Law and Arbitration (1/2003) 1-62 at nn.157Go to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
Translation [*] by Mykhaylo Danylko [**]
1. SUMMARY OF RULING
1.1 Based on the rules of the Convention, that is aimed to solve some conflicts in the Laws on Cheques of 19 March 1931, the Tribunal of International Commercial Arbitration (hereinafter Tribunal) found the German laws on cheques applicable to define whether the actions of the German drawer of cheques who drew a cheque for a payment of the goods in Germany, delivered to him under an international sales contract, was appropriate, taking into attention that this cheque has not been paid by the bank, to which the check had been drawn and that the cheque drawer has withdrawn the cheque.
1.2 After coming to conclusion that the [Seller] (Claimant) failed to act in accordance with the prescriptions of German laws on cheques, and that the [Buyer] (Respondent) did not violate [those prescriptions], the Tribunal dismissed the claim to recover the losses resulted from the [Seller]'s conclusion of the agreement with a bank to sell the cheques.
2. FACTS AND PLEADINGS
The [Seller] (a Russian company) brought an action against the [Buyer] (a German company) to recover the payment of the price of the goods delivered under the international sales contract concluded between the parties in March 1994. The action also included a claim to recover the losses resulted from the bank's nonpayment of a cheque issued by the [Buyer] that had been presented through the Russian bank.
3. TRIBUNAL'S REASONING
The ruling of the Tribunal contained the following main points.
The materials of the case (bills of lading, fact of drawing of the cheques by the [Buyer] for the payment for the goods of 9 March 1995 and of 11 May 1995) confirm the delivery of the goods and [Buyer]'s obligation to pay the price of the goods.
Considering the stated above, based on CISG Art. 53, Contracting States of which are the States on territories of which are the companies of the [Seller] and the [Buyer], and also considering the fact that the [Buyer] did not object to the action neither challenged the calculation of the claimed sum, the Tribunal came to conclusion that the [Seller] is entitled to recover the sum of the principal debt from the [Buyer].
However, the Tribunal dismissed the [Seller]'s claim to recover the losses resulted from the re-payment of the banking credit and commission expenses under the contract of 22 March 1995, concluded between the [Seller] and a Russian bank.
The cheque was presented in Germany to be paid on the territory of this State. Considering the relations arisen between the parties regarding the cheque and guided by the Russian Federation Law on the Tribunal of International Commercial Arbitration Art. 28(2) as well as by applicable rule of conflict of laws [stated in] the Fundamentals of Civil Law 1991 Art. 166(5), and also considering Art. 5 of the Convention of 19 March 1931, aimed to solve some conflicts of laws on cheques, to which Germany is a Contracting State, the Tribunal came to conclusion that obligations resulted from the cheque should be defined under the law of the country on the territory of which such obligations have been taken, i.e., in this case under the law of Germany.
The German laws that govern the cheques circulation, unified according to the Convention that establishes a Uniform Law on Cheques 1931, Amendment No. 1 to which is referred to as Uniform Cheque Law (UChL). UChL Art. 29 provides that a cheque that is paid in the country where it had been drawn, must be presented for payment during the eight day term. Herein, according to UChL Art. 32, the withdrawal of cheque is effective only after the expiration of the term for its presentation.
As follows from the documents of the case, the cheque of 9 March 1995 had been presented for payment on 27 March 1995, i.e., noticably later than the established term and the [Buyer] used his right to withdraw the cheque after expiration of the term for its presentation.
Because the [Seller] failed to use his right to present the cheque for payment in the term established by the law, his further actions to conclude the agreement with a Russian bank and the losses that resulted in this connection cannot be considered as resulting from the fault of the [Buyer].
* This is a translation of data on Proceeding 309/1995, dated 1 November 1996, of the Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, reported in Rozenberg ed., Arb. Praktika (1998) No. 32 [117-118]
All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of Russia is referred to as [Seller]; Respondent of Germany is referred to as [Buyer].
** Mykhaylo Danylko is a Partner with the law firm Danylko, Kushnir, Soltys & Yakymyak, Attorneys & Counselors at Law, Kiev, Ukraine <http://www.dksylaw.com>. He holds a Masters of Laws (European Studies Program) from the Law School of International Science and Technology University, Kiev, Ukraine (July 2000); a Master of Management in Business of the Business School of International Science and Technology University (June 2002); and has received his LL.M. in International and Comparative Law at the Pace University School of Law.Go to Case Table of Contents