Russia 16 December 1996 Arbitration proceeding 378/1995 [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/961216r1.html]
DATE OF DECISIONS:
CASE NUMBER/DOCKET NUMBER: 378/1995
CASE HISTORY: Unavailable
SELLER'S COUNTRY: U.S.A. (claimant)
BUYER'S COUNTRY: Russia (respondent)
GOODS INVOLVED: Unavailable
APPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issues:
Classification of issues using UNCITRAL classification code numbers:
52B ; 52C [Excess quantity: buyer may take delivery of all or refuse the excess; contract rate applies to the excess goods buyer received]; 53A [Buyer's obligation to pay price of goods]
52B ; 52C [Excess quantity: buyer may take delivery of all or refuse the excess; contract rate applies to the excess goods buyer received];
53A [Buyer's obligation to pay price of goods]
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. 37 [130-131]
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo 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 On the basis of Art. 1(1)(a) of the Vienna Convention 1980 (CISG) the Tribunal of International Commercial Arbitration (hereinafter Tribunal) applied it to the relations between the Russian company and the U.S. company under their contract of January 1995.
1.2 The buyer has the right to accept or reject the delivery [of goods] if such delivery exceeds the quantity of goods agreed by the contract. In case of acceptance of the exceeding delivery the buyer must pay the agreed price for it.
1.3 [The Tribunal] dismissed the Respondent [Buyer]'s counterclaim against the Claimant [Seller] because the [Buyer] failed to fulfill the necessary requirements prescribed in the Rules of Tribunal and, inter alia, did not pay the arbitration fees for filing the counterclaim.
2. FACTS AND PLEADINGS
The matter of the action brought by the [Seller],a U.S. company, to the [Buyer], a Russian company, was payment of the price for goods delivered by the [Seller] to the [Buyer] in excess of the quantity provided for in the contract concluded between the parties in January 1995. The [Seller] referred to the fact that the [Buyer] has accepted the excess goods delivered to him, however, [Buyer] neither paid the price for them nor returned the goods even though the parties have agreed so; moreover, the [Seller] had arranged cargo trucks [to take back goods from the Buyer] which have been returned back empty. The [Seller]'s claims included: recovery of the price for the excess quantity of the goods and interest for using the money, recovery of the lost profit and the cost of the rent of cargo trucks rented to take goods back from the [Buyer]'s storage as well as recovery of the truck drivers' fees. The [Seller] explained that the excess goods had been shipped in order to rationally use the containers in which the goods had been shipped.
In his response to the action, the [Buyer] alleged counterclaims against the [Seller], however, he failed to formalize his claims according to the procedure required by the Rules of Tribunal.
At the Tribunal hearing, the [Buyer] admitted that he had accepted and used the excess quantity of goods shipped by the [Seller]. The [Seller] withdrew the part of his claims (recovery of the annual interest, recovery of the lost profit, and recovery of expenses to rent the cargo trucks) and proposed that [Seller] compensate [Buyer] the expenses in connection with customs clearance of the goods after the [Buyer] provides the documents confirming payment of those expenses (the goods had been shipped under the terms CIF - place of destination in Russia).
3. TRIBUNAL'S REASONING
The ruling of the Tribunal contained the following main points.
3.1 The Tribunal found that the [Buyer] admitted the fact of his acceptance of the excess goods and did not challenge the quantity, quality and price of the goods. Considering this, the Tribunal found that the [Buyer] did not fulfill his contractual obligations to pay the price for the goods delivered to him and by this breached para 1.1. of the contract and CISG Art. 53, which application to parties' relations is based on CISG Art. 1(1)(a). Thus, the [Buyer] is obliged to pay the [Seller] the price of accepted but not paid goods.
3.2 The Tribunal took into attention that the [Seller]'s withdrawal of the part of his claim is admitted by the [Buyer] and found this withdrawal reasonable.
3.3 As to the [Buyer]'s counterclaims, the Tribunal found that the [Buyer] failed to fulfill the requirements prescribed in the Rules of Tribunal as to procedure of filing the counterclaims and did not pay the registration and arbitration fees. Thus the Tribunal came to conclusion that the [Buyer] does not have the rights that has a party which files a counterclaim and therefore these counterclaims should be left without consideration.
* This is a translation of data on Proceeding 378/1995, dated 16 December 1996, of the Tribunal of International Commercial Arbitration of the Russian Federation Chamber of Commerce and Industry, reported in Rozenberg ed., Arb. Praktika (1996-1997) No. 37 [130-131].
All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of the United States is referred to as [Seller] and Respondent of the Russian Federation 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