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CISG CASE PRESENTATION

ICC Arbitration Case No. 8482 of December 1996 (Engines case) [English text]
[Cite as: http://cisgw3.law.pace.edu/cases/968482i1.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 19961200 (December 1996)

JURISDICTION: Arbitration ; ICC

TRIBUNAL: Court of Arbitration of the International Chamber of Commerce

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 8482 of December 1996

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Poland (claimant)

BUYER'S COUNTRY: Greece (respondent)

GOODS INVOLVED: Two engines


Classification of issues present

APPLICATION OF CISG: No. This tribunal held that in choosing Swiss law the parties did not thereby also choose the CISG, although it is part of that legal system. The contract provision for Swiss law, which was neutral to the parties, was held to call for the Swiss Code of Obligation rather than the CISG law of Switzerland.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 1(1)(b) ; 6 ; 8

Classification of issues using UNCITRAL classification code numbers:

1B2 [Basic rules of applicability: private international law points to Contracting State (Tribunal stated that Art. 1(1)(b) "does not apply in cases of contractual election of the law of a Contracting State. . . . The issue must be resolved by interpreting the intentions of the parties (Art. 8 of the Vienna Sales Convention)."]

6A ; 6B [Agreements to apply/exclude Convention];

8A [Intent of parties]

Descriptors: Applicability of Convention ; Choice of law ; Intent

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Editorial remarks

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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=460&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (English): ICC International Court of Arbitration Bulletin [ICAB], Vol. 11/No. 2 (Fall 2000) 56-57; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=460&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: van Houtte, ICAB (Fall 2000) 24 n.17 [choice of law based on presumed intent of parties], 26 n.35 [CISG and concurrent national law]

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Case digest

ICC Arbitration Case No. 8482 of December 1996
[Digest of presentation at ICAB, Vol. 11/No. 2 (Fall 2000) 56-57]

Digest by Amanda Waters

Facts

Claimant [seller] contracted with Respondent [buyer] for the construction and supply of two engines. [Buyer], who agreed to make payments in installments, paid the first installment on schedule, but was delinquent on the second installment. [Seller] completed the engine by the contractual date and agreed to delivery to [buyer] the engine without the crankshaft. The parties agreed that the crankshaft would be delivered when all payments were made. [Buyer] failed to make the requisite payments. The Arbitral Tribunal addressed the issue of the applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Applicable law

The Contract contained a forum selection clause stating "this contract shall be subject to the Swiss law."

By electing Swiss Law, there was a question of whether the parties intended to designate the CISG or the Swiss Code of Obligation as the applicable law. [page 57]

Applicable CISG provisions

Article 6 (choice of law); Article 8 (intent of parties)

"Article 1(1)(b) of the Vienna Sales Convention does not apply in cases of a contractual election of the law of a Contracting State (K. Neumayer, C. Ming, Convention de Vienne sur les contrats de vente internationale de merchandises, CEDIDAC 1993, ad. Art. 6, no. 5 page 87). This issue must be resolved by interpreting the intentions of the parties (Art. 8 of the Vienna Sales Convention)."

"By choosing Swiss law as a 'neutral' law to apply to the Contract and with an Arbitration Clause choosing Zurich as the place of the Arbitration, it may be concluded that the Parties intended the Arbitrators to apply the Swiss Code of Obligation and not the Vienna Convention…." However, it was not necessary to resolve the issue because "the end result of the present Award is no different under the Swiss Code of Obligation or under the Vienna Sales Convention." [page 57].

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