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CISG CASE PRESENTATION

Russia 4 June 1997 Arbitration proceeding 256/1996 [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/970604r1.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISIONS: 19970604 (4 June 1997)

JURISDICTION: Arbitration ; Russian Federation

TRIBUNAL: Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 256/1996

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Russia (claimant)

BUYER'S COUNTRY: Norway (respondent)

GOODS INVOLVED: Unavailable


Case abstract

RUSSIAN FEDERATION: Award in Case No. 256/1996 of 4 June 1997 of the
Arbitration Tribunal of Russian Federation Chamber of Commerce and Industry

Case law on UNCITRAL texts (CLOUT) abstract no. 463

Reproduced with permission of UNCITRAL

Abstract prepared by Alexander Komarov, National Correspondent

The case was brought by a Russian company, the seller, against a Norwegian firm, the buyer, in connection with the failure of the buyer to pay for part of the goods supplied under a contract concluded by the parties in January 1995. The seller sought payment from the buyer of the unpaid balance due and interest for the use of its facilities. The buyer sought to justify the partial payment on the grounds that the first of the two deliveries was incomplete. The buyer, therefore, deducted a corresponding amount from the payment due for the second delivery. The seller asserted that the buyer did not have the right to withhold payment under the contract on the grounds of its late claim.

On the basis of the evidence, the tribunal noted that the buyer had asserted its claim after the 30-day time limit established under the contract and the claim had not been duly confirmed. The tribunal, therefore, concluded that the buyer had not asserted its claim in the proper manner and, in accordance with article 39 CISG, had forfeited the right to claim that the goods supplied did not conform with the contract. The tribunal determined that the balance due could be recovered from the buyer, and pursuant to article 78 CISG, the seller was entitled to interest on the sum in arrears. On the basis of the above, the tribunal found for the seller on all points.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issues: Articles 39 ; 78

Classification of issues using UNCITRAL classification code numbers:

39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time];

78A [Interest on delay in receiving price or any other sum in arrears]

Descriptors: Lack of conformity notice, timeliness ; Interest

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

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. 61 [207-208]

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 nn.134, 238; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion)

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Russian Federation arbitration proceeding 256/1996 of 4 June 1997

Translation [*] by Mykhaylo Danylko [**]

1. SUMMARY OF RULING

The Tribunal of International Commercial Arbitration (hereinafter Tribunal) found that the Buyer breached the contract procedure for filing claims and has lost the right to rely on the non-conformity of the quantity of the delivered goods on the basis of CISG Art. 39.

2. FACTS AND PLEADINGS

The action was brought by the [Seller],a Russian company, against the [Buyer], a Norwegian company, in connection with nonpayment for part of the goods delivered under a contract concluded between the parties in January 1995.

The [Buyer] explained the partial payment by the fact that the first lot of goods (the [Seller] had shipped two lots) was shipped in shortage; therefore, the [Buyer] deducted the cost of goods in shortage from the price of the second lot of the goods. To prove his arguments, the [Buyer] presented the [Seller] with a facsimile message of a stevedore company, which checked the goods. The [Seller] challenged the actions of the [Buyer] referring to the late filing of a claim as well as to the invalidity of the report on the results of inspection [of the goods] to the requirements of the contract.

The [Seller] claimed recovery from the [Buyer] of the unpaid sum and annual interest for using his money as well as compensation of the arbitration fees.

3. TRIBUNAL'S REASONING

The ruling of the Tribunal contained the following main points.

     3.1 Since Russia and Norway are Contracting States of the Vienna Convention 1980, it is applicable to the relations of the parties.

     3.2 In accordance with the clause 6 of the contract "claims relating to the quality and quantity of the goods must be filed by the buyer within 30 days following delivery. Claims relating to quantity must be confirmed by a certificate of weighing for every bill of lading and by a separate report confirming the non-conformity of the whole lot of the goods. The weighing certificate and the report must be issued in the port of destination by an independent organization with statement of technical characteristics of the equipment, on which the weighting had been done".

The [Buyer] sent the [Seller] a telex from the stevedore company certifying the shortage of goods after expiration of the 30 day term required by the contract. The telex does not stipulate whether this stevedore company is an independent controlling organization. [The Buyer did not present] a weighing certificate nor did the [Buyer] provide the information on the equipment on which the weighing had been done.

Considering the foresaid, the Tribunal found that the [Buyer] failed to file the claim according to the requirements [agreed by the parties], and therefore, by virtue of CISG Art. 39, lost his right to rely on the non-conformity of the goods to the requirements of the contract.

     3.3 According to CISG Art. 78, the [Seller] is entitled to recover annual interest for the delay of payment. Since the CISG does not define the interest rate, the Russian Federation Civil Code Art. 395, as a rule of law of the country of the seller, shall be applied subsidiary on the basis of Art. 166 of the Fundamentals of Civil Law 1991.

The banking report on the annual rate presented by the [Seller] meets the requirements of the said Art. 395, as well as the requirements of the practice of its application, reflected in the Decision of Russian Federation Supreme Court and Supreme Court of Arbitration No. 6/8 of 1 July 1996.

Considering that the [Seller] has sent the [Buyer] a notice on nonpayment of the claimed sum on 10 January 1996, the Tribunal found that recovery of the annual interest shall be made for the period since the abovesaid date until the date of actual payment.


FOOTNOTES

* This is a translation of data on Proceeding 256/1996, dated 4 June 1997, of the Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, reported in Rozenberg ed., Arb. Praktika (1996-1997) No. 61 [207-208].

All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of the Russian Federation is referred to as [Seller] and Respondent of Norway 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.

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