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CISG CASE PRESENTATION

Russia 29 September 1997 Arbitration proceeding 470/1996 [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/970929r1.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISIONS: 19970929 (29 September 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: 470/1996

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: India (claimant)

BUYER'S COUNTRY: Russia (respondent)

GOODS INVOLVED: Unavailable


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issues: Articles 30 ; 53 ; 74 ; 78 [Also cited: Articles 61 ; 62 ]

Classification of issues using UNCITRAL classification code numbers:

30A [Seller's obligation to delivery goods];

53A [Buyer's obligation to pay price of goods];

74A [General rules for measuring damages: burden of proof];

78B [Rate of interest; calculation of interest]

Descriptors: Delivery ; Price ; Damages ; Burden of proof ; Legal costs ; Interest

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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

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. 69 [232-233]

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. 156, 167

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Russian Federation arbitration proceeding 470/1996 of 29 September 1997

Translation [*] by Mykhaylo Danylko [**]

1. SUMMARY OF RULING

     1.1 Since the contract, concluded in June 1995 between an Indian company and a Russian company, provides for application of Russian material law to relations of the parties and the Vienna Convention 1980 (CISG) is a component part of it which should be applied primarily comparing to the rules of national laws, the Tribunal of International Commercial Arbitration (hereinafter Tribunal) applied this Convention. As to the issues not governed by the CISG or governed in part, the Tribunal applied to them the rules of the Russian Federation Civil Code.

     1.2 The legal fees shall be proved by documents. The issue of recovery of such expenses is decided on a case-by-case basis depending on the circumstances of the particular case.

2. FACTS AND PLEADINGS

The action was brought by the [Seller], an Indian company, against the [Buyer], a Russian company, in connection with nonpayment of the price for goods delivered under a contract concluded in June 1995.

The [Buyer] admitted his debt in a letter addressed to the [Seller]. The [Buyer] did not present any objections to this action nor did the [Buyer] appear before the Tribunal. The action materials were served on the [Buyer], the summons, sent to the same address [the documents had been sent] had been returned with a note that there was no [Buyer] at that address.

The [Seller]'s claims include recovery of the debt with calculation of annual interest, compensation of the arbitration fees and legal fees.

3. TRIBUNAL'S REASONING

The ruling of the Tribunal contained the following main points.

     3.1 [Hearing absente reo]

By virtue of Art. 28(2) of the Rules of Tribunal, the Tribunal may arbitrate the dispute in the absence of the Respondent.

     3.2 [Applicable law]

As to the applicable law, the Tribunal found that the parties in their contract agreed that Russian material law was applicable. Since a component part of Russian material law is also international conventions to which the Russian Federation is a Contracting State and which should be applied primarily comparing to the rules of national civil law, the CISG should be applied to the relations of the parties arising from performance of this contract. As to issues not governed by the CISG or governed in part, the rules of the Russian Federation Civil Code should be applied.

     3.3 [The merits of the case]

As to the merits of the [Seller]'s claims, the Tribunal found that [Seller] had fulfilled his obligations under the contract which is proved by the bills of lading attached to the statement of action and by the materials of the case; in other words, the [Seller] fulfilled the obligations put upon him by CISG Art. 30. The [Buyer] failed to fulfill the obligations put upon him by CISG Art. 53, inter alia, to pay the price for the goods.

Under such circumstances, the Tribunal found the [Seller]'s claim against the [Buyer] to accept the goods and pay the price for them reasonable and based on CISG Arts. 61 and 62. Since the [Seller] presented the bills of lading confirming the quantity and price of the shipped goods, and also considering that the [Buyer] had admitted his debt in April 1996, the Tribunal found the claimed sum proved; thus this sum must be recovered.

As to the claim to recover annual interest, the Tribunal found that in the hearing on 29 September 1997 the [Seller]'s representative asked to determine the amount of interest according to the previous practice. With this, the [Seller] did not present any evidence of the annual interest rate. Therefore, under such circumstances, the Tribunal found this [Seller]'s claim unproved; thus, on this base, it should not be granted.

As to the compensation by the [Buyer] of the [Seller]'s legal fees, the Tribunal found that the [Seller] did not present any evidence of the actual expenses spent and in the hearing on 29 September 1996 the [Seller]'s representative referred to the previous practice. Under such circumstances, the Tribunal stated that the party must prove the legal fees with documents. The absence of such documents leads the Tribunal to dismiss the claim. The [Seller]'s reference to the Tribunal's previous practice cannot be taken into attention since such issues are decided on a case-by-case basis with consideration of the circumstances of the particular case.


FOOTNOTES

* This is a translation of data on Proceeding 470/1996, dated 29 September 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. 69 [232-233].

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