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CISG CASE PRESENTATION

Russia 16 February 1998 Arbitration Court [Appellate Court] for the Moscow Region
[Cite as: http://cisgw3.law.pace.edu/cases/980216r3.html]

Primary source(s) of information for case presentation: UNCITRAL case abstract

Case Table of Contents


Case identification

DATE OF DECISION: 19980216 (16 February 1998)

JURISDICTION: Arbitration ; Russian Federation

TRIBUNAL: Federal Arbitration Court for the Moscow Region

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: KG-A40/154-9

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Argentina

BUYER'S COUNTRY: Russia

GOODS INVOLVED: Goods (case does not specify)


UNCITRAL case abstract

RUSSIAN FEDERATION: Moscow Area Federal Arbitration Court
Case No. KG-A40/154-98 of 16 February 1998

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/113],
CLOUT abstract no. 1114

Reproduced with permission of UNCITRAL

Abstract prepared by A. S. Komarov, National Correspondent, A. I. Muranov and N. S. Karetnaya

An Argentine company (the seller) sued a Russian organization (the buyer) for the recovery of moneys paid following the Russian organization's failure to fulfil its obligations under a contract for the international sale of goods. The respondent submitted a counterclaim for penalties. The court upheld the claims of the company and organization, calculated the counterclaim and awarded moneys to the Argentine company. The Russian organization contested the decision, claiming that the rules of substantive law had been incorrectly applied.

The court of cassation reached the following conclusions.

The court of first instance, in upholding the claims of the Argentine company, followed the Civil Code of the Russian Federation, justifying its application by the agreement between the parties. The court of first instance rightly stated that the transaction agreed by the parties constituted a foreign economic transaction, since the commercial entities of the two parties were located in different States.

However, the court of first instance did not take into account the fact that, under the Constitution of the Russian Federation, international instruments to which the Russian Federation has acceded are incorporated into the country's legislation. CISG is applicable to the relations between the parties to a foreign sales transaction. The parties' agreement about the application of domestic law does not preclude the application of CISG under article 1(1)(a), since the commercial enterprises of the two parties are located in different States and these States are both party to CISG. In such a case, the application of the Civil Code of the Russian Federation can only be subsidiary in nature.

On these grounds, the court declared the decision of the court of first instance to be unfounded, overturned the decision and ordered a retrial, indicating the need to base a decision on the applicable substantive law.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 7(2)

Classification of issues using UNCITRAL classification code numbers:

1B1 [Parties in different Contracting States]

Descriptors: Applicability

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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): online database of court judgements <http://kad.arbitr.ru>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated January 25, 2012
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