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CISG CASE PRESENTATION

Serbia 15 April 1999 Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce (Fishing boat case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/990415sb.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 19990415 (15 April 1999)

JURISDICTION: Arbitration ; Serbia

TRIBUNAL: Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce

JUDGE(S): Prof. Dr. Radovan Vukodionovic

CASE NUMBER/DOCKET NUMBER: T-23/97

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: CISG Contracting State (defendant)

BUYER'S COUNTRY: Yugoslavia (plaintiff)

GOODS INVOLVED: Fishing boat (a smack)


Classification of issues present

APPLICATION OF CISG: No [Article 2(e)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 2(e)

Classification of issues using UNCITRAL classification code numbers:

2E [Exclusions from Convention: ships, vessels]

Descriptors: Ships or vessels

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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 (Serbo-Croatian): Summary of award prepared by Mirjana Cukavac, Secretary of the FTA and published in the journal Arbitraza no. 1 (2000) 149-151

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 2 para. 32

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Case text (English translation)

Yugoslav Chamber of Commerce arbitration proceeding 15 April 1999

Translation by Maja Stanivukovic [*]

Yugoslav company as buyer "L" and defendant as seller entered into a contract on the purchase of a fishing boat (a smack). By this contract, the defendant promised to transport the ship to the port of Bar, Montenegro, Yugoslavia, within eight days from the payment of the price.

In Art. 8 of this contract, the parties specified that all disputes belong to the jurisdiction of an international court in London.

Thereupon, the plaintiff and the initial buyer, company "L", entered into a contract by which "L" assigned all its rights and obligations from the contract with the defendant to the plaintiff. The defendant consented to the assignment by sending an invoice to the plaintiff and accepting payments made by the plaintiff in his favor.

In its commercial invoice no. 1001/91 dated 6 September 1991 sent to the plaintiff as buyer, the defendant as seller stated in item 3: "All disputes belong to the jurisdiction of the Foreign Trade Arbitration and the Yugoslav Chamber of Economy in Belgrade".

The plaintiff fully performed his obligation of payment of the purchase price and the defendant failed to deliver the ship or to make restitution of the amount received as purchase price to the plaintiff. In his claim, plaintiff requested from the defendant the delivery of the ship.

The defendant did not respond to the statement of claim which was duly served on him, he did not participate in the appointment of the sole arbitration and did not attend the hearing to which he was properly invited. The arbitrator proceeded with the case in accordance with the Rules of the FTA, Article 25 para. 5.

The arbitrator decided in favor of the claimant buyer.

Legal issues: Jurisdiction of the arbitration; Applicable law, Conditions for a valid assignment of a contract; Character and legal significance of a commercial invoice; Influence of the CISG sanctions on performance of contractual obligations

[]

II. Applicable law; Exclusion of the Vienna Convention

Excerpt from the Statement of Reasons

In the commercial invoice no. 1001/91 submitted to the plaintiff on 6 September 1991, the defendant specified "Yugoslav substantive law" as the applicable law. Although this clause originated from defendant's unilateral statement of will, the plaintiff accepted this clause, i.e., consented to it by acting upon this invoice, i.e., by performing the contract of sale by making payments in favor of the defendant.

In determining the actual meaning of the stated provision, the arbitrator started from the classification of this contract as a contract for the international sale of goods entered into between parties whose places of business were found in the territories of States parties to the 1980 UN Convention on Contracts for the International Sale of Goods. However, since this was the sale of a ship, a special category of goods, it follows from the exception provided in CISG Article 2(e) that the reference to Yugoslav law in this case should not be understood as a reference to the CISG, but rather as a reference to the internal substantive law of Yugoslavia. Therefore, this dispute is not governed by the provisions of the Vienna Convention, but by the Yugoslav substantive law, found in Yugoslav domestic laws.

(This is a translation of a section from the Summary of the Award made by Mirjana Cukavac, the Secretary of the FTA and published in the journal Arbitraa no. 1 (2000) 149-151).


FOOTNOTE

* Dr. Maja Stanivukovic is Head of the Department of International Law and Vice-Dean of The Novi Sad School of Law.

All translations should be verified by cross-checking against the original text.

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Pace Law School Institute of International Commercial Law - Last updated January 27, 2009
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