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CISG CASE PRESENTATION

Switzerland 15 November 2002 Appellate Court Geneva (Iron concrete and Steel bars case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/021115s2.html]

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

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Case identification

DATE OF DECISION: 20021115 (15 November 2002)

JURISDICTION: Switzerland

TRIBUNAL: Cour de Justice [Appellate Court] de Genève

JUDGE(S): Mrs. Antoinette Stalder (President); Mrs. Martine Heyer, M. Michel Cribet (Judges)

CASE NUMBER/DOCKET NUMBER: C/27897/1995

CASE NAME: Unavailable

CASE HISTORY: 1st instance Tribunal de première instance Genève 23 May 2001

SELLER'S COUNTRY: United States (plaintiff)

BUYER'S COUNTRY: Switzerland (defendant)

GOODS INVOLVED: Iron concrete and Steel bars


UNCITRAL case abstract

SWITZERLAND: Geneva Court of Justice [C/27897/1995] 15 November 2002

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/149],
CLOUT abstract no. 1402

Reproduced with permission of UNCITRAL

Abstract prepared by Thomas M. Mayer

Through a Californian broker, commercial company A of Geneva purchased from commercial company E of Washington 10,000 metric tons of concrete-reinforcing steel for resale to company S, having its headquarters in London and in turn acting on behalf of a Chinese final purchaser. Subsequently, the order was extended to include 800 metric tons of steel wire coils.

The goods had been loaded in Lithuania on a ship bound for China. The consignee, S, challenged the quality of the goods on their arrival at the destination and initiated arbitration proceedings against company A. At the outcome of the proceedings, company S received $180,000 in addition to $70,000 on account of non-conformities and late delivery. Later, company E claimed from company A the outstanding 10 per cent of the sale price that company A had withheld to cover any eventual warranty claims. Company A asserted a counterclaim for damages for the share of costs in excess of the outstanding balance that were incurred as a result of the arbitration proceedings and various expert opinions. The competent court allowed the claim and dismissed the counterclaim. Company A appealed against this judgement.

The Court of Justice rejected the appellant’s argument that a subsequent agreement relating to an inspection of the sold goods at the port of destination amounted to an amendment of the “free on board” clause agreed in the original contract. The court saw this merely as an extension of the prescribed time limit for reporting defects in the goods that had already been recorded during loading. The court found that the time limit had been respected and therefore allowed a claim against company A for damages on the grounds of defects in the goods. However, the court upheld as damages within the meaning of article 74 of the CISG only the $180,000 in favour of S awarded in the arbitration proceedings. The appeal concerning the difference between this amount and the outstanding balance of the sale price owed by company A was dismissed.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 11 ; 29(1) ; 35 ; 36(1) ; 39(1) ; 74 [Also cited: Articles 14 ; 45(1)(b) ; 50 ; 53 ; 78 ]

Classification of issues using UNCITRAL classification code numbers:

11B [Proof of contract by any means, including witnesses];

29A [Parties by agreement may modify or terminate the contract];

35A ; 35B [Conformity of goods to contract: quality, quantity and description required by contract; Requirements implied by law];

36A [Conformity determined as of time when risk passes to buyer];

74A [General rules for measuring damages: loss suffered as consequence of breach]

Descriptors: Formal requirements ; Modification of contract ; Conformity of goods ; Damages ; Incoterms

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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 (French): CISG-online.ch website <http://globalsaleslaw.com/content/api/cisg/urteile/1839.pdf>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

Cour de Justice de Genève

[15] November 2002

Translation by [*] Amy Hornitzky [**]

Edited by Pablo Antonio Santos Jiménez [***]

[...]

THE FACTS

A. Defendant A... SA [of Switzerland] (for purposes of this translation, hereafter referred to as "[Buyer]") appealed on 25 June 2001 the judgment issued by the Court of First Instance sitting in Geneva on 23 May 2001, notified that same day and received on 28 May 2001. This judgment stated that:

1.   [Buyer] was ordered to pay E... Consulting Inc [of the United States] (hereafter referred to as "[Seller]") the amount of 236,131 Swiss francs plus interest of 5% per annum as of 6 July 1993;
 
2.   [Buyer] was ordered to pay [Seller] the amount of 1,180 Swiss francs.
 
3.   The [Buyer]'s counterclaim of 136,146.48 Swiss francs, equivalent to US $109,795.55, was refused.
 
4.   [Buyer] was ordered to pay damages including a procedure indemnity of 15,000 Swiss francs covering the attorneys' fees from East-West.
 
5.   All other claims were refused.

[Buyer] moved for appeal seeking to have this judgment annulled, the demands of [Seller] rejected and to have [Buyer]'s counterclaim for US $109,795 55 approved.

On 5 October 2001, [Seller] moved for an incidental appeal demanding that [Buyer] pay 21,578 Swiss francs plus interest of 5% per annum as of 6 July 1993. On the main appeal, [Seller] sought to have the findings of the Court of First Instance affirmed.

[Buyer], in turn, moved to have the [Seller]'s appeal dismissed.

On 5 March 2002, [Buyer] pleaded and supported the above arguments. [Seller] did not plead but equally insisted upon its prior arguments. The matter was then redressed for judgment.

B. The following pertinent facts are extracted from the file:

      a) [Buyer] is a company established under Swiss law sitting in Geneva. [Seller] is a company established under American law sitting in Edmonds, Washington, United States. Both companies are active in the international sale of goods.

Lewis S (hereafter: [Agent Lewis]) is an agent located in California. He led the two companies to conclude the transaction described above and followed all the events of this business operation.

      b) On 6 May 1993, [Agent Lewis] sent a fax to [Buyer] in which it was stated that [Seller] had 10,000 tons of iron concrete at its disposal until the following day, which could be sold to [Buyer] and loaded in Klaipeda, Lithuania, then resold to S... Ltd (hereafter "S") whose seat is in London, and who acted for a Chinese buyer.

[Seller] directly confirmed this offer to [Buyer] on 7 May 1993. [Seller] then confirmed via fax on 12 May 1993 the conclusion of a transaction concerning 10,000 tons of bars of steel. Buyer] purchased the merchandise from [Seller]. The selling price was US $190 per ton (FOB). Payment had to be effected by means of an irrevocable letter of credit sent by a reputable Swiss bank five days after confirmation of the transaction. Loading the ship would have had to happen between 1 and 10 June 1993 and the delivery of the goods was to take place during June 1993.

      c) On 14 May 1993, [Buyer] concluded a contract with S in which S bought the steel from [Buyer] for its Chinese customer. This contract called for the above-mentioned 10,000 tons of steel, deliverable in China before 15 June 1993 from Klaipeda, Lithuania, to a Chinese port to be determined, for US $270 per ton including cost and freight.

This contract contained clauses concerning:

   -    Packaging of the goods;
 
   -    The right of S to re-inspect the goods once the vessel had been unloaded at the port of destination by the Chinese Office of Inspection of Primary Materials;
 
   -    Penalties concerning late delivery, if the delay was caused by [Buyer]

      d) On 21 May 1993, [Buyer] indicated to [Agent Lewis] that it wished to insert these clauses in the 12 May 1993 contract with [Seller] and that all the costs of demurrage at the port of embarkation had to be deducted from [Seller]'s invoice. [Buyer] indicated that it was going to draft a purchase contract including these clauses and costs. This contract was never sent to [Seller].

On 28 May 1993 [Agent Lewis] responded to [Buyer] that the representative of [Seller], Garry Ch... appeared to be in agreement with these clauses including the costs of demurrage; this having occurred in a previous conversation that S had had with Garry Ch. However, in a hearing with a rogatory commission, [Agent Lewis] refuted the agreement of [Seller].

      e) On 1 June 1993, [Buyer] gave instructions to Hong Kong and Shanghai Banking Corporation to issue a letter of credit in favor of [Seller] for the approximate amount of US $1,900,000.00 corresponding to the price of the steel.

On 4 June 1993, [Buyer] ordered the bank to increase the amount in the letter of credit to US $2,060,000.00 and to add technical specifications of a complementary charge on the same ship of [an extra] 800 tons of steel reels, because the loading of the strips of steel left transport space which had to be filled (witness testimony by S). The operations took approximately one month.

      f) On 8, 14 and 30 June 1993, Inspectorate (Switzerland) SA (hereafter Inspectorate), an inspection company appointed by [Buyer] and [Seller], indicated in three reports sent to [Buyer] that the reels and strips of steel loaded on the ship Kavo Peiratis, were rusted from storage, corroded, in a very bad state, that 5% of the reels were deformed, some had no stickers, and that the bars of steel were not big enough.

Inspectorate sent via fax the reports of 8 June 1993 and 14 June 1994 to [Buyer] prior to the departure of the vessel. The report of 30 June 1993 also contained the defaults reported in the prior reports.

According to Inspectorate, the loading of the ship had been terminated on 18 June 1993. It left the port of Klaipeda on 22 June 1993 bound for China where it called in the port of Yantai 39 days behind schedule.

      g) On 15 June 1993, [Seller] issued a bill which [Buyer] received on 9 July 1993 for the bars and steel reels in the amount of US $1,817,337.47. This bill included the price of the goods and deductions for the costs of demurrage in the amount of US $83,145.75 and the costs of loading being US $35,136.00 and US $50,873.60.

On 15 July 1993, [Buyer] gave an order to Hong Kong and Shanghai Banking Corporation to pay the amount of US $1,455,603.72 to [Seller]'s bank, being 90% of the bill of 15 June 1993.

In a fax dated 15 July 1993, [Buyer] explained to [Seller] that it had paid only 90% of the bill, retaining the balance to cover the eventual claims on behalf of S concerning the quality of the goods. This fax was returned by [Seller] with the note "accepted".

On 3 August 1993, [Seller] indicated that it only accepted the receipt provisionally, because it needed funds.

      h) The goods were unloaded in the Chinese port Yantai on 8 September 1993. On 13 September 1993, [Buyer's customer] S sent a telex to [Buyer] complaining about the bad quality of the goods received. On 11 October 1993, S denounced [Buyer] for the late delivery, the defects in the goods received, the non-conforming packaging, the insufficient length of the bars, their deformities and stated that that some contained carbon which made them unusable.On 14 October 1993, [Buyer] transmitted this claim to [Seller].

The complaint was then the subject of copious correspondence between [Buyer] and [Seller] but did not result in the parties finding a common understanding or resolution.

      i) Arbitration was commenced between S and [Buyer] concerning the defects in the goods and their late arrival. S claimed from [Buyer] interest on the amount of the damages for the defects and late penalties, a total sum of US $789,488.39. This arbitration was terminated by a settlement transaction on 29 August 1995, according to which [Buyer] paid US $250,000 to S, being US $180,025.52 for the defects in the goods and US $69,974.48 for the late delivery of same. (Witness testimony by J...).

      j) According to testimony by S, the loading information confirmed the responsibility of [Buyer] and the penalties for late delivery charged to [Buyer] were justified because the delay in delivery was caused due to the loading of additional goods.

However, the penalties relating to the defective goods were unfounded because it was only atmospheric rust; the true reasons for S's claim were the drop in value of steel, and the devaluation of Chinese currency and not due to any defects in the goods themselves.

C. In a proceeding filed on 4 October 1995 before the Court of First Instance, [Seller] claimed from [Buyer] the following amounts:

   -    236,131 Swiss francs plus interest at 5% per annum as of 6 July 1993 under the concept of the balance of the price of the sale of goods;
 
   -    21,578 Swiss francs plus interest of 5% per annum as of 6 July 1993 under the concept of demurrage indemnities and the cost of loading;
 
   -    1,180 Swiss francs under the concept of overdue interest on the amount of US $1,455,603 between 9 and 15 July 1993, the date of payment of this amount by [Buyer], representing 90% of the sale price.

On 20 June 1996, [Buyer] filed a counterclaim for 136,146 Swiss francs, being the equivalent of US $109,795.55, composed of the following elements, in addition to US $161,733.74 for receipt of 10% of the price of the sale of the goods:

   -    US $180,025.52 for indemnity paid to S due to the arbitral compromise governing the defective goods;
 
   -    US $4,500.00 for the cost of complementary expert [assessment] from the company United Interocean, Beijing, for bills dated 10 September and 16 October 1993;
 
   -    US $1,400.00 for costs of complementary expert [assessment] from Commodity Inspection Corporation (CCIC) of Qingdao, China, for the bill dated 30 November 1993;
 
   -    US $19,622.96 for the complementary expert [assessment] of the Inspectorate (Switzerland) S.A., in its Chinese port Yantai, for the bill from 19 January 1994;
 
   -    US $1,950.85 for the costs of complementary expert [assessment] from the Federal Polytechnic School in Lausanne, for the bill from 16 June 1995 of 2,224 Swiss francs indicating "study of file and editing a report";
 
   -    US $26,320.68 and US $37,709.28 for the cost of advice and arbitration, for two bills from Law Firm Elborne/Mitchell of London, for 23,381.45 (pounds sterling) (undated bill for services from January 1994 to May 1995) and 33,497.93 (pounds sterling) for services from April to September 1995 (bill dated 15 November 1995).

D. In its judgment of 23 May 2001, the Court of First Instance following the principal claim of [Seller] found that:

   -    The discount of 236,131 Swiss francs from the sale price due from [Buyer], the reduction of 10%, was not justified because the goods did not contain defects;
 
   -    Late interest was due on the sum as of 22 June 1993, because the goods were remitted to [Buyer] that day, being the day when the ship left the port of loading, and [Seller] had not claimed the late interest after 6 July 1993, the date of payment for the price of the goods by S to [Buyer];
 
   -    Late interest at a rate of 5% per annum on 90% of the price of sale for the goods for the period between 9 to 15 July 1993 was due in concurrence with the amount claimed by [Seller] of 1,180 Swiss francs;
 
   -    The claim for reimbursement by [Buyer] of the costs of demurrage and the loading was not proven by [Seller].

The Court of First Instance rejected the counterclaim by [Buyer] for the following reasons:

   -    Since the goods were not defective, there was no place to allow the amount of US $189,025.52 paid by [Buyer] to S under the concept of interest on the damages;
 
   -    The other claims, made on the basis of Article 50 of the Vienna Convention on the International Sale of Goods, being for the cost of complementary expert [assessment], for advice and arbitration, did not correspond to the difference in value asserted to exist between the value of the goods at the moment of delivery and the value that the goods should have had at that point in time.

E. The legal arguments by each of the parties before the Court are as set out below.

THE LAW

1. The principal claim and the ensuing claim were filed within the legal time limit and in legal form (art. 296 al. 1, 298 al. 1 and 300 al. 1 LPC [*]).

The Court of First Instance decided the matter. The Court reviewed the matter by exercise of its full review authorities (art. 291 LPC).

2. According to Article 112 al. 1 LDIP [*], Swiss tribunals in the domicile of the defendant are competent to resolve matters arising from a contract.

3. Switzerland and the United States are parties to the Convention of the United Nations on Contracts for the Sale of International Goods as of 11 April 1980 (RS 0.221.211.1; hereafter CISG).

According to article 1(1)(b) CISG, it applies to contracts for the sale of goods between parties having their registered offices in different States considering that said States are Contracting States, and here the contracting parties have their businesses in Switzerland and the United States.

Although the contract for sale was not concluded or confirmed in writing and was not submitted in another form, it may be proven by any means, including by witnesses (art. 11 CISG).

It is not contested by the parties whether they accepted the application of the CISG, that they are bound by a contract, either by acceptance of the offer confirmed on 12 May 1993 by [Seller] and that the goods were sufficiently designed, including quantity and price (art. 14 et seq. CISG).

4. According to article 29(1) CISG, a contract may be modified or revised by agreement between the parties.

The contract of 12 May 1993 does not contain any clause as to the form of modification of contract required.

[Buyer] alleged that the contract concluded between the parties on 12 May 1993 was modified by:

   -    A fax sent by [Buyer] on 21 May 1993 to [Agent Lewis], which asked the addition of the clauses contained in the contract of 14 May 1993 between [Buyer] and S concerning the packaging of the goods, the penalties for late delivery and the final inspection at the Chinese port of discharge for the quantity and quality of the goods; [Seller] was also responsible for the resulting transfer of risks in China for the quality and quantity of goods; in accepting this inspection acted as though the clause FOB was no longer in effect;
 
   -    The agreement of 28 May 1993 by [Agent Lewis], on behalf of [Seller], noting in his responding fax a prior agreement by Garry Ch... representing [Seller] modifying the contract;
 
   -    The acceptance by fax on 15 July 1993 of [Seller] of the deduction of 10% of the purchase price for the sale of the goods, which meant acceptance of the defects and abandonment of the clause FOB by [Seller] for the clause CFR, cost and freight.

This deduction concerning the eventual defects, still to be determined would not suffice as acceptance of the defects. It only signifies that the totality of the price of sale cannot yet be demanded.

[Seller] disputes that the contract of 12 May 1993 was modified by the fax of 21 May 1993 and by the response of [Agent Lewis] of 28 May 1993, because [Buyer] had refused to submit a written modification of the contract, incorporating those clauses contained in the contract concluded between [Buyer] and S.

[Seller] also alleges having immediately contested on 3 August 1993 the deduction of 10% of the price of sale.

The fax sent by [Agent Lewis] on 28 May 1993 responding to that of [Buyer] of 21 May 1993 accepted those requested modifications. However, testifying as a witness, [Agent Lewis] indicated that no agreement had been given by [Seller].

The Court exercising its discretion to appraise the evidence (art. 196 LPC), will consider as more probative the earlier written document and not the later deposition from the testimony of [Agent Lewis] contrary to the fax which he sent, in which [Agent Lewis] had engaged [Seller] and represented himself as agent of a party.

Proof of modification of this contract, the costs of loading and the costs of demurrage at shipment had already been deducted by [Seller] in the bill of 15 June 1993 in US $83,145.75 for the costs of demurrage and the amounts of US $35,136 and US $50,873.60 for the costs of loading the ship.

Consequently, one must consider that the contract of 12 May 1993 between [Buyer] and [Seller] has been modified between the parties, concerning:

   -    The packaging of the goods;
 
   -    That [Buyer] has the right to re-inspect the goods once unloading has been completed at the port of destination by the Chinese Office of Inspection of Primary Materials;
 
   -    The penalties for late delivery, if the delay was occasioned by [Buyer]; and
 
   -    That the costs of demurrage at the port of shipment be deducted from the bill of [Seller].

5. [Buyer] alleges that its claims are founded on the non-conformity of the goods, non-conforming packaging, the length of bars of steel smaller than that foreseen, the deformity of the bars due to the bad packaging and the inferior percentage of carbon in the metallurgical composition of the bars. [Buyer] has not ever claimed interest or damages from [Seller] due to the fact that the goods were rusted.

It can be seen in reports of 8 and 14 June 1993 by the Inspectorate, mandated by the two parties, that the bars of steel were not big enough, that the bobbins and bars of steel, all loaded on the boat Kavo Peiratis in the port of Klaipeda, were rusted, corroded, in very bad condition, and that 5% of the bobbins had deformities and some of them no stickers.

[Buyer] was already aware of these defects at the time of the loading of the goods at Klaipeda because [Buyer] received these reports by fax on 8 and 14 June 1993.

According to article 74 CISG, the damages for breach of contract committed by one of the parties is equivalent to loss sustained and deprivation of profit caused by the other party due to the breach.

The seller must deliver the goods such that the quantity, quality and the type correspond to that set out in the contract and the packaging and condition correspond to that provided in the contract (art. 35(1) CISG).

The goods conform to the contract if they are at least suitable for use to the same extent as similar type products (art. 35(2) CISG)

The seller is responsible pursuant to the contract and the CISG for any lack of conformity that exists at the moment of transfer of risk to the buyer, even if this defect only appears subsequently (art. 36(1) CISG).

The contract of 12 May 1993 between [Buyer] and [Seller] sets forth an FOB price. It concerns a reference to 'Incoterms', which are rules prescribing the interpretation of terms used in international sales contracts (Pierre Tercier, "Les contrats speciaux", 1995, n. 1122 p. 142).

Contrary to what [Buyer] contends -- in accepting a final inspection at the port of shipment, [Seller] has not abandoned the clause FOB, as contained in the contract of 12 May 1993 (free on board, agreed port of shipment) for the clause CFR (cost and freight, agreed port of destination), and has accepted its responsibility up until the Chinese port of shipment, because:

   -    Incoterms do not cover original defects of the goods, but the delivery, the transfer of risk, the apportionment of costs and the documentary formalities relevant to border crossings (Carole Xuerf, "Les Incoterms 1990", in "Les contrats de vente internationale de merchandise", 1991, p. 134-136, 148-149);
 
   -    In FOB and CFR sales, the transfer of risk passes to the buyer in both cases when the goods pass the railing of the ship (Carole Xuerf, op. cit., p. 136)

By accepting a final inspection at the Chinese port of shipment as to the quality and quantity of the goods, [Seller] in reality accepted the opinion that the defects were reported in time, the goods being defective already at the point of loading.

[Seller] did not alleviate in any way the delay of the opinion on defects.

From the moment when the goods were loaded on the ship at Klaipeda, [Seller] responded to the original defects, confirmed by the Inspectorate.

[Seller] must consequently indemnify [Buyer] from that point on for the sum of US $180,025.52, outstanding from the arbitration on 29 August 1995, that [Buyer] had to pay to S for defects in the goods. This amount will be deducted as a discount from the price of the sale for 236,131 Swiss francs, after conversion into Swiss francs at the rate of 1.211, the value at 29 August 1995, according to information taken by the Court by a major Swiss bank, representing the sum of 218,046.90 Swiss francs.

Amount 1 of the contested judgment will be modified in this way.

6. Default interest is due on this amount as of 6 July 1993 on this amount (art. 78 CISG) that [Buyer] has not contested.

Also due is interest of 1,180 Swiss francs on the 90% of the price of the sale of the goods for the period as of 9 to 15 July 1993 (art. 78 CISG), which [Buyer] also has not contested.

These claims will be affirmed.

7. [Buyer] cannot claim the complementary expert [assessment] concerning the quality of the goods (US $4,500.00, US $1,400 and US $19,622.96), the costs for experts from EPL [Federal Polytechnic School in Lausanne] 2,224 Swiss francs) and the attorneys' fees (US $26,320.68 and US $37,709.28), particularly for the arbitration initiated with S. These costs do not effectively represent the losses sustained or the deprivation of profit associated with the goods and pursuant to article 74 CISG, [since] negative interest is not covered by the CISG (Rene Lichtensteiner / Catherine Ming,  Commentaire de la CISG , in  Les contrats de vente internationale de marchandises , 1991, p. 267-268; Ercumet Erdem,  La livraison des marchandises selon la Convention de Vienne , 1990 p. 217-218; François Chaudet,  La garantie des defauts de la chose vendue en droit suisse et dans la CISG , in  Les contrats de vente internationale de marchandises , 1991, p. 122).

These points in the appealed judgment will be affirmed.

8. According to [Seller], the indemnity for delay for loading the ship and the costs of loading occasioned by this delay have been borne by [Agent Lewis] in dollars and equivalent to 21,578 Swiss francs that she claims from [Buyer]. The portion of these costs does not arise from her statements or evidence.

[Buyer] explained that the penalties and costs of loading were already included in the bill of [Seller] dated 15 June 1993, which is effectively the case for the demurrage running to US $83,145.75 and the costs of loading for US $35,136 and US $50,873.60 which have been deducted from the bill.

[Seller] did not establish the exact fraction of the costs of loading and the demurrage that [Seller] claims and does not explain why [Seller] is making this claim, although [Seller] has already deducted it. There is no possibility of examining from that point who is responsible for the delay in loading the goods.

The appeal of [Seller] is therefore dismissed.

For further certainty, the body of the disputed judgment will be annulled and rewritten.

9. [Buyer] receives 218,000 Swiss francs, from a total litigation value of 395,000 Swiss francs in view of the principal claim and the counterclaim. [Buyer] will pay half of the costs of first instance and the appeal (art. 176 al. 1 LPC).

[Seller] lost the appeal and so must bear the costs of the appeal.

For the reasons above,

[RULING]

Regarding form

The Court:

   -    Declares the principal appeal brought by [Buyer] admissible and, with respect to the appeal brought by [Seller] Against the judgment JTPI/6811/2001 handed down on 23 May 2001 by the Court of First Instance in the matter C/27897/1995-6.

Regarding the substance

This judgment is annulled. The Court instead:

   -    Orders [Buyer] to pay [Seller] the amount of 236,131.00 Swiss francs plus interest of 5% per annum from 6 July 1993, including 218,046.00 Swiss francs 90 being the value on 29 August 1995.
 
   -    Orders [Buyer] to pay [Seller] the amount of 1,180.00 Swiss francs.
 
   -    Orders [Buyer] to pay half of the costs of first instance and the appeal including global indemnity proceedings of 20,000 Swiss francs being equivalent to advisory fees from [Seller].
 
   -    Leaves the costs for the appeal to be borne by [Seller].
 
   -    Refuses the parties any other findings.

Sitting: Mrs Antoinette Stalder, President; Mrs Martine Heyer and M. Michel Criblet, judges; M. Jean-Daniel Pauli, clerk.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Defendant of Switzerland is referred to as [Buyer] and Plaintiff of the United States is referred to as [Seller].

Translator's note on abbreviations: LDIP = Swiss Federal Law on International Private Law; LPC = Civil Procedural Law.

** Amy Hornitsky has completed her Arts (languages) and Law degree in Australia. She is currently interning at a law firm in Germany and has earned her LL.M. in the Netherlands.

*** Pablo Santos, currently an attorney at Rubio Villgas y Asociados, S.C. (Mexico City), received his Law Degree from Universidad Panamericana in Mexico City, Masters Degree from the University of Nottingham (UK) and Ph.D. from Universidad Complutense de Madrid.

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