ICC Arbitration Case No. 8482 of December 1996 (Engines case) [English text]
[Cite as: http://cisgw3.law.pace.edu/cases/968482i1.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 8482 of December 1996
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Poland (claimant)
BUYER'S COUNTRY: Greece (respondent)
GOODS INVOLVED: Two engines
APPLICATION OF CISG: No. This tribunal held that in choosing Swiss law the parties did not thereby also choose the CISG, although it is part of that legal system. The contract provision for Swiss law, which was neutral to the parties, was held to call for the Swiss Code of Obligation rather than the CISG law of Switzerland.
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
1B2 [Basic rules of applicability: private international law points to Contracting State (Tribunal stated
that Art. 1(1)(b) "does not apply in cases of contractual election of the law of a Contracting State. . . . The
issue must be resolved by interpreting the intentions of the parties (Art. 8 of the Vienna Sales
Convention)."]
6A ; 6B [Agreements to apply/exclude Convention];
8A [Intent of parties]
Descriptors:
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=460&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (English): ICC International Court of Arbitration Bulletin [ICAB], Vol. 11/No. 2 (Fall 2000) 56-57; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=460&step=FullText>
Translation: Unavailable
CITATIONS TO COMMENTS ON DECISION
English: van Houtte, ICAB (Fall 2000) 24 n.17 [choice of law based on presumed intent of parties], 26 n.35 [CISG and concurrent national law]
Digest by Amanda Waters Facts
Claimant [seller] contracted with Respondent [buyer] for the construction and supply of
two engines. [Buyer], who agreed to make payments in installments, paid the first
installment on schedule, but was delinquent on the second installment. [Seller] completed
the engine by the contractual date and agreed to delivery to [buyer] the engine without the
crankshaft. The parties agreed that the crankshaft would be delivered when all payments
were made. [Buyer] failed to make the requisite payments. The Arbitral Tribunal
addressed the issue of the applicability of the United Nations Convention on Contracts for
the International Sale of Goods (CISG).
Applicable law
The Contract contained a forum selection clause stating "this contract shall be subject to
the Swiss law."
By electing Swiss Law, there was a question of whether the parties intended to designate
the CISG or the Swiss Code of Obligation as the applicable law. [page 57]
Applicable CISG provisions
Article 6 (choice of law); Article 8 (intent of parties)
"Article 1(1)(b) of the Vienna Sales Convention does not apply in cases of a contractual
election of the law of a Contracting State (K. Neumayer, C. Ming, Convention de Vienne
sur les contrats de vente internationale de merchandises, CEDIDAC 1993, ad. Art. 6, no.
5 page 87). This issue must be resolved by interpreting the intentions of the parties (Art. 8
of the Vienna Sales Convention)."
"By choosing Swiss law as a 'neutral' law to apply to the Contract and with an Arbitration
Clause choosing Zurich as the place of the Arbitration, it may be concluded that the
Parties intended the Arbitrators to apply the Swiss Code of Obligation and not the Vienna
Convention…." However, it was not necessary to resolve the issue because "the end result
of the present Award is no different under the Swiss Code of Obligation or under the
Vienna Sales Convention." [page 57].
Case digest
ICC Arbitration Case No. 8482 of December 1996
[Digest of presentation at ICAB, Vol. 11/No. 2 (Fall 2000) 56-57]
Pace Law School
Institute of International Commercial Law - Last updated February 15, 2007