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Austria 15 June 1994 Vienna Arbitration proceeding SCH-4318 (Rolled metal sheets case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/940615a4.html]

Primary source(s) for case presentation: Case text

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Case identification

DATE OF DECISION: 19940615 (15 June 1994)

JURISDICTION: Arbitration ; Austria

TRIBUNAL: Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft [Arbitral Tribunal - Vienna]

JUDGE(S): Unavailable


CASE NAME: Bonell, Michael Joachim (sole arbitrator)

CASE HISTORY: This proceeding involves goods to be delivered "FOB Rostock"; see Arbitration Austria 15 June 1994 SCH-4366 for a companion proceeding involving goods delivered "FOB Hamburg"

SELLER'S COUNTRY: Austria (respondent)

BUYER'S COUNTRY: Germany (claimant)

GOODS INVOLVED: Rolled metal sheets

Case abstract

AUSTRIA: Arbitral Tribunal - Vienna 15 June 1994, SCH-4318

Case law on UNCITRAL texts (CLOUT) abstract no. 94

Reproduced with permission from UNCITRAL

An Austrian seller and a German buyer concluded a contract for the sale of rolled metal sheets. The goods were to be delivered in installments "FOB Rostock", specially packaged for export. Immediately after receiving the first two deliveries, the buyer sold the goods to a Belgian company which shipped them to a Portuguese manufacturer. The manufacturer found that the goods were defective and refused to accept the rest of them. The German buyer sent to the Austrian seller notice of non-conformity of the goods with contract specifications, but the seller refused to pay damages, alleging that the notice was not timely. The buyer commenced arbitral proceedings pursuant to an arbitration clause contained in its contract with the seller.

The sole arbitrator held that, since the parties had chosen Austrian law, the contract was governed by CISG as the international sales law of Austria, a [C]ontracting State (Article 1(1)(b) CISG).

It was found that the buyer had not complied with the particular requirements as to the examination of the goods and notice of non-conformity, which were contractually stipulated by the parties in derogation from articles 38 and 39 CISG. The buyer had sent to the seller written notice of the defects, together with an expert statement by and internationally recognized company, only six months after delivery, while, according to the contract, it should have done so immediately after delivery of the goods (or at the least within two months after delivery).

With regard to the argument of the buyer that the seller had waived its right to raise the defense that notice of non-conformity was not timely given, the arbitrator held that the intention of a party to waive this right must be clearly established, which was not the case here. However, it was held that the seller was estopped from raising that defence, since the seller had behaved in such a way that the buyer was led to believe that the seller would not raise the defense (e.g., after receiving the notice the seller had continued to ask the buyer to provide information on the status of the complaints and had pursued negotiations with a view to reach a settlement. The arbitrator held that, while estoppel was not expressly settled by CISG, it formed a general principle underlying CISG ("venire contra factum proprium"; Articles 7(2), 16(2)(b) and 29(2) CISG).

The arbitrator awarded damages to the buyer for lack of conformity of the goods. With regard to interest, the arbitrator awarded interest at the average prime rate in the buyer's country (Germany) with respect to the currency of payment (US Dollars), giving the same reason mentioned in [CLOUT abstract] 93 [see: Austria: Arbitration 15 June 1994, SCH-4366].

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Classification of issues present

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


Key CISG provisions at issue: Articles 4 ; 6 ; 7 ; 78 [Also cited: Articles 16(2)(b) ; 29(2) ; 38 ; 39 ; 74 ]

Classification of issues using UNCITRAL classification code numbers:

4A [Scope of Convention (issues covered): estoppel];

6A [Convention yields to contract: exclusion or modification of Convention by contract];

7A33 ; 7C2 [Observance of good faith: application of good faith standards; Gap-filling: problems governed by Convention but not expressly settled];

78A ; 78B [Interest on delay in receiving price or any other sum in arrears: Rate of interest]

Descriptors: Applicability ; Choice of law ; Autonomy of parties ; Examination of goods ; Lack of conformity notice, timeliness ; General principles ; Gap-filling by Convention ; Good faith ; Estoppel ; Scope of Convention ; Reliance ; Interest ; Unidroit Principles

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Editorial remarks

EDITOR: Albert H. Kritzer

CISG issues ruled upon:

Applicability/Opting in vs. opting out of the Convention . The seller was from Austria, the buyer from Germany. The CISG was in effect in Austria but not in Germany at the time the contract was concluded. The contract stated that the applicable law is Austrian law. Citing authorities, the tribunal ruled that according to the predominant view, a choice of the law of a Contracting State is understood as the national law of that State including the CISG as its international sales law, and not a reference to solely the domestic law of that State. The CISG law of Austria was applied pursuant to Article 1(1)(b).

Examination of the goods/Notice of lack of conformity/Modification of the Convention by contract/Gap-filling/General principles of the Convention/Good faith/Reliance/Estoppel. Article 6 permits contracting parties to modify or exclude provisions of the Convention. The contract contained the following modifications to the notice requirements recited in Articles 38 and 39 of the CISG:

Two lots of cold rolled metal sheet in coils were delivered. Thereafter, the goods were transhipped and unpacked, and processing by the ultimate customer commenced. The first lot (approx. 1,800 metric tons) was delivered on 21 February 1991. The two-month provision called for notice no later than 21 April 1991. Notice was not provided until 15 May 1991. The second lot (approx. 1,200 metric tons) was delivered on 17 April 1991. Notice was called for no later than 17 June 1991. Adequate notice of lack of conformity was not provided until 10 October 1991.

Buyer alleged that the parties implicitly derogated from the contractually established time limit for notice by recognizing the complaints and jointly discussing their legal settlement. The tribunal ruled that a distinction should be drawn between the first and second lots.

LOT ONE. The tribunal found that seller had repeatedly made statements to the buyer from which the latter could reasonably infer that the seller would not set up the defense of late notice and that, in reliance upon this, buyer refrained from taking legal action not only against its own customer, but also against seller. Citing Articles 7(1) and 7(2) and, by analogy, the reliance concept expressed in Articles 16(2)(b) and 29(2), the tribunal invoked the principle of estoppel as a bar to seller's defense of late notice. The tribunal refers to this as the prohibition of venire contra factum proprium: a special application of the general principle of good faith, one of the "general principles on which the Convention is based".

LOT TWO. The notice of lack of conformity was due no later than 17 June, but the goods were not examined by the retained expert until July, and buyer acknowledged that he himself did not become aware of the true extent of the defects until after that examination. In this case, buyer's reliance defense was not accepted. The contract's notice requirement was enforced.

Interest (right to, rate of)/Gap-filling/General principles of the Convention. Regarding interest as a right granted pursuant to Article 78 and rate of interest as a matter not expressly resolved in the Convention, the tribunal cited two solutions:

The tribunal opted for general principles of the Convention, pointing out that applying the former view in jurisdictions that prohibit interest would lead to denial of a right expressly granted by Article 78.

Referring to Article 7(2), the general principle the tribunal deemed most relevant is the right to full compensation for damages set forth in Article 74. The tribunal applied this principle to its determination of the rate of interest, reasoning as follows: where a debtor is late in paying a monetary amount, the creditor as a business person would likely have to borrow from a bank; therefore, the rate of interest ought to be that in effect at that time in the creditor's country with respect to the currency of payment. The tribunal determined that the average "prime borrowing rate" for U.S. dollars in Germany during the period in question was 6.25% and awarded seller interest at this rate.

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Citations to other abstracts, case texts and commentaries


English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=56&step=Abstract>; Forum des Internationalen Rechts / The International Legal forum [English Language edition] 1 (1996) 210; Uniform Law Review (1997-1) 178

French: Revue de Droit des Affaires Internationale (1995) 1011-1012 [CLOUT abstract]; Uniform Law Review (1997-1) 181

German: CISG online.ch website <http://www.cisg-online.ch/cisg/urteile/120.htm>; Schweizerische Zeitschrift für Internationales und Europäisches Recht (SZIER) / Revue suisse de droit international et de droit européen 1996, 55-56

Italian: Diritto del Commercio Internazionale (1995) 456-457 No. 78

Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 257-258


Original language (German): Recht der Internationalen Wirtschaft (RIW) 1995, 590, 591-592

Translation (English): Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=56&step=FullText> [text presented below]; (Italian): Rivista dell' arbitrato (1995) 537-541; Diritto del Commercio Internazionale (1995) 487-492


English: Van Alstine, 146 University of Pennsylvania Law Review (1998) 752 n.272 [principle of full compensation in the event of breach]; 767 n.336 [interest issues], 780-781 n.387 [general principles: good faith]; Honnold, Uniform Law for International Sales (1999) 110 [general principles (estoppel - venire contra factum proprium)]; Koch, Pace Review of Convention on Contracts for International Sale of Goods (1998) 203 n.73 [application of UNIDROIT Principles to fill gaps in the CISG]; Ferrari, International Legal Forum (4/1998) 138-225 [252 n.1067 (interest issues)]; Ferrari, 15 Journal of Law and Commerce (1995) 122-125; Koneru, 6 Minnesota Journal of Global Trade (1997) 123-138; Kizer, 65 University of Chicago Law Review (1998) 1279-1306 [these commentaries each contain comments on interest rulings in this case and in other cases]; Thiele, 2 Vindobono Journal (1998) 3-35, citing this case [n.2, n.69-71, n.73, n.134, n.148, n.155] and 42 other interest rulings; Lookofsky, Understanding the CISG in the USA [CISG/USA] (1995) 19 n.55, 20-21, 83 n.134, 96 n.233; Lookofsky, CISG/Scandinavia (1996) 25 n.90, 27, 100 n.151, 114 n.262; Bernstein/Lookofsky, CISG/Europe (1997) 2 3 n.80, 25-26, 62 n.80, 105 n.155, 122 n.267; Petrochilos, Arbitration Conflict of Laws Rules and the CISG (1999) n.46; Keily, Good Faith and the Vienna Convention on Contracts for the International Sale of Goods (1999) nn. 86-88; Witz, ICC International Court of Arbitration Bulletin, Vol. 11/No. 2 (Fall 2000) 16 n.20, 20 n.44 [Article 39 issues]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) §: 2-10 n.144; §: 2-11 n.168; §: 4-9 n.137; §: 6-18 n.224; §: 6-31 n.349 & n.356; Liu Chengwei, Recovery of interest (November 2003) n.247; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.230 ("Art. 16(2)(b) [cited] as support for recognition that the principle of estoppel, although not addressed experssly in the Convention, is incorporated by the good faith provision of Art. 7(1)"); CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion); [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 104; Article 78 and rate of interest: Mazzotta, Endless disagreement among commentators, much less among courts (2004) [citing this case and 275 other court and arbitral rulings]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 7 para. 30 Art. 8 para. 50 Art. 39 para. 33a Art. 74 paras. 2, 16, 18, 53 Art. 77 para. 9 Art. 78 para. 31a

French: Seidl-Hohenveldern, Journal du Droit International (1995) 1055-1056

German: Bonell, 15 Bulletin Association Suisse de l'Arbitrage (1997) 600 [603]; Keinath, Thesis on Good Faith (Konstanz 1997) 244-249; Posch, in: Schwimann ed., Praxiskommentar zum ABGB (1997) Art. 7 No. 11 [1033; Art. 39 No. 4 [1079]; Schlechtriem, Recht der Internationalen Wirtschaft (RIW) 1995, 592-594; Schlechtriem, Internationales UN-Kaufrecht (1996) 10 n.10, 31 n.72, 32 n.74, 33 n.77, 35 n.82, 50 n.21, 89 n.70, 90-91 n.79, n.298; Schlechtriem, Internationales UN-Kaufrecht (1996) 10 n.10, 31 n.72, 32 n.74, 33 n.77, 35 n.82, 50 n.21, 89 n.70, 90-91 n.79, 179 n.298; Will, UN-Kaufrecht und internationale Schiedsgerichtsbarkeit (1999) nn. 26, 36

Italian: Mari, Diritto del Commercio Internazionale (1995) 487 [498-501]; Veneziano, Rivista dell' arbitrato (1995) 547-560

Spanish: Castellanos, Autonomia de la voluntad y derecho uniforme en la compraventa internacional, thesis, Carlos III de Madrid (1998) 92, 158 n.345

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Case text (English translation)

Reproduced with permission of Unilex database

AUSTRIA: Arbitral Tribunal - Vienna 15 June 1994, SCH-4318


1. By the request for arbitration of [...] the [buyer] [a company with place of business in Germany] applied for an award against the [seller] [a company with place of business in Austria] for payment of DM [...]. [Buyer] submitted that the [seller] had not fulfilled the agreed requirements of quality and finish with respect to some consignments out of a total of 6,800 metric tons of cold-rolled sheet in coils to be delivered under a contract concluded on 11 December 1990.


1.2. The [seller] [...] applied for dismissal of the claim. [Seller] disputed the alleged lack of conformity, both in substance and extent, and asserted that in any case there was no entitlement to guarantee and damages because of the failure to abide by the contractually agreed conditions.


3. The competence of the Arbitral Centre is founded on the last paragraph of the contract. According thereto, all disputes that cannot be settled amicably should be finally decided according to the rules of the Arbitral Centre of the Austrian Federal Economic Chamber by one or more arbitrators appointed in accordance with those rules. It is true that the contract - and thus the aforesaid arbitration clause - exists only in the acknowledgement of order sent by the [seller] to the [buyer], which the latter never countersigned. However, there can be no doubt of the validity of the arbitration clause, not least because the [buyer] expressly refers to it in its claim.

4. According to the contract, the applicable law was Austrian law. That means that - in so far as the issues involved fall within its scope - the United Nations Sales Convention entered into force in Austria on 1 January 1989, with the consequence that, from that date onwards, all international contracts of sale of goods within the meaning of Article 1 have been subject to the CISG, provided that the conditions stipulated for that purpose in the Convention itself are met, i.e. that either both parties are established in Contracting States or that the rules of private international law lead to the application of the law of a Contracting State. In the present case, the first condition was not met because Germany [...] was not yet a Contracting State at the time of conclusion of the contract. On the other hand, however, the other prerequisite for the application of the CISG was met, i.e. the rules of private international law led to the application of the law of a Contracting State (Austria). In fact, according to the predominant view in international legal writings, the parties' choice of the law of a Contracting state is understood as a reference to the corresponding national law, including the CISG as the international sales law of that State and not merely to the - non-unified - domestic sales law (see also, for further references, M.J. BONELL in BIANCA-BONELL, Commentary on the International Sales Law, 1987, 56 ff. R. HERBER in v. CAEMMERER-SCHLECHTRIEM, Kommentar zum Einheitlichen UN-Kaufrecht 1990, Anm. 38 on Art. 1 and Anm. 16 on Article 5; with reservations, R. LOEWE, Internationales Kaufrecht, 24 ff.).

5. [...] The [buyer's] claim for damages for lack of conformity of the goods is justified only in part.

5.1. The [seller] was obliged on the basis of the contract to deliver a total of approx. 6,800 metric tons of cold-rolled sheet in coils, packed for export. It is established that the first two partial consignments of approx. 1,800 metric tons and 1,200 metric tons displayed quality defects of the most varied types. The exact extent of the defects actually present is disputed. However, the question can remain open since - as will be pointed out below - the [buyer] lost its right to full compensation for the losses suffered as a result of the failure to give notice of lack of conformity in time.

5.2. According to the contract - which to that extent derogated from the provisions on the duty of the buyer to examine the goods and to give notice of the defects contained in Article 38 and 39 of CISG - the seller's warranty for any defect of the goods was subject to the condition that the buyer examine the goods immediately after taking delivery and give without delay written notice of the defects discovered on that occasion and substantiate those findings by means of an expert statement by an internationally recognized testing company, whereas complaints as to defects not recognizable immediately must be made at the latest within two months after hand-over.

5.3 The [buyer] did not comply with these requirements since it did not give notice of the alleged defects in time. Delivery of the first two lots of approx. 1,800 metric tons and 1,200 metric tons, respectively, was made on 21 February and 17 April 1991, respectively, and the goods were dispatched to Portugal by ship on those dates. Even on the assumption that as a consequence of the special packing of the goods the defects were not recognizable when the goods were delivered in the port of Rostock and could not be discovered until after unpacking and/or the commencement of processing by the ultimate customer, the [buyer] ought to have given notice of the defects in the two lots by 21 April and 17 June 1991 at the latest, respectively. On the contrary, a notice of the defects of the first lot submitted in conformity with the contract, i.e. in writing and confirmed by an expert statement, was not made until 15 May 1991, while a similar notice concerning the entire quantity of goods delievered by that time was not made until 10 October 1991 - that is to say, six months after delivery of the second lot.

5.4. The argument adduced by the [buyer] that the parties later implicitly derogated from the contractually established time-limit for notice of lack of conformity by both recognizing the complaints as fully justified and jointly discussing their legal settlement is not convincing. At the very least, a distinction should be made between the first and the second complaint. The conduct of the [seller] after receipt of the first (partial) complaint and the legal evaluation of such conduct will be considered below (see 5.6.). As to the second and all-embracing complaint, there is not sufficient evidence for the allegation that the [seller] had waived its right to set up the defence of late notice of the defects. The [seller] was for a long time left by the [buyer] in the belief that the defects initially complained of were only minor in nature and served primarily as a pretext for the Belgian intermediary to escape from its contract with the [buyer], which was no longer profitable. The [buyer] itself admits that it did not become aware of the true extent of the defects until later, after a further examination by the expert, notwithstanding the fact that this examination had already taken place in July. The mere fact that the [seller] did not expressly reject the late notice by the [buyer] is not sufficient to justify the conclusion that the [seller] intended to waive its contractual rights. In the interests of legal certainty such an intention of the parties much be established beyond any doubt (see, in this sense, expressly, H. STUMPF in v. CAEMMERER-SCHLECHTIEM, loc.cit., Anm. 15 on Art. 39). This is clearly not true in the present case. The second complaint was clearly to be taken much more seriously than the first (partial) complaint. Since the situation was now substantially different for the two parties, much clearer evidence of a waiver by the [seller] of its right to set up the defence of late notice would have been needed than the [seller's] silence or the mere fact that it did not immediately object to the late notice.

The [buyer] has nevertheless a right to reduced damages. A given legal position (e.g. a right, a defence, etc.) can not only be intentionally waived but can also be objectively forfeited. This follows from the general principle of good faith and the closely related principle of estoppel (prohibition of venire contra factum proprium). Thus, a legal position of a party must be regarded as having been forfeited whenever that party's conduct could be construed as meaning that it no longer wished to exercise its right or its defence, and the other party acted in reliance on the new situation (on this point, see in general inter alia ESSER-SCHMIDT Schuldrecht, I, Allgeneiner Teil, 6. Aufl., 1984, 150-152). The CISG expressly mentions in Article 7(1) the requirement of the observance of good faith in international trade. The exact significance to be attached to the general principle of good faith within the scope of the Convention may be disputed (see on this point M.J. BONELL in BIANCA-BONELL, loc. cit, p. 83 ff.). However, at the least the principle of estoppel or, to use another expression, the prohibition of venire contra factum proprium, which represents a special application of the general principle of good faith, may without doubt be seen as one of the "general principles on which the Convention is based", which according to Article 7(2) of the CISG may be invoked to solve the question of a possible forfeiture of the defence of late notice, not expressly settled in the Convention (see in this sense, among others, M.J. BONELL in BIANCA-BONELL, loc. cit., p. 81 (with a reference to the provisions contained in Art. 16(2)(b) and 29(2); HERBER/CZERWENKA, Internationales Kaufrecht, 1991, 48).

5.6. In the case in point, the requirements for forfeiture are met. The [seller] may never had the intention of waiving the defence of late notice; however, objectively, its conduct after receiving the first complaint from the [buyer] was such as to give the latter the justifiable impression that it recognized the lawfulness of the complaint despite the lateness of transmission. In that context, the fact that the [seller] did not immediately reject the complaint as having been made after the expiry of the contractually agreed time-limit is not so important. What counts is rather the circumstance that, even after the complaint had been made, the [seller] remained in contact with the [buyer] in order to keep itself informed of the development of the complaints on the part of the Portuguese ultimate customer and/or the Belgian intermediary. What is even more important is the fact that the [seller] repeatedly [...] made statements to the [buyer] from which the latter could reasonably infer that the [seller] would not set up the defence of late notice with reference to the complaint. In reliance on that, the [buyer] refrained from immediately taking legal action not only against its own customer but also against the [seller] itself.

5.7 However, the forfeiture refers only to the first (partial) complaint. By behaving in the manner just described the [seller] always assumed that the defects would not prove to be greater than established on the first examination of the goods. This follows inter alia from the fact that the [seller], by its own admission, intentionally did not transmit this first complaint to its own supplier, since its contract with the latter provided that "to a certain extent, lack of conformity was to be tolerated by the buyer". The expert's report of 6 May 1991 referred to the partial consignment that had arrived at the factory of the ultimate customer by that date, i.e. approx. 1,800 metric tons of the total 3,000 metric tons of goods shipped, only approx. one-third of which had already been processed. Therefore, it is very difficult, if indeed at all possible, to prove the exact extent of the existing defects. As a consequence, the arbitrator fixes the corresponding amount of damages at his discretion at one-fifth of the total value of the goods in question, i.e. 20% of US sec. [...] X 1,800, plus interest, to be calculated as from 15 May 1991, the date when the first notice of defects in due form was submitted. In his estimate, the arbitrator takes as his basis the projection made by the expert in his second report, according to which the total loss was estimated as one-fifth of the entire quantity of goods delivered. The legal basis for such a discretionary determination of the amount of damages is sec. 273 of the Austrian Code of Civil Procedure, which is also applicable within the scope of the CISG (see in this sense H. STOLL in v. CAEMMERER-SCHLECHTRIEM, loc. cit., Anm. 41 on Art. 74 with reference to the similar provision to be found in sec. 287 of the German Code of Civil Procedure).

5.8. Article 78 of the CISG, while granting the right to interest, is silent on the question of the applicable rate. In international writings and case law to date it is disputed whether the question is outside the scope of the Convention - with the result that the interest rate is to be determined according to the domestic law applicable on the basis of the relevant conflict-of-laws rules (in this sense see, among others, HERBER/CZERWENKA, loc. cit., 1991, 347; Oberlandesgericht Frankfurt, 13 June 1991, Recht der Internationalen Wirtschaft 1991, 591) - or whether there is a true gap in the Convention within the meaning of Article 7(2) so that the applicable interest rate should possibly be determined autonomously in conformity with the general prinicples underlying the Convention (see in this sense, for example, J.O. HONNOLD, Uniform Sales Law, 2nd edition, Deventer, Boston 1991, 525-526; ICC Arbitral Award No. 6653 (1993), Clunet 1993, 1040). This second view is to be preferred, not least because the immediate recourse to a particular domestic law may lead to results which are incompatible with the principle embodied in Art. 78 of the CISG, at least in the cases where the law in question expressly prohibits the payment of interest. One of the general principles underlying the CISG is that of "full compensation" of the loss caused (cf. Art. 74 of the CISG). It follows that, in the event of failure by the debtor to pay a monetary debt, the creditor, who as a business person must be expected to resort to bank credit as a result of the delay in payment, should therefore be entitled to interest at the rate commonly practised in its country with respect to the currency of payment, i.e. the currency agreed upon by the parties (cf. Art. 7.4.9 of the Principles of International Commercial Contracts prepared by the International Institute of the Unification of Private Law (UNIDROIT), on which see M.J. BONELL, An International Restatement of Contract Law. The UNIDROIT Principles of International Commercial Contracts, Transnational Juris Publications, Irvington - N.Y., 1994, 114-115). The information received from the Deutsche Bundesbank is that the average "prime borrowing rate" for US dollars in Germany in the period in question was 6.25%. The interest due from the [seller] should be calculated at that rate.


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