Argentina 15 March 1991 Appellate Court (Qûilmes Combustibles v. Vigan)
[Cite as: http://cisgw3.law.pace.edu/cases/910315a1.html]
Primary source(s) for case presentation: Michael R. Will; UNCITRAL abstract
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 44.786
CASE NAME:
CASE HISTORY: 1st instance Trib. Buenos Aires 20 October 1989 [affirmed]
SELLER'S COUNTRY: Argentina (defendant)
BUYER'S COUNTRY: Belgium (plaintiff)
GOODS INVOLVED: Filling machines
Case law on UNCITRAL texts (CLOUT) abstract no. 22
Reproduced with permission from UNCITRAL
In an action for late performance of a sales contract, which contained a
jurisdiction clause, it was
considered that CISG was not applicable. The contract had been concluded on
a date preceding
the entry into force of CISG (Article 100 CISG).
APPLICATION OF CISG: No
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Article
Classification of issues using UNCITRAL classification code
numbers:
Excerpt from Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.295
"Two cases from Argentina upheld forum selection clauses in standard forms, but the
rationale employed by the courts regarding the CISG is not clear. In one case, an Argentine buyer
maintained that a forum selection clause was invalid because it was written in a foreign language on
the back of the seller's invoice. See Cámara Nacional de Apelaciones en lo Comercial [Second
Instance Court of Appeal] [CN], Division C, 44.786, Mar. 15, 1991 (Arg.), ... The trial court found that the clause was part of
the agreement. On appeal, the buyer argued that Argentine law required express written acceptance
of such provisions. The appellate court, however, stated that forum selection clauses are valid even
if contained in a standard form, under the law of Argentina, unless there is a disparity of bargaining
power between the parties. Id. A subsequent case in Argentina reached the same result. In that case,
however, a Procurator noted that Article 4 of the CISG excludes questions of validity and decided
the validity of the case according to the lex fori, referring to the CISG only for further support that
the clause was enforceable. See Cámara Nacional de Apelaciones en lo Comercial [Second Instance
Court of Appeal], Div. E., 45.626, Oct. 14, 1993, available at
<http://cisgw3.law.pace.edu/cases/931014a1.html>. According to one commentator, Article 4, which
states that validity issues are beyond the scope of the Convention, and Article 81(1), which "provides
a clause for the settlement of disputes with a certain degree of autonomy vis-à-vis the other
contractual terms," should have steered the Argentine tribunals away from considering the CISG in
these cases. See Garro, Recent Developments, supra note 120, at 236 (maintaining that neither the
Quilmes nor the Inta decision addressed whether a contract was validly concluded under Article 19
of the CISG as the forum selection clause was a material alteration of the offer)."
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=28&step=Abstract>
Italian: Diritto del Commercio Internazionale 1994, 850 No. 30
Spanish: CISG-Spain and Latin America database at http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/rargen2.htm
CITATIONS TO TEXT OF DECISION
Original language (Spanish): CISG-Spain and Latin America database at http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/sargen2.htm; El Derecho 150 (1993) 307-316; Revista de Derecho Bancario y de la Actividad Financiera (1991) 626-630; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=28&step=FullText>
Translation: Unavailable
CITATIONS TO COMMENTS ON DECISION
English: Garro, 17 Journal of Law & Commerce (1998) 219-244 [the analysis of Quilmes Combustibles v. Vigan is presented at pages 233-235 of this commentary]
German: Piltz, Neue Juristische Wochenschrift 1994, 1101
Spanish: Radzyminski, Los clausolas de eleccion de foro insertas en contratos "internacionales," El Derecho (1993) 305-319
Case abstract
ARGENTINA: Cámara Nacional de Apelaciones en lo Comercial 15 March 1991
Classification of issues present
Editorial remarks
Citations to other abstracts, case texts and commentaries
CITATIONS TO OTHER ABSTRACTS OF DECISION
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Commercial Law - Last updated September 24, 2004