CISG CASE PRESENTATION

Russia 3 April 1995 Arbitration Court of Moscow City (Petroleum case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/950403r1.html]

Case Table of Contents

• Case identification
• Classification of issues present
• Editorial remarks
• Citations to case abstracts, texts, and commentaries
• Case text (English translation)
• Guide to links contained in case presentations

Case identification

DATE OF DECISIONS: 19950403 (3 April 1995)

JURISDICTION: Arbitration ; Russian Federation

TRIBUNAL: Arbitration Court of Moscow City

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 18-40 "K"

CASE NAME: Ukragrotekhservis v. Mitar

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Russia (respondent)

BUYER'S COUNTRY: Ukraine (claimant)

GOODS INVOLVED: Petroleum

Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 26 ; 49 ; 76

Classification of issues using UNCITRAL classification code numbers:

26A [Notification of avoidance: effective declaration of avoidance];

49A [Buyer's right to avoid contract: grounds for avoidance];

76B1 [Damages recoverable based on current price at time of avoidance]

Descriptors: Avoidance ; Damages

Go to Case Table of Contents

Editorial remarks

• Unavailable

Go to Case Table of Contents

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: Unavailable

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

Go to Case Table of Contents

Case text (English translation)

Queen Mary Case Translation Programme

This is an action between claimant, a Ukranian firm [buyer], and defendant, a [seller] from the Russian Federation.

The action is brought for recovery of the sum of:

• 2,500.000.000 rubles under Contract No. 714;
  
• A 20% penalty equal to 500,000,000 rubles;
  
• 2,188,000,000 rubles -- the amount of medium bank interest under art. 133, paragraph 2, part 2, of the Fundamentals of Civil Legislation, 2,188,000,000 rubles under art. 133, paragraph 3, part 1 of the Fundamentals of Civil Legislation; and
  
• Damages in the amount of 9,360,000,000 rubles under art. 76(1) of the CISG.

During the hearing the [buyer's] representative moved to decrease the amount of the motion, waiving the stated action demands under art. 133 of the Fundamentals of Civil Legislation.

The [seller's] representative failed to appear at the trial and failed to submit the documents requested. Therefore, the action was examined according to the documents already in the case.

It was ascertained:

The parties concluded Contract No. 714 for delivery of petroleum by the date agreed on and at the prices agreed on. The [buyer] transferred to the [seller] 2,500,000 rubles by Payment Order No. 8. The shipment of the goods was not effected by the specified date. The [seller] failed to fulfil his obligations under the supplementary agreement to Contract No. 714.

Under such circumstances, the stated action demands for repayment of the outstanding sum equal to 2,500,000 rubles, as well as for 500 million rubles -- the 20% penalty under paragraph 5.2 for failure to deliver the goods by the specified date -- and are subject to satisfaction in full.

Under art. 26 of the CISG, a contract is avoided when a declaration of avoidance is dispatched by a party by notice. In connection with the failure to perform the obligations, this notice was dispatched by [buyer] to the [seller] as the [preliminary] claim [in Russian law, a special document (pretenzia) sent to a party in breach with the suggestion to remove the infringements and to settle a dispute without recourse to court; in some cases, sending such a claim is obligatory.] The grounds for avoiding the contract are the terms stipulated in art. 49 of the CISG. Thus Contract No. 714 was avoided as of the moment the notice from the [buyer] was dispatched.

The [buyer's] right to demand the difference between the price fixed by the contract and the current price at the time of contract avoidance is stipulated in art. 76 of the CISG. Therewith, the current price is the price prevailing at the place where the delivery of the goods should have been made. By signing the supplementary agreement to Contract No. 714, the parties fixed the delivery place [stipulating that the delivery should be made] "under the record of delivery-acceptance on Ukraine's [buyer's] terminals".

During the hearing, the [buyer] substantiated the price of the goods as of 10 February 1994 and the Ukraainian karbovats [currency] exchange rate, whereupon the stated demands for recovery of damages equal to the price difference between the current price and the contract price are subject to satisfaction in full.

The expenses in respect of the State duty are to be recovered from the [seller] in ratio to the sum recovered.

The expenses in respect of the State duty as to the stated demands under art. 133 of the Fundamentals of Civil Legislation are to be borne by the [buyer] inasmuch in point of fact she retracted the stated demands in this part.

Relying on the above and guided by arts. 107, 108 of the Russian Code of Arbitration Procedure,

ADJUDGED:

• To recover a payment amount of [seller] in favor of [buyer] the indebtedness sum of 2,500,000,000 rubles, penalty of 500,000,000 rubles, damages of 9,360,000,000 rubles, and State duty equal to 3,150,000 rubles;
  
• To recover from a payment account of [seller] in favor of the Republic's budget, the State duty equal to 69,950,000 rubles;
  
• To recover from a payment account of the [buyer] in favor of the Republic's budget, the State duty equal to 34,740,000 rubles;
  
• In the rest, the claim is rejected.

The writs are to issue at the coming in force of the judgment.

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