Data

Date:
15-04-2004
Country:
Ukraine
Number:
--
Court:
Tribunal of International Commercial Arbitration at the Ukrainian Chamber of Commerce and Trade
Parties:
--

Keywords

BARTER CONTRACT - APPLICATION OF CISG BASED ON CHOICE BY PARTIES OF LAW OF CONTRACTING STATE (ART. 1(1)(B)CISG)

ADDITIONAL TIME FOR PERFORMANCE (ART. 47(1)CISG) - DOES NOT AFFECT LIMITATION PERIOD' S LENGHT OR COMPUTATION

Abstract

An Ukrainian company (buyer) entered into a contract with a foreign company (seller) according to which the seller would deliver goods in installments from February to November 1999, while the buyer would counter-deliver goods to the seller for a correspondent sum within ten days from each seller’s delivery. In case of breach, the buyer was bound to pay a penalty calculated as 0.3% of the non-delivered goods’ price for each day of delay. Moreover, the Tribunal of International Commercial Arbitration at the Ukrainian Chamber of Commerce & Trade had exclusive jurisdiction over any dispute that would arise and the applicable substantive law was the Ukrainian law. The buyer accepted the goods delivered by the seller in full, but it counter-delivered goods for a lower amount only. In January 2004, the seller commenced arbitral proceedings claiming loss for partial non-delivery plus penalty for delay. The buyer filed a motion to dismiss alleging, inter alia, that the seller’s claim was time-barred.

After finding that it had jurisdiction over the case, the Tribunal held that the contract was governed by CISG as part of the substantive law of Ukraine, a Contracting State (Art. 1(1)(b) CISG).

As to the merits, the Tribunal found that, as argued by the buyer, the limitation period had expired. In reaching this conclusion, the Tribunal found that the three years’ limitation period provided for by the Ukrainian law was to run from the time when a person has, or should have, knowledge of the breach of its right, which in the present case was the time of expiration of the tenth day subsequent to delivery of each installment by the seller (i.e. various dates up to December 2002). The seller’s claim had not been brought until January 2004. Moreover, the additional time provided for by an agreement reached by the parties in the year 2000 was only to allow the buyer to perform (Art. 47(1) CISG) and did not affect the length of the limitation period nor computation, all the more so because Ukrainian law prohibits agreements purporting to modify limitation periods or their computation. Consequently, the seller's claim was dismissed.

Fulltext

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Source

Original in Russian
- not yet available

English translation:
- available at the University of Pace website, http://www.cisg.law.pace.edu}}