Data

Date:
11-12-2007
Country:
Ukraine
Number:
44/69
Court:
Supreme Commercial Court of Ukraine
Parties:
Bobst S.A. v. Express

Keywords

APPLICATION OF CISG - CHOOSE BY PARTIES OF LAW OF A CONTRACTING STATE AS LAW GOVERNING THE CONTRACT (ART.1(1)(B) CISG)

ACCEPTANCE - CONDUCT INDICATING ASSENT (ART. 18(1) CISG)

Abstract

A Swiss seller and a Ukrainian buyer concluded a contract for the sale of an automatic crucible press. The seller delivered and set-up the press. The buyer paid only for a part of the purchase price, and thus the seller filed a lawsuit against it.

The Court of First Instance ruled in favor of the seller, awarding the requested amount (see Commercial Court of Donetsk Region, 13 April 2007, n.44/69, abstract in Unilex).

The Court of Appeal reversed the decision of the Court of First Instance, finding that the latter, by failing to take into accout a forum selection clause contained in the contract, had erroneously deemed itself competent to hear the case.

The Supreme Court withheld the decision of the Court of Appeal and confirmed the decision rendered by the Court of First Instance.

In doing so, the Supreme Court found that, in accordance with Ukrainian private international law, the parties had validly chosen a foreign law (i.e. Swiss law) to govern their contractual relationship. Therefore, CISG had to be applied as part of the substantive Swiss law. Moreover, in accordance with Art. 18 CISG, the Court found that a contract had been validly concluded between the parties, since the buyer had paid part of the purchase price within the agreed time limit.

As to the matter of jurisdiction, the Supreme Court noted that, since the parties had not executed the arbitration clause contained in the contract, the Appellate Court did not have grounds to determine its validity. Therefore, Ukrainian courts had jurisdiction over the case.

Fulltext

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Source

Original in Ukrainian
- available at the Ukrainian Unified State Register of Court Decisions website
http://www.reyestr.court.gov.ua/

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