Data
- Date:
- 01-07-2013
- Country:
- Slovenia
- Number:
- SA 5.6-X/2012
- Court:
- Ljubljana Arbitration Centre
- Parties:
- --
Keywords
ACKNOWLEDGE OF DEBT - MATTER IMPLIEDLY EXCLUDED FROM THE SCOPE OF CISG (ART. 4 CISG)
RIGHT TO INTEREST (ART. 78 CISG) - INTEREST RATE NOT REGULATED BY CISG - REFERENCE TO STANDARD INTEREST RATE APPLIED WITH RESPECT TO CURRENCY OF PAYMENT
Abstract
[CLOUT CASE no. 2082. Abstract prepared by Ana Vlahek and TjaĊĦa Kalin]
A Hungarian seller (claimant) and a Slovenian buyer (respondent) concluded a contract for sale of fertilizers. From 2011, the respondent started missing or postponing payments. The claimant sent due payment notices. The respondent informed the claimant of liquidity issues, and the parties discussed renegotiating the outstanding debt to allow its repayment in instalments. The respondent proposed a repayment plan that did not foresee the payment of default interests. The claimant replied with a substantially different counterproposal, which included, amongst other different terms, default interests. After this exchange, the respondent paid only the first two instalments of the debt, and the claimant continued to supply the goods to the respondent, but only against payment prior to delivery.
The claimant started arbitral proceedings for the recovery of the outstanding debt and acknowledged that part of the debt had been extinguished by set-off against counter-deliveries of the respondent. As a legal ground, the claimant relied on the provisions of the contract, the CISG, and Hungarian law. The claimant also asserted that it always overdelivered and demanded payment for the over-deliveries. Finally, the claimant requested the payment of default interests.
In response, the respondent argued that the parties had concluded a written agreement and, later, oral agreements on the renegotiation of the debt that foresaw repayment in instalments and free of interest. Therefore, in the view of the respondent, the claim had not yet become due. The respondent also contested the claim for default interests.
The Arbitral Tribunal noted that the parties had not chosen the law applicable to the contract. It considered the CISG applicable to international sale of goods matters given that the parties had their place of business in CISG contracting States (Hungary and Slovenia) and had not excluded its application. For other issues, the Tribunal considered it appropriate to apply Hungarian law.
The Arbitral Tribunal indicated that the existence of the principal outstanding debt was not disputed as well as the debt for over-deliveries. It deemed the acknowledgement of the debt valid under Hungarian law, noting that the matter fell outside the scope of the CISG.
The Arbitral Tribunal found that there was no agreement to modify the terms of the contract and renegotiate the debt, and that the claim for default interests was admissible based on article 78 of the CISG. Regarding the determination of the interest rate, which is not set in the CISG, the Arbitral Tribunal indicated that Hungarian law was not applicable, as it provided only for the rate of default interest in Hungarian Forint, while the debt was in Euro, and decided to apply a reasonable default interest rate standard of 12 months EURIBOR + 2 per cent.
Fulltext
Original in Slovenian:
-available at www.sloarbitration.eu}}
Source
[Case law on UNCITRAL Texts, A/CN.9/SER.C/ABSTRACTS/226, case no. 2082]}}