Data

Date:
21-08-2025
Country:
China
Number:
(2025) Hu 01 Min Zhong No. 5315
Court:
Shanghai International Commercial Court
Parties:
Syral Aluminum P.J.S.C. v. Shanghai Shuobao Co., Ltd. et al.

Keywords

CHOICE OF LAW OF A CONTRACTING STATE AS LAW GOVERNING THE MERITS OF THE DISPUTE - DOES NOT AMOUNT TO AN IMPLIED EXCLUSION OF THE CONVENTION (ART. 6 CISG)

IMPLIED EXCLUSION OF THE CONVENTION - REFERENCE TO OPINION NO. 16 OF THE CISG ADVISORY COUNCIL

Abstract

A Syrian buyer concluded a contract with a Chinese seller for the purchase of aluminum billets and ingots. The buyer paid the purchase price, but the seller failed to deliver the goods. The buyer brought an action before the court of first instance seeking termination of the contract and damages.

During the first instance proceedings, the parties agreed on the application of Chinese law to the merits of the dispute, but did not specify any particular body of law, nor did they expressly exclude the application of the Convention. The Court of first instance rendered its judgment on the basis of the relevant provisions of Chinese law.

The seller appealed, arguing that the CISG should prevail as the legal basis for determining the parties’ rights and obligations.

The appellate Court examined whether the parties’ choice of Chinese law during the first instance proceedings amounted to an agreement to exclude the CISG. It noted that Article 6 CISG allows the parties to exclude the application of the Convention, but does not establish formal requirements for such exclusion. The court further referred to CISG Advisory Council Opinion No. 16, according to which the choice of the law of a Contracting State, or the failure of one or both parties to invoke the CISG during the proceedings, does not in itself justify the conclusion that the parties intended to exclude its application.

On this basis, the appellate Court held that, although the parties had chosen Chinese law as the governing law, they had not specified any particular law nor expressly excluded the CISG. Accordingly, the CISG was applicable and should take precedence. For matters not governed by the CISG, Chinese law would apply.

Applying the relevant provisions of the CISG, the Court amended the first instance judgment and partially upheld the seller’s claims.

Fulltext

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Source

Original in Chinese:
- available at https://cisg-online.org/search-for-cases?caseId=15597}}