Data
- Date:
- 06-12-2024
- Country:
- Russian Federation
- Number:
- A09AP-65635/2024
- Court:
- Ninth Arbitrazh Appellate Court
- Parties:
- Norkem v Russian State Export-Import
Keywords
BANK GUARANTEE - BETWEEN TWO RUSSIAN COMPANIES – REFERENCE TO UNIDROIT PRINCIPLES IN ORDER TO SUPPLEMENT APPLICABLE NATIONAL LAW (RUSSIAN LAW)
EXEMPTION CLAUSE FOR NON-PERFORMANCE - A PARTY MAY NOT INVOKE SUCH CLAUSE IF IT WOULD BE GROSSLY UNFAIR TO DO SO - REFERENCE TO UNIDROIT PRINCIPLES (ART. 7.1.6)
Abstract
The claimant demanded payment under the bank guarantee from the respondent. The guarantee issued by the bank was independent and unconditional, requiring payment upon presentation of specified documents. The bank refused payment, alleging documentary discrepancies.
However, the First Instance Court found the Claimant's request fully compliant.
The Appellate Court affirmed that under Articles 368–377 of the Russian Civil Code, an independent guarantee must be honored irrespective of the underlying contract. The guarantor may only refuse payment if the demand or the alleged documents do not meet explicit guarantee conditions. The bank’s refusal was deemed unlawful.
In particular, the court rejected the argument that liability was strictly limited to the guarantee amount. Citing international instruments, including Article 7.1.6 of the UNIDROIT Principles of International Commercial Contracts (1994), the court emphasized that contractual clauses excluding liability for intentional non-performance are manifestly invalid, as they violate good faith and fairness standards.
Abstract in English kindly provided by Roman Zykov.
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