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| A Dutch seller and and a buyer from the United States entered into a contract for the sale of cargoes of coke. The parties agreed that the contract shall be governed by 'the laws of Switzerland', and that any dispute arising out of it may be referred by either party to arbitration 'within thirty days after it was agreed that the difference or dispute cannot be resolved by negotiations'. When the buyer took delivery of the goods they turned out to be defective. The buyer promptly informed the seller of the defects, but when six months later it filed a request for arbitration claiming damages, the seller alleged that the claim was time barred.
The Tribunal held that the contract was governed by CISG. An express designation of a particular national law (here: 'Swiss law') by the parties cannot be construed as a reference to the provisions of that law which would apply at the domestic level, but it includes CISG if the Convention has been incorporated into that national law. The Tribunal furthermore rejected the argument that the parties, by fixing a thirty day time limit to file a request for arbitration after it is agreed that the dispute cannot be resolved through negotiation, have derogated from the statutory time limit within which the buyer may rely on a lack of conformity of the goods (Art. 39 CISG) and established a shorter contractual period of guarantee. According to the Tribunal the arbitration clause in question and its time limit of thirty days has nothing to do with a contractual period of guarantee as mentioned in Art. 39(2) CISG. While the latter deals with the time limit within which the buyer must give notice of a lack of conformity to the seller so as not to lose the right subsequently to avail itself of any of the remedies provided for such lack of conformity, by virtue of the former the parties fixed a time limit within which any claim, concerning or not a dispute for lack of conformity, can be filed as a claim in arbitration. With respect to the applicable rate of interest the Tribunal held that the matter had to be decided in accordance with Art. 7(2)CISG, and since in its opinion there are no general principles underlying the Convention which could provide an answer, it applied the statutory rate of the State whose law would have been the governing law of the contract in the absence of CISG, i.e. Switzerland. |