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| A Russian seller (Claimant) and a Canadian buyer (Respondent) entered into a contract for the sale of goods. The Claimant delivered part of the goods before the expiry of the US import licences, while the remaining part was delivered after the expiry. The Respondent refused to pay the full price alleging that the Claimant had failed to ship all the goods before the expiry of the import licences and had violated Respondent's exclusive right to import the goods into the US. The Claimant commenced arbitration in accordance with the arbitration agreement contained in the contract, providing for arbitration under the ICC Rules of Arbitration and Reconciliation.
The contract did not contain a choice of law clause. The Arbitral Tribunal stated that, pursuant to Art. 13 (3) and (5) of the ICC Rules for Reconciliation and Arbitration, and, in addition to the contractual provisions agreed upon by the parties, the relevant usages of trade and the CISG would apply. For the matters which had not been contractually agreed upon and which could not be determined by observing either trade usages or CISG, the law of the Russian Federation would apply. In dealing with the merits of the case, the Arbitral Tribunal corroborated the provisions of the CISG with the reference to the UNIDROIT Principles, stating that, although the UNIDROIT Principles of International Commercial Contracts shall [not] directly be applied, it is nevertheless informative to refer to them because they are said to reflect a world-wide consensus in most of the basic matters of contract law. Thus, the Arbitral Tribunal referred to Arts. 2.17 (Merger clauses) and 2.18 (Written modification clauses) of the UNIDROIT Principles to confirm the rule laid down in Art. 29 (2) CISG, according to which the Respondent could not rely on any kind of oral promises or assurances, or any kind of written references which were not at the same time reflected in an Amendment or Supplement to the Contract. Finally, reference was made to Art. 4.3 (Relevant circumstances) of the UNIDROIT Principles to determine whether a course of dealing was established between the parties which could fairly be regarded as a common basis of understanding to interpret their statements and other conduct. |