- Arbitral Award
- International Arbitration Court of the Chamber of Commerce and Industry of the Russian Federation
BUYER'S CLAIM FOR SPECIFIC PERFORMANCE (ART. 28 CISG) - REQUIREMENTS FOR SUCH REMEDY NOT SPECIFIED IN EITHER CISG OR RUSSIAN LAW APPLICABLE UNDER ARTICLE 7(2) CISG - RECOURSE TO THE UNIDROIT PRINCIPLES DEFINED AS A SUPPLEMENTARY SOURCE OF RULES OF LAW REFLECTING CONTEMPORARY INTERNATIONAL TRENDS WHICH PROVIDE SOUND SOLUTIONS TO INTERNATIONAL COMMERCIAL DISPUTES
BUYER'S CLAIM FOR SPECIFIC PERFORMANCE - HAS TO BE MADE WITHIN A REASONABLE TIME AFTER THE BUYER BECAME, OR OUGHT TO HAVE BECOME, AWARE OF THE NON-PERFORMANCE (ARTICLE 7.2.2 OF THE UNIDROIT PRINCIPLES)
A Russian company entered into a contract with a Germany company for the sale of metal products. The goods had to be delivered in instalments within a period of 7 months. The buyer sent the seller a number of orders for the goods in accordance with the contract but the seller delivered only a small part of the goods ordered. The buyer started arbitration proceedings claiming the specific performance of the contract in relation to the goods that the seller had failed to deliver.
Since Germany and the Russian Federation were contracting States to the Vienna Sales Convention (CISG), the Arbitral Tribunal applied the CISG to the dispute.
As to the merits the Arbitral Tribunal held that neither CISG nor the Russian law applicable in accordance with Article 7(2) CISG specified the requirements for the application of the remedy of specific performance available to the buyer. Under these circumstances, the Arbitral Tribunal found that it would be appropriate to apply the UNIDROIT Principles of International Commercial Contracts which, it pointed out, had been used not only in international commercial practice but also in its own jurisprudence as a supplementary source of rules of law reflecting contemporary international trends which providing sound solutions to international commercial disputes. In the case at hand the Arbitral Tribunal rejected the buyer’s claim for specific performance on the basis of Art. 7.2.2 of the UNIDROIT Principles, in particular, of the rule that such a claim was to be made within a reasonable time after the party became, or ought to have become, aware of the non-performance.
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