盛盼盼Russiancoalcase(damages)教材.ppt

ICC Arbitration Case No. 8740 of October 1996 (Russian coal case) 盛盼盼 DAMAGES Contents damages 1 2 3 4 5 FACTS APPLICABLE LAW ISSUE 1 ISSUE 3 ISSUE 2 Facts Claimant [seller] and Respondent [buyer] entered into contracts for the sale of quantities of Russian coal. Upon delivery of the final shipment, [buyer] failed to make payment for that portion. [Buyer] claimed that [seller] owed funds to [buyer] well in excess of the invoiced amount of the final shipment and requested that its own claims serve to off-set those of the [seller] and that the [seller] be ordered to pay the excess in [buyers] favor. 1 The coal delivered in one of the shipments had a volatility of only 20.4%. The difference ，and the buyer accepted these coal. [buyers] used the coal after expending some expense in order to make it usable. 3 2 The [sellers] conceded that only 13,758 mt of coal were delivered under the contract and the balance remained in default. The [sellers] contended that the default was only 36,242 mt; the [buyer] contended the default to be 46,242 mt. Russian suppliers is notorious of being unreliable, as a result the seller failed in delivering coal on time, which cause damage to the buyer. Facts Both parties agreed to be bound by Swiss Law According to statements made by each at a hearing, namely the United Nations Convention on Contracts for the International Sale of Goods. Yes. Although from the same Scandinavian country, at the hearing the parties agreed to have the CISG apply (the CISG is also the domestic sales law of Norway). Application of CISG？ Applicable Law Applicable CISG Provisions and Issues Key CISG provisions at issue: Articles 35 ; 73 ; 74 ; 75 ; 76 ; 77 ; 78 35A [Obligations of the seller (conformity of the goods to contract): quality, quantity and description required by contract]; 73A ; 73A1 [Avoidance in installment contracts: fundamental breach with respect to installment]; 74A [General rules for measuring damages: loss suffered as consequence of bre