Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry

Case 142: CISG 54, 79(1) Russian Federation: Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry Arbitral award in case No. 123/1992 of 17 October 1995 Original in Russian Unpublished A German seller (claimant) brought a claim against a Russian buyer (respondent) in connection with the latter's failure to pay for equipment supplied under a contract concluded between the two parties. The buyer acknowledged that the goods had indeed been delivered under the contract but stated that its non-payment was due to the failure on the part of the bank responsible for the buyer's foreign currency transactions to give instructions for the amount payable for the goods under the contract to be transferred to the seller. The bank did not transfer the foreign currency amounts to the seller on the grounds that there were no funds available in the buyer's account in freely convertible currency to pay for the goods. Citing these facts, the buyer requested the tribunal to discharge it from liability since, in its view, the fact that it did not have available foreign currency resources should be regarded as force majeure discharging it from liability for the non-performance of its contractual obligations. The tribunal was not in agreement with the respondent's view that its lack of foreign currency should be regarded as force majeure, since the contract agreed between the two parties gave an exhaustive list of force majeure circumstances discharging them from liability for non-performance of their contractual obligations. The buyer's lack of foreign currency was not included in that list of force majeure. In addition, the tribunal stated that, under article 54 CISG, the buyer's obligation to pay the price of the goods included taking such measures and complying with such formalities as might be required to enable payment to be made. On the basis of the case materials and the clarifications offered by the buyer during the proceedings, it was established that the only action taken by the buyer was to send instructions to the bank for the amounts payable under the contract to be transferred, but that it had not taken any measures to ensure that the payment could actually be made. The tribunal found in favour of the claimant and ordered the buyer to make the payment for the goods supplied.