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§ 4. Ways and an order of protection of the rights of the parties under the international contract. The international arbitration

REMEDIES AT LAW IN CASE OF BREACH OF CONTRACT BY THE SELLER

In case of infringement by the seller of any obligation at pokupayotelja there are three fixed assets of a legal protection: the requirement of execution by the seller of the obligations, cancellation of the contract and the requirement vozmeyoshchenija losses.

Besides, there is still a potential protection frame under article 50. Authors of the Convention needed to overcome difficulties, and it is possible to show it on two facts. First, the execution requirement proyodavtsom the obligations serves as a preferable remedy at law on civil law, and the claim with the claim for damages — on a general law. Secondly, the civil law usually demands obnaruzheyonija a lack for collecting of losses whereas, on a general law, poteryopevshej it is enough to party to prove discrepancy of the goods only. KMKPT has demanded to eliminate this rupture.

As to execution by the seller of the obligations, according to article 46 KMKPT to the buyer to whom the goods have not been put, predostavyoleno the right to demand execution by the seller of the obligations with two ogoyovorkami: the buyer should not resort to a remedy at law, neyosovmestimomu with this requirement, and the buyer should not sue with the requirement of execution by the seller of the obligations in court of the general prayova where as a preferable protection frame the action for damages serves. This position gives to the buyer the right to demand ispolyonenija the seller of the obligations instead of the indemnification, but not zayostavljaet it to do it. Thus, a choice of the given protection frame in the competence of the buyer, instead of court. According to many authors, even in sisyoteme civil law buyers usually prefer to claim damages and to get the goods instead of compulsion to execution because of expenses and the delays connected with business management in court. Even if the court will prefer treyobovanie executions by the seller of the obligations, the buyer can otyovergnut this variant, having declared, that the contract is already terminated, and this situation is incompatible with such remedy at law.

In case of delivery of the goods mismatching the contract the buyer can demand execution by the seller of the obligations by means of its replacement with the goods corresponding to the contract but only if discrepancy of the goods represents contract material breach. Or pokuyopatel can demand, that the seller has eliminated discrepancy by correction if it is reasonable «taking into account all circumstances». Though nobody knows, that such "material breach", it, according to article 25

KMKPT, it is defined as infringement which deprives substantially the dissatisfied party of that, «on what it has the right was to count on osnoyovanii contracts», except for cases when it was impossible predyovidet. In one of similar cases the machine tool which is not working poyosle of delivery has been named. Clearly, that it more than discrepancy on a general law.

As to contract cancellation on KMKPT the buyer razreyosheno to use this remedy at law only in a case sushchestyovennogo breaches of contract by the seller irrespective of time such nayorushenija. From history of working out KMKPT follows, that essential naruyoshenie makes to the buyer more strict demands. However is not present osyonovany to consider, that authors meant an Old English principle, on koyotoromu "material breach", should mention the essence dogovoyora and which has been excellent the House of Lords in 1980 (business Photo Produc­tion Ltd v.

Securicor Transport Ltd., [1980] I All Eng. Rep. 556).

Because of uncertainty of concept "material breach" pokupayotelju or to its lawyer it is very difficult to solve how to react to any breach of contract, whether it is possible to terminate to (cancel) the contract or not. neyopravilnoe the decision will put the buyer in position of the party most soyovershivshej material breach. In articles 47 and 49 (1 H) KMKPT predyoprinjata attempt to eliminate this uncertainty, offering pokupateyolju to demand more strict execution of a contract by the seller. The buyer can notify the seller on an additional term of a contract, and default by its seller to this new term will be essential nayorusheniem. However this position operates, apparently, only and a case of non-delivery of the goods with the seller, instead of in case of delivery inappropriate toyovarov, and the contract can be terminated only if the seller does not put the goods during the additional term established by the buyer. And at last, as to definiteness of application of this position what prodolzhiyotelnosti additional term the buyer for proyodavtsa should establish? Article 47 speaks about reasonable duration.

Even in case of attempt of the buyer to terminate the contract as a result of its material breach by the seller, last has the right to eliminate any infringement in execution to the statement of the buyer for its cancellation. If the seller puts the inappropriate goods ahead of schedule it can eliminate discrepancy, having put the goods corresponding to the contract to sroyoku deliveries under the contract irrespective of, whether delivery nesootyovetstvujushchego the goods material breach is or not. However lawyers argue on, whether the right of the seller to discrepancy elimination over the actual statement of the buyer for contract cancellation prevails.

The majority of lawyers agrees that it will be very difficult to uphold material breach in case the seller offers ustrayonit infringement to delivery term under the contract. If the seller suggests to make it after delivery term, it has still a right to it during doyopolnitelnoju delivery term provided that it will make it "without nerazumyonoj delays and not creating for the buyer unreasonable inconveniences or neyoopredelennosti concerning indemnification the seller of the expenses suffered by the buyer". But should correct this offer infringement udovletvoyorjat to strict criterion "conformity" or we will apply criterion sushchestyovennoe infringement »? KMKPT does not contain positions in this respect, that, vozyomozhno, speaks about prevalence of criterion"material breach", even in case of the offer to correct infringement during additional term. Thus, the main thing in positions KMKPT about remedies at law of the buyer — the cooperation requirement between the parties in the resolution of disputes about terms of delivery and quality of the goods.

Thus, the buyer before to refuse the mismatching goods put by the seller contract, should examine it «in such short term what is practically possible» (statja 38); to inform the seller on discrepancy of the goods «during reasonable term» (articles 39,

49); to establish and manage to prove, that as a result of discrepancy of the goods it «substantially loses that, on what had the right to count on the basis of the contract» (article 2S), and to allow to eliminate to the seller any neyosootvetstvie the goods if «it can make it without unreasonable zaderzh be» or "inconveniences" (article 48). At lawful refusal of the goods pokupayotel all the same can receive the money back, even if it already zaplayotil for these goods on the basis of positions of article 81 about return of the received; but the buyer also should return the goods «in the same in essence a condition in which it has received it».

Besides refusal of the goods by "cancellation" (cancellation) of the contract the suffered buyer has one more informal protection frame. According to article 50, the buyer who has received the goods mismatching the contract, «can reduce the price» which he pays to the seller. As otsutstyovuet the requirement of the preliminary notice of the seller also is not present accurate ukazayony about that, it is how much possible to reduce the price and what proof of depreciation of the goods it is necessary to send to the seller this position approaches for regulation of deliveries of the goods inappropriate kolichestyova more, instead of qualities. The buyer before to use such means zashchiyoty, should allow to the seller to eliminate discrepancy under its request.

If the similar goods can be got in the market, the size vzyyoskivaemyh the sustained buyer of losses constitutes or 1) a difference between the price «under the transaction made in exchange» (by actually priobreyotennogo instead of the goods) and a contractual price, or 2) a difference between the current and contractual prices for these goods. The convention provides collecting of losses on any of these sizes, but if the buyer gets the goods in exchange to claim damages it is possible only by the first variant.

In the Convention there are no instructions on how to establish, whether has got pokupayotel the goods in exchange or has simply filled up the stock of the goods. At ispolyozovanii differences between the current and contractual prices the current price schitayoetsja the price at the moment of cancellation (cancellation) of the contract if the buyer has not accepted the goods still before; in that case current Price the price at the moment of acceptance is considered.

REMEDIES AT LAW IN CASE OF BREACH OF CONTRACT BY THE BUYER

In case of breach of contract by the buyer preferable sredstyovom a legal protection of the sustained seller it is necessary to recognise the claim with treboyovaniem price payments that is equivalent for the seller to the requirement of execution of a contract in nature. The claim with the requirement vozmeshcheyonija losses will be the second for the importance. Besides, the seller can demand goods returning if it has already been put, or to achieve other legal protection in default from it the buyer.

As to collecting by the seller of yen article 62 KMKPT gives to the seller, apparently, the absolute power on court decision reception about price payment. Certainly, this right is connected with others meant usyolovijami, first, that the seller himself has executed the contract in sootvetstyovii with its conditions (article 30), and, secondly, that there has come payment term tseyony (article 58).

It is more difficult to define, whether represents the requirement of payment of the price treboyovaniju «executions of a contract in nature» under article 28. If so poterpevyoshy the seller should fulfil requirements of article 62 KMKPT before the court will take out the decision about payment by the buyer of the price, instead of about compensation of losses by it. If the claim with the requirement of payment of the price does not demand removal «poyostanovlenija about execution of a contract in nature» article 28 KMKPT do not apply also the seller should fulfil requirements of article 62 KMKPT only.

If the seller cannot (on any of the reasons) to obtain on demand the price tovayora, whether that it after delivery can receive the goods back from naruyoshivshego the contract of the buyer by means of cancellation of the contract and trebovayonija goods return? Such requirement is difficult for carrying out on the general prayovu, however the Convention, apparently, supposes such requirement as in article 64 providing the right of the seller on the statement for cancellation of the contract, it is not spent distinctions between situations before delivery and after it, and under article 81 after contract cancellation, return is required «... All that has been put or paid by the first party under the contract».

However this analysis can be not full, especially in case of participation of the third parties (creditors of the buyer and operating the bankrupt's estate in case of its bankruptcy) as KMKPT assumes not to mention the property right to the goods and the rights of the third parties (article 4) and does not demand from court of removal of the decision about «execution of a contract in nature» which it cannot take out also on the basis of the national law (article 28).

As to losses, articles 74-78 provide the right not poyoluchivshego the asking price (together with sustained buyer) to claim damages. And the general principles in this case the same, as in case of remedies at law of the buyer at breach of contract by the seller.

As the most usual size of losses not received asking prices recognise or 1) a difference between the contractual and reselling prices tovayora in case of its actual resale, or 2) a difference between dogovoryonoj the price and the current price of the goods at the moment of contract cancellation. KonYOventsija provides possibility of reclamation of any of these varianyotov losses, but if the seller pereprodaet the goods for it the first variant is possible only.

The basic practical problem of the sellers who have not received the price soyostoit that two variants of the indemnification specified above predosyotavljajut insufficient protection to the seller, «to the victim from decrease oboyorota trade». However in positions KMKPT, establishing these variyoanty the indemnification, it is said, that they do not carry exclusive hayoraktera, and on the basis of principles of article 74 the court has the right to provide full protection of the rights of such seller.

The buyer who has refused the goods after its reception, should take "reasonable" measures for its preservations (article 85) that (article 87) If the seller does not have agent in the location of the buyer, the buyer who has refused the goods who «has been given in its order in destination can oznayochat warehousing of the goods at the expense of the seller... Should enter possession of the goods at the expense of the seller provided that it can be made without price payment» (i.e. payments of the negotiable bill of lading) «and without unreasonable inconveniences» or expenses.

After such introduction into possession of the goods at the expense of the seller pokuyopatel besides should take "reasonable" measures for its preservation. If the goods are subject to the fast damage, refused it and entered in vlayodenie it the buyer can try to sell it and to send the received gain to the seller with deduction from it expenses of the buyer on it sohraneyoniju and sale. However in KMKPT there are no the positions demanding, that otkayozavshijsja from the goods and entered possession of it the buyer carried out ukayozanija the seller, such how to sell the goods into the account of the seller with what razumnyyomi these instructions would not be.

Thus the contract liability of infringement (protection of the rights of the parties under the contract) is regulated first of all by the Viennese convention on contracts of the international purchase and sale of the goods; norms Civil koyodeksa the Russian Federation about the liability for nonperformance (inadequate execution) treaty obligations are applied subsidiarno. The convention has established two kinds of measures which are applied by the parties of the contract in case of it predyovidimogo infringements: organisation-legal and imushchestvenno-legal measures (a civil responsibility measure). The bases for them priyomenenija — expected infringement of treaty provisions.

Organization-legal measures consist in possibility storoyony contracts or to suspend execution of the obligations, or rasyotorgnut the contract.

Stay of execution is supposed, if after the conclusion doyogovora it is obvious, »gto other party will not execute a considerable part of the obligations as a result of actual inability to carry out nadleyozhashchee execution or in view of the nekreditosposobnosti. The party, priosyotanavlivajushchaja execution irrespective of, it becomes to or after goods sending, is obliged to direct immediately the notice on it to other party (an information duty) and should continue execution if other party gives sufficient guarantees of execution of the obligations.

Contract cancellation is supposed, if to established for ispolyonenija date contracts it becomes clear, that one of the parties will make sushchestyovennoe breach of contract. Thus, under the Convention for cancellation of the contract it is enough only real threat of material breach doyogovora while Russian GK demands that the infringement fact took place actually.

The concept of material breach of the contract is given in item 25 of the Convention and it is close to that concept of material breach of the agreement which contains in item 450 GK. According to the Code essential admits naruyoshenie contracts of one of the parties which attracts such damage for other party, that it substantially loses that, on what had the right to count at making contract. Convention article 25 adds to it: « Except for cases when the party which has broken the contract did not expect such result and the reasonable person operating in same kacheyostve under similar circumstances, would not expect it ». Given ogoyovorka has the important practical value as thereby the Viennese convention has fixed the basis of clearing of the party of the contract from otvetstyovennosti which is not known Russian GK. Owing to item 3 of item 401 GK edinyostvennym the basis of clearing of the debtor from responsibility is force majeure. The Russian law does not carry to such circumstances infringement of duties from counterparts of the debtor, absence in the market of the necessary goods for execution, absence at the debtor of necessary money resources. Thus, concerning commercial risks dolzhyonika the international law is more liberal.

As well as in case of stay, at cancellation of the contract the initiator also should execute an information duty and direct to other party the notice on the intention. However unlike priostanovleyonija executions at contract cancellation the given duty is not imperative and is carried out, if time allows. In this question KonvenYOtsija also disperses from the Russian Civil code, it agree kotoyoromu pretenzionnyj an order of cancellation of the contract in unilateral porjadyoke is the imperative requirement: owing to item 2 of item 452 GK the requirement about change or about contract cancellation can be declared the party in court only after reception of refusal of other party on the offer to change or terminate the contract or answer non receipt in time, specified in predyolozhenii or statutory or the contract, and at its absence — in 30-days term.

Owing to item 81 of the Convention contract cancellation releases both stoyorony from their contractual obligations at preservation of the right to collecting of losses. Contract cancellation probably without damage to arbitration ogoyovorki the foreign trade contract, and also does not mention any poloyozheny the contract, concerning obligations of the parties provided by them on a case of cancellation of the contract. In the latter case speech does not go about ispolneyonii obligations which constitute a being of delivery (purchase and sale) as these obligations stop as the contract is terminated. The legislator meant not the basic, and accompanying obligations, koyotorye have agreed to execute the parties after agreement cancellation: nayoprimer to keep a trade secret about the transaction.

If by the moment of cancellation the contract was completely or is partially executed by one of the parties, this party can demand from other party of return of all of that by the first party has been put or paid under the contract. If both parties are obliged to carry out return received, they should make it simultaneously. Hence, the Convention predusmotreyola possibility to terminate the contract which by the cancellation moment can be already executed both parties, — such rule GK does not contain.

Civil responsibility measures are reduced to objazannoyosti a guilty party to pay the losses caused by breach of contract. According to KMKPT in case of default or inadequate ispolyonenija one of the parties of the contractual obligations the serviceable party has the right to claim damages and contract cancellation. Losses are understood as a positive damage in property and missed vyyogoda. Owing to item 74 of the Convention losses cannot exceed a damage which the party which has broken the contract expected or should expect in moyoment makings contract as a possible consequence of its infringement, uchiyotyvaja circumstances about which she at that time knew or should know.

The indemnification duty arises without dependence from fault of the infringer. Enough the fact of infringement and a damage suffered thereof other party. Thereby responsibility of the party is under construction on a causality principle, but not on a principle of fault [3].

About the penalty the Convention does not contain rules, hence, it has not standard, but contractual character.

The reservation on action of force majeure circumstances

Force majeure circumstances — the important section of those vneshnetoryogovyh contracts which mediate long postavochnye otnoshenijastoron.

The concept of force majeure (vis maior, forse majeure, act of God) suyoshchestvuet also means millenia the higher force, «the divine craft», destiny, the event surpassing on hallows those human forces which it is possible for it to contrast that is why relieving from responsibility [4]. It ponjayotie was known to the Roman private law of the classical period, grazhyodanskomu to the right of the countries continental. Europe (item 1147, 1148, 1385, 1381 FPS; item 103, 104 FTK, ч.2 paragraph 701 GGU etc. [5]). To Anglo-American civil law (force-majeur excuses in contracts). In the Russian civil law force majeure is traditionally defined as chrezyovychajnoe and impreventable circumstance under the given conditions (item 202, item Z item 401 GK the Russian Federation). However, despite so long history sushchestyovovanija this concept, it causes till now numerous disputes [6].

Force-majeur admit unforeseen objective and subekyotivnye circumstances of extreme character (a fire, spontaneous bedstyovija, wars and military operations of any character, blockade, mass obshcheyostvennye disorders, national excitements, governmental moratoyorii etc.) owing to which participants of the contract could not carry out of the obligations taken up and it it is impossible to blame it.

In the Viennese convention of force majeure circumstance are called as obstacles out of the control of the parties of the transaction which release uchastniyokov the foreign trade activity from the liability for nonperformance dogoyovora. The obstacle out of the control is characterised by the Convention as nepredviyodennoe, inevitable and insuperable circumstance. From the Convention sleyoduet, that the party — the infringer of obligations under the external economic transaction should prove the following: the event interfering execution, has come in spite of the fact that all have been undertaken necessary and razumyonye measures for its prevention.

According to item 4 of the Review of judicial-arbitration practice razresheyonija disputes on affairs with participation of foreign persons (the Circular of the Supreme Arbitration Court of the Russian Federation from February, 16th, 1998 № 29 [7]) the party of the foreign trade contract of purchase and sale of the goods does not bear the liability for nonperformance of any of the obligations only in the event that will prove in the course of proceeding, that default has been caused preyopjatstviem out of its control.

In the literature the concept of circumstances of force majeure opredeyoljaetsja as extremely wide category identical not only nepreyoodolimoj to force, but also in general any impossibility of execution of civil-law obligations is frequent. Hardly it is possible to agree with it. Force-majeur (by definition) comes only when the impossibility of execution taken up subjects of civil law of obligations is caused by such circumstances which carry extreme (not ordinary) hayorakter and cannot be prevented popular (adequate soyovremennomu to a level of development of a science, technics, communications and so forth) sredstyovami. It is correlated and with requirements of the Viennese convention, agree koyotoroj the fact of impossibility of execution of obligations the debtor not priyonimaetsja in attention if execution was objectively possible. When certain events create to the debtor only difficulty of execution, tayokie events cannot be considered as «an obstacle out of the control» the debtor.

In the foreign trade practice it is accepted to confirm presence of force-majeur by documents (certificates) which give out commercial and industrial chambers of those countries in which territory took place danyonye circumstances, is an original commercial custom [8]. Thus neobyohodimo to consider, that the commercial and industrial chamber should only dokuyomentalno establish presence of this or that circumstance, rastseniyovaemogo one of participants of the external economic legal relations as force-majeur. In case of dispute in the given occasion interested storoyona should prove in court, that the given circumstance has character neyopreodolimogo the fact releasing it from execution of responsibility: svideyotelstvo national commercial and industrial chamber does not remove with soyootvetstvujushchego the participant of foreign trade activities of a duty on force-majeur proving.

The reservation on an applicable law

Plurality of is standard-legal sources of the foreign trade activity has put a problem of choice of law express choice, applicable to regulirovayoniju the concrete external economic legal relations which essence soyostoit in the answer to a question, what substantive law to apply to vneshneekoyonomicheskim to transactions: Russian, the right of the foreign counterpart or obyoshchee (international trading) the legislation.

Because the part the second GK the Russian Federation does not regulate questions primeneyonija certificates of the international private and foreign right to vneshneekonoyomicheskim to legal relations with participation of the Russian subjects of law, the applicable law choice is regulated by the norms containing:

— In section VIII «the Legal capacity of foreigners and persons without grazhdanstyova. Application of civil laws of the foreign states, mezhdunarodyonyh contracts and agreements» GK RSFSR of 1964 which loses siyolu since March, 1st, 2002;

— In section VII «the Legal capacity of foreign subjects and juridicheyoskih persons. Application of civil laws of the foreign states and mezhyodunarodnyh contracts» Bases of the civil legislation, which utyorachivaet force since March, 1st, 2002

— In section VI GK the Russian Federation «the International private law» which becomes effective since March, 1st, 2002

The general rule about an applicable law is freedom of participants of foreign trade activities in a choice of customs, applicable to reguliyorovaniju their relations (item 5 of item 1 and item 1 of item 28 of the Law of the Russian Federation from July, 7th, 1993 "About the international commercial arbitration ' 1; item of VII European konvenyotsii about the foreign trade arbitration, signed in Geneva on April, 21st 1961 goyoda, operating for the USSR since January, 7th, 1964 and executed arbitrazhyonymi vessels of Russia, and also item 566 GK RSFSR and 166 Bases, item 1210 GK the Russian Federation). Hence, if there is no express indication Russian zakonodatelstyova about action of the concrete normative act (and such instructions usually priyonimajutsja concerning the foreign trade contracts concluded on osnoyovanii of intergovernmental agreements of the Russian Federation), participants vneshneekoyonomicheskih communications have the right to solve at own discretion the given question poyosredstvom reservations on an applicable law (a principle of an autonomy of will of the parties of the civil-law agreement).

According to item 1210 GK the Russian Federation the contract parties can at the conclusion doyogovora or in the subsequent to choose under the agreement among themselves the right, koyotoroe comes under to application to their rights and duties under this contract. The right chosen by the parties is applied to occurrence and the termination of the property right and other real rights on a personal estate without ushcheryoba to the rights of the third parties.

It is important to notice, that if as an applicable law it is selected Russian, it does not mean a choice of separate Russian laws, and predpo-patches protected by vessels of the Russian Federation the arrangement on application of all rossijyoskoj legal system into which a number of international agreements enters. It follows from constitutional and civil law of Russia. In sootvetstyovii with ch. 4 items 15 of the Constitution of the Russian Federation international treaties Russian FeYOderatsii along with the conventional norms and principles mezhdunarodnoyogo the rights are a part of legal system of our country. Given konstiyotutsionnaja norm produblirovana in item 1 of item 7 of the Civil code of the Russian Federation. In item 2 of item 7 GK it is directly specified, that to the relations constituting a subject of grazhyodansko-legal regulation, international treaties directly, except cases when from the international agreement sleyoduet, that for application of the last the edition vnutrigoyosudarstvennogo the certificate is required are applied.

Therefore those Russian exporters who insist on application of the Russian right are mistaken and consider, that in case of the consent inopartnera on the applicable Russian right the transaction will be regulated only KodekYOsom, and use of the Viennese convention will be excluded. As mezhyodunarodnyj the contract since September, 1st, 1991 — a part of legal system of Rosyosijsky Federation so far as the foreign trade relations will be reguliroyovatsja it as a part of the Russian legislation, and the international law is applied first of all.

So, the applicable law problem arises when the parties sayomostojatelno have not solved a question on the right to which will submit them otyonoshenija. Thus the choice the parties as a place of consideration of disputes of arbitration court of the Russian Federation does not mean automatic podyochinenija the transaction of the parties to the Russian right. Absence of will stoyoron concerning an applicable law shows, that choice of law express choice osushchestvyoljaet court, competent to consider the given dispute.

In the absence of the reservation on the right judiciary practice uses kolliyozionnuju norm national (Soviet or Russian) zakonodatelyostva, operating at the moment of the conclusion of the external economic transaction. I will remind, that the conflict rule is the rule which does not contain the direct answer to a question on how it is necessary to solve dispute, and prompts, zayokonodatelstvo what country it is necessary to apply to the resolution of dispute in essence. Now in the Russian right operate kollizionyonye norms which RSFSR of 1964 and in item 166 of Bases contain in item 566 GK. Thus they essentially differ.

According to item 566 GK RSFSR the rights and duties of the parties under the foreign trade contract are defined under laws of a place of its fulfilment, kotoyoroe is established according to the Soviet legislation. In force of item 166 of Bases of the right and a duty of the parties under the external economic transactions are defined more with difficulty, depending on a kind vneshneekonoyomicheskoj transactions.

For example, in Moscow the foreign trade contract where the seller is the German firm is signed. The parties have not agreed about by what zakonoyodatelstvom they will be guided at execution arisen objazayotelstv. Hence, the court has a question what of the above-named conflict rules comes under to application. Under item 566 GK RSFSR to reguliyorovaniju the arisen legal relations is applied Russian zakonodatelyostvo. However according to Bases the given transaction will be regulated germanyoskim by civil law (paragraph 1 ch. 2 items 1 of item 166 of Bases). How to leave the given contradiction?

RSFSR or item 166 of Bases serves as criterion of application of item 566 GK the moment of occurrence of the external economic contractual relations, treyobujushchih conflict regulation. According to p 1 decisions VerYOhovnogo of Council of the Russian Federation from March, 3rd, 1993 «About some questions of application of the legislation of USSR in territory of the Russian Federation» Bases are applied to the civil matters which have arisen after August, 3rd, 1992. Thus, to legal relations of participants vneshneekonomiyocheskoj the activity, arisen till August, 3rd, 1992, item 566 PS RSFSR of 1964, and to the legal relations which have arisen after this date, — item 166 of Bases is applied. Thus conflict rules of item 166 of Bases rasprostranjayojutsja and on those external economic legal relations which are regulated by the Civil code of the Russian Federation.

Since March, 1st, 2002 the part 3 GK will come into force, in which section VI («the International private law») already uniformly solves questions opreyodelenija an applicable law in case of absence of the reservation on it in the contract (item 1211 GKRF).

At regulation of the external economic relations the national legislation is frequent differently, than foreign or international zakoyonodatelstvo, solves the same questions in this connection arises probleyoma a competition Russian, foreign and international zakonodayotelstva.

Competition of the internal law n the international certificate. SpetsiYOalnyj the certificate about an international treaty legal regime — the Federal act from July, 15th, 1995 «About international treaties Russian FedeYOratsii». The list of the international agreements recognised as the Russian Federation and executed by its vessels, contains in the Circular of the Supreme Arbitration Court of the Russian Federation from August, 16th, 1995.

Article 170 of Bases contains the conflict rule establishing the general rule about a competition of the internal and international law: if the international treaty in which the Russian Federation, usyotanovleny other rules participates, than what contain in Russian grazhdanyoskom the legislation international treaty rules are applied. Therefore if this or that question of the external economic cooperation is settled by the international certificate, it is applied first of all, at least in the national legislation and other decisions contained. The Supreme Arbitration Court of the Russian Federation has specified, that arbitration court at the resolution of dispute, following of the external economic transaction regulated by the Russian right, or carrying on which come within the purview international doyogovora, is guided by norms of the international treaty. The questions which have been not settled by the international treaty, are regulated by the Russian right. Therefore if between the parties there was a dispute, for example, in the order of the foreign trade contract conclusion, it is authorised by rules of the Viennese convention first of all, and norms GK about an order of the conclusion of civil-law agreements will be applied subsidiarno.

The competition of the Russian and foreign right is authorised by rules of item 156 of Bases according to which the foreign right is applied to civil matters in the Russian Federation in the following sluyochajah:

When it is directly provided by acts of the Russian Federation when it follows from the international treaty to which priyosoedinilas Russia;

When the legislation of the Russian Federation and international doyogovor "are silent" concerning possibility of application of the foreign right to legal relations of the Russian subjects of law, but such possibility preduyosmatrivaetsja the agreement of the parties of the external economic legal relation.

Bases of the civil legislation contain two rules about neyoprimenenii norms of the foreign states. In item 158 of Bases it is fixed obyoshchee position about non-use in the Russian Federation foreign prayova. Its norms are not applied in the Russian Federation when it would contradict bases of the Russian law and order — in similar sluchayojah the national legislation is applied. Thus refusal in primeneyonii the foreign right to legal relations of the Russian persons cannot osnoyovyvatsja on difference of political-economical system of Russia from politicheyoskoj or economic system of the foreign state.

Besides, the foreign right is not applied in the event that soyoderzhanie its norms is not established. Norms Russian prayova Here operate.

The listed positions fix the general principles of a choice priyomenimogo the rights, contain the general правила*. Special rules about konkuyorentsii internal, foreign and international law contain in other articles: for example, the competition of norms about limitation of actions dares according to positions of item 159 of Bases; a competition of norms about the legal personality of foreigners and stateless persons — item 160 of Bases etc.

The arbitration clause

Consideration of disputes of participants of foreign trade activities as commercial arbitration is important remedially-legal guarantee of observance and protection of their rights. Thus the term "the international commercial arbitration" has two values.

First, the given concept means legal proceedings of the permission of the economic dispute as which participants subjects razlichyonyh the states (foreign persons) act. According to item 1 of the European convention on the foreign trade arbitration the term "arbitration" means razbiyoratelstvo disputes as the arbitrators appointed on each separate deyolu, and constant arbitration courts of justice.

Secondly, the concept "arbitration" includes one of the courts of justice entering into system of economic vessels, which podvedomstvenny ekoyonomicheskie international jurisdiction disputes. According to item 2 of the Law of the Russian Federation "About the international commercial arbitration" "arbitration" means any arbitration (arbitration court) irrespective of, it is formed specially for consideration of separate business or carried out by constantly operating arbitration establishment.

The system of the vessels considering economic disputes of participants of foreign trade activities, includes federal arbityorazhnye and the arbitration courts.

Federal arbitration courts (or "state" as they are called by the European convention on the foreign trade arbitration) enter in suyodebnuju the system of the Russian Federation defined Federal konyostitutsionnym by the law from April, 28th, 1995 «About arbitration courts in the Russian Federation». According to item 210 of agrarian and industrial complex of the Russian Federation foreign oryoganizatsii, the international organisations and carrying out predprinimayotelskuju activity foreign subjects, stateless persons (further — foreign persons) have the right to address in arbitration courts in Rosyosijsky Federation for protection of the broken or challenged rights and legitimate interests. Hence, the reference to jurisdiction of arbitration court of the Russian Federation probably owing to the arbitrazhno-remedial legislation under the claim of the participant of the economic dispute which has arisen from the external economic transaction.

The arbitration courts are the courts intended for the alternative permission of economic disputes They are not elements of the general sisyotemy federal courts of Russia, and are selected but to the agreement of the parties. Treyotejsky court can be: individually the arbitrator; board of arbitrators (tretejyoskih judges), the third party (physical or legal) to which the parties have charged decision-making on the dispute.

To the international remedial practice are known, and in item of VI Euroyopejsky convention on the foreign trade arbitration two kinds treyotejskih the vessels considering disputes, arising of international trading and other external economic relations are fixed

Constant (institutsionalnye) the arbitration courts created at various national associations, the commercial and industrial chambers, operating on the basis of normative acts (federal acts, polozheyony, charters). Constantly operating arbitration judicial tribunals have the list of arbitrators (professional lawyers, jurists), the prayovila proceedings which are considered usually jointly. The Russian Federation the International commercial arbitration court and Sea board of arbitration would concern their number at TPP the Russian Federation.

The "isolated" arbitration courts are law-enforcement sudebyonye the institutes selected the parties specially for their consideration spoyora and ceasing the action after awarding judgement on business. PriYOmenjaja such arbitration, contending parties have the right to appoint arbitrators or usyotanavlivat in case of occurrence of any dispute their methods naznacheyonija; to establish an arbitration court site, and also rules of procedure which arbitrators should adhere.

In Russia two basic acts for the arbitration court in economic sphere operate: Time position about the arbitration court for the permission of the economic disputes, approved by decision VerhovYOnogo of Council of the Russian Federation from June, 24th, 1992, and the Law of the Russian Federation «About international komyomercheskom arbitration».

The major remedial feature of legal proceedings in tretejyoskih vessels is that excitation of arbitration litigation probably only in the presence of arbitration or the arbitration agreement — arrangements of participants of the external economic legal relation about pereyodache in the arbitration court of disputes which have arisen or can arise intermeal them in connection with any concrete legal relation irrespective of, it had contractual character or not. So, according to item 1 of Time position about the arbitration court for the permission of economic disputes and item 23 of agrarian and industrial complex of the Russian Federation legal bodies and citizens-businessmen moyogut to enter into agreements on transfer arising between them ekonomicheyoskih (grazhdansko-praaovyh) disputes in the arbitration court in withdrawal from jurisdikyotsii arbitration courts. Thus the arbitration agreement can be issued as the arbitration clause in the external economic contract or to exist in the form of the separate agreement.

The arbitration clause should contain a condition about nepodvedomstvenyonosti disputes to general jurisdiction vessels. However it is necessary to consider, that as aryobitrazhnaja the reservation, and the mentioned condition are not applied to such disagreements, as, for example, dispute on trade marks, and some other which according to the national legislation concern to iskljuchiyotelnoj the competence of courts of justice.

The arbitration clause can compete to norms mezhdunarodyonogo the remedial legislation. So, today continue dejstvoyovat mandatory provisions of the Moscow convention of 1972 «About the permission arbitration by the civil-law disputes following from otnosheyony of economic and scientific and technical cooperation» which participants are member countries were SEV. This Convention preduyosmatrivaet consideration of disputes in arbitration court at the Chamber of commerce in the country of the respondent. In domestic practice there are contracts, kotoyorye ignore the maintenance of the given Convention and provide, napriyomer, dispute consideration not in the country of the respondent, and in the country of the claimant. In such cases the International commercial arbitration court at Commercial and industrial chamber of the Russian Federation proclaims incompetent to consider similar disputes and returns the claim to the claimant for a direction on jurisdiction in the country of the respondent.

The arbitration clause can be expressed in writing, and also by the actions testifying to a tacit consent uchastniyokov of economic relations on consideration of dispute in these or those arbityorazhnom institute (an exchange of the statement of claim and a response for the claim in which one of the parties confirms the agreement, and another against it not vozrazhayoet). The condition about the written form of the arbitration clause is considered vypolyonennym if the reservation contains in the document signed by the parties; the parties have solved a question on jurisdiction of the dispute by an exchange of letters, telegrammes or in messages by teletype, to telegraph or with ispolzovayoniem other means of telecommunication providing fixing such soglayoshenija.

The international commercial arbitration court at TPP the Russian Federation recognises that the arbitration clause can be made not only at formiyorovanii the external economic contractual legal relationship but also after between participants of foreign trade activities there was a dispute.

The major remedial features (quality) arbitrazhyonogo agreements are its compulsion for the parties and autonomy of the reservation concerning the external economic transaction which have become by an occasion to the conclusion of the arbitration agreement.

Compulsion of the arbitration agreement means, that it uchastyoniki cannot evade from transfer of dispute to the arbitration court selected them. The "usual" court has not the right to accept business to the manufacture, rasyosmotrenie which by the arbitration clause is provided in MKAS. It also cannot neither cancel, nor review in essence the decision treyotejskogo vessels.

Autonomy of the arbitration clause assumes it dejstvitelyonost even in the event that the external economic transaction, apropos kotoyoroj there was a dispute, is ceased. Differently, the validity arbitrazhyonoj reservations does not depend on legitimacy of that contract, in the relation koyotorogo this reservation has been made. The decision of the arbitration court that dogoyovor is void does not involve owing to the negligibility law arbityorazhnoj the reservation: the court will consider dispute and, recognising the transaction nedejstyovitelnoj, will define legal effects of invalidity of the contract.

So, the Russian organisation has sued to the Belgian firm about collecting of cost of the put goods. The arbitration court recognised zayokljuchennyj as the parties the contract void because of infringement trebo -

But

vany the legislation of the USSR operating at that time on an order podpiyosanija foreign trade contracts. In this connection there was a question about dejstvitelyonosti the arbitration clause containing in this contract and about kompeyotentnosti arbitration court to solve a question on consequences of a recognition of the foreign trade contract void.

The court established, that the arbitration clause on the legal nature is the distinct from foreign trade contract and on it not rasproyostranjaetsja an order of signing of foreign trade contracts. Arbitration soyoglashenie is the remedial contract independent of the materialyono-legal contract in which it is included. Therefore the question about juridiyocheskoj to force of the material contract does not mention the agreement of the parties on submission of the arisen dispute of jurisdiction of arbitration court.

Autonomy of the arbitration clause admits both the doctrine, and in practice of the international commercial arbitration. This principle poluyochil the expression in the Arbitration regulations JUNSITRAL accepted as the recommendation in the Resolution of General Assembly of the United Nations 15 dekabyorja of 1976. Arbitrators were based and on item 3 § 1 Regulations of Arbitration court in which directly it is underlined, that the arbitration clause admits standing good in law irrespective of the contract validity, osyonovnoj which part it is. In the national legislation the given quality of the arbitration clause is fixed in Law item 16 about MKAS according to which the arbitration clause which is a part of the contract, should be treated as the agreement which is not dependent on other conditions dogoyovora.

One of the affairs considered by Presidium of Higher ArYObitrazhnogo Vessels of the Russian Federation in the exercise of supervisory powers is indicative: between two firms of the USA the contract of a concession of the incorporeal right from Open Society «Volgograd aljumiyony» return 700 Open Companies of the US dollars received by last from amerikanyoskoj of firm under the loan contract has been concluded. In the contract on granting of the loan hundred -

Ill

rony have provided, that all disputes arising from it and disagreements buyodut to be resolved by negotiations and if questions at issue are not ureguyolirovany peace by — at Arbitration institute at the Chamber of commerce of Stockholm according to regulations of this arbitration institute. Meanwhile the transferee has addressed with the claim about loan return not in mezhdunayorodnyj arbitration institute, and in court of the Russian Federation.

Suing in Arbitration court of the Volgograd area, tsessionayory considered, that the arbitration clause as the agreement of the parties is samoyostojatelnym, a condition not dependent on the basic contract and has not mayoterialno-legal, but remedial character, therefore could not be peyoredana to it under the cession contract. On its logician if the firm-creditor was the claimant, only then dispute would be considered in Sweden.

This argument has been dismissed. According to item 384 GK the right of the initial creditor passes to the new creditor in that volume and on those conditions, koyotorye existed by the moment of transition of the right if other is not statutory or the contract. The analysis of the specified norm and the prisoner between the parties of the contract of cession by which the concession of the right to a presentation of claims is provided also, has allowed the higher arbitration our instance strayony to draw following conclusions.

Suing in protection of the broken rights represents I will dress from components of the maintenance of the incorporeal right which have passed to novoyomu to the creditor. Preservation before the order established by the parties razreyoshenija disputes does not restrain the rights of the transferee and allows to provide nadleyozhashchuju protection of interests of the debtor. Considering it, to conditions mentioned in item 384 GK to which the rights of the initial creditor pass to noyovomu to the creditor, the condition about election opredeyolennogo arbitration for the permission of possible disputes between participants of the contract can be carried also.

Proceeding from it. The Supreme Arbitration Court of the Russian Federation recognised, that the trial court legally allures item 2 of item 87 of agrarian and industrial complex of the Russian Federation, agrees kotoyoromu the claim is left without consideration as there is an agreement stoyoron about transfer of dispute to the arbitration court.

To arbitration practice cases when, despite arbitration clause presence about transfer of dispute to the arbitration court, one of the parties of the external economic transaction changes the jurisdiction fixed in arbityorazhnoj to the reservation are known, and addresses to jurisdiction of the state arbitration which considers dispute in essence.

So, in arbitration court has addressed Russian foreign trade obeyodinenie with the claim to the English trading company. Dispute has arisen from vneshneyotorgovoj transactions which should be executed in territory of Rossijyosky Federation. The foreign trade contract signed by the parties, soyoderzhal the arbitration clause about transfer of dispute to the arbitration court. Meanwhile the claim has been submitted to arbitration court of the Russian Federation, the respondent (English firm) has presented the defencings to an action, proofs to their substantiation, participated in sessions of the court by dispute consideration in the first and appeal instances. Only at right use kassayotsionnogo the appeal the respondent has referred to that circumstance, that the claim zajavyolen with infringement of the agreement on transfer of disputes under the transaction in the arbitration court and arbitration court has not the right to consider the dispute following from it doyogovora.

Foreign firm actions in the given cases are wrongful on sleyodujushchim to the bases. The claim has been shown in arbitration court of the Russian Federation according to requirements of item 22 of agrarian and industrial complex of the Russian Federation about podvedomstvenyonosti disputes with participation of the foreign organisation. The foreign firm (otyovetchik), made agreement about consideration of disputes in the arbitration court, had the right to refuse dispute consideration in arbitration court of Rossijyosky Federation in the first statement on the substance of dispute.

Such order is established item 87 of agrarian and industrial complex of the Russian Federation which have provided, that aryobitrazhnyj the court leaves the claim without consideration, «if there is an agreement of the persons participating in business, on transfer of the given dispute on the permission tretejyoskogo vessels and possibility of the reference to the arbitration court is not lost and if the respondent objecting to a legal investigation in arbitration court, not later than the first statement on the substance of dispute will declare the petition for dispute transfer on the arbitration court permission».

Hence, taking into account positions of item 87 of agrarian and industrial complex of the Russian Federation actions of the claimant who has submitted the claim in arbitration court, and the respondent — the English firm not declared the petition for transfer of dispute according to the arbitration clause in the arbitration court and participating in consideration of dispute in essence in arbityorazhnyh vessels, testify to intention of the parties to protect the rights and interests in the state arbitration court of the Russian Federation. In such situation the arbitration court had no bases to leave the claim without rasyosmotrenija.

These positions of the Russian legislation correspond to an order established by international agreements of the Russian Federation: item of I item of VI European convention on the foreign trade arbitration and item 3 of item 11 of the New York convention on a recognition and a carrying out arbityorazhnyh decisions of 1958.

Thus, the arbitration court in the Russian Federation leaves the claim without consideration if there is an agreement of the persons participating in business, on transfer of the given dispute on the arbitration court permission only in the presence of the first petition of the respondent for dispute transfer on the permission of the arbitration court made before removal arbitration court of the first decision. It means that autonomy of the arbitration clause has absoljutnoyogo no character, it is relative.

Negligences in arbitration clause registration lead razlichyonogo sorts to difficulties in definition of the appropriate competence arbitrazhyonyh bodies. So, in one of contracts dispute consideration in arbitration court has been provided at the Moscow chamber of commerce. Only after consent in addition received from the respondent to dispute consideration in arbitration court at Commercial and industrial chamber of the Russian Federation this arbitration body has agreed to accept business to the manufacture.

Example of correct edition of the arbitration clause recommended by the International commercial arbitration court at TPP РФ:4СВсе spoyory, disagreements and the requirements arising or able in the future vozyoniknut from the present contract or in connection with it, including its concerning executions, inadequate execution or other infringement, prekrayoshchenija or invalidity, come under to consideration in MKAS at TPP according to its Regulations ».

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A source: UGRIN Timothy Stepanovich. the CONTRACT of the INTERNATIONAL PURCHASE AND SALE of the GOODS. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -. 2002

More on topic § 4. Ways and an order of protection of the rights of the parties under the international contract. The international arbitration:

  1. § 2. THE RIGHTS AND DUTIES OF THE PARTIES UNDER THE CONTRACT OF THE AUTHOR'S ORDER
  2. 2.3. Protection of the rights of the parties of the contract concluded in the electronic form
  3. § I Conditions (maintenance) of the international contract (a duty of the parties)
  4. § 4. Complex character of institute of the international commercial arbitration. The international commercial arbitration and the international private law
  5. Section 1. The ORDER of JOINT APPLICATION of NORMS of the INTERNATIONAL HUMANITARIAN LAW And INTERNATIONAL LAW of HUMAN RIGHTS In CONFRONTATIONS
  6. § 1. THE PARTIES OF THE CONTRACT OF THE AUTHOR'S ORDER
  7. §2. Execution of the international contract. Structure of contractual communications and kinds of the documents which are making out execution of the international contract of purchase and sale
  8. 1.2. The Legal protection at purchase and sale breach of contract in the international trade right
  9. § 1. Participation of bodies on assistance to human rights and their protection in the international mechanism of protection of human rights
  10. the Part III. Ways of increase of efficiency of the international cooperation in the field of human rights
  11. THE CHAPTER II. THE PARTIES AND THE MAINTENANCE OF THE OBLIGATIONS RELATIONS FOLLOWING FROM THE CONTRACT OF THE AUTHOR'S ORDER