The dispute arose out of the contract for the sale of 7,000 mt of Ukrainian milling wheat on a CIF Marmara delivery basis. While the seller was loading the vessel at the Ukrainian port of Kherson, the buyer’s surveyor took the samples of the goods and determined that their quality was not contractual. Given these problems with the cargo, the client refused to make payment against the certificate of the seller’s surveyor showing full compliance with the quality specification. In response, the seller terminated the contract because the buyer refused to pay for the goods.
After the seller commenced arbitration, the buyer revealed that the date of the bill of lading was inconsistent with the daily reports from its surveyor on the progress of loading. The seller’s solicitors, however, denied the argument on the backdated bill of lading and tendered the agent’s statement of facts showing the contractual shipment date. They further argued that, in any event, it was too late for the buyer to raise this matter in arbitration almost a year after the dispute arose.
In the end, the arbitrators upheld our position on the ground that the date of the bill of lading indeed contradicted the circumstantial evidence presented in the case. The tribunal considered such evidence sufficient to find that the bill of lading was not genuine and the seller wrongfully demanded payment for the cargo. It also noted that the buyer had the right to raise objections to the documents already in arbitration as they contained hidden defects which were not apparent on their face at the time of tender.
On this basis, the tribunal awarded the Turkish buyer USD about 300,000 in damages together with the compensation of the arbitration costs.
The AGA Partners’ team was represented by partners Ivan Kasynyuk and Iryna Moroz and senior associate Pavlo Lebediev.
AGA Partners successfully represented a large Australian agribusiness and processing company on an appeal stage of London-based arbitral proceedings over a dispute against a Swiss agricultural trader.
The dispute emerged due to the seller’s failure to deliver the goods within the contractual delivery period. As a result, the buyer terminated the contract and claimed damages against the seller in a first-tier London arbitration. The first-tier arbitral tribunal satisfied the buyer’s claims in full.
Disagreeing with this result, the seller lodged an appeal against the first-tier award. The appeal proceedings concerned a number of legal issues related to an alleged variation of the contract during oral negotiations in lack of a written agreement as well as a dispute on quantum of damages.
After long-lasting exchange of written submissions between the parties, the board of appeal dismissed the seller’s appeal in its entirety, confirming the first-tier award and even awarding the buyer with a higher sum of damages.
The AGA Partners’ team was represented by partners Ivan Kasynyuk and Iryna Moroz, senior associate Ievgen Boiarskyi and associate Yurii Bedenko.
AGA Partners successfully represented a large UAE agricultural company in London arbitration. The dispute related to a contract for the sale of commodities for a total value about USD 6,1 million.
The dispute arose out of the respondent’s failure to supply our client 25,000.00 metric tons of wheat. Among other things, the dispute involved complicated legal issues related to the variation of the contract by change of the respondent’s company as the party to the contract, and validity of the notice of arbitration submitted by the client.
After an exchange of written submissions between the parties, the arbitral tribunal rendered the award in favor of the client, by ruling that the client submitted valid notice of arbitration against two companies, whilst change of the respondent’s company did not affect the client’s legal stance on jurisdiction in arbitration.
The tribunal found that due to the respondent’s failure to supply the goods, our client was entitled for damages in sum of USD 2 million.
The AGA Partners’ team was represented by partners Ivan Kasynyuk and Iryna Moroz, senior associate Dmytro Koval and associate Yurii Bedenko.
AGA Partners will act as a legal sponsor of Agro&Food Security Forum. Grains, Oilseeds, Pulses', which will be held on September 14-15 in Warsaw, organized by UkrAgroConsult.
Due to Russian military aggression, the ports of Mariupol, Berdyansk, Skadovsk and Kherson are temporarily closed, according to the Ministry of Infrastructure of Ukraine.
In connection with the blockade of seaports, the Ukrainian authorities have already started looking for alternative ways to export grain. For example, Ukrzaliznytsia is working on organizing exports by rail through Romania, Poland, Slovakia and Hungary.
In particular, the team is working on logistical routes that will allow the delivery of grain through the following crossings:
- in the direction of Romania:
- Reni Station (capacity 87 carriages per day),Giurgiuleşti Station (capacity 5 carriages per day),
- Izmail station (capacity 18 carriages per day),
- Vadul-Siret Station (capacity 40 carriages per day);
- in the direction of Poland:
- Maciejów Station (capacity of 20 carriages per day),
- Mostyska-2 station (capacity 25 carriages per day),
- in the direction of Hungary:
- Batyovo station (capacity 17 carriages per day);
- in the direction of Hungary and Slovakia:
- Chop station (capacity 20 carriages per day),
- Mukachevo station (capacity of 10 carriages per day),
- Esen station (capacity 30 carriages per day).
The existence of alternative ways to perform contracts may lead to the termination of force majeure. Therefore, we strongly recommend that you identify, analyze and seek appropriate advice in a timely manner, if necessary.
The news is available on the Ukrzaliznytsia website at the link.
Russian military aggression against Ukraine (which became the basis for the introduction of martial law in Ukraine) was recognized as force majeure by the Ukrainian Chamber of Commerce and Industry on February 28, 2022 (the corresponding letter is available in Ukrainian and English).
Also on March 5, 2022, the Cabinet of Ministers of Ukraine adopted Resolution No. 207, according to which:
1. Quotas have been introduced for the export of livestock, frozen meat, meat and meat by-products, rye, oats, buckwheat, millet, sugar and edible salt from the territory of Ukraine with the zeroing of their export quotas; And
2. The export of wheat, meslin, corn, poultry meat, eggs and sunflower oil is subject to licensing.
The export ban is also included in the list of force majeure circumstances under the standard GAFTA and FOSFA contract forms.
The restrictions are currently active until at least the end of 2022. The issue of their renewal and / or removal will be decided by the government. Most likely they will operate until the end of the war and some time after that.
AGA Partners successfully represented a large Australian agribusiness and processing company (buyer) before London arbitration in a dispute against a Swiss agricultural trader (seller).
The dispute emerged due to a seller’s failure to deliver the goods within the contractual delivery period. Among other things, the dispute involved a number of legal issues related to an alleged variation of the contract during oral negotiations, waiver by election and waiver by estoppel.
After long-lasting exchange of written submissions between the parties, the arbitral tribunal ruled in favour of the buyer, by confirming that at no time had the buyer ever agreed to receive the goods after expiry of the delivery period. As a result, the buyer was awarded with market damages plus interest and relevant arbitration fees and expenses.
The AGA Partners’ team was represented by partners Ivan Kasynyuk and Iryna Moroz, senior associate Ievgen Boiarskyi and associate Yurii Bedenko.
For the 6th year in a row, AGA Partners has been named among the best Ukrainian law firms in Dispute Resolution: International by one of the most influential international legal ratings Chambers Global 2022.
Ivan Kasynyuk has been on the list of recommended lawyers for dispute resolution for 4 years. Clients noted that “Ivan has an unrivaled understanding of the situation, even when it comes to foreign legal systems.”
We also congratulate Iryna Moroz, who this year for the first time entered the shortlist of the best Ukrainian lawyers in dispute resolution. "She's very good at planning and negotiating," clients say.
Thank you Chambers and Partners for the recognition!
AGA Partners and Latifundist.com with the support of Prospex-Agro invite you to take part in a training seminar where we will talk in a narrow circle about how agrarians can enter foreign markets.
Date: March 15, 2022
Location: Hilton Hotel, Taras Shevchenko Boulevard, 30, Kiev
P.S. If you are a trader, but have not yet exported, we also have a few chairs for you.
MAIN THEMES
• Let's start over. You have found a buyer. How to start negotiations and conclude foreign economic contracts? And what are the forms of these contracts?
• Moving on. Negotiated, at what point is the contract considered concluded? Are there verbal agreements and electronic correspondence?
• We assume that you no longer sell grain from the field and know what the FOB or CPT basis is. But let's fix once again what is the difference between CPT, DAP, CIF, FOB.
• GAFTA, FOSFA - "I don't remember exactly the nuances, but traders somehow threatened that they would file a lawsuit here." In simple words, we explain the main trading arbitrations.
• The other party has not fulfilled the contract. We explain what you can apply for.
• Okay, if this is a trader, he has no property. What is the procedure for claiming damages? Don't worry, there are chances, and we'll tell you about them.
SPEAKERS
- Ivan Kasynyuk is a partner of AGA Partners. Ivan specializes in advising clients in the field of international trade and representing their interests in international commercial arbitrations GAFTA, FOSFA.
- Iryna Moroz is a partner of AGA Partners, a recognized expert in international arbitration, international trade and agribusiness. Accredited speaker of GAFTA courses.
- Konstyantyn Tkachenko is the chief editor of the agribusiness website Latifundist.com. He has more that 10 years experience in business and agricultural journalism, the last 5 years he is the chief editor of the agribusiness website.
Participation in the event is free of charge upon prior registration.
The number of participants is limited.
AGA Partners continues cooperation with the Ukrainian Bar Association in 2022!
New Year - new ideas, events, initiatives!
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We are glad to officially announce the list of committees to whose boards AGA Partners lawyers were elected!
✅ Agrarian Law Committee - Pavlo Lebediev
✅ Alternative Dispute Resolution Committee - Iryna Moroz and Iurii Gulevatyi
✅ Committee on Civil, Family and Inheritance Law - Iryna Moroz and Oleksandr Gubin
✅ Sports Law Committee - Dmytro Koval
✅ International Trade Law Committee - Ivan Kasynyuk
Congratulations to partner Iryna Moroz on her appointment as Head of the International Arbitration Committee of the Ukrainian Advocates' Association.
We are proud of Ievgen Boiarskyi, Senior Associate at AGA Partners, who was one of the authors of the 13th volume of the Great Ukrainian Legal Encyclopedia dedicated to private international law. The contribution of Ievgen to this work lies in the part of explaining the term "circumvention of the law" in private international law.
Thanks to the whole team of authors for your hard work!
Congratulations to Oleksandr Gubin, senior associate at AGA Partners, on his appointment as Deputy Chairman of the Family Law Committee of the Ukrainian Bar Association.
