AGA Partners successfully represented the Client, a major agricultural company, in a dispute with a Swiss company in London arbitration. The dispute arose over unpaid goods worth USD300 thousand delivered under the sale contract.
As too often happens on CPT/DAP delivery basis, our Client, being unpaid seller, lost control over the first lot of the goods delivered and the original shipping documents for it. Such circumstances deprived them of exercising effective remedies available under English law, such as withholding delivery of the goods. Therefore, our Client had no other choice but to bring an action for the price in arbitration.
After several months of proceedings, AGA Partners team has successfully proved that our Client was entitled to the full price of the delivered lot of the goods. Importantly, our team also managed to defend the Client from a buyer’s counterclaim of damages for failure to deliver further lots of the goods under the sale contract.
The arbitral tribunal satisfied our Client’s claim covering a total price of the unpaid goods, and further awarded our Client compensation of arbitration costs.
Partner Iryna Moroz commented the case:
“CPT contracts often involve complex performance. After the seller passes possession and title the goods could be freely exported outside Ukraine and the only remedy left is an action for the price in the arbitration. It is important to note, that if delivery is made by instalments, generally the seller has no right to withhold delivery of further lots pending settlement of payment for the previous instalments. However, our Client decided not to perform the remaining part of the sale contract facing risk of a counterclaim from their buyer. Nevertheless, our team managed to prove absence of any damages caused by such Client’ s decision thus making buyer’s counterclaim futile.”