AGA Partners successfully represented the Client, an agricultural trading company, in a dispute with a Bangladesh company (buyer or respondent) in London arbitration. The dispute arose out of respondent’s failure to open the letter of credit under the contract worth nearly USD 1 million.
Our Client fully complied with the Contract and provided all necessary instructions and documents, but the respondent failed to open the letter of credit in time. During prolonged period of correspondence the respondent was alleging various obstacles for opening the letter of credit. As a result, the contract was not performed and the Client suffered significant losses.
The arbitral tribunal in full satisfied our Client’s claim for damages and further awarded the arbitration and legal fees to be covered by the respondent.
Partner Ivan Kasynyuk commented the case:
“In commodities trading time of opening the letter of credit is a condition of a contract. The buyer is expected to open the letter of credit within the prescribed period, but in any case before commencement of the delivery period. Thus, opening the letter of credit by the buyer is a pre-condition for seller’s delivery obligation.
The present case included analysis of a plethora of correspondence between the parties. The arbitral tribunal found that the contract was not performed due to the respondent’s fault and awarded full amount of losses suffered by the Client together with interest and costs.”
AGA Partners successfully represented the Ukrainian agri-trading company in a dispute with a Belarusian trading company before the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (“ICAC”).
The dispute concerned the buyer’s failure to pay for a delivered parcel of the goods as well as his failure to take full quantity of the goods under the sale contract. The Client sought recovery of balance price for the goods, market price damages and penalty for delay in payment.
The buyer claimed that payment for the goods from his side was prevented due to a force majeure, allegedly triggered by the Presidential Decree of the Republic of Belarus No. 70 of 25 February 2020 (“Decree”), setting a mandatory one-year grace period for debts’ repayment. However, AGA Partners convinced the Arbitral Court that the said Decree was not a force majeure, since (1) the buyers’ company was not subject to the Decree, 2) there was no connection between the Decree and the buyer’s duties under the sale contract, (3) the parties expressly excluded breaches of payment duties from a scope of a force majeure clause.
The proceedings were further complicated by the buyer’s abuse of temporary restrictions, imposed due to COVID-19 pandemic, in order to postpone hearing of the matter.
Partner Iryna Moroz commented the case as follows:
“This matter raised quite an uncommon situation of governmental intervention into commercial relations, which led to a temporary suspension of a debt collection process. Furthermore, once more the ICAC has proven its efficiency by countering a party’s delaying tactics to save time and costs for the proceedings”.
Congratulations to our Managing Partner Aminat Suleymanova on her election as Head of the International Arbitration Committee of the Ukrainian Bar Association.
AGA Partners, together with the partners of the Georgian law firm BLC Law Office, successfully enforced the award of London commercial arbitration in Georgia, the region of Guria. The Supreme Court of Georgia satisfied the application for the recognition and enforcement of the award. AGA Partners recovered the full amount of the damages awarded to the client.
The team also managed to obtain security in support of the foreign arbitral award and seize the bank account, as well as other property of the debtor located in Georgia. This step secured the client execution of the award from the property seized.
The peculiarity of the case was that the parties entered into an arbitration agreement by exchanging emails without using the signatures and seals of the companies. In many jurisdictions, this may result in a refusal to recognize an arbitral award due to the formal approach of local courts, requiring the original arbitration agreement signed by both parties.
However, during oral hearings, the team of lawyers was able to prove in court the validity of the arbitration agreement under applicable English law and the compliance with the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Partner, Iryna Moroz, commented on the execution of the award:
“The successful outcome of this case demonstrates that Georgia is a favorable jurisdiction for the enforcement of arbitral awards. The application for enforcement is considered directly by the Supreme Court of Georgia, which decision is final and cannot be appealed. Judges adhere to a pro-arbitration approach and consider cases quite promptly, particularly in imposing interim measures. Actually, the seizure of assets, as a preliminary security of the arbitral award, played a decisive role in the successful execution.”
Managing partner Aminat Suleymanova spoke at the session "Attracting and retaining customers" with the theme "The crisis is a time to appeal to the best" at the VIII International Forum for the Promotion of Legal Services.
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.”
According to the "Client Choice 2020" research, our team has been recognized in 4 practices: international arbitration, sports law, private client practice and family law practice.
Managing partner Aminat Suleymanova was recognized among the leaders of the practices of international arbitration and private clients. Partner Ivan Kasynyuk - in the practice of international arbitration. Partner Iryna Moroz - in the practice of family law. Senior associate Dmytro Koval - in the practice of sports law.
Our managing partner Aminat Suleymanova and leading Ukrainian family mediator Olga Khmaruk discussed the most important issues of divorce, ways to mitigate its "hard blow" and the adaptation of ex-spouses and children to new circumstances.
AGA Partners jointly with AVELLUM successfully represented a major CEE-based mining machinery producer in four disputes with a Hong Kong company before the ICAC at the Ukrainian Chamber of Commerce and Industry. The disputes arose under four separate contracts for the supply of mining machinery and equipment to Ukraine amounting to a total of almost EUR6 million.
Our client has duly fulfilled its contractual obligations under the contracts, but the respondent did not pay the full price for the delivered goods. The total amount of debt owed to our Client was over EUR4 million.
Mykola Stetsenko, managing partner of AVELLUM, commented:
“This case was challenging. First of all, our team managed four separate arbitral proceedings, including two sets of simultaneous hearings. Secondly, the respondent alleged that our client’s claims are time-barred and should be dismissed. The seamless interaction within our joint team and the right set of skills and expertise added to resolving this matter successfully.
“Following the respondent’s allegations, we have provided the arbitral tribunals with various evidence demonstrating that the respondent, in fact, had acknowledged the debt under the contracts several times.
Our lawyers convinced the tribunal in admissibility and relevance of the evidence and proved that this evidence indicated the interruption of the limitation period under Ukrainian law and, accordingly, the claims of our client can be considered in arbitration.”
After more than one year of proceedings, the arbitral tribunals in each of the cases took into account the presented evidence and satisfied our Client’s claim covering a total of more than EUR4 million, including interest (3% per annum), arbitration fees, and legal costs.
Our team in this arbitration was led by partner Ivan Kasynyuk (AGA) with significant support from senior associates Iurii Gulevatyi (AGA) and Oleksii Maslov (AVELLUM), and associate Dmytro Izotov (AGA).
How to organize teamwork on quarantine? What challenges does he throw a business and how to handle them effectively? These and other questions have been discussed during the session "Legal function on quarantine" under the moderation of our Managing partner Aminat Suleymanova within the VIII Annual Forum of Legal Counsels.
AGA Partners successfully represented three Cypriot agri-trading companies in a dispute with Swiss global trading company before the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (“ICAC”).
The dispute concerned the buyer’s wrongful refusal to accept the cargo supplied under three sale contracts. The Clients founded their claim on the Vienna Convention on Contracts for the International Sale of Goods (the “CISG”), seeking recovery of market price damages as well as additional storage and logistics costs.
AGA Partners initially succeeded to consolidate the dispute under three sale contracts into one arbitration proceedings, which allowed to minimize the Clients’ arbitration expenses.
Further, the buyer based his cargo rejection on the deficiency of quality inspection at the loading. The Arbitral Court supported our Clients’ position that the final quality was to be established on discharge, so that rejection of the cargo was premature and wrongful.
The buyer has also objected against the applicability of CISG. However, AGA Partners managed to convince the Arbitral Court that it is applicable and, consequently, the Clients are entitled to the compensation of damages claimed under the CISG.
This case has raised rather uncommon problems of applicability of CISG to international sale contracts when the parties conduct business and operate in different states. It may also have a landmark impact on the formation and amendment of international sale contracts according to the requirements of CISG.
Our managing partner Aminat Suleymanova spoke at Law&Trade A2B Forum on September 11 with the topic ′′English law for Ukrainian exporters′′ and told how to put up a profitable export contract for the supply of grain and oil.
AGA Partners has successfully represented the client, one of the biggest retail companies in Ukraine, in the arbitration against UAE trading company in a complicated dispute arising under the trade contract governed by English law.
The buyer failed to pay for the cargo, alleging that the cargo was not delivered and custom cleared according to their instructions. The important aspect of the case was that the parties were the intermediate seller and buyer in the long chain of CPT contracts, passing instructions down the string, while the cargo was physically delivered to the final receiver and custom cleared according to its instructions.
AGA Partners provided comprehensive explanations and evidence that the client fully performed its CPT delivery and customs clearance obligations.
Being convinced by AGA Partners’ arguments, arbitrators found the buyer liable to pay the full contract price, liquidated damages, interest and all arbitration costs. As a result, the tribunal satisfied in full the client’s claim of approximately USD550,000.00.
Partner Iryna Moroz gave the following comments on this matter:
"The case concerns complicated issues as to the delivery of the cargo, the retention of title and export formalities in the chain of transactions under English law, when the majority of parties within the chain are simply exchanging documents rather than actually being involved in the physical handling of the goods contracted."