Senior associate Iurii Gulevatyi gave a lecture for students of the Faculty of Legal Sciences of NaUKMA and spoke about the rules for concluding and executing GAFTA and FOSFA standard contracts.
This material is available in Ukrainian only.
This material is available in Ukrainian only.
AGA Partners' partner Ivan Kasynyuk has consistently been shortlisted among the leading Ukrainian lawyers for 4 years in a row according to the authoritative international ranking Chambers and Partners. Ivan recognized in Band 4 in Dispute resolution: International practice both by Chambers Europe 2021 and in Chambers Global 2021.
AGA Partners successfully represented a large agri trader from Lithuania in a dispute with a Swiss trading company in London arbitration. The dispute arose under USD1,2 million contract for the supply of Ukrainian sunflower meal.
This was a typical FOB (“Free on Board”) contract, whereby our Client had to present a vessel to one of the Black Sea ports of Ukraine within certain dates, to be further loaded with the sunflower meal delivered by the Respondent.
However, the Respondent refused to deliver the goods to the port, referring to national quarantine in Ukraine due to COVID-19 as a force-majeure event. Disagreeing with Respondent’s position and suffering losses, our Client nonetheless presented the vessel to the Ukrainian Black Sea Port, calling for the execution of the contract.
The situation became even more complicated by the fact that the Respondent accused our Client of so-called ‘phantom nomination’ alleging that the vessel nominated by our Client was actually intended for execution of a different contract, and not the one concluded with the Respondent.
Partner Iryna Moroz commented on this situation:
“Both force majeure and ‘phantom nomination’ of a vessel can justify the non-performance of a contract by a counterparty as a matter of English law.
However, our team of lawyers has managed to provide the arbitral tribunal with all the necessary evidence proving that national quarantine in Ukraine was not a force-majeure event under English Law, entitling the Respondent to refuse to perform the contract. Our team also proved that our Client properly presented a vessel under the Contract and fulfilled its part of contractual obligations.”
After several months of proceedings, the arbitral tribunal fully satisfied our Client’s claim covering a total of about USD200,000 of default damages plus interest, arbitration fees and expenses as well as legal costs.
AGA Partners successfully represented a Swiss trading company (Seller) in a dispute with a Turkish manufacturing and trading company (Buyer) in London arbitration, that arose out of a contract on sale of chickpeas on CIF FO delivery terms for a total value of more than USD1 million.
The dispute concerned the inspection procedure, designed to determine final quality of the goods. In particular, under terms of the sale contract the final quality was to be determined based on an inspection of the goods on loading on board of the vessel. Instead, the Buyer declined to take delivery and terminated the contract based on unsatisfactory results of an informal quality inspection, performed prior to commencement of loading procedures.
AGA Partners managed to prove that an informal quality inspection, allowed to be performed by the Buyer, and/or its results did in no way circumvent finality of quality inspection of the goods, envisaged in the contract. The Buyer’s termination of the contract was found to be premature, and, therefore, unlawful. The Seller was awarded damages in an approximate amount of USD350,000.
It is also notable, in the course of the proceedings the Buyer raised a challenge against the arbitrator, appointed by the arbitration authority instead of the Buyers, on grounds of an alleged lack of neutrality. In particular, the Buyer took position, that the arbitrator lacked neutrality given that he possessed the same nationality, as the legal representatives of the Seller. However, this challenge was dismissed as AGA Partners did establish that arbitrator’s neutrality could not be affected by his nationality in circumstances, where there were no other grounds to challenge his impartiality and/or independence.
“The successful outcome of this case demonstrates that where the contract is clear as to the parties’ contractual obligations, they may not be undermined by an uncertain correspondence between the parties. This is especially relevant with regard to quality clauses, possessing a fundamental nature, as they are aimed specifically to achieve finality as to the quality of the goods and at avoidance of respective disputes.”
The AGA Partners team was led by partners Iryna Moroz and Ivan Kasynyuk with support from senior associates Ievgen Boiarskyi and Iurii Gulevatyi, as well as from associates Yelyzaveta Holovan, Viktoria Tolochko and Pavel Lebedev.
AGA Partners successfully represented a large agri trading company in a dispute with a major Turkish oil manufacturer in London arbitration. The dispute arose under USD2 million contract for the supply of sunflower seeds to Turkey.
The dispute concerned the buyer’s wrongful refusal to accept sunflower seeds supplied. The buyer based his rejection on the presence of poisonous seeds of ambrosia in the cargo. The Client had no other choice than to sell the rejected cargo in the market and seek recovery of a price difference as well as demurrage and logistics costs.
After several months of proceedings, AGA Partners team has successfully proved that rejection of the cargo was wrongful and that our Client was entitled to receive compensation of his damages.
The arbitral tribunal satisfied our Client’s claim covering a price difference and other damages arisen due to resale of goods and further awarded our Client compensation of arbitration and legal costs.
Partner Iryna Moroz commented the case:
“This was a complex quality dispute, involving quality analyses from different laboratories and raising the issue of the contract interpretation: what quality characteristics were agreed by the parties in the contract and how these are to be finally determined?
But the crucial question to be determined in this case was whether the excess of poisonous seeds if any, entitled buyer to reject the goods under the contract. Our team managed to prove that excess of ambrosia would not be a breach, giving rise to buyer’s right of rejection, thus making buyer’s refusal of the goods wrongful.”
First meeting of the UBA Committee on Civil, Family and Inheritance Law. Those who did not have time to join the discussion of the debt obligations of spouses with the participation of partner Iryna Moroz and senior associate Olena Sibirtseva, follow the link to the event recording: https://m.youtube.com/watch?v=mUNf3_8NEpk
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.”