AGA Partners successfully represented a major oil extraction plant in a dispute with a Turkish company in London arbitration. The dispute arose under USD4 million contract for the supply of sunflower oil to Egypt.
Our client has duly fulfilled his contractual obligations, but the respondent did not pay the full price for the delivered goods.
The case was complicated by the fact that the client had no control over the original documents as they were presented to third party and the goods were discharged by that time. Our client was simply unable to return the unpaid goods and had no other choice but to bring an action for the price in arbitration.
Usually, in the above circumstances a seller is simply unable to resell the goods on the market or to implement any other actions to return the unpaid goods. Accordingly, our client had no other choice but to bring an action for the price before the arbitration. Within this arbitration process, our team of lawyers has managed to provide the arbitral tribunal with all necessary evidence, proving that the client fulfilled all its contractual obligation and was entitled to the full price for the delivered goods.
After several months of proceedings, the arbitral tribunal fully satisfied our client’s claim covering a total of more than USD1 million plus arbitration fees and expenses as well as legal costs.
This dispute arose under a sale contract due to a cargo quality claim with value of over USD2,000,000.00. Complication of the proceedings was caused by guarantee obligations contained in a contract that gave rise to three separate arbitrations: under the sale contract, guarantee obligations and sub-sale contract.
The Buyer purported to deny the finality of quality certificates issued at the loading port, based on an alleged fraud taken together with the following arguments: non-compliance of the goods with contractual description, non-satisfactory quality of the goods and non-fitness of the goods for an intended purpose under the Sale of Goods Act 1979.
It took several years for a first-tier tribunal and, subsequently, for an appeal board to consider the dispute due to its complexity, caused by concurrent arbitration proceedings against the final receiver, significant amount of evidence, involvement of numerous experts and witnesses to determine the quality of the goods delivered.
After complex and protracted arbitration proceedings, the appeal board ultimately rendered a final award fully in favour of the Client of AGA Partners, upholding the first-tier award. In particular, the appeal board dismissed all buyer’s claims and confirmed finality of quality certificates, issued at loading.
The arbitrators’ reasoning has an important impact on stability of international trade of commodities. The awards of both tribunals are clearly based on English law approach favouring finality and binding force of quality certificates, unless they were procured due to fraud or manifest error, putting on a challenging party a respective burden of proof.
Our managing partner Aminat Suleymanova will give a lecture on "Civilized separation" the main role of a lawyer in successful negotiations between business partners" as a part of the course "Speechmaking guide for a lawyer" organized by Legal High School.
Dear Friends, join us, it will be interesting!
According to the results of the annual legal rating "Ukrainian Law Firms. A Handbook for Foreign Clients 2020" our team together with colleagues from Avellum was recognized in 5 practices: Agribusiness, International Trade: Commodities, International Arbitration, Family Law and Maritime&Shipping.
Managing partner Aminat Suleymanova and partner Iryna Moroz have been included in the list of the best lawyers at Family Law. Also partners Ivan Kasynyuk and Iryna Moroz took 1st and 2nd places respectively in the practice of International Trade: Commodities and were noted among the leading lawyers in the areas of International Arbitration and Maritime&Shipping.
Ukrainian Arbitration Association (UAA) launched the Database of Arbitrators suitable to sit in Ukraine-related international arbitrations effective 8 July 2020. Our partners Aminat Suleuymanova, Iryna Moroz and Ivan Kasynyuk through their longstanding and unique experience in dispute resolution were included in the Arbitrators list. Congratulations! ✅
Link to the Database of Arbitrators: http://bit.do/fGz8j
According to a study conducted by Yurydychna Gazeta "Ukrainian Women in Law 2020", AGA Partners have traditionally been ranked among the most successful female lawyers. Managing partner Aminat Suleymanova was included in the TOP - 3 women who influenced the development of the legal business in Ukraine, partner Iryna Moroz - in the list of the most successful lawyers of Ukraine.
Thanks to our colleagues and Yurydychna Gazeta for their appreciation - this recognition is extremely important!
The dispute arose out of the contract for the delivery of agricultural products on FOB terms, the port of Aktau, Kazakhstan, with a total value of almost 3 million US dollars. The goods were to be delivered in several lots.
The buyer did not make full payment for the two delivered lots of goods. At the same time, the buyer counterclaimed damages, accusing the seller of non-delivery of the rest of the goods. The buyer claimed that the seller, allegedly not having the goods ready for loading at the agreed port, prevented the buyer from nominating and presenting the vessels for the remaining lots.
The arbitrators reached the conclusion that the FOB seller’s obligation to deliver the goods on board of the vessel is only activated once the FOB buyer presents the vessel. So, the Seller was not required to confirm the availability of goods before the arrival of the vessel, as long as he is able to deliver the goods upon arrival of the vessel at the port.
The decision in the case clearly demonstrates the usual rule in the grain trade: the FOB buyer should be the first to begin the execution of the contract, in particular, he must nominate the vessel and present it to the loading port of. The FOB seller, as a rule, is not obliged to confirm the nomination and the availability of the goods until the moment of arrival of the vessel.
The AGA Partners team has proven the client’s position in arbitration. As a result, the claim for debt collection was fully satisfied. The buyer's counterclaim for damages was rejected.
AGA Partners successfully represented a Swiss agri-trading company (“Buyer”) in a London-based commodity arbitration initiated by one of major Ukrainian agricultural holdings (“Seller”). The dispute arose based on an Ex Works sale contract and concerned an alleged failure of the Buyer to make a payment.
The contract incorporated a hybrid arbitration clause, which provided for dispute settlement in a major world arbitration forum in London in accordance with the rules of a different arbitration forum.
The parties took opposite views on which arbitration forum was more appropriate to hear the dispute. The Seller claimed that the choice of arbitration rules was decisive, whereas the Buyer insisted on the priority of choice of an arbitration forum.
The Tribunal considered the parties’ submissions and found that the arbitration clause was defective. It contained mutually exclusive terms that could not be enforced in full. The Tribunal decided to give force to the terms of the arbitration clause, which expressed the parties’ choice of an arbitration forum. The reference to rules of the commodity arbitration, where the proceedings took place, was ambiguous compared to the reference to an arbitration forum. Consequently, the Tribunal found that the ambiguous reference to arbitration rules did not confer it with jurisdiction to consider the dispute on its merits.
This case has proven that defective arbitration clauses create serious risks. A hybrid arbitration clause, being one of them, provides a defendant with an opportunity to defend his case by way of challenging the jurisdiction of a particular arbitration tribunal and/or validity of an arbitration award, once rendered on merits. We strongly advise our clients to avoid such risks and use model arbitration clauses, offered by most institutional arbitrations in the world.
AGA Partners successfully represented a client in a dispute with a Swiss company in London arbitration. The dispute arose based on USD12 million contract for the supply of goods.
The case was quite complicated since the parties under the contract have failed to establish the final price for the goods. Nevertheless, our client has delivered the goods to the buyers based on the preliminary payment, whereas the balance should have been determined later. However, the parties further have failed to agree on the price and, therefore, the buyers did not make any additional payment.
After several months of proceedings, the arbitration tribunal fully satisfied our client’s claim based on the price discussed between the parties initially. The arbitrators awarded more than USD3 million.
This is the type of cases when the parties’ correspondence has the greater weight for arbitrators than the actual wording of the contract. Our team of lawyers has managed to convince the arbitral tribunal that the contract between the parties should supplement the parties’ actual agreement rather than supplant it.
AGA Partners successfully represented a Scottish trading company in a dispute with a manufacturing company from Egypt resolved in arbitration. The dispute arose based on a contract for the supply of wheat on the basis CIF amounting to a total of USD2.5 mln.
The dispute arose at the stage of agreeing the terms of the contract. The buyer terminated negotiations on a number of unsettled terms and subsequently refused to perform the contract as he believed the latter was not concluded. As a result, the client suffered significant losses and resorted to London arbitration.
The arbitrator found that the contract was concluded as the terms on which the parties had not agreed were not essential and did not affect the parties’ ability to perform the contract.
The biggest challenge was to prove that the terms discussed by the parties during the contract negotiation were not essential for both parties. When deciding whether the terms are essential, the arbitrators first of all take into account the ability of the parties to perform the contract without agreeing such terms, and also consider whether the parties treat such terms as a precondition to the conclusion of a contract.
AGA Partners team proved that the parties did conclude the contract and secured full satisfaction of the client’s claims of over USD100,000.
AGA Partners successfully represented a Dubai trading company in a dispute with a Kazakhstan company resolved in arbitration. The dispute arose based on a contract for the supply of barley on the basis of the FOB ("Free On Board") amounting to a total value of almost USD2 million.
The seller was obliged to load the goods on a vessel in the port of Aktau, Kazakhstan, but was unable to deliver the goods to the port due to force majeure arisen from congestion of wagons at the railway caused by adverse weather conditions.
The key issue in the dispute was whether the circumstances in which the seller failed to perform the contract were force majeure under English law applicable to the contract.
The arbitrator did not qualify the circumstances the seller referred to as force majeure, since the seller was able to deliver the goods to the port by road.
In order for certain circumstances to be recognised as force majeure and release from the obligation to perform the contract, the party must prove the absence of an alternative way to fulfil its obligations. We demonstrated that the seller had the opportunity to deliver the goods by means of transport other than rail and perform the contract.
AGA Partners team secured full satisfaction of the client’s claims of over USD100,000.