A dispute under the Forwarding Contract for Freight Transportation Organization, pursuant to which the Claimant as forwarder was to provide freight forwarding services to the Respondent as a client, by organising international transportation or transportation across Russia by rail, road, sea or other modes of transport, and the Respondent was to make certain payments in consideration for these services.
The Claimant sought to recover the outstanding additional costs as they could not be calculated prior to the actual provision of these services.
The Respondent believed all his debts under the Contract to the Claimant were already covered.
Moreover, the Respondent emphasised that its cargo (bottles of red wine) was seriously damaged and delayed, which caused the Respondent's losses. Still, it received no solution or answer from the Claimant.
The Respondent is of the view that it does not owe the Claimant “financially or morally”, and that the above points should offset the Claimant’s claims.
The Parties entered into a contract for the supply and installation of imported equipment. The Claimant (Contractor) admitted that, during the performance of the contract, it had failed to meet the time limits set out in the contract because of the difficult economic situation in the world. The Respondent (Client) demanded payment of a penalty for non-performance of the contract and subsequently withheld the amount of the penalty from the payments in favour of the Claimant. Considering the amount of the penalty to be excessive, the Claimant filed a claim to reduce the penalty by recovering the amount of unjust enrichment from the Respondent.
Dispute on the recovery of a penalty for the delay in the performance of work under a work contract. All arguments submitted by the Respondent on the merits of the dispute were recognized by the Arbitral Tribunal as untenable. The claim was entirely dismissed since the period for incurring the penalty was within the moratorium on bankruptcy prescribed by the Russian Government Decree No. 497 of 28.03.2022. This moratorium prohibits accruing penalties.
Dispute on the recovery of a penalty for violation of the terms of delivery of equipment for meeting rooms. The Respondent was certain that the Parties must have anticipated potential setbacks in the equipment delivery schedule due to the ongoing semiconductor crisis in 2021, though such prospects were not explicitly outlined in the contract.
The Respondent's attempts to evade liability in accordance with paragraphs 1 and 3 of Article 401 of the Civil Code of Russia by citing force majeure caused by sanctions restrictions in 2022, were deemed invalid.
The market's inadequacy in providing the necessary goods for the completion of the contract, compounded by the intricate geopolitical situation arising from para. 3 of Art. 401 of the Civil Code of Russia, did not fall under the classification of force majeure circumstances. Moreover, the contract's protocol for exemption from responsibility was not abided by.
The satisfaction of claims was not affected by the moratorium on bankruptcy introduced by the Russian Government Decree No. 497 on 28.03.2022, as there was no dispute between the parties regarding claims for penalty recovery for the period covered by the moratorium.
A dispute under the contract for the performance of a complex of works for the construction of facilities. The contracting parties were the Customer represented by the Agent (Claimant) under the contract for the provision of project management services, as well as the Consortium represented by the Consortium Leader (Respondent 1) and the Contractor (Respondent 2).
In connection with the works performance delay, the Claimant filed a claim to the Co-Respondents for the recovery of penalties for works performance delay, for violation of the interim terms of performance, and interest under Art. 395 of the Civil Code of the Russian Federation for the amount of penalties for the period from the moment Respondent 2 received a pre-trial claim till the day of the arbitral award.
The Arbitral Tribunal defined the boundaries of its competence and decided on three main issues: (1) whether the creditor has the right to collect a contractual penalty, and if so, whether the behaviour of the creditor itself affects its amount; (2) whether there are grounds for the interest reduction; (3) whether interest is recoverable on the amount of penalty charged.
After the commencement of arbitration, the Parties, at the initiative of the Respondent, proceeded to negotiations on a settlement of the dispute, however, the Parties failed to submit the documents for rendering an award on the agreed terms.
The Tribunal suspended the arbitration until the Parties conclude a settlement agreement, or continue the dispute resolution essentially.
Two years later, the Claimant reported that the parties failed to conclude a settlement agreement and requested to resolve the dispute. The original arbitrator resigned himself, the RAC initiated the arbitrator replacement procedure.
A dispute from a contract for the supply of perishable goods.
During the contract execution by the Claimant, the Respondent stopped paying for the delivered goods, assuring the Claimant that the debt would be repaid later, stating that the lack of payment was caused by the seizure of his accounts by the Federal Tax Service.
Later, the Respondent refused to pay for the goods, since a substantial part of the goods received by the Respondent were of poor quality (rotten).
Since the negotiations turn out unsuccessful, the Claimant filed with the RAC to recover the debt under the contract and the late payment interest under the Thailand Civil and Commercial Code.
The Respondent failed to comply with the contract procedure for written notification in the event of defective goods delivery; nor did this evidence be presented during the arbitration.
The Parties entered into a contract for the commissioning and testing of measuring channels.
Due to the fact that the Respondent (Customer), among other things, was not satisfied with the pace of work performed by the Claimant (Contractor), the Respondent sent to the Claimant a notice of a unilateral refusal to execute the contract (termination of the contract) on the grounds provided for by the contract and paragraph 2 of Article 715 of the Civil Code of the Russian Federation (work is so slow that it occurs clearly impossible to complete it on time).
Despite the fact that the Claimant initially disagreed with the grounds for repudiation of the contract and suggested to the Respondent in the claim correspondence to change these grounds to others, his claim to the RAC with the requirements to recognize the repudiation of the contract as invalid took place outside the limitation period established by the Civil Code to invalidate voidable transactions (limitation period – 1 year).
At the same time, the Claimant not only argued that the Respondent had no grounds (motives) for repudiating the contract and even that they were far-fetched but also insisted that the Respondent's actions must be qualified as an abuse of the right. The transaction for unilateral repudiation of the contract must be declared invalid (void) (the limitation period is 3 years).
The Arbitral Tribunal, taking into account the applicable standard of proof, examined the actual performance by the Parties of the contract (including the Parties' array of correspondence for six months), and did not see signs of dishonest behaviour in the Respondent's actions.
In addition, the Claimant did not provide evidence of the Respondent’s violation of counter obligations under the contract, while the facts of the violation of obligations by the Claimant found their documentary evidence, in connection with which the Arbitral Tribunal refused to satisfy the stated requirements, not only on the grounds of the expiration of the limitation period (an independent ground for refusal of a claim).
A dispute for the recovery of a penalty for a delivery time violation and for delay of provision of security for the performance of the contract.
Both Parties agreed with the fact of delivery delay but argued about the exact moment the products were considered delivered, since the moment the Parties signed the consignment note in most cases did not coincide with the date of actual delivery.
Regarding the second claim, the Respondent's argument that the penalty should be calculated on the value of products delayed on delivery, but not on the basis of the total price of the contract, was rejected by the Arbitral Tribunal as not based on the provisions of the contract.
The Respondent's argument that the penalty cannot be charged after the products have been completely delivered was also rejected, since even after the delivery of all the products, the Buyer could have quality requirements of the products, which should also have been secured.
The arbitral tribunal reduced the penalty for the delay in the provision of security for the performance of the contract since by the moment of the dispute resolution, the penalty size exceeded the amount of the security itself by four times.
Initially, the claim to recover a penalty for the delay in the provision of security of the contract was submitted till the day of the issuance of the award, but in the course of arbitration, the Claimant amend the end of the recovery period to a specific calendar day.
For the purposes of determining the arbitration fee, the value of such a claim has been recalculated till the date the Claimant was no longer submitting the claim.
As a result of such an amendment, the value of the claims decrease and the arbitration fee in the relevant part was borne by the Claimant in accordance with Paragraph 5 of Article 15 Rules on Fees and Costs.
A dispute under the building contract for the recovery of the unjust enrichment.
According to the Claimant (Contractor), during the work performance, it turned out that the terms of reference did not reflect the entire scope of work performed, which resulted in additional unforeseen costs that were not paid by the Respondent (Customer).
According to the Respondent, the Claimant did not comply with the pre-trial procedure for resolving the dispute, as well as the procedure for agreeing with the Customer on the estimate of additional costs.
During the procedural documents exchange, the Parties were able to resolve the dispute amicably.
A dispute regarding a put option exercise arose between participants of a company. Two participants (Lenders) arranged a conclusion of an agreement with the company, under which it was granted a loan, while the other two participants (Managers) had to prevent the company from going bankrupt. To safeguard their interests, the Lenders entered into a put option contract with the Managers. According to the contract provisions, the Lenders received an irrevocable offer to buy the company’s interest. That offer could be accepted if certain conditions of the option are met. One of the Lenders found these conditions to have been met and accepted the offer. However, the Managers refused to pay for the company’s share, because the Lender allegedly had not confirmed certain events and had not conducted an independent assessment of the interest. After an exchange of documents, the Parties managed to settle the dispute.
