IVI. RESPONDENT SHOULD BE EXCUSED FROM LIABILITY UNDER THE ARTICLE 79 DUE TO IMPOSSIBILITY TO OVERCOME AND FORESEE THE IMPEDIMENT

A. Late delivery and installation of master control system was caused by the impediment to performance which was beyond the RespondentSPONDENT`S’s control.

53. In reply to the claim, RESPONDENT the Respondent argues, that it should not be liable on the grounds that it had been unable to perform its obligations for reasons “beyond its control”, namely due to failure to receive processing units from Specialty Devices emergency production cessation at the facility produced core elements for goods to be supplied by the RespondentRESPONDENT [Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, 16 March 1995].

54. In regard to liability issue it is reasonable to define relationships within the supply chain. Specialty Devices (as a “third person” to RespondentRESPONDENT) was barely to manufacture and supply processing units to RESPONDENT [AfA.Para.9] but no to execute the Respondent’sRESPONDENT`S obligations entirely. Therefore Specialty Devices performance is “a mere precondition” for the fulfillment of the Control System`s obligations [Comments on Art. 79 from seminal 1986 by Peter Schlechtriem, p.104].

55. Whereas it is undisputed, the obligor is always responsible for “his own personnel” [Comments on Article 79 from seminal1986 by Peter Schlechtriem, p.104] or for those “whose work the seller is to organize, coordinate, or supervise” [CISG Advisory Council Opinion No. 7, Exemption of Liability for Damages Under Article 79 of the CISG, para. 17].

56. However at present case Specialty Devices is independent entity that has its own contractual obligation with the RespondentRESPONDENT. Thus, the Respondent RESPONDENT did not organize its work and had no power to control and forcibly influence on their performance.

57. As about High Performance, considering its obligation to produce D-28 chips and deliver them to Specialty Devices, it should be recognized as secondary supplier of Control Systems [AfA. Para 9.].

58. According to CISG provisions, the Respondent RESPONDENT is not liable for secondary suppliers that are “beyond its control” and its failure could neither be foreseen nor avoided.

59. Based on above-mentioned circumstances and case law, the Respondent RESPONDENT is of the opinion, that it is entitled to claim exemption under Art. 79 due to impediment to deliver the system, components of which were produced beyond RESPONDENT`S control and, furthermore, due to absence of “bad faith conduct” by the Respondent RESPONDENT [Digest of Article 79 case law para.5, Tribunal de comer de de Besançon, France, 19 March 1998].

60. The legal dictionary gives the definition of “bad faith” as “intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others” [Legal Dictionary]. ].

61. Nothing from this description corresponds to the acts of the RespondentRESPONDENT. There was neither violating basic standards of honesty nor entering into an agreement without the intention or means to fulfill it. The Respondent RESPONDENT honestly informed the CLAIMANT the Claimant about the delay and tried to do everything possible to perform the obligation in a proper way.

Date: 2016-01-14; view: 481