24 jan Redigovana arbitražna odluka u predmetu BAC 2/2015
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- Datum 24/01/2017
- Ažurirano 30/11/2020
Summary of the BAC Case No 2/2015
I) Facts of the case
The Serbian company, as service provider (Claimant), and the Russian company, as service recipient (Respondent), entered into the Marine Maintenance Agreement.
In October 2015 Claimant requested Respondent to pay to Claimant the main debt that amounted to EUR 1.527.621,52 and the interest accrued that amounted to EUR 16.045,55 and notified Respondent that, unless the above sums were paid, it would seek legal address in arbitration and use the right of retainment of Respondent’s engines pursuant to Article 286 of the Serbian Obligations Act. As Respondent failed to perform its obligation, Claimant brought the case to arbitration in November 2015.
II) Arbitration agreement
The Agreement and the General Terms of Agreement (the GTA) contained identical Arbitration Clauses providing for any dispute to be settled by three arbitrators under the Rules of the Belgrade Arbitration Centre (Belgrade Rules). The seat of the arbitration was Belgrade, Serbia, and the Law of Republic of Serbia was to be applied to the merits.
III) Arbitral jurisdiction and Course of the proceeding
In the present case, the jurisdiction of the Arbitral Tribunal emerged from the Arbitration Clauses in the Agreement and the GTA which unambiguously provided for arbitration in accordance with the BAC Rules. Pursuant to Article 19 of the Belgrade Rules, the three-arbitrator Tribunal was constituted in February 2016 but was instructed by the BAC to stay its work until the provisional advance for arbitration costs had been fully paid by Claimant.
In April 2016 Claimant filed its Memorandum with the relevant exhibits purporting to prove the provision of services under the Agreement and the GTA, while Respondent did not submit the Answer to the Statement of Claim pursuant to Article 12 of the Belgrade Rules or otherwise take part in these proceedings.
In May 2016 the hearing, attended only by Claimant, was held. At the hearing, Claimant stated that there was unofficial information that suggested that bankruptcy proceedings were opened over Respondent. However, since neither Claimant nor Respondent requested the Arbitral Tribunal to stay the proceedings or to make any other decision due to the possible bankruptcy of Respondent, the course of the proceedings was unaffected by that declaration.
IV) Arbitral award
Having regard to Article 12(7) of the BAC Rules and Article 42(2) of the Arbitration Act, the Arbitral Tribunal established the facts on the basis of evidence on record without construing the default of Respondent as an admission of Claimant's allegations and claims.
The Arbitral Tribunal was of the view that documents submitted by Claimant including the invoices issued under the Agreement, certificates of performance of individual services signed by the Parties and Claimant's statements on performance constituted sufficient proof that Claimant had provided the services in accordance with the Agreement and the GTA. The Tribunal concluded that Claimant's claims made in the Statement of Claim had become due. It further noted that Claimant duly informed Respondent of its intention to satisfy its claim from the value of the retained engines by its letter from October 2015 and that thus Claimant was entitled to effect its right to satisfy its claims pursuant to Article 289 of the Obligations Act, since the Serbian law was the law applicable to the Agreement and the GTA. Furthermore, the Arbitral Tribunal found credible Claimant's allegation that it was in possession of Respondent’s engines and according to Article 286(1) of the Serbian Obligations Act, it decided that Claimant is entitled to retain those engines. Moreover, the Arbitral Tribunal found that Claimant’s request for the accompanying documents to be delivered was well-founded, since those documents were necessary for Claimant to exercise its right.
Finally, according to Article 37(3) of the BAC Rules and Article 53 of the Serbian Arbitration Act, the Arbitral Tribunal considered Claimant's claim for costs to be justified and reasonable and awarded the claim for costs in full.