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Lawyers, other representatives, expert(s), tribunal’s secretary

    Decision

    [1].
    International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry consisting of sole arbitrator Pobirchenko Igor Gavrilovich has considered the case on of suit Public Joint Stock Company "Ilyich Mariupol Iron and Steel Works" to American firm "ARGUS DEVELOPMENTS INC" about collecting 5201406,54 US dollars of value of loaded by plaintiff to the address of defendant of steel production on specifications Nr. 001RF dated 06.04.2010, Nr. 002RF dated 06.04.2010, Nr. 003RF dated 09.08.2010, Nr. 004RF dated 02.09.2010, Nr. 005RF dated 17.09.2010, Nr. 006ED dated 06.10.2010 to the contract Nr. 12EXP/040-10 dated December, 2, 2009, and of expenses on arbitrage fee as well.
    [2].
    Legal adviser of department of contract and suit and claim work of legal administration of Public Joint Stock Company "Ilyich Mariupol Iron and Steel Works" Komanov Valeriy Valeryevich took part at session of arbitrage court from plaintiff's part on the ground of power of attorney Nr. 09/2522 dated 16.07.2010 signed by General Director of Public Joint Stock Company "Ilyich Mariupol Iron and Steel Works" V.S.Boyko.
    [3].
    The Defendant being proper informed about case consideration at International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry, hasn’t sent his representative to the session of arbitrage court that in virtue of Article 38 of Rules of International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry isn’t as hindrance for case consideration and taking decision on the ground of evidences having in case.
    [4].
    Legal ground for case consideration at International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry is Section 13 of contract Nr. 12EXP/040-10 dated December,2, 2009 according to which the parties have agreed that any dispute that arise in connection with execution of this contract, is the subject to transfer for consideration to International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry with the usage for indicated dispute of material law of Ukraine. As the language of arbitrage consideration is recognized Russian language, the arbitrage court consist of the sole arbitrator.
    [5].
    As far as in terms foreseen by parties at point 7.1. of the contract (15 banking days by means of fax or e-mail connection), the defendant the invoice for the amount of 5746677,25 US dollars has paid only in the amount of 545270,71 US dollars, and hasn’t paid the rest 5201406,54 US dollars, the plaintiff made a claim on January, 4, 2011 to International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry about collecting 5201406,54 US dollars.
    [6].
    The case was commenced for proceedings by decree of chairman of arbitrage court at the Ukrainian Chamber of Commerce and Industry on January, 5, 2011, with Nr. 5a/2011, by which the defendant was engaged within 30 days term from the day of receiving of decree to pay arbitrage fee in the amount 32043,38 US dollars in hryvnyas (UAH) according to NBU rate, to present in 2 counterparts the copies of cargo custom declarations for delivered for the plaintiff goods, in 2 counterparts the evidences of calling for payment of commercial invoices with the help of fax or e-mail communication, also to take measures for mutual approval with the defendant the candidature of the sole arbitrator on case, have informed to arbitrage court the name and surname of the arbitrator.
    [7].
    On February, 18, 2011 the additionally demanded documents sent by the plaintiff with the letter Nr. 9/1-2/3-2 dated February, 14, 2011 came to arbitrage court from the plaintiff.
    [8].
    On February, 10, 2011 to the current account of Ukrainian Chamber of Commerce and Industry from plaintiff part the arbitrage fee came in the amount of 254520,57 UAH that according to NBU rate is 32043,38 US dollars except transferred earlier by the plaintiff of registration fee in the amount 4765,20 UAH, that is equal according to NBU rate to 600 US dollars.
    [9].
    On 16.02.2011 by the registered letter with notification about handing over (according to mail receipt Nr. RG010317186UA) the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry has sent to the defendant the copies of suit materials, Rules, List of arbitrators of ICAC at Ukrainian CC1 with the proposal within 30 days term from the moment of letter receiving to submit recall for statement of claim and to inform ICAC at Ukrainian CC1 the name and surname of having agreed with the plaintiff a sole arbitrator from recommending list. The plaintiff was proposed as well to take measures on agreement with the defendant the candidature of sole arbitrator. Simultaneously it was indicted in attached letter ICAC at Ukrainian CCI Nr. 366/14-6 dated 14.02.2011 that in the conformity with p.2 of article 11 of Law of Ukraine "About international commercial arbitrage" and p.2 of article 27 of Rules of ICAC at Ukrainian CCI the parties can at their sole discretion coordinate the procedure of sole arbitrator appointment providing that observance of provisions of p.4 and p.5 of article 11 of the mentioned Law. In case of absence of such agreement at arbitrage with the sole arbitrator, if the parties didn’t agreed about appointing of the arbitrator or within the procedure of appointing coordinated by parties, one of the parties doesn’t observe to such procedure, after expiring of 30 days from the day of receiving by parties of the proposal about appointment of arbitrator in the conformity with the p.3 of article 11 of Law of Ukraine "About international commercial arbitrage" and p.2 of article 27 of the ICAC Rules at Ukrainian CCI the sole arbitrator was appointed by Decree of President of Ukrainian Chamber of Commerce and Industry which may not be appealed.
    [10].
    In connection with not receiving of notification about handing over to the defendant of registered mail Nr. RG0I0317186UA the ICAC at Ukrainian CCI by letter Nr. 5/614/14-7 dated 21.03.2011 applied to Ukrainian state enterprise of mail communication "Ukrpochta" with the request to speed up the submitting of information about the fate of this registered mail.
    [11].
    Central Bureau of reclamations UGPPS "Ukrpochta" with the letter Nr. 38-11-3009-Y-24 dated 29.03.2011 has informed ICAC at Ukrainian CCI that the measures for searching of registered letter Nr. RG010317186UA were taken, the request was directed to appointed operator of USA, about consideration results of which will be informed on finishing of search and obtaining the information from abroad.
    [12].
    On 27.04.2011 the letter of TSBR UGPPS "Ukrpochta" Nr. 38-11-3009-Y-24 dated 22.04.2011 came to ICAC at Ukrainian CCI with information, that according to answer of appointed operator of USA the registered letter Nr. RG010317186UA was handed over to the addressee - the defendant on case - on 28.02.2011, in witness thereof it was attached the xerocopy of reclamation CN08 to the letter of TSBR UGPPS "Ukrpochta" with the indication of date of handing over and with stamp of post office department of USA.
    [13].
    In spite of that from the moment of receiving by the defendant of the letter of ICAC at Ukrainian CCI with the offer to inform agreed with the plaintiff the candidature of the sole arbitrator, 61 days have passed, the defendant agreed with the plaintiff the candidature of the sole arbitrator of ICAC at Ukrainian CCI hasn’t informed. The plaintiff also hasn’t presented for ICAC at Ukrainian CCI the evidences of taking by him of measures on agreement with the defendant of candidature of the sole arbitrator.
    [14].
    Therefore, the Parties didn’t coordinate the candidature of the sole arbitrator.
    [15].
    Guiding by articles of 6.1. and 11.3 of Law of Ukraine "About international commercial arbitrage", the President of Ukrainian Chamber of Commerce and Industry by Decree dated April, 29, 2011 has appointed Pobirchenko Igor Gavrilovich as sole arbitrator on above-mentioned case.
    [16].
    On April, 29, 2011 ICAC at Ukrainian CCI has sent to the parties notices about date, time, place of case consideration, and also the decree of President of Ukrainian Chamber of Commerce and Industry dated April, 29, 2011 about nomination of the sole arbitrator.
    [17].
    The indicated documents (notice and decree) were sent by registered letter Nr. RG010873904UA to the defendant with notification about handing over which the defendant refused to receive and returned to arbitrage court.
    [18].
    Having considered the case materials and having heard of representative of the plaintiff, the arbitrage court, -

    established:

    Claim demands about collecting from the defendant 5201406,54 US dollars by case materials are substantiated: by copies of unpaid Specifications Nr. 001RF, Nr. 002RF, Nr. 003RF, Nr. 004RF, Nr. 005RF, Nr. 003ED with additions; by copies of unpaid commercial invoices Nr. 001RF/040B, Nr. 002RF/040B, Nr. 003RF/040B, Nr. 004RF/040B, Nr. 005RF/040B, Nr. 006ED/048B; by copies of international transport documents (bills of lading and mate’s receipts); by copies of CCD 700100001/10/000742 with the list of wagons; by certificate about shipment of goods to the address of the defendant.

    The defendant of claim demands didn’t litigate, and recognized in bilateral reconciliation report on contract Nr. 12Exp/040-10 dated December, 2, 2009, that within period from January, 1, 2010 till December,31, 2010 the defendant received from the plaintiff steel production for the amount of 5746677,25 US dollars, and transferred to the current account of the plaintiff only 545270,81 US dollars, including on April, 28, 2010 — 131003,18 US dollars, on June, 7, 2010 - 17562,10 US dollars, on June, 23, 2010 - 39587,09 US dollars, on August, 26, 2010 -3571 17,53 US dollars. The debt of the defendant for the plaintiff in the amount of 5201406,84 US dollars was recognized by the defendant.

    By such condition the claim demands are the subject to satisfaction.

    Also and demands of the plaintiff about reimbursement of expenses for arbitration fee in the amount of 32643,38 US dollars are the subject to satisfaction, inasmuch as according to p.l of the Section 6 of the Provision about arbitrage fees and expenses, if the parties didn’t agreed about otherwise, the arbitrage fee is laid upon the party against which the resolution is passed.

    Guiding by articles 525, 526, 692 of Civil code of Ukraine, articles of 193, 198 of Economic code of Ukraine, article 31 of Law of Ukraine "About international commercial arbitrage", articles 38, 48, 49 of Rules of ICAC at Ukrainian CCI, p.l of Section 6 of Provisions about arbitrage fees and expenses,

    THE ARBITRAGE COURT HAS DECIDED:

    1. To bind upon firm "ARGUS DEVELOPMENTS INC" (910 Foulk Road Suite 201, Wilmington, DE 19803, USA) immediately on receiving of this decision to pay Public Joint Stock Company "Ilyich Mariupol Iron and Steel Works" (87504, Ukraine, city Mariupol of Donetsk region, 1, Levchenko street) 5201406,84 US dollars for goods and 32643,38 US dollars in reimbursement of expenses on payment of arbitrage fee, and totally 5234049 (five million two hundred thirty four thousand forty nine) US dollars 92 cents.

    [19].
    The decision is final.
    [20].
    The decision is composed in 3 original copies, of which for one original for the parties and one original — to case materials.
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