"The parties shall try to resolve all disputes and arguments in connection with this agreement by the way of mutual negotiation.
Any dispute, controversy or claim arising out of or in connection with the present contract, including the execution, performance, breach, termination or invalidity thereof, shall be finally settled by the arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of 3 (three) arbitrators - one shall be appointed by the plaintiff, one shall be appointed by the defendant and one - chairman of the arbitral tribunal shall be appointed by the Arbitration Institute of the Stockholm Chamber of Commerce. The place of the proceedings shall be Stockholm, Sweden. The language to be used in the arbitral proceeding shall be English and Russian. The parties irrevocable represent and agree that arbitration award is final and is enforceable against them and their assets."
2.1 The place of arbitration shall be Stockholm, Sweden.
2.2 Both parties have retained counsel fluent in the English language. While the languages of the arbitration are English and Russian, the parties are recommended to continue to file their communications in English which will also be the language used at all oral hearings in the case unless otherwise decided. If either party wishes to make written or oral submissions in Russian, the Tribunal will arrange for transla tion/interpretation and treat the costs therefore as costs of the arbitration. The parties are similarly recommended to file translations into English, which need not be certified unless objected to by the other party, with copies of any relevant documents filed which are originally in Russian.
2.3 All communications filed should be sent either by messenger, or by (fax or) e mail with confirmation copy by post, simultaneously to each counsel designated by the other side and to each arbitrator.
2.4 The following schedule is set for the proceedings. Amendments thereto may be considered at the request of a party for good reasons shown, but times have been set so that it should in the Tribunal's view be possible for the parties to adhere to the schedule.
2.4.1 Claimant shall file not later than 25 May 2005 a Statement of Claim, in accordance with Article 21 of the Rules of the Institute.
2.4.2 Respondent shall file not later than 23 June 2005 a Statement of Defence in accordance with said Article.
2.4.3 Claimant shall file not later than 15 August 2005 a Reply and Final Statement of Evidence, enclosing any written evidence not previously submitted and specifying what Claimant wishes to prove by each item of written and/or oral evidence invoked and indicating whether any witness invoked needs the assistance of an interpreter.
2.4.4 Respondent shall file not later than 15 September 2005 a Rejoinder and Final Statement of Evidence, enclosing any written evidence not previously submitted and specifying what Respondent wishes to prove by each item of written and/or oral evidence invoked and indicating whether any witness invoked needs the assistance of an interpreter.
2.4.5 Further exchanges of briefs may take place if and as directed by the arbitrators who may also order a pre-trial conference if deemed necessary. No documents will be accepted after 10 October 2005 unless the Tribunal for special reasons so allows.
2.4.6 An oral hearing of the case is provisionally fixed to take place in the offices of RydinCarlsten Advokatbyrå AB at Norrmaimstorg 14 in Stockholm on 24 October 2005, commencing at 0930 a.m. and continuing if and as necessary on 25-27 October 2004. If neither party has latest 11 May 2005 for good reason requested an alternative time to be fixed for the oral hearing, the hearing time provisionally fixed shall be definite.
2.5 If a party fails to comply with the above orders for filing documents or fails to appear at the oral hearing this will not prevent the Tribunal from proceeding with and deciding the case.
1. Viva is granted until 11 October 2005 to file its Rejoinder and Statement of Evidence. After this time Viva will not be permitted to invoke any further circumstances or evidence unless Viva demonstrates good reason why they could not have been presented earlier.
2. As per the Tribunal's previous decision Rual has until 1 7 October 2005 to supple ment the circumstances and evidence invoked by Rual. This deadline shall still apply except insofar as Viva's Rejoinder and Statement of Evidence may cause Rual to invoke circumstances or evidence in rebuttal for which Rual shall have until 29 October 2005. After the deadlines thus set Rual may invoke further circumstances or evidence only if Rual demonstrates good reason why they could not be presented earlier.
3. The Tribunal still expects counsel to cooperate on a proposed schedule for the hearing currently scheduled to take place on 24-27 October. Given the above extensions of time counsel should communicate such schedule to the Tribunal latest on 17 October 2005. The Tribunal notes that it may not be necessary to use all reserved days.
Viva has in its latest submission indicated a desire to respond to the evidence last introduced by Rual. Furthermore, counsel to Rual has aver the telephone expressed Rual's desire to respond more fully to Viva's rejoinder than time previously permitted. In view of the fact that the final hearing will not take place until next year, the parties are granted time until 2 December 2005 for such submissions. This time limit will not be extended and no further submissions will be allowed unless special circumstances so warrant.
i) wrongfully stating that Respondent "suspended" the performance of the Contract;
ii) stating that the Respondent had no intention to fulfil its obligations with respect to the Contract;
iii) wrongfully rejecting several nominations of vessels;
iv) not delivering any alumina during November 2004;
v) not even in the beginning of December 2004, accepting to fix a date for delivery of the November and December instalments;
vi) being in delay regarding outstanding non-delivered quantities of the January-October 2004 instalments;
vii) being in delay regarding a substantial part of the total obligations in respect of the Contract.
i) Viva was entitled to suspend the performance of the Contract because of Rual’s failure to pay;
ii) Viva denies that Mr. Vladimir Romanov has stated that Viva will not fulfil the Contract and, even if that were the case, Mr. Vladimir Romanov could not bind Viva and Rual has, in any case, acted to late on that information;
iii) With respect to nomination of vessels, Viva has acted in accordance with the parties’ established conduct under the Contract;
iv) With respect to delivery of alumina during November, Viva had clearly indicated that Viva would deliver the November instalment in December 2004/January 2005;
v) With reference to accepting to fix a date for delivery of the November and December instalments in the beginning of December. Viva had rightfully suspended its performance;
vi) With respect to delay regarding outstanding non-delivered quantities of the January - October instalments, Rual has accepted each individual instalment or at least not timely raised objections with respect to each individual instalment;
vii) With respect to delay regarding a substantial part of the total obligations, each instalment has to been look upon separately and Rual has accepted each instalment.
i) Acts by the agent or principal justifying belief in the agency;
ii) Knowledge thereof by the party sought to be bound as principal;
iii) Reliance thereon by the plaintiff, consistent with ordinary care and prudence.
Article 1 Definitions:
1.1 In this agreement, unless the context otherwise requires or the contrary intention appears:
(a) "Contract" means this present alumina purchase and supply contract;
(c) "FOB" means "Free on Board" as defined by INCOTERMS 2000 (ICC, Paris, Publication No. 560), as amended by time to time;
(d) "ST" means "stowed" in the case of bagged alumina being loaded FOB vessel or in the case of loading on board ocean vessel in bulk, "ST" means "spout trimmed", which refers to manner of loading in accordance with the instructions of the master of the vessel to ensure the safety and stability of the vessel;
(e) "Lay can" means lay days and cancelling period during which the SELLER declares to the BUYER that the BUYER'S nominated vessel required is ready in all respects to load the cargo of alumina at the port of loading declared by the SELLER;
(f) "Load port" means the port from where the alumina shall be loaded by SELLER into BUYER'S vessel;
Article 2 Term:
This contract is to be executed during 2004 (January through December) to commence on the day it is duly signed by both BUYER and SELLER and shall remain in force until the obligations set forth have been fully executed by both parties, unless as otherwise resolved by mutual consent of both parties in writing.
In case of proper execution of this contract within 2004, the contract can be renewed for 2005, by mutual agreement of both parties in writing.
Article 3 Origin:
Alumina is produced by the Birac Alumina Refinery, Republic of Srpska, Bosnia-Herzegovina.
Article 5 Quantity:
250,000 (two hundred and fifty thousand) metric tons +/- 10 % shipping tolerance in SELLER'S option.
5.1 Increased Quantity Option:
In the event the SELLER is able to supply additional quantity - up to 50,000 (fifty thousand) MT during 2004, SELLER shall notify, BUYER of his intent to ship additional quantity at least 30 days prior to the first day of the scheduled shipment month. BUYER is obliged to buy this additional quantity within 2004.
The price, terms and conditions of which shall be exactly the same as per this contract.
Article 7 Delivery Terms:
In SELLER’S Option as follow:
7.1 In bulk: FOB ST (spout trimmed) ocean-going vessel, Port of Place, Croatia:
7.2 In bulk FCA Birac, loaded in BUYER‘S vehicles (refer to Article 10.1) below;
7.3 In case of delivery FCA Birac, the SELLER shall notify BUYER of his intent to deliver latest 30 days prior to the estimated date of delivery.
7. 4 Delivery point(s) if other than above, to be mutually agreed between BUYER and SELLER on a case-by-case basis.
Article 3 Load Terms:
For ocean shipment, relating to article 7.1 above, Seller agrees load rate of minimum 1,000 (one thousand) tons per weather working day (WWD) Saturday Sunday Holliday Excepted (SSHEX) unless used (W) at load port of Place, Croatia.
Article 9 Shipment:
Minimum of 20,800 (twenty thousand and eight hundred) MT per month (+/- 10 % shipping tolerance in SELLER’S option) January through December 2004. Exact shipping schedule for 2004 to be mutually agreed between BUYER and SELLER in writing not later than December, 2003.
Article 10 Price:
US Dollars 263.00 per metric ton (two hundred and sixty three) FOB ST ocean vessel, Port of Place, Croatia, or as follows:
10.1 If SELLER prefers to sell on FCA Birac basis, the price shall be USD 242.00 (two hundred and forty two) per MT, loaded to BUYER'S vehicles;
10.2 If other than above delivery point, price to be mutually agreed between BUYER and SELLER on a case by case basis.
Article 11 (first para)
11.1 No less than ten (10) working days prior to the scheduled month of shipment. Seller will deliver to Buyer a proforma, invoice for estimated monthly quantity of alumina scheduled for loading. Payment of 70% of the amount stipulated on the invoice will be effected by Buyer five (5) working days prior to the scheduled month of shipment by telegraphic transfer in US Dollars to the Seller's nominated account.
Article 18 Law:
This contract shall be governed by and construed in accordance with the Vienna Convention for International Sales of Goods of 1980. Issues not considered by this convention shall be settled in accordance with the substantive law of Sweden.
Article 19 INCOTERMS:
Unless otherwise specified herein, Incoterms 2000 will be applicable for the execution of the present contract.
"If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74.".
"Any dispute, controversy or claim arising out of or in connection with the present contract, including the execution, performance, breach, termination or invalidity thereof shall he finally settled by the arbitration in accordance with the Rules of Arbitration Institute of the Stockholm Chamber of Commerce".
In the case of a contract for delivery of goods by instalments, if the failure of one party to perform any of his obligations in respect of any instalment constitutes a fundamental breach of contract with respect to that instalment, the other party may declare the contract avoided with respect to that instalment.
2. Rual's claim for repayment of 3.5 MUSD invested under the Memorandum of Understanding dated 22 January 2004 is dismissed for lack of jurisdiction;
3. Each party shall bear its own costs for the arbitration;
4. The fees and costs of the Tribunal and the Arbitration Institute of the Stockholm Chamber of Commerce (Institute) as determined by the Institute are fixed at
|a.||for the Institute||EUR 23 585;|
|b.||for Mr. Nilsson||EUR 96 595 of which 77 276 as fee and 19 319 as VAT;|
|c.||for Prof. Ramberg||EUR 46 366;|
|d.||for Mr. Brocker||EUR 59 439 of which EUR 46 366 as fee, EUR 1 185 for expenses and EUR 11 888 as VAT.|
5. Of the fees and costs as per 4. above Rual shall as between the patties bear EUR 112 992 and Viva shall bear EUR 112 992 and Viva shall reimburse Rual for such amount as Rual may demonstrate to have been taken from its deposit with the Institute in excess of what Rual shall bear as aforesaid, plus interest thereon, at a rate corresponding to the interest rate as semi-annually determined by the Bank of Sweden plus 8 percentage units, from this day until full payment has been made.
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