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Stockholm Arbitration Report (SAR)

Preview Page SAR 2003 - 2

Observations by Fernando Pombo

SUBJECT MATTERS:
(1) Power of the Arbitral Tribunal to grant interim measures under the SCC Rules.
(2) Applicable law to the merits and to a retention of title clause.
(3) Enforcement of retention of title clause under Uzbek law.
(4) Right to restitution of delivered goods under Uzbek law.

FINDINGS:
(1) The SCC Rules provide that an Arbitral Tribunal may, at the request of a party, order a specific performance by the opposing party as interim relief for the purpose of securing the claim that is to be tried by the Arbitral Tribunal. Such interim relief may be granted if the petitioner has prima facie proved his case and there is an urgent need for the requested interim relief.
(2) In the absence of an agreement regarding applicable law, the Arbitral Tribunal shall apply the law which it considers most appropriate. Issues regarding the enforceability of a retention of title clause as between the parties shall be decided in accordance with lex contractus (CISG). If that law is silent on the issue in question, the law to which the relevant provision has the closest connection should be applied (seller’s country).
(3) Under the laws of Uzbekistan, an agreement regarding the retention of title is enforceable as between the parties.
(4) Under the laws of Uzbekistan a retention of title clause entails a right to restitution of the property in question.

PARTIES:
Claimant: Company A (Switzerland)
Respondent: Company B (Republic of Uzbekistan)

PLACE OF ARBITRATION: Stockholm, Sweden