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CISG-online number
7461
Case name
Distribution agreement for medicinal products case IV
Arbitral Tribunal
ICC International Court of Arbitration
Seat of the arbitration
Paris (France)
Date of decision
2018
Case nr./docket nr.
[ICC-FA-2024-010]
Claimants 2
Respondent 1
Seller 1
Buyer 1
Category of goods
54: Medicinal and pharmaceutical products
Goods as per contract
Specialized medical products
CISG applicable
no, Art. 1(1) (non-applicability of the CISG to distribution agreement)
(Domestic) law applied in addition
Polish law
Non-provision-specific issues addressed
Distribution agreement
This decision cites the following other CISG-online case 1
Decision published in 1
by Ulrich G. Schroeter
The present arbitral award deals with a dispute arising from the termination of an international distribution agreement between a U.S. manufacturer of medical products and a Polish distributor. The sole arbitrator ruled that the CISG does not apply to distribution agreements, and continued to decide the case applying Polish domestic law.
The passage of the arbitral award dealing with the (non-)application of the CISG to the distribution agreement reads as follows:
«a. Is the CISG applicable on the merits?
183. According to Article 1(1) of the CISG, ‘this Convention applies to contracts of sale of goods between parties whose places of business are in different States[...]’. In the present case, the dispute arose out of a distribution agreement, and not out of a mere sales agreement as rightfully submitted by the Respondent. More precisely, the DA merely sets the general framework for the future sale of the products. It is also common knowledge that the CISG applies only in contracts of sale of goods and not in distribution agreements, the nature of which is different of that of a sale of goods contract. [footnote 66]
[footnote 66]: The Arbitral Tribunal refers to the judgment delivered on 29 August 2000 by the Federal District Court of Pennsylvania (USA) in Viva Vino Import v. Farnese Vini holding that: ‘This Court agrees with the rationale adopted by the court in Kaminski and concludes that the CISG does not apply to distributorship contracts that do not cover the sale of specific goods and contain definite terms regarding quantity and price. Because the agreements at issue in this case do not cover the sale of specific goods and set forth definite terms regarding quantity and price, the CISG is inapplicable.’
184. The Claimants also seem to adopt the same approach when submitting that ‘the distribution arrangement falls out of the scope of the CISG’. [footnote 67]
[footnote 67]: Reply to SoD, § 9, p.3.
185. Furthermore, a sales contract under the CISG must specify the quantity of goods, and, explicitly or implicitly, the purchase price, which is definitely not the case in the present matter. In the present case, no such provisions are contained in the DA. In this respect, the figures contained in Appendix A to the DA cannot be considered to contain definite terms regarding quantity and price, since they only set out the minimum annual targets to be achieved by the Respondent.
186. Accordingly, as submitted by the Respondent, the DA doesn’t fall within the scope of the CISG, and the latter is not applicable to the present case.»