Resolution of the Higher Commercial Court of Ukraine, dated August 20, 2014, case No. 917/2572/13. Available at http://reyestr.court.gov.ua/Review/40263116

In paragraph 10.2 of the contract the parties have agreed that in respect of the rights and obligations of the parties the law of the country of the defendant shall be applied; in this case it is legislation of Ukraine, including norms of ratified by Ukraine conventions on international sale of goods.

On July 14, 1993 Ukraine ratified the UN Convention on the Limitation Period in the International Sale of Goods, 1974, which entered into force for Ukraine on January 04, 1994.

In accordance with Article 9 of the Ukrainian Constitution the Convention is an integral part of Ukrainian national legislation.

Ukraine did not accede to the Protocol amending the Convention on the Limitation Period in the International Sale of Goods, and this Protocol is not applicable in Ukraine. In view of that the Convention as it read in 1974 shall be applied in Ukraine.

In accordance with Article 35 of the Ukrainian Law On International Private Law (as amended) a limitation period shall be specified by the law, which governs rights and obligations of the parties to a relevant relationship.

As noted above, the parties to the contract agreed that legal relations not regulated by the contract should be governed by Ukrainian legislation.

Thus, in resolving the dispute the court must apply substantive law of Ukraine, which in accordance with Article 9 of the Ukrainian Constitution includes international treaties ratified by the Verkhovna Rada of Ukraine (the Parliament). And if such an international treaty to which Ukraine is a party lays down rules different from those contained in domestic legislation, the rules of the international treaty shall prevail.

Since the parties to the contract at the time of the conclusion of the contract had their places of business in the Contracting States and the parties did not expressly exclude application of the Convention, the question of whether the limitation period has expired must be resolved on the basis of the UN Convention on the Limitation Period in the International Sale of Goods, 1974, but not the Ukrainian Civil Code.

© Yuriy Karlash, English translation, 2017

© Yuriy Karlash, compilation, 2017