Resolution:
1. The Plaintiff is subject to pay the rest of the fee for the arbitration procedure, if need be also the lump sum for administration costs of the Arbitration Court of the sum extended by the complaint to the account of the Arbitration Court attached to the Economic Chamber and Agricultural Chamber of the Czech Republic in the amount and to the date set by the Secretary of the Arbitration Court.
2. The Plaintiff is subject to comment in written form on:
- the issue of maturity of the invoice No. 49683 of 6th September 1994 of the amount of DEM 60.336,40
- the claims drawn in the arbitration procedure with the Arbitration Court attached to the Economic Chamber and the Agricultural Chamber of the Czech Republic under Rsp 57/98 and on their relation to the claims asserted in this arbitration procedure - and in case of identity of these claims -
- the issue whether and if so when and in which way the Defendant was informed about the assertion of these claims, or on the stop of the arbitration procedure without any decision in the matter as such
and to submit or offer evidence to support his statements
all above-mentioned within 15 days from receiving this resolution and in 4 counterparts delivered to the Arbitration Court attached to the Economic Chamber and the Agricultural Chamber of the Czech Republic and in one counterpart delivered directly to the legal representative of the Defendant.
3. The Defendant is challenged to comment in written form on the documents received at the oral hearing of 27th February 2001, especially
on the hand-written order of 8th April 1994 inch the signature on the declaration of Georg Georgepoulos of 23rd February 2001 and on the message of H. Handtke of 6th April 2000
and to comment in detail on the raised limitation objection and to explain in detail the Article 1 of his written statement of 26th February 2001, as far as the given "maturity of the invoice No. 49683 of 6th September 1994 in September or October 1994",
all above mentioned within 15 days from receiving this resolution in 4 counterparts delivered to the Arbitration Court attached to the Economical Chamber and the Agricultural Chamber of the Czech Republic and in 1 counterpart delivered directly to the legal representative of the Defendant.
4. Both parties are offered the possibility of written comment on the pleading of the adverse party and to possible evidence submitted to them under Articles 2 and 3 of this resolution within 15 days from receiving the resolution in the number of counterparts delivered in the way specified in Articles 2 and 3.
5. After fulfilling Articles 2 - 4 or after the vain expiration of the terms it will be decided on the limitation objection of the claim asserted through the complaint as stated in Article 1 of the Resolution of 27th Februaiy 2001.
Grounds of the decision:
Before the decision on the asserted limitation objection through the complaint of the asserted claim in compliance with Article 1 of the Resolution, it seems to be necessary or appropriate to request written comments of both parties and evidences with respect to new fundamental argumentation of the parties at the oral hearing on 27th February 2001 and to incomplete evidence on the relationship of claims asserted in this arbitration procedure to claims asserted in the arbitration procedure asserted in the arbitration procedure under Rsp 57/98, and to possible influence on the run and extension of the limitation period under Section 405 of the Commercial Code.
The Plaintiff is also subject to pay the rest of the fee and if necessary also the lump sum for the administration costs of the Arbitration Court of the sum to that the complaint was extended under the specification of the statement of claim at the oral hearing of 27th February 2001, with advice on consequences of non-fulfilment of the imposed duty (Section 2 para 1 of the Arbitration Procedure Costs Rules that are a part of it under Section 41 of the Code).
Prague, 1st March 2001 signature illegible
Dr. Milos Pohunek
Presiding Arbitrator
signature illegible
Dr. Vladimir Skuhrovec
Arbitrator
Rounded seal:
Arbitration Court attached to the Economic Chamber
and Agricultural Chamber of the Czech Republic PRAGUE
Rsp 14/00
RECORD
on oral hearing held on 27th February 2001
before the Arbitration Court attached to the Economic Chamber and the Agricultural Chamber of the Czech Republic in Prague in the dispute of
the Plaintiff: SKLOEXPORT, a.s., 1. maje 52, 461 74 Liberec, Ceska republika
against
the Defendant: B. and B. DARAMOUSKAS and Co., Ethnarchon Makariou 14, Aghiou Dimitrou/ L.
Vouliggmenis, 15452 Athens, Recko on: 60 336,40 DEM
Present:
Dr. Milos Pohunek presiding arbitrator
Dr. Gerhardt Bubnik arbitrator
Dr. Vladimir Skuhrovec arbitrator
Nad'a Motyckova court reporter
Zelenkova interpreter
Representative for the Plaintiff: Dr. Frantisek Cervinka, Attorney at law, substitutional full powers delegated by the notary public Mgr. Lubos Havel, the full powers enclosed in the record, the substitutional full powers are entered into the file
Representative for the Defendant: Stylianos Gregoriou, Attorney at law, full powers of 23rd February 2001 are entered into the record
For the Plaintiff are present also: Mgr. Petr Plestil, Articled Clerk of the AK Sodulka, Sejcek a spol.
For the Defendant are present also: Dr. Myslil, interpreter for the representative of the Defendant
The hearing was opened at 10 a.m.
The contents of the file are stated, especially this matter:
the complaint was delivered to the Arbitration Court attached to the Economic Chamber and the Agricultural Chamber of the Czech Republic on 19th January 2000.
The complaint was delivered to the Defendant on 13th October 2000 (the delivery was documented by the confirmed returned receipt) as an enclosure of the letter of the Secretary of the Arbitration Court of 26th September 2000 including the call for the pleading of the complaint answer and for the appointment of the arbitrator of the Defendant.
Taking into account that the Defendant did not appoint any arbitrator in the given period, Dr. Vladimir Skuhrovec was appointed by resolution of 9th January 2001. The Defendant was informed about this resolution in a letter of the Secretary of the Arbitration Court, which was delivered on 16th Januaiy 2001 (confirmed returned receipt). The Defendant received also information on the membership of the arbitration senate in a letter by the Secretary of the Arbitration Court of 17th January 2001.
It is stated that the Defendant has reacted to the summons of today's oral hearing by the e-mail of Mr. Gregoriou of 15th February 2001, to that they received the answer of the secretary of the Arbitration Court of 15th February 2001. Then the attorney of the Defendant applied in a letter of 16 February 2001 for an adjournment of today's oral hearing because he needs a certain time to enter into relations with the Czech attorney. On the basis of this application the arbitration senate contacted the Plaintiff to find out if they agree with the adjournment of the oral hearing. In view of the negative reply of the Plaintiff of 20th February 2001 the arbitration senate did not grant the application of the Defendant relating to the adjournment of the oral hearing because the board took into consideration the fact that since the delivery of the complaint, i.e. since 13th October 2000 the Defendant has had enough time to comment on the complaint in written form after consultation with the Czech attorney, if they considered it necessary.
Further it is stated that the secretariat of the Arbitration Court received the written statement of the Defendant of 26th February 2001 one copy of which is delivered in a short way to the legal representative of the Plaintiff.
The legal representative of the Plaintiff presents the complaint identically with the written documentation of 19th January 2000 and makes reference to the papers attached to the complaint as an evidence.
To the enquiry of the arbitrator of the arbitration senate the legal representative of the Plaintiff replies that the right statement of claim is given in Article V. of the written copy of the complaint of 19 January 2000, i.e. DM 60.336, 40 together with the default interest to the extent of DM 37 408,32 and further to the extent of 1 % for each started month of the default, and the requirement for the reimbursement of the procedure costs, i.e. the fee for the arbitrary procedure, i.e. lump sum for the administration expenses of the Arbitration Court and the remuneration of the legal representative according to the lawyer's fees.
The legal representative of the Plaintiff says after acquainting himself with the pleading of the Defendant:
"First of all I state that the Defendant does not object lack of jurisdiction of the Arbitration Court but they deny preliminary that they did not order and did not receive the goods. In view of the fact that the claim for the payment of this sum in this matter has already been submitted in the past and in our view, the period of limitation did not run till the end of this procedure, we think that the objection to the limitation raised by the Plaintiff is unjustified and therefore we suggest hearing in meritum of the matter.
To the enquiry of the arbitration senate he explains the previous statement in detail: the Plaintiff, represented by Mgr. Pavlina Fojtikova at that time, brought a suit with this court against the present Defendant for the payment of the same sum sued at present. This hearing was - as much as we know - stopped for the non-payment of fees. That is why the present proposal, which is the subject of today's hearing, was submitted than. In our opinion, the term of limitation did not run from the delivery of the former proposal to the Arbitration Court till the resolution of the stoppage of the procedure, and therefore the proposal discussed today and received by the Arbitration Court on 19th January 2000 was submitted as to the term of limitation in time.
To another enquiry of the arbitration senate whether the Plaintiff could be more specific as to the time when the previous complaint was submitted and when the arbitration procedure was stopped by the resolution due to the non-payment of the procedure fees, the legal representative of the Plaintiff is not able to answer due to the change of legal representatives in the previous and the present dispute at today's oral hearing.
The arbitration senate draws the attention of the Plaintiff to the fact that the copy of the order of 8th April 1994 to that he refers in the Article I. of the complaint was not attached to the complaint and that the quoted Articles 30 and 31 of the General Delivery Conditions to that the Plaintiff refers are not included in the General Sales Conditions of Skloexport printed on the back of the pro-forma invoice/order receipt of 26th April 1994 and that the reference to the Article 19 or to the Art. 1 of the General Delivery Conditions from that the Plaintiff quotes in Article I. do not correspond with the presented General Sales Conditions of the Plaintiff. The legal representative of the Plaintiff is aware of certain defects in the presented documentation, he tries to explain them and will submit the copy of the order of 8th April 1994.
To the enquiry of the arbitrator whether the Plaintiff knows if the Defendant took the delivery of the goods or if the goods are still in the store of the company Militzer and Munch Athens or what happened to them, the legal representative of the Plaintiff replies the Plaintiff knows only the goods was not brought back.
The legal representative of the Defendant insists on the priority discussion of the raising of the limitation objection before the case will be heard in meritum. Further he refers to relevant provision of the Section 388 of the Civil Code and 387 and 391, Para 1 of the Civil Code as to the raised limitation objection. He refers to Article 3 of the written pleading submitted to the Arbitration Court and the Plaintiff today.
As to the argumentation of the Plaintiff concerning allegedly the previous action of complaint with this Arbitration Court, the legal representative of the Defendant says:
1. The Defendant did not receive any other complaint in this matter, therefore he was not informed about it at all.
2. The period of limitation did not stop running through the pleading of such a complaint.
3. The change of the legal representative is not a restraint of the force majeure to which the Plaintiff could refer in this sense.
4. The raised objections of the Plaintiff are not relevant for this dispute and are not confirmed by evidence.
Further the legal representative of the Defendant requires with respect to the equal status principle of both parties not to allow adding any evidence by the Plaintiff, to take the state documented in the file by today's day as a basis because otherwise the Defendant, which has not had any possibility of obtaining qualified legal co-operation with a Czech attorney yet, would be handicapped in comparison with the Plaintiff.
If the arbitration senate intended to postpone the opinion of the limitation objection to the next oral hearing, the Defendant would require the board to grant a period for the written statement to the substance of the suit. He briefly summarises the legal argumentation of the Defendant:
there has never been an offer either directly or through the sales representative of the Plaintiff in Greece concerning the goods in question
there has never been any oral or written acceptation of conditions of the seller, which has never been signed by the Defendant
Thereby there is a lack of passive legitimation of the Defendant. Nevertheless, in spite of the respect to the Arbitration Court there is the issue of validity of the arbitration clause, which would be the base for the jurisdiction of the arbitration court in relation to the Defendant, because the condition would be the signed contract of arbitration.
In spite of that he again requires the resolution on the raised objection of the prescription through the action of the laid claim, if possible today, and he requires the adjudication of the reimbursement of the costs for the legal representation in accordance with the Czech lawyer's fees, together with cash costs in the amount of 47 575,— CZK. All others would be submitted by the Defendant in written form.
The legal representative of the Plaintiff submits the original of the hand-written order of 8th April 1994 and 5 photocopies, on of which is enclosed to the file, another one is given to the legal representative of the Defendant and other members of the arbitration senate. It is the order presented as an evidence to Article I of the complaint that was not enclosed to the complaint.
The original and another copy is submitted for comparison to the legal representative of the Defendant. The original of the submitted order is returned to the legal representative of the Plaintiff.
To the enquiry of the arbitration senate the legal representative of the Plaintiff states there is a personal signature of one of Messrs. Daramouskas' on the submitted order. To another enquiry if the other text of the order was hand-written by Mr. Daramouskas, he answers he supposes so.
To the objection of the Defendant to the admission of other evidences in this hearing the legal representative of the Plaintiff states the admission of new evidences is a part of this hearing and the Defendant is allowed to acquaint himself with these new evidences and comment on them. In addition to facts presented in the complaint, I submit other documents to the statement of the Defendant that they have never ordered the subjected goods either directly or through the sales representative, which represent the business relationship between parties and activities of the sales representative in Greece incl. his declaration of February of this year.
He submits the given documents in 5 copies, one copy is handed over to the legal representative of the Defendant in the short way, the other copies are enclosed to the file and to the members of the arbitration senate.
The legal representative of the Plaintiff states further: the original complaint was filed to the arbitration court on 16th September 1998, was registered under ref. No. Rsp 57/98 and by resolution of the Arbitration Court the procedure was terminated due to the non-payment of the fee and this resolution was given to the Plaintiff in Rsp 57/98 on the termination of the arbitration procedure with a kind application for providing photocopies into the file and for the Defendant; in this resolution there are summarised the data of time he refers in his statement to.
Photocopies of the submitted resolution of the Arbitration Court of 6th January 1999 are made, one copy is handed over to the legal representative of the Defendant in a short way, the other copies are enclosed to the file and given to the members of the arbitration senate. The original is returned to the legal representative of the Plaintiff.
After the consultation of the arbitration senate with the interruption of the interruption of the hearing this
decision
was resolved.
1. The Arbitration Court shall decide on the objection of the prescription of the claim, which was raised by the Plaintiff at today's oral hearing either by the resolution on the arbitration award or by the resolution on further course of action.
2. In case that the resolution on further course of action will be issued, the hearing is adjourned indefinitely.
Finished and signed at 12: 45 p.m.
Gregoriou
Zelenkova other signatures illegible