DECISION OF ECONOMIC COURT OF COMMONWEALTH OF INDEPENDENT STATES
of November 10, 2004 No. 01-1/3-04
Economic Court of the Commonwealth of Independent States in structure:
the chairman - the Chairman of Economic Court Kerimbayeva A. Sh.,
judges of Economic Court: Abdulloyev F., Apostle D., Zholdybayev S. Zh., Zhoroyeva K., Miroshnik V. I., Molchanovy T.N.,
in case of the court clerk Medvedeva T. E.,
with participation of the General adviser of Economic Court Pronina M. G., deputy chief of Legal department - the chief of procedural and legal department,
having considered case on request of the Supreme Court of the Kyrgyz Republic on interpretation in proceeding in open court, established:
The Supreme Court of the Kyrgyz Republic appealed to Economic Court with request about interpretation of the Agreement on general terms of deliveries of goods between the organizations of the State Parties of the Commonwealth of Independent States of March 20, 1992. In the request the Supreme Court, in particular, asks to explain: what is understood in the context of the Agreement as the term "interstate commercial ties" and whether regulations of this Agreement extend to the relations on delivery of goods between subjects of managing of the different State Parties of the Commonwealth which are not based on interstate economic agreements and if extend, then in what part?
From available in materials it is visible that the facts of application by economic (arbitral) courts of Item 17 of the Agreement called above were of contracts of delivery between subjects of managing of the different State Parties of the Commonwealth and recognition of such agreements not by prisoners owing to absence in them such compulsory (essential) provision as shipping requisites the cause to request.
The agreement on general terms of deliveries between the organizations of the State Parties of the Commonwealth of Independent States is signed on March 20, 1992 by the governments of the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Republic Kyrgyzstan, the Republic of Moldova, the Russian Federation, the Republic of Tajikistan, Turkmenistan, the Republic of Uzbekistan, Ukraine and became effective concerning the specified states according to their arrangement fixed in the Agreement since July 1, 1992.
The agreement is not signed by the Azerbaijan Republic and Georgia.
Having heard the judge-speaker D. Apostol, having analyzed the conclusion of the General adviser of M. G. Proninoy and having researched the documents which are available in case, the Economic Court came to the following conclusions.
Interpretation of application of the Agreement of March 20, 1992 shall be performed according to article 31 of the Vienna Convention on the right of international treaties according to regular value which should be given to terms of the agreement in their context, and also in the light of object and agreements are more whole.
Subject of this agreement was establishment of general terms of deliveries between the organizations of the State Parties of the Commonwealth. Need of creation of such legal basis was dictated by the fact that disintegration of USSR and cancellation of the mechanism of regulation of activities of single economic complex and economic bonds centralized within the Union State in it inevitably led to gap of many economic bonds between subjects of managing and, first of all, in the most important key branches of the industry, in the field of production cooperation.
With formation of the sovereign states economic bonds turned from interstate into interstate. Therefore as it is noted in the Agreement preamble, it was intended for creating favorable conditions for preserving and development of economic bonds between subjects of managing within the Commonwealth of Independent States taking into account prisoners between them (means the states) economic complementation agreements and ensuring at the same time identical responsibility of all subjects of managing in their economic space in general.
Besides, in the second part of preamble of the Agreement it is specified that regarding implementation of interstate economic agreements it is based on the principles approved by the governments of the states. The provided text of preamble of the Agreement, and also the analysis of content of its provisions allow to draw conclusion that it is about conditions of the deliveries performed by subjects of managing of the different states as under the agreements which are freely signed between them, and, first of all, under the agreements based on interstate economic agreements and signed according to the procedure of implementation of such agreements.
In Item 1 of the Section I "General provisions" the Agreement coverage is determined. Here it is specified that it "extends to the relations between subjects of managing (irrespective of patterns of ownership) the State Parties of the Commonwealth on interstate commercial ties". Literal interpretation of the mentioned Item gives the grounds to Economic Court to draw conclusion that it is necessary to understand commercial ties between subjects of managing of the different states as the term "interstate commercial ties" irrespective of the fact which legal forms mediate these bonds - the delivery agreement which is freely signed by subjects of managing or the delivery agreement signed on the basis of interstate economic agreements (the agreement signed for ensuring the state needs).
Such value of the term "interstate commercial ties" is confirmed also by the analysis of Item 1 in context both with the Agreement preamble, and with its informative part.
Part 2 of Item 3 of the Section I "General provisions" which says belongs to number of the regulations governing the relations on delivery of the goods mediated by two specified agreement types, in particular: "The companies are free in the choice of the subject of the agreement, determination of obligations, any other conditions of economic relations, except as specified deliveries of goods under interstate agreements".
The special Section of the Agreement is devoted to regulation of procedure for the conclusion, change and agreement cancelation. In the main mass of regulation of this Section concern agreements of deliveries for the state needs.
In case of regulation of the relations on deliveries for the state needs the administrative legal mechanism of forming of economic bonds, though in the new, changed forms caused by existence of national borders in the territory of once single economic complex was used (determination in the states of the bodies regulating deliveries; forming of supply rates by them for the state needs by their types, the territories and suppliers; provision of data on it to regulating authorities of other states of the Commonwealth; finishing limits to consumers with issue of notices on attachment).
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