Case number: 23
Article number: sales convention / 8(3); 18(1); 19(1); 19(2); 19(3)
Thessaurs issue:
Country of decision: United States of America
Year of decision: 1993
Type of decision: Judicial decision

Case 23: CISG 8(3); 18(1); 19(1)-(3)
United States: U.S. District Court for the Southern District of New York, 91 Civ. 3253 (CLB) 14 April 1992; appeal
dismissed 19 January 1993
Filanto, S.p.A. v. Chilewich International Corp.
Published in English: 789 Federal Supplement 1229 (1992); 984 Federal Reports, 2d 58 (1993) Commented on by Brand &
Flechtner, 12 The Journal of Law & Commerce, 239 (1993)

A New York enterprise agreed to sell shoes to a Russian enterprise pursuant to a master agreement that required disputes to
be arbitrated in Moscow. To fulfill the agreement, the New York enterprise entered into multiple contracts with an Italian
manufacturer. Pursuant to one purported contract the Italian manufacturer supplied shoes but the New York buyer made only
partial payment. The Italian manufacturer sued in a New York court to recover the price. Alleging that the contract
incorporated the Russian master agreement by reference, the New York buyer sought a stay of proceedings to permit
arbitration.

The court construes article II(1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards to
determine whether the parties had agreed in writing to arbitrate. Concluding this is a federal law question, the court refers to
contract principles embodied in CISG. It holds that the New York buyer's offer, which incorporated the Russian master
agreement by reference, had been accepted by the Italian manufacturer's failure to respond promptly. Although under article
18(1) CISG silence is not usually acceptance, the court finds that under article 8(3) CISG the course of dealing between the
parties created a duty on the part of the manufacturer to object promptly and that its delay in objecting constituted acceptance
of the New York enterprise's offer.