CISG_Cases
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CISG also provides that “if a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance.”
Case 10-3: Formation of a contract.
Case 10-1 Asante Technologies Inc.
Court: Northern District Court of California, USA, 2001. Parties: Plaintiff Buyer (“PB”), Asante Technologies
Case 10-2 Treibacher Industrie
Meaning of Consignment:
Common usage in the metal trade means that “no sale occurred unless and until DB actually used the TaC.”
Vienna Convention CISG
CASES
ቤተ መጻሕፍቲ ባይዱ
Case 10-1: CISG application on issues of places of business and opting out.
Case 10-2: Established usage and trade terms and Damages due to Buyer’s breach.
CISG takes precedence over conflicting state (provincial) laws, if there is inconsistence between CISG and the California Commercial Code” / the “Uniform Commercial Code.
Case 10-1 Asante Technologies Inc.
PB contended therefore that “California is the place of business having the closest relationship to the contract at issue”, due to the facts that its purchases were made through the Unique Technologies in California directed by DS.
Issue 1: Whether CISG was applicable? Which was narrowed down to a question whether businesses were in different states,
Issue 2: whether CISG was excluded effectively by choice of law clauses in their contract.
Both PB and DS are Delaware Corporations An example of nationality is irrelevant.
PB primary place of business in California was an undisputed fact. DS asserted that its corporate headquarters were located in British
“in the absence of an express agreement as to a term’s meaning, the parties would be bound by that term’s customary usage, even if they had established a contrary usage in their course of dealings.
(“AT”), Defendant Seller (“DS”): PMC –Sierra (“PMC”) Matters: PB alleged DS failed to provide it with
electronic components meeting certain designated technical specifications. The alleged complaints were based on cause of actions in tort and contract. Issues:
Case 10-2 Treibacher Industrie
Court: Court of Appeal of USA, 2006 Parties: Plaintiff Seller (“PS”) was an Austrian vendor of
hard metal powders. Defendant Buyer (“DB”), a manufacturer in Gurney, Alabama, USA. Matters: PS agreed to sell specified quantities of hard metal powders materials (“TaC”) to DB for delivery to “Consignment”. The agreements were executed in November and December of 2000. Issues in Dispute: the parties disputed the meaning of the term “Consignment” – the delivery term contained in both contracts.
Court Rulings: The District court ruled and The court of appeal affirmed the rulings in favor of PS that
“evidence of the parties' interpretation of the term in their course of dealings trumped evidence of the term’s customary usage in the industry.
Columbia, Canada; also maintains an office of its engineers base in Portland, Oregon (USA). However, most of DS products sold to PB through Unique Technologies in California, which was an authorized distributor in North America according to DS assertion. PB ordered the products from Unique Technologies directed by DS.
Case 10-1 Asante Technologies Inc.
Issue 2:
Court found that although selection of a particular choice of law, such as ‘the California Commercial Code” or the “Uniform Commercial Code” or “the law of British Columbia” could amount to implied exclusion of the CISG.
Court found however that “there was no evidence of consent or authorization of Agency, so the DS’s place of business is in Canada.
Due to the facts, the parties have places of business in different states, which are USA and Canada; both countries are contracting parties to CISG therefore CISG applies.
Case 10-2 Treibacher Industrie
Damages Claims: Relevant Facts:
DB received some of the amount of TaC specified in Nov 2000 contract, but refused to take delivery of the balance of the Tac specified in both contracts.(because it had got better deals from another vendor, unknown to PS).
Case 10-1 Asante Technologies Inc.
Issue 1: Relevant Facts
The CISG is an international convention which has been signed and ratified by both USA on 11 Dec 1986 and Canada on 23/04/1991. the contract in issue was formed on ….
➢ The defendant strived for application of CISG, while the plaintiff prefer CISG NOT applicable, Why?
Issue 1: Relevant Law
CISG applies to contracts of sale of goods between parties whose places of business are in different states…when the states are contracting states: article 1.1(a) of CISG.
Meaning in their past dealing meant that “a sale had occurred, but that invoices would be delayed until the materials were withdrawn (from the warehouse to be used).”
The choice of law clauses at issue here do not evince a clear intent (did not effectively) to opt out of the CISG for the facts/ reasons that:
CISG is the law of both Canada (law of British Columbia) and USA
In his letter dated 08/2003, it denied it had a binging obligations to take delivery of or pay for any TaC that it did not wish to use.
Case 10-3: Formation of a contract.
Case 10-1 Asante Technologies Inc.
Court: Northern District Court of California, USA, 2001. Parties: Plaintiff Buyer (“PB”), Asante Technologies
Case 10-2 Treibacher Industrie
Meaning of Consignment:
Common usage in the metal trade means that “no sale occurred unless and until DB actually used the TaC.”
Vienna Convention CISG
CASES
ቤተ መጻሕፍቲ ባይዱ
Case 10-1: CISG application on issues of places of business and opting out.
Case 10-2: Established usage and trade terms and Damages due to Buyer’s breach.
CISG takes precedence over conflicting state (provincial) laws, if there is inconsistence between CISG and the California Commercial Code” / the “Uniform Commercial Code.
Case 10-1 Asante Technologies Inc.
PB contended therefore that “California is the place of business having the closest relationship to the contract at issue”, due to the facts that its purchases were made through the Unique Technologies in California directed by DS.
Issue 1: Whether CISG was applicable? Which was narrowed down to a question whether businesses were in different states,
Issue 2: whether CISG was excluded effectively by choice of law clauses in their contract.
Both PB and DS are Delaware Corporations An example of nationality is irrelevant.
PB primary place of business in California was an undisputed fact. DS asserted that its corporate headquarters were located in British
“in the absence of an express agreement as to a term’s meaning, the parties would be bound by that term’s customary usage, even if they had established a contrary usage in their course of dealings.
(“AT”), Defendant Seller (“DS”): PMC –Sierra (“PMC”) Matters: PB alleged DS failed to provide it with
electronic components meeting certain designated technical specifications. The alleged complaints were based on cause of actions in tort and contract. Issues:
Case 10-2 Treibacher Industrie
Court: Court of Appeal of USA, 2006 Parties: Plaintiff Seller (“PS”) was an Austrian vendor of
hard metal powders. Defendant Buyer (“DB”), a manufacturer in Gurney, Alabama, USA. Matters: PS agreed to sell specified quantities of hard metal powders materials (“TaC”) to DB for delivery to “Consignment”. The agreements were executed in November and December of 2000. Issues in Dispute: the parties disputed the meaning of the term “Consignment” – the delivery term contained in both contracts.
Court Rulings: The District court ruled and The court of appeal affirmed the rulings in favor of PS that
“evidence of the parties' interpretation of the term in their course of dealings trumped evidence of the term’s customary usage in the industry.
Columbia, Canada; also maintains an office of its engineers base in Portland, Oregon (USA). However, most of DS products sold to PB through Unique Technologies in California, which was an authorized distributor in North America according to DS assertion. PB ordered the products from Unique Technologies directed by DS.
Case 10-1 Asante Technologies Inc.
Issue 2:
Court found that although selection of a particular choice of law, such as ‘the California Commercial Code” or the “Uniform Commercial Code” or “the law of British Columbia” could amount to implied exclusion of the CISG.
Court found however that “there was no evidence of consent or authorization of Agency, so the DS’s place of business is in Canada.
Due to the facts, the parties have places of business in different states, which are USA and Canada; both countries are contracting parties to CISG therefore CISG applies.
Case 10-2 Treibacher Industrie
Damages Claims: Relevant Facts:
DB received some of the amount of TaC specified in Nov 2000 contract, but refused to take delivery of the balance of the Tac specified in both contracts.(because it had got better deals from another vendor, unknown to PS).
Case 10-1 Asante Technologies Inc.
Issue 1: Relevant Facts
The CISG is an international convention which has been signed and ratified by both USA on 11 Dec 1986 and Canada on 23/04/1991. the contract in issue was formed on ….
➢ The defendant strived for application of CISG, while the plaintiff prefer CISG NOT applicable, Why?
Issue 1: Relevant Law
CISG applies to contracts of sale of goods between parties whose places of business are in different states…when the states are contracting states: article 1.1(a) of CISG.
Meaning in their past dealing meant that “a sale had occurred, but that invoices would be delayed until the materials were withdrawn (from the warehouse to be used).”
The choice of law clauses at issue here do not evince a clear intent (did not effectively) to opt out of the CISG for the facts/ reasons that:
CISG is the law of both Canada (law of British Columbia) and USA
In his letter dated 08/2003, it denied it had a binging obligations to take delivery of or pay for any TaC that it did not wish to use.