国际商法重点

Page 504A trade acceptance商业承兑汇票is the bill of exchange most commonly used in the sale of goods.On this bill, the seller of the goods is both the drawer开票人and the payee受票人. The bill orders the buyer – the drawee – to pay a specified sum of money. The advantage to the seller is that it can sell the bill of exchange in the money market more easily than it can assign that same amount in its account receivable.应收账款When the drawee of a bill of exchange is a bank, the bill is known as a check. Unlike other bills of exchange, checks are always payable on demand.Page 506Parties to Negotiable Instruments流通票据Maker: The issuer发行人of a promissory note 本票– example – BankDrawee: The person ordered to pay a bill of exchange – example you write a check from your checking accountPayee: The person to whom a bill or note is to be paid – example a check made out to you Endorser:转让人 A person who has signed and delivered a bill or note to an endorsee –another person authorized授权to sign the check and make it goodAccommodation Party融资票据关系人– A person who signs a bill or note to lend his or her credit to归功于another partyAccomodation maker or aval保兑: A person who signs a bill or note as a surety担保and comaker共同签字者Page 526Letters of Credit信用证A letter of credit is an instrument issued by a bank, or another person, at the request of a customer (called an account party). It is a conditional agreement between the issuer and theaccount party that is intended to benefit a 3rd party. In accordance with 依照this agreement, the issuer is obliged要求to pay a bill of exchange drawn by the account party, up to a certain sum of money, within a stated time period and upon presentation by the beneficiary 受益人of documents designated by the account party. The function of the letter of credit in international sales transactions is to substitute代用人the credit of a recognized international bank for that of the buyer.page 528Types of Letters of CreditTransferable: 可转让的Permits a beneficiary to transfer the credit to a second beneficiary Revolving: 周转的A standing arrangement in which the buyer is allowed to replenish补充的the credit after it is drawn down by a seller.Clean: The beneficiary may obtain payment without presenting any documentation. Standby:备用的 A credit obtained by a seller naming the buyer as the beneficiarySight bill:即期票据The buyer's bills of exchange will be paid when presentedTime bill: The buyer's bills of exchange will be paid at a specified date or after a specified time.Deferred payment:延期付款The seller agrees not to present a sight bill of exchange until after a specified period after the documents are presented.Red Clause:红条款Advances are made to the seller before the seller presents the required documents.United States Code, title 28, section 1331:breach of contract违约and breach of express warranty明示保证are governed by the United Nations Convention联合国公约on Contracts for the international Sales of Goods (CISG). The Plaintiff then argues that, even if the Parties are from 2 nations that have adopted the CISG, the choice of law provisions规定in the “Terms and Conditions”条款set forth by both Parties reflect the Parties' intent to “opt out” of application of the treaty.条约Interpreting CISGThe underlying潜在的goal of CISG is the creation of a uniform body of international commercial sales law. In deciding questions governed by the convention, Article 7(2) directs a court to look to the following sources, in the following order: 1.the convention,2.the general principles on which the convention is based, and3.the rules of private international law.Waiver of guarantees conformity requires use of specific words担保符合豁免要求使用特定的词: French - No, US – Yes, CISG -NoA period of grace恩惠is available可被利用to delay the granting of remedies给予救济: French - Yes, US – No, CIS – NoNonconforming party is entitled to不合格的一方有权Nachfrist notice: French -Yes, U.S. - No, CISG - YesPoints of Law:CISG Article 14(1)– a contract addressed to one or more specific persons constitutes构成an offer if it is sufficiently足够的definite and indicates表明the intention of the offeror to be bound in case of acceptance. Additionally, a proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.Contrary to the defendant's argument, the plaintiff's proposals unambiguously describe the good offered to the defendant. The defendant's arguments that the proposals did not contain quantity or price of goods were also unfounded.停Page 413Goods DefinedCISG also does not directly define goods. Instead, it defines those kinds of sales that are not governed by the convention. 6 specific categories are excluded. 3 are based on the nature of the transaction, 3 on the kinds of goods: 1.goods bought for personal, family or household use;2.auction拍卖sales;3.sales on execution执行or otherwise by authority权威of law. 1.stocks, shares investment securities证券, negotiable instruments流通票据, or money; 2.ships, vessels 船舶, hovercraft气垫船or aircraft; and 3. electricity.Page 413Contracts for goods to be manufactured制造are treated by CISG as sales of goods unless the buyer undertakes to supply a substantial大量的part of the materials. Although substantial probably means less than half, how much less is unclear. The French-language version版本of the convention suggests a possible test, as it uses the term une part essentielle本质的. Thus if the buyer provides the components部件essential to the manufacture of t a product –regardless of their size or value – the convention would not apply.Page 419General PrinciplesCISG calls for courts to look to the general principles on which the convention is based when interpreting its provision, but it gives no list of general principles. It is for the courts to divine those principles. The following 2 have been suggested: 1.A party to a contract has the duty to communicate information needed by the other party and 2.parties have the obligation to mitigate damages resulting from a breach. Both concepts appear, in varying forms, throughout the convention.Case 10-2 Treibacher Industrie, A.G. v. Allegheny Technologies, INCPoints of Law: United Nations Convention CISG evidence of the parties' interpretation of the term “consignment” in their course of dealing trumped evidence of their term's customaryusage in the industry, and found that Treibacher and TDY, in their course of dealings, understood the term to mean “that a sale had occurred, but that invoices would be delayed until the materials were withdrawn.CISG Article 1 provides that it applies to contracts of sale of goods between parties whose places of business are in different States. Article 4 of the CISG provides that it governs the formation of the contract and the rights and obligations of the seller and buyer arising from such a contract.Article 9 of the CISG provides the rules for interpreting the terms of contract. Article 9(1) states that parties are bound by any usage to which they have agreed and by any practices which they have established between themselves. Article 9(2) states that parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract a usage of which the parties knew or ought to have known and which in international trade is widely known to parties to contract of the type involved in the particular trade concerned.Article 8 of CISG repeats the concept of Article 9, only substitutes the word “intent”Case 10-4 Filanto, SpA v. Chilewich International Corp.Points of Law: CISG Article 18(1), provides that “A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance.” Although mere silence or inactivity does not constitute acceptance, the Court may consider previous relations between the parties in assessing whether a party's conduct constituted acceptance. In this case, in light of the extensive course of prior dealing between these parties, Filanto was certainly under a duty to alert Chilewich in timely fashion to its objections to the terms of the March 13 Memorandum Agreement – particularly since Chilewich had repeatedly referred it to the Russian Contract and Filanto had had a copy of that document for some time.Filanto's letter of June 21, 1991, to Byerly Johnson, which responds to claims by Johnsonthat some of the boots that were supplied were defective, expressly relies on Section 9 of the Russian Contract – another section which Filanto had in its earlier correspondence purported to exclude. The CISG specifically directs that in determining the intent of a party due consideration is to be given to any subsequent conduct of the parties. Int his case, as the letter postdates the partial performance of the contract, it is particularly strong evidence that Filanto recognized itself to be bound by all the terms of the Russian Contract.Page 436AvoidanceIf there has been a fundamental breach, one remedy available to the injured party is avoidance (i.e., notification by the party that he is canceling the contract). To be entitled to avoid a contract, however, the injured party must – in all cases – notify the other party and be able to return any goods he has already received.When a party avoids, only the obligation to perform is affected. Avoidance does not cancel (1) any provision in the contract concerning the settlement of disputes or (2) any other provisions governing the rights an duties of the parties “consequent upon the avoidance of the contract.Page 438Determining Conformity. CISG Article 35(2) rules1.are fit for the purposes for which goods of the same description would ordinarily be used;2.are fit for any particular purpose expressly or impliedly made known to the seller at the time fo the conclusion of the contract, except where the circumstances show that the buyer did not rely or that it was unreasonable for him to rely, on the seller's skill and judgment3.possess the qualities of goods which the seller has held out to be the buyer as a sample or model4.are contained or packaged in the same manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.Case 10-5 The Natural Gas CasePoints of Law: CISG Article 54 provides that the buyer's obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulation to enable payment to be made. The plaintiff did not open the letter of credit because the defendant failed to notify it of the place where the natural gas would be loaded. And this was so, even though the defendant had expressly promised to do so in its fax of December 19, 1990. CISG Article 80 -a party may not rely on a failure of the other party to perform, to the extent that such failure was caused by the first party's act or omission. Indemnification: because the seller breached the contract, the buyer is entitled to be fully indemnified for its losses.Because the contract was not avoided, the damages are to be determined in accordance with CISG, Article 74 – damages that come about because of delay in delivery or because of some defect in the goods.Page 445Uniform Law for International Sales under the 1980 United Nations Convention. The notice avoidance approach of Articles 47 and 49(1)(b) of the Convention was inspired by a provision of German law that, on default by one party: the other party may give him a reasonable period within which to perform his part with a declaration that he will refuse to accept the performance after the expiration of the period. If performance is not made in due time, the person wh gave the above notice (often termed a Nachfrist)may “withdraw from the contract.Case 10-6 The Shoe Seller's CasePoints of Law:CISG Articles 1 and 100(2) –a buyer is excused from paying the purchaseprice for goods if the buyer can avoid the contract and, except for the obligation to pay any damages that may be due, the avoidance of a contract releases both parties from their contractual obligations. The defendant's contention that she may avoid the contract because the plaintiff was late in delivering the goods is not by itself a sufficient basis for her to avoid the contract. Avoidance in such a case is only allowed after a buyer gives a seller a Nachfrist notice (to fix by an appointed time) and defines this time.The defendant's contention that she may avoid the contract because the goods were predominantly nonconforming is also lacking in merit. The CISG expects a buyer to accept deliveries of nonconforming goods and to invoke remedies other than avoidance, such as a reduction of the prices and damages as compensation for the defects. The defendant's allegations did not allow the court to determine if the shoes – apart from their being made of different material and having a different appearance – were defective or unfit for use.Page 452Force MajeureA party is not liable for any damages resulting from his failure to perform if he can show 1.that his failure was “due to an impediment beyond his control”, 2.that the impediment was not something he could have reasonably taken into account at the time of contracting, and 3.that he remains unable to overcome the impediment or its consequences. It applies to situations –such as natural disasters, war, embargoes, strikes, breakdowns and the bankruptcy of a supplier. Case 10-7 Nuova Funcinati, SpA v. Fonmetall International, ABPoints of Law: First – was this case governed by the United Nations CISG or by Italian Civil Code:Article 1(1) of the CISG s tates: This Convention applies to contracts of sale of goods between parties whose places of business are in different States: a. when the States areContracting States; or b. when the rules of private international law lead to the application of the law of a Contracting State.Option a. does not lead us to apply the CISG because Sweden was not a Contracting State at the time that the contract was concluded. Option b. directs us to apply the Italian rules of private international law, does not lead us to apply the CISG either. The rules of private international law set out in Article 25 of the Italian Civil Code direct us to apply Swedish law. That is because the contract was concluded in Sweden. However the CISG was not in force in Sweden when the contract was made. So again the CISG cannot apply.Article 1467 of Italian Civil Code does provide for setting aside an onerous contract on the basis of commercial impracticability. However, the judge in this case did not think that the 43.71% increase in the price of chromite was sufficient grounds for allowing this.Case 12-1 Constantaras v. AnagnostopoulosPoints of Law: Is an unsigned check a Bill of Exchange – the 1964 Bills of Exchange Act 34 sections 1 and 2(1 and 2) would indicate NO, it is not a bill of exchange because it was not signed by the person giving it. However, this is superseded by the signature of defendant as he signed it as an aval which meant he would pay if the person giving the check did not.Case 12-2 Miller v. RacePoints of Law: A bank note is constantly and universally, both at home and abroad, treated as money, as cash; and paid and received, as cash; and it is necessary, for the purposed of commerce, that their currency should be established and secured.No dispute ought to be made with the bearer of a cash note – in regard to commerce and for the sake of credit – though it may be both reasonable and customary, to stay the payment, till inquiry can be made, whether the bearer of the note came by it fairly, or not.Forged EndorsementsCivil Law States:when an endorsement is forged, the question arise as to who should have to sue the forger or, if the forger cannot be found, who has to assume the loss. The rule adopted by the ULB makes the drawer or maker liable. A forged endorsement is thereby fully effective, and both the person taking an instrument with such an endorsement and all subsequent holders are entitled to payment.Common Law States:makes a forged endorsement ineffective, placing the burden for determining the validity of an endorsement on the endorsee taking an instrument from a forger. Case 12-3 Mair v. Bank of Nova ScotiaPoints of Law:Section 64 of Bills of Exchange Act (of Antigua and Barbuda – Common Law States) 1. Where a bill or acceptance is material altered without the assent of all parties liable on the bill the bill avoided.. Then comes precedent (under common law) In V ance v. Lowther where alteration related to the date of the check and invalidated the check. Then comes precedent Slingsby v. District Bank, Ltd where words were inserted between the payee's name and the other words “or order” and endorsed to conform with the designation of the payee as altered. It was held that the check had been materially altered within the body of Section 64 (1) of the Bills of Exchange Act and therefore the check had been avoided. An inspection of the Mair check revealed that the alteration was obviously in a different handwriting from that in which the rest of the document was drawn and it should have been observed that it had undergone change.Liability on the Instrument Page 521If it is other than a demand instrument it must be presented on the day it is due. If it is a demand instrument, it must be presented within a reasonable time after it was signed. Sometimes the failure to present a check for payment within a reasonable time will prevent theholder from collecting on the instrument.Case 12-4 Far East Realty Investment, Inc. v. Court of Appeals et al.Points of Law: “Reasonable time” has been defined as so much time as is necessary under the circumstances for a reasonable, prudent and diligent man to do, conveniently, what the contract or duty requires should be done, having a regard for the rights and possibility of loss, if any, to the other party.Under these circumstances – check issued Sept 13, 1960 and presented March 5, 1964 –the petitioner undoubtedly failed to exercise prudence and diligence on what he ought to do as required by law. The petitioner likewise failed to show any justification for the unreasonable delay.Case 12-5 Charles R. Allen, Inc. v. Island Cooperative Services Cooperative Association Points of Law: Precedent Case Campbell v. Nobel-Trotter Rice Milling Co: According to the prevailing view, the rule as to the passing of title to commercial paper, deposited and credited as cash, applies, although the bank has the right to charge dishonored paper back to the depositor instead of proceeding against the maker.Precedent case Lawton v. Lower Main Street Bank: where an item is endorsed without restriction by a depositor...the bank which, as owner of the paper, is not the agent of the depositor in collection it but collects on its own behalf.Case 12-6 Trans Trust Sprl v. Danubian Trading Co. LtdPoints of Law: The first question is: What was the nature of the stipulation in this case? When the buyers sent their order, they stated in writing on September 25, 1950, that “a credit will be opened forthwith”. The statement was a firm promise by the buyers by whic h they gave their personal assurance that a credit would be opened forthwith. That condition was not fulfilled. The sellers extended the time for the credit, but it never came, not even afterreasonable notice. The sellers were, therefore, discharged from any further performance on their side, and are entitled to claim damages.But what is the measure of damages. Even though market price of the goods had risen, seller would not be able to take advantage of the rise because he will not have any good tore-sell. His loss will be the profit which he would have made if the credit had been provided. The buyer knew that the sellers would not get he goods at all unless the credit was provided. Page 537FraudSuppose that a bank is aware that the seller has perpetrated a fraud on the buyer. Yes – the UCP states that “banks assume no liability or responsibility for the form, sufficiency, accuracy, genuineness, falsification or legal effect of any documents. In precedent case Discount Records, Ltd. v. Barclays Bank. Ltd. An English court was asked to enjoin payment of an irrevocable credit on an allegation of fraud. Judge Megarry refused observing: “I would be slow to interfere with bankers' irrevocable credits, and not the least in the sphere of international banking, unless a sufficiently good cause is shown; for interventions by the court that are too ready or too frequent might gravely impair the reliance which, quite properly is placed on such credits.”Case 12-7 Sztejn v. J. Henry Schroeder Banking Corp.Points of Law:This is not a controversy between the buyer and seller concerning a mere breach of warranty regarding the quality of merchandise; on the present motion, it must be assume that the seller has intentionally failed to ship any good ordered by the buyer. In such a situation, where the seller's fraud has been called to the bank's attention before the drafts and documents have been presented for payment, the principle of independence of the bank's obligations under the letter of credit should not be extended to protect the unscrupulous seller.While the primary factor in the issuance of the letter of credit is the credit standing of the buyer, the security afforded by the merchandise is also taken into account. Although the bank is not interested in the exact detailed performance of the sales contract, it is vitally interested in assuring itself that there are some goods represented by the documents.Page 415Page 516Page 528。