International Business Transactions

Front 1

Who has article 95 reservations?

Back 1

US, China, Singapore, Czech Republic, Slovakia

Front 2

Who has article 96 reservations?

Back 2

Chile, Argentina, China, Russia, Ukraine

Front 3

What is an article 96 reservation? To what article does it refer?

Back 3

Says article 11 won't apply. Article 11 says there are no form requirements (can be concluded over the phone, etc.) These countries could still end up w/form requirements but must go through ordinary forum rules, conflict of law/choice of law, etc.

Front 4

Why weren't Chile and Argentina allowed to make an article 96 reservation? Does this mean the reservation is not respected by judges?

Back 4

Because they didn't have statutory form requirements. No, they still treat Chile and Argentina as reservatory states.

Front 5

When does title transfer in France and Italy? Germany and everywhere else including CISG?

Back 5

When contract is signed. When goods are delivered title transfers, contract signing only creates obligation to deliver (so not under CISG yet).

Front 6

Is distribution a sale for the purposes of the CISG? Is franchising? Why?

Back 6

No. It's a different contract. Franchising is like a form of distribution.

Front 7

To what law does franchising lead under the Rome convention? Rome Regulation?

Back 7

Franchisor for convention b/c it's all characteristic performer under the Rome Convention. Franchisee for regulation but it's the wrong choice according to Franco b/c it's the characteristic performer.

Front 8

What does 1(1)(a) of CISG say?

Back 8

If both parties are CS's then CISG applicability is met?

Front 9

What does 1(1)(b) of CISG say?

Back 9

If one party is a CS, use private international law rules to determine whether CISG applies.

Front 10

What does CISG article 1(2) say?

Back 10

Internationality must be apparent. Otherwise, can't get to CISG.

Front 11

Can you use conflict of law rules more than once? What does this mean with regards to 95 reservatory states (like US)?

Back 11

No. This means that if you get to the law of a 95 reservatory state through conflict of law and the other party is an NCS, CISG still applies even without 1(1)(b).

Front 12

What does article 30 (CISG) say?

Back 12

Summary of seller obligations: must deliver goods and accompanying paperwork

Front 13

What does article 53 say?

Back 13

Summary of buyer obligations:
pay for goods and accept them

Front 14

What is the 1955 Hague Convention?

Back 14

Tells how to figure out what law to use in international sales contracts.

Front 15

What is the 1964 Hague Convention? Who still operates under this standard?

Back 15

Predecessor to the CISG. The UK. For all intents and purposes, this mirrors the CISG.

Front 16

What states are CS's to the 1955 Hague Convention but not to the Rome Convention?

Back 16

Sweden, Switzerland

Front 17

Why can you use forum shopping slyness to take advantage of small and medium sized business owners?

Back 17

They generally don't consult attorneys before signing contracts

Front 18

What is the difference between limited uniform law and unlimited uniform law?

Back 18

Unlimited uniform law attempts to apply to everything, even purely domestic situations. Limited uniform law only covers transactions between parties from different jurisdictions.

Front 19

Can you choose your procedural rules in a court? In arbitration?

Back 19

No, Rules of the forum always apply. Yes, you can make these choices in an arbitration setting.

Front 20

What are some of the issues that make truly uniform law impossible?

Back 20

Rules of the forum, domestic definitional differences (e.g. whether animals are goods), cultural differences w/regards to family law or property law, locally traditional rules that don't mesh (e.g. arab nations banning interest)

Front 21

What are travaux préparatoires? What can they be used for?

Back 21

The records of negotiations when creating the wording of a treaty. Establishing an autonomous definition.

Front 22

What CISG article mandates that you use autonomous definitions whenever possible? How do you establish an autonomous definition?

Back 22

Article 7. You can look at travaux preparatoires, look at other court decisions, look at global trends

Front 23

Are CISG decisions from other courts binding?

Back 23

No, not possible because you'd need to create hierarchy or have first instance (first would be politically impossible, second would be stupid), can only be used persuasively.

Front 24

What date is the contract conclusion dividing line between Rome Convention and Rome Regulation? What forum still uses convention for all contracts?

Back 24

18 December, 2009 and later is Regulation. Denmark still uses convention.

Front 25

What is depeçage? When does it come into play?

Back 25

It means you can use two different laws for two different things regarding same contract. Article 92 Reservations that derogate from CISG pt. II would create this situation. Can't have depeçage if it creates irreconcilable conflict though.

Front 26

What is the order of analysis if your forum is a CS?

Back 26

1. Is the CISG prima facie applicable?
2. Is there internationality?
3. Applicability under 1(1)(a) & 1(1)(b)
4. Is it within the sphere?
5. Is it within the scope?
6. Is there a valid exclusion?

Front 27

What is the order of analysis if your forum is an NCS?

Back 27

1. Does it fall under Rome Convention, Rome Regulation, 1955 Hague convention, or none of the above?
2. Follow the conflict of law rules within the convention you get to

Front 28

What's the requirement for CISG prima facie applicability?

Back 28

Check to see if it looks international and like a sale

Front 29

What is the test for internationality in the analysis of a K in a contracting state's forum?

Back 29

1(1) says you must look at internationality of "place of business". 7(1) says to use an autonomous definition. Case law tells us we need to look at:
1. stability
2. duration
3. autonomy

Front 30

What is the test at the applicability stage of analysis in the forum of a CS? What are the reservations that effect this?

Back 30

1(1))(a) or 1(1)(b)

92 - NCS for Part II (formation of K)
93 - NCS for certain territories
94 - Scandinavian countries when dealing with each other
95 - Doesn't have 1(1)(b)
96 - Form requirements

Front 31

What is the analysis at the sphere/substance level in the forum of a CS?

Back 31

Check the definitions of commercial (2(a) - must be apparent to seller @ time), sale (defined by obligations listed in 30 & 53), and goods (limited by article 2 and case law)

Front 32

What do article 2 sections a-f of the CISG say?

Back 32

Convention does not apply to sales:
a. goods for personal use
b. by auction
c. on execution or otherwise by authority of law
d. of stocks, shares, etc.
e. ships, vessels, hovercraft or aircraft
f. of electricity

Front 33

What is the analysis at the scope level in the forum of a CS?

Back 33

Scope of the CISG includes formation of contract (but remember article 92) and obligations of the parties. CISG explicitly excludes validity, personal injury, parties, and private international law.

Front 34

What is the last question of analysis in the forum of a CS? What article of the CISG governs?

Back 34

Article 6 analysis on exclusions. If it's explicit it's okay. If it's implicit it's not okay in the United States. It's okay to do it implicitly elsewhere under:
1. Ok w/choice of NCS
2. Not ok w/choice of CS unless you mean purely domestic
3. Ok w/poor wording (e.g. 'No UNCITRAL law')

Front 35

What article of rome convention and rome regulation says to respect parties' choice of law?

Back 35

Article 3

Front 36

What does article 4 (1-5) say in the Rome Convention?

Back 36

4(1) = closest connection
4(2) = characteristic performer
4(3) = lex rei sitae
4(4) = carriage of goods
4(5) = allows you to get out of 4(1-4)(totality of circumstances)

Front 37

What does article 4 (1-4) say in the Rome Regulation?

Back 37

4(1)(a-h) = which of 8 categories does the K fall into? basically closest connection rules
4(2) where K isn't covered or is covered by more than one, K shall be governed by law of characteristic performer
4(3) = allows you to get out if "manifestly more connected"
4(4) = if you can't figure it out from the above, go to law most closely connected

Front 38

What are the 8 parts of article 4(1) of the Rome Regulation?

Back 38

a. sale of goods = seller
b. provision of services = service provider
c. immovable property = where property is situated
d. short tenancy = landlord if tenant is a person living in that same country
e. franchise K = franchisee
f. distribution K = distributor
g. sale by auction = place where auction happened
h. K from multi-lateral system with single governing law, governed by that law

Front 39

What countries use 1955 Hague Convention?

Back 39

France, Italy, Switzerland, Sweden

Front 40

What does the 1955 Hague Convention tell you to do?

Back 40

Law of the seller unless the buyer receives the order in their home country

Front 41

What do you do if the forum is an NCS to the Rome Con, Rome Reg, and Hague Con.?

Back 41

Use seller's law

Front 42

What countries don't allow choice of law?

Back 42

Iran, Iraq, Saudi Arabia, Brazil, Uruguay

Front 43

What does CISG 1(2) say?

Back 43

Internationality must be apparent at time of conclusion of contract.

Front 44

What is lex specialis?

Back 44

Use the most specific law available (e.g. substantive law convention, 55 hague con.)

Front 45

What do Article 3(1) & 3(2) of 55 Hague Convention say?

Back 45

3(1) says to use the law of the seller
3(2) says to use law of buyer instead if buyer receives goods in home country

Front 46

What does Article 3 of the CISG say?

Back 46

Article 3 is about preponderance of obligations (if buyer gives seller some materials for free to help him build it -- if he sells him the materials it's a separate K)

Front 47

What does Article 99(3) of the CISG say?

Back 47

If you have the CISG, you don't have the 64 Hague Convention.

Front 48

What does article 15 of Rome Con. and Rome Reg. say? Is there something similar in the Hague con.

Back 48

Prohibition on renvoi. Yes.

Front 49

What cases say international precedent is persuasive, not binding?

Back 49

Chicago Prime, Vigevano, Rimini, Forli

Front 50

What cases say you go to uniform law first because it directly settles the question?

Back 50

Vigevano, Rimini

Front 51

What cases tell us about iura novit curia? What does it mean? What cases refer to it?

Back 51

It means that the judge is not bound by the pleadings of the parties. Vigevano, Linz. Cortisi uses this.

Front 52

What cases tell us that the one making the assertion on whether or not the CISG applies has the burden of proof?

Back 52

Vigevano

Front 53

What does article 39 CISG say? Article 38? What cases address this?

Back 53

The buyer must notify of non-conformity at a reasonable time. Article 38 says reasonable time starts ticking when buyer should have inspected, not when he did. Vigevano and Chicago Prime confirmed this interpretation.

Front 54

What article of the Rome Con. says what to do with conflict of conventions (use most specific - '55 Hague)? What article of the Rome Reg?

Back 54

Article 21 Rome Con. Article 25 Rome Reg.

Front 55

What does article 8 say?

Back 55

When developing autonomous definition, don't even use your own domestic methods of interpretation. Ferrari: this specifically applies to intent

Front 56

What case explicitly acknowledges forum shopping, defines and gives reasons for it?

Back 56

Rimini

Front 57

What case helps define goods as moveable and tangible?

Back 57

Pavia, Forli

Front 58

What case says that if goods are unfit for purposes they would normally be used for or unfit for the specific use if seller knows of it?

Back 58

Vigevano

Front 59

What case says the parties are a domesic concept?

Back 59

Vigevano

Front 60

What does Vigevano say about reasonable period for reporting non-conformity? What does Forli say?

Back 60

Determine on case by case basis. Vigevano says 1-4 months is too long, Forli says 6 months is too long.

Front 61

What case tells us about stability, duration, and autonomy being the way to get a definition of place of business?

Back 61

Padova

Front 62

What case mentions a list of ways to interpret different autonomous concepts?

Back 62

Vigevano

Front 63

After what year are all conventions solely for international use?

Back 63

1931

Front 64

What determines the from/to locations for purposes of the CMR?

Back 64

Party Intent (e.g. if goods never make it across border, still is int'l)

Front 65

What do you call laws determining what to do when proceedings are pending in other forums?

Back 65

Lis alibi pendens

Front 66

Who wanted foreign case law to be binding?

Back 66

DiMatteo

Front 67

What percentage of the time does the party from the forum win the case?

Back 67

Over 60%

Front 68

Why does enforceability matter?

Back 68

It's a reason for forum shopping.

Front 69

Who wrote the Chicago Prime opinion?

Back 69

Probably law clerks since the same judge issued a very different opinion on the same issues several weeks later.

Front 70

What does article 78 CISG say?

Back 70

Rule on interest that's good for creditor because it begins accruing earlier

Front 71

Does the 1964 Hague Convention have the same internationality requirements as the CISG?

Back 71

No, it has both subjective and objective requirements. CISG only subjective.

Front 72

Why havent' there been cases in UK using '64 Hague Convention?

Back 72

Made reservation saying both parties had to be in CS's and that parties had to opt-in.

Front 73

What does article 13 CISG say?

Back 73

Ks by telegram or fax are included

Front 74

What does article 2 of the Rome Convention/Regulation say?

Back 74

Use law of whatever country you get to whether or not it's a CS.

Front 75

What can Italian judges do when they "can't" learn the foreign law applicable?

Back 75

Use Italian law (this is terrible and another reason forum shopping works)

Front 76

Where have Brazilian courts allowed leeway in choice of law?

Back 76

Where it's the law of one of the parties.

Front 77

What case demonstrates that you can't use a non-national set of rules?

Back 77

Padova

Front 78

Can you allow different law to govern obligations of buyer and those of seller

Back 78

No, this would create "unresolvable conflicts" and be as if no law was chosen.

Front 79

What country says they won't apply 1(1)(b) when using the law of an Article 95 reservatory state?

Back 79

Germany

Front 80

What kind of contract is an arbitration contract (with the arbitrator)? What if there are multiple arbitrators?

Back 80

Service K, so apply law of arbiter under Rome Reg 4(1)(b).

Front 81

Does barter count under the CISG?

Back 81

No, must be money for goods.

Front 82

Does the CISG apply if the service element of the K is worth more than the goods element?

Back 82

No

Front 83

What are some non-contracting states?

Back 83

Saudi Arabia, Brazil, Portugal, UK, Iran

Front 84

What is the one way to get an implicit CISG exception in the US?

Back 84

Plead entirely on basis of UCC.

Front 85

What does article 79 CISG say?

Back 85

Exceptions to liability

Front 86

What do article 71 & 72 CISG say?

Back 86

Suspension of obligations