Article and Book Entries by Search Terms and Index Numbers

Published in cooperation with the American Bar Association Section of Dispute Resolutio

China\u27s Implementation of the UN Sales Convention Through Arbitral Tribunals

This article examines implementation of the international sales law by arbitral tribunals in China. The leading Chinese arbitral tribunal -- CIETAC -- has recently released the full-text decisions issued in over 300 disputes involving international trade. Upon a careful examination of this decisions involving non-conformity of goods, the authors conclude that the decisions generally convey objective, non-biased jurisprudence (notwithstanding some caveats about the completeness of the available record). They go on to conclude that the ability to rely on a fairly predictable tribunal has been good for the development not only of China\u27s trade-based economy but also for its more general rule of law

The United Nation Convention on Contracts for the International Sales of Goods 1980 (CISG) An examination of the buyer’s remedy of avoidance under the CISG: How is the remedy interpreted, exercised and what are the consequences of avoidance?

This thesis examines the interpretation and application of the buyer’s remedy of avoidance under the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG). The main research question focusses on ‘How is the remedy established, exercised and what are the consequences of avoidance?’ The aim of the examination is to determine whether the remedy is suitable for international sale of goods transactions. For the purposes of this thesis ‘suitable’ is defined as meaning that the remedy must be capable of being applied to contracts for different types of goods and contracts commonly bought and sold in international trade. Additionally the remedy must one that the parties can lawfully establish and exercise swiftly and with certainty.Using doctrinal and comparative research strategies the thesis responds to criticisms that the remedy is overly ‘complicated’, the reason being that certain rules only apply to specific types of breaches; that the exercise of the remedy requires giving notice; that the buyer needs to fix an additional time for performance; and that the remedy is limited by the seller’s right to cure the breach. The most serious criticism is that the remedy’s main requirement of ‘fundamental breach’ is too strict making it difficult for the parties to establish. The thesis negates these contentions arguing instead that if the CISG’s mechanisms for interpretation are correctly applied by the courts the buyer’s remedy of avoidance could be exercised swiftly and with certainty. The mechanisms used to support this position are: art 6 (party autonomy), art 7 (general principles), art 8 (parties’ conduct and intentions) and art 9 (usages). The thesis will respond to academic commentators who argue that English law would provide the buyer and seller with more certainty and swifter termination rights than the CISG. It will also examine the legitimacy of ‘soft law’ such as the UNIDROIT Principles 2010 as a method of filling in the gaps and ambiguities in the wording of the CISG

Making Progress: How Eric Bergsten and the Vis Moot Advance the Enterprise of Universal Peace

This article recognizes Pace Professor Eric Bergsten’s enduring accomplishments by illuminating his signature contribution, the Willem C. Vis International Commercial Law Moot (the “Vis” or the “Moot”), as an instrument of progress toward a more robust and fair global system in which the rule of law guides the pace and path of peaceful change. While highlighting Professor Bergsten’s matchless contributions, this article also notes the roles that many other individuals have played in the shaping of the Vis because of their shared conviction that people of vision can—and should—build educational and legal institutions to improve the human condition

Avoidance of Contract as a Remedy under CISG and SGA: Comparative Analysis

This article deals with fundamental breach in the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) and the 1979 Sale of Goods Act (SGA). It provides ways of terminating sale contracts in the two legal systems. There are ambiguous terms in the CISG and this article explains them. At the same time, this article emphasises the questions to which satisfactory answers have not yet been provided, and provides appropriate answers to them. In this article the writer undertook comparative analysis on the rules of avoidance of contract under the CISG and SGA. It ends with an appreciation of when a sale contract could be terminated under both laws. The comparative analysis revealed that the CISG discourages the avoidance of contracts and allows it only in the case of a fundamental breach. However, the SGA allows it only if a condition is breached.  It has also been revealed that the SGA seeks to gain certainty, but the CISG seeks to achieve justice in commercial transactions. However, a question remains: should certainty override justice? Key words: CISG, SGA, Fundamental Breach, Avoidance of Contract, Substantially Deprive

Interpretation Rules and Good Faith as Obstacles to the UK\u27s Ratification of the CISG and to the Harmonization of Contract Law in Europe

This essay examines Article 7 of the CISG, the provision on the Convention’s interpretation, through the lenses of both German and English law in order to shed light on interpretative issues in which there are divergent views in common law and civil law systems. The essay further provides possible reasons for the non-ratification of the CISG by the UK in contrast to its broad acceptance in Germany. The author more closely examines the issue of good faith as a principle of contract law, its vagueness being one of the possible reasons for the reluctance to ratify the CISG in England. The essay will conclude with an outlook on current and future efforts to harmonize contract law in Europe, notably with regards to the new (Draft) Common Frame of Reference. The question raised is whether the Common Frame of Reference has a chance of being accepted by the European civil law countries as well as by England and Wales as common law jurisdictions

CAVEAT EMPTOR: ARE DECISIONS MORE FAVOURABLE TO THE SELLER ON MATTERS RELATING TO LETTERS OF CREDIT?

The People’s Republic of China (PRC) has long been a source of much speculation for economists and trade pundits; with its staggering population of 1,296,500,0002 it has become a force to be reckoned with. It is with China’s accession to the World Trade Organization (WTO) on December 11, 2001 that one can assess the impact and volume of trade that has taken place over the past 5 years. To put this in perspective, worldwide China is ranked third overall in merchandise import and exports in 2004.3 Also, in 2004 in the area of merchandise trade4 which consists of Agricultural products, Fuels and Mining products, and Manufactured products, China commanded a 6.46% share in the world’s total exports and 5.88% share in the world’s total imports.5 With these figures in mind, we now turn to the legal implications of this trade. It is evident to any lawyer that with such vast amounts of transactions being conducted everyday, legal disputes are almost certain to follow. The United Nations Convention on Contracts for the International Sale of Goods 1980, (hereinafter referred to as ‘CISG’ or ‘Convention’), has been in effect in China since January 1, 1988, and governs all international sale of goods transactions between contracting Member States.6 This is important given that China’s largest trading partners are: the United States, the European Union,7and the Republic of Korea. The United States, Korea, and most of the European Union Member States are contracting States under the CISG. While most scholarly material written on the CISG focuses on the decision making of national courts, this article will instead examine a decision made by the Chinese International Economic and Trade Arbitration Commission (CIETAC).8 CIETAC is one of the largest and most important arbitration institutions in China, with over 200 disputes reported involving the application of the CISG. Many contracting parties choose arbitration as their preferred method of dispute resolution because of its advantages: efficiency of speed, low costs, and internationally binding decisions under the 1958 New York Convention.9 This article examines what is considered one of the most important issues under the CISG, that of fundamental breach. In order for a buyer or seller to avoid the contract, they must prove that the breach in question is fundamental in order to justify abandoning their contractual obligations. Although there are many reasons why an innocent party might try to avoid the contract, this writer will focus on CIETAC decision of 4 June 1999 (Industrial Raw Materials case), which dealt with inter alia documentary letters of credit. We will look at the rules regarding documentary credits as established by the Uniform Customs Practice for Documentary Credits of the ICC (UCP 500), and the need for strict compliance. Following this, we will briefly examine the criteria needed to establish fundamental breach under Article 25 CISG. This article will then present an analysis of CIETAC decision of 4 June 1999 (Industrial Raw Materials case), to determine if the Arbitration Tribunal arrived at a decision that is conducive to uniform interpretation of the CISG. In this case, the reader will have to bear in mind the seriousness of the breach and whether it justifies avoidance of the contract. Was the decision more favourable to the seller? How would a reasonable person in the trade involved regard this situation? In addition, should the buyer have been entitled to some form of remedy for the seller’s breach of his contractual obligations? Finally, this article will present what could be an alternative approach for buyers and sellers when faced with a dispute in their contractual arrangements

How Delivery of Goods without Tendering of Bill of Lading Can Discharge Liability of Maritime Carrier

This paper tends to clarify implications of delivery of goods performed by a maritime carrier to a consignee at the place of destination; particularly, a delivery made without receiving the original bill of lading in exchange for the goods delivered to the consignee. In spite of the importance of such delivery, none of the related international conventions has addressed the implications of such a delivery for the liability of the maritime carrier. This gap has given rise to inconsistency between the approaches adopted by various jurisdictions worldwide, and such a divergence will contradict the fundamental international principle of unifying the international maritime rules. Hence, the study is discussing the area of ambiguity under both the English and the Qatari law to reach some suggestions that could be adopted under both jurisdictions to clarify the legal position of maritime carriers as well as to protect them from liability arising under this delivery

How Delivery of Goods without Tendering of Bill of Lading Can Discharge Liability of Maritime Carrier

This paper tends to clarify implications of delivery of goods performed by a maritime carrier to a consignee at the place of destination; particularly, a delivery made without receiving the original bill of lading in exchange for the goods delivered to the consignee. In spite of the importance of such delivery, none of the related international conventions has addressed the implications of such a delivery for the liability of the maritime carrier. This gap has given rise to inconsistency between the approaches adopted by various jurisdictions worldwide, and such a divergence will contradict the fundamental international principle of unifying the international maritime rules. Hence, the study is discussing the area of ambiguity under both the English and the Qatari law to reach some suggestions that could be adopted under both jurisdictions to clarify the legal position of maritime carriers as well as to protect them from liability arising under this delivery

The Interplay Between Incoterms® and the CISG

INCOTERMS® do not replace the CISG’s provisions on delivery and the passing of risk in toto, but merely supersede them in so far as they are mutually exclusive. For the rest, they function in tandem. Aspects which are not governed by the INCOTERMS® rules, or inadequately regulated, can be supplemented by the Convention, and vice versa. Collaboration between the two instruments strengthens the unified legal framework for international sales transactions with the view to facilitating international trade. &nbsp