INTERNATIONAL SALES LAW - seminar 2004

INTERNATIONAL SALES LAW - seminar 2004ISLContractual Risk Management in Transnational Sales TransactionsISL: objectives, functions and structureManagement of information on ISLManagement of risk of contractual disputesManagement of risk of contract breachManagement of risk of loss of or damage to the goodsManagement of risk of changed circumstancesCase studyCase studiesIIIVVIVIIIXIVVIIIIII

Management of risk of contractual disputes- Litigation in national courtsISLLitigation vs. Negotiation vs. Litigotiation- Arbitration- Mediation- ConciliationLITIGATIONALTERNATIVE / AMICABLE DISPUTE RESOLUTIONLITIGOTIATIONLITIGOTIATION

ICC ADR Rules (2001)IIIVVIVIIIXIVVIIIIIIRENEGOTIATION- Contractual- Ad hoc

Management of risk of contractual disputes1) JURISDICTION

2) APPLICABLE PROCEDURAL LAW

3) APPLICABLESUBSTANSIVE LAW

4) RECOGNITION and ENFORCEMENTISLNational courts vs. arbitrationIIIVVIVIIIXIVVIIIIII

1) JURISDICTION



4) RECOGNITION and ENFORCEMENTEC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreementsManagement of risk of contractual disputesISLNational courts vs. arbitrationIIIVVIVIIIXIVVIIIIII

1) JURISDICTION



4) RECOGNITION and ENFORCEMENT- In general:- Simplified procedures- Service of documents- Taking of evidence- Interim and precautionary measuresManagement of risk of contractual disputesISLNational courts vs. arbitrationIIIVVIVIIIXIVVIIIIIIEC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreements

Management of risk of contractual disputesISLNational courtsIIIVVIVIIIXIVVIIIIIIINTAPPLICABLE PROCEDURAL LAWEU(except DEN)UNIDROIT & ALI Fundamental Principles of Transnational Civil ProcedureSimplified proceduresSmall claims and Order for payment-procedures- National PI-law- A variety of international organisations are working with this issueInterim and precautionary measuresCouncil Regulation (EC) No 44/2001 of 22 December 2000- Hague Convention of 18 March 1970- Bilateral agreementsTaking of evidenceCouncil Regulation (EC) No 1206/2001 of 28 May 2001 - Hague Convention of 15 November 1965- Bilateral agreementsService of documentsCouncil Regulation (EC) No 1348/2000 of 29 May 2000National procedural lawsIn general:National procedural laws(also DEN)

1) JURISDICTION



4) RECOGNITION and ENFORCEMENTManagement of risk of contractual disputesISLNational courts vs. arbitrationIIIVVIVIIIXIVVIIIIIICISG: Art. 1 + art. 92-96 declarationsEC: Rome Convention 1980Elsewhere: - Hague Convention 1955/ - National PIL-statutesEC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreements

- In general:- Simplified procedures- Service of documents- Taking of evidence- Interim and precautionary measures

1) JURISDICTION



4) RECOGNITION and ENFORCEMENTManagement of risk of contractual disputesISLNational courts vs. arbitrationIIIVVIVIIIXIVVIIIIIIEC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreementsEC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreements


CISG: Art. 1 + art. 92-96 declarationsEC: Rome Convention 1980Elsewhere: - Hague Convention 1955/ - National PIL-statutes

1) JURISDICTION



4) RECOGNITION and ENFORCEMENTEC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreements



EC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreementsManagement of risk of contractual disputesISLArbitration agreementThe ICC Model International Sale ContractICC Publication No 556

B. GENERAL CONDITIONSArt. 14 Resolution of disputes

14.1 Unless otherwise agreed in writing, all disputes arising in connection with the present Contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.

14.2 An arbitration clause does not prevent any party from requesting interim or conservatory measures from the courts.National courts vs. arbitrationIIIVVIVIIIXIVVIIIIII

EC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreements



EC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreementsManagement of risk of contractual disputesISLNational arbitration laws,intenational conventions,lex mercatoria arbitralisand institutional arbitration rulesArbitration agreementNational courts vs. arbitrationIIIVVIVIIIXIVVIIIIII1) JURISDICTION



4) RECOGNITION and ENFORCEMENT

1) JURISDICTION



4) RECOGNITION and ENFORCEMENTChoice of law-clauses,Mandatory lawEC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreements



EC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreementsManagement of risk of contractual disputesISLArbitration agreementNational arbitration laws,intenational conventions,lex mercatoria arbitralisand institutional arbitration rulesThe ICC Model International Sale ContractICC Publication No 556

B. GENERAL CONDITIONSArt. 1.2

Any questions relating to this Contract which are not expressely or implicitly settled by the provisions contained in the Contract itself (i.e. these General Conditions and any specific conditions agreed upon by the parties) shall be governed:A.by the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980, hereafter referred to as CISG), andB.to the extent that such questions are not covered by CISG, by reference to the law of the country where the Seller has his place of business.National courts vs. arbitrationIIIVVIVIIIXIVVIIIIII

EC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreements



EC: Regulation (EC) No 44/2001 and Brussel Convention 1968Elsewhere: Lugano Convention 1988, bi-/unilateral agreementsManagement of risk of contractual disputesISLArbitration agreementNational arbitration laws,intenational conventions,lex mercatoria arbitralisand institutional arbitration rulesChoice of law-clauses,Mandatory law UN New York Convention 1958National courts vs. arbitrationIIIVVIVIIIXIVVIIIIII International conventions,1) JURISDICTION



4) RECOGNITION and ENFORCEMENT

ISLICC Model International Sale ContractManufactured Goods Intended for ResaleICC Publication No 556INTERNATIONAL SALES LAW - seminar 2004An example of an international sales contractIIIVVIVIIIXIVVIIIIII

ISLICC Model International Sale ContractManufactured Goods Intended for ResaleICC Publication No 556CISGLaw of theSellers countryIncotermsUCP 500ICC Uniform Rules for CollectionsICC Uniform Rules for Demand GuaranteesICC Rules of ArbitrationINTERNATIONAL SALES LAW - seminar 2004An example of an international sales contract

Lex Mercatoria?PECL?UPICC?

ADR?IIIVVIVIIIXIVVIIIIII

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V Management of risk of contract breach

44/2001:In general the factor determining jurisdiction is the domicile of the defendant. Persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. Nevertheless, the Regulation contains a number of provisions that depart from this principle and allow court proceedings to be brought in another Member State other than where the defendant is domiciled. The most important examples of these special rules are: in matters relating to a contractual obligation a person can be sued in the courts for the place of performance of that obligation. For example, the German vendor of a lorry can be sued in Italy if that is where the vehicle was to be delivered.

There are, however, also some cases of so-called exclusive jurisdiction that do not supplement but replace the jurisdiction based on the defendants domicile. For example,subject to some conditions the parties also have the possibility of freely choosing the Member State whose courts are to have jurisdiction. Such a choice of court agreement usually leads to the exclusive competence of the courts of the chosen Member State unless the parties stipulate otherwise

LUGANO: In 1988, the Member States of the European Union and some other States concluded the Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. At present, apart from the EU Member States, Switzerland, Norway, Iceland and Poland are contracting parties to that convention. The Lugano Convention extended the rules determining jurisdiction between Member States that used to be laid down in the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters beyond the boundaries of the European Union. In March 2002 the 1968 Brussels Convention was replaced by Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Regulation modified some of the jurisdictional provisions. That is why the Lugano Convention will soon be changed to bring it fully in line with the rules that apply within the European Union

If the defendant is domiciled in a Member State of the European Union but the plaintiff is not domiciled in another Member State or in a Contracting State of the Lugano Convention the courts of the Member States assess their international jurisdiction based on the provisions of the Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Where the defendant is domiciled outside the sphere of application of this Regulation and of the Lugano Convention, the national procedural law of each Member State determines under which conditions its courts are competent. To find out about the national procedural law on international jurisdiction of a Member State, please click on the flag of that Member State.Under the aegis of the Hague Conference on Private International Law, an international organization, attempts are currently being made to negotiate a world-wide convention on international jurisdiction and foreign judgments in civil and commercial matters.Where the parties have not determined what law is to be applicable to their contract, it will be governed by the law of the country with which it has the closest connection. The contract is presumed to be connected with the country where the party who is to perform the characteristic service is habitually resident, which roughly speaking means, in practice, that a sales contract is governed by the law for the place where the seller is established and a contract for services by the law for the place where the service provider is established. But these are only presumptions, and the court can disregard them and apply a different law which is more closely connected with the contract.

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INTERNATIONAL SALES LAW - seminar 2004