Subject International Trade And Business Law- Bt Nhóm Thương Mại Quốc Té.pdf

lOMoARcPSD|38362167 MINISTRY OF JUSTICE HANOI LAW UNIVERSITY Group Assignment Subject: International Trade and Business law Assignment topic: 01 Group 4: Lê Thị Trà My 433508 Bùi Quang Tuấn 433509 Trần Huyền My 433510 Nguyễn Lê Xuân Quỳnh 433511 Class: N02-TL1 Hanoi – 2021 Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 BIÊN BẢN XÁC ĐỊNH MỨC ĐỘ THAM GIA VÀ KẾT QUẢ THAM GIA LÀM BÀI TẬP NHĨM Nhóm sốố: 04 Lớp: N02.TL1 Khóa: 43 Tổng sốố thành viên nhóm: Đêề tài nghiên cứu: Đêề STT MSSV Họ tên Đánh giá A BC 433508 Lê Thị Trà My  433509 Bùi Quang Tuấn  433510 Trần Huyền My  433511 Nguyễn Lê Xuân Quỳnh  Hà Nội, ngày 24 tháng năm 2021 Kết điểm viết: NHÓM TRƯỞNG Giáo viên chấm thứ nhất:.…………… Trần Huyền My Giáo viên chấm thứ hai:.……………… Kết điểm thuyết trình:…………… - Giáo viên cho thuyết trình:…………… Điểm kết luận cuối cùng:……………… HANOI LAW UNIVERSITY Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 MEMORIAL FOR CLAIMANT ON BEHALF OF AGAINST Nieuwenhuis Vo.f Brown Ltd Alkmaar city United Kingdom Dutch RESPONDENT CLAIMANT COUNSELS FOR CLAIMANT  Tran Huyen My  Bui Quang Tuan  Le Thi Tra My  Nguyen Le Xuan Quynh Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 TABLE OF CONTENT TABLE OF ABBREVIATIONS STATEMENT OF FACTS ISSUSES Issue The CISG is the applicable law in this case .6 (A) The agreement between the parties is a contract of the sale of goods governed by CISG .6 (B) The parties whose place of business are in different states (C) The rules of private international law lead to the application of the law of a Contracting State Issue 2: RESPONDENT has breached its contractual obligations pursuant to Article 53 of CISG (A) RESPONDENT failed to pay the money that corresponding to the amount of goods as agreed in the contract (B) The failure of payment created a fundamental breach pursuant to Article 25 of CISG 10 REQUEST FOR RELIEF 10 Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 CISG TABLE OF ABBREVIATIONS CLOUT United Nations Convention on Contracts for the International Sale of Goods Case Law on UNCITRAL Texts ROME Convention 1980 Rome Convention on the law applicable to contractual obligations Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 STATEMENT OF FACTS CLAIMANT Nieuwenhuis Vo.f in Noord-Holland, Alkmaar, Netherlands; RESPONDENT: Brown Ltd in UK CLAIMANT supplies 1,500 kilos of Leerdammer cheese to RESPONDENT, but RESPONDENT pays only half of the price, claiming that he received only half of the amount of kilos he ordered Since this is utterly untrue, CLAIMANT filed a claim against RESPONDENT to reclaim the remaining half of the price by the RESPONDENT ISSUSES Issue The CISG is the applicable law in this case CISG can be applied in this case because of these following reasons: (A) The agreement between the parties is a contract of the sale of goods governed by CISG; (B) The parties whose places of business are in different States; (C) The rules of private international law lead to the application of the law of a Contracting State (A) The agreement between the parties is a contract of the sale of goods governed by CISG The concept of goods in CISG Convention are items that are, at the moment of delivery1 “moveable and tangible”2, regardless of their shape3 and whether they are solid4, used or new5, inanimate or alive6 In this case, the subject of the contract [ITALY Tribunale di Forlì 16 February 2009] Case No 867 [ITALY Tribunale di Forlì 11 December 2008] case No 867 [Tribunale di Forlì, Italy, 11 December 2008] CLOUT case No 176 [Oberster Gerichtshof, Austria, February 1996] (applying the Convention to the international sale of propane gas) Tribunale di Forlì, Italy, 16 February 2009 Tribunale di Forlì, Italy, 16 February 2009 Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 between Nieuwenhuis Vo.f and Brown Ltd is Leerdammer cheese Leerdammer cheese is a Dutch semihard cheese made from cow’s milk This type of cheese is clearly compatible with the sense of goods in the Convention, as it is moveable and tangible at the moment of delivery in this situation Furthermore, goods in this case are not involved in the case of non-application stipulated in Article of CISG The contract is between two companies, this means: the goods cannot be bought for personal, family or household use; the sale is not by auction or on execution or otherwise by authority of law, which is in accordance with article 2(a), 2(b), 2(c) The subject in this agreement is leerdammer cheese so it is not included in types of good that are not in the sphere of application of CISG stipulated in article 2(d), 2(e), 2(f) (B) The parties whose places of business are in different states The dispute occurs between two parties: Nieuwenhuis Vo.f and Brown Ltd Nieuwenhuis Vo.f, which is mentioned in the case, is a Dutch company from Alkmaar Alkmaar is a city and municipality in the Netherlands Thus it can be concluded that place of business of Nieuwenhuis Vo.f is in Netherlands Brow Ltd is described as a company established in the UK, so it is undisputed that place of business of Brown Ltd is in UK The parties' places of business, in this case, are in different Contracting states However, there are exceptions in which parties find themselves unexpectedly bound to the CISG Article further provides that the fact that the other party's place of business is in a different state must be recognizable no later than at the time of the making of the contract by being apparent (1) from the face of the contract; (2) from the dealings between the parties; or (3) from the information they have disclosed to each other This case does not provide any facts assuming the participating parties are not aware of the fact that their business are located in different states Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 (C) The rules of private international law lead to the application of the law of a Contracting State No choice of law was made by the parties in this case nor there is a mention of participating parties agreement to exclude the application of the CISG to their contract Turning to article 1(1)(b), CISG is applied when “private international law lead to the application of the law of a Contracting State” The Rome Convention has also stated this problem in Article 4: “Applicable law in the absence of choice To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected” To determine which law of the country is considered to be most closely connected to the contract, the law of the country of the party that affects the characteristic performance of this contract is taken into consideration In case of a contract of sale the characteristic performance is affected by the seller In this situation there is a Dutch seller and because Dutch is a Contracting State of the CISG, the court of law must apply the CISG in this case Issue 2: RESPONDENT has breached its contractual obligations pursuant to Article 53 of CISG Supra to Issue number 1, the CISG is the applicable law that governs this contractual agreement between CLAIMANT and RESPONDENT Therefore, RESPONDENT has breached its contractual obligation in paying the price of goods under Article 53 of CISG for the following reasons: (A) RESPONDENT failed to pay the money that corresponding to the amount of goods as agreed in the contract and (B) The failure of payment created a fundamental breach pursuant to Article 25 of CISG Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 (A) RESPONDENT failed to pay the money that corresponding to the amount of goods as agreed in the contract The Article 53 of CISG interprets that obligations of the buyer “The buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.” The English buyer – REPSONDENT breaches the contract signed with the seller, for failing to pay for the goods already delivered according to Article 53 of the CISG Breach of contractual obligations can be understood as failure of a contracting party to perform the obligations agreed upon by the parties in the contract, or incomplete performance of contractual obligations or incomplete performance of contractual obligations7 The parties specifically agree on the delivery obligation in the contract, but RESPONDENT only pays half the price as agreed in the contract because he only receives half of the ordered goods but this is not the case Thus, a buyer who does not pay the full amount of the goods as agreed by the parties in the contract is considered that the buyer has breached the contractual obligations8 Furthermore, according to Article 63 CISG9, CLAIMANT has granted RESPONDENT a reasonable length to fully perform its obligation, and also CLAIMANT has not received any notice indicate RESPONDENT’s consent not to perform the obligation Thus, RESPONDENT is in breach of the contract for the sale of goods according to the CISG CLOUT case No 154 [Cour d’appel de Grenoble, France, 22 February 1995] Oberlandesgericht Saarbrücken, Germany, 12 May 2010, Internationales Handelsrecht, 2010, 202, available in German on the Internet at www.globalsaleslaw.org Article 63 (1) The seller may fix an additional period of time of reasonable length for performance by the buyer of his obligations (2) Unless the seller has received notice from the buyer that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 (B) The failure of payment created a fundamental breach pursuant to Article 25 of CISG The Article 25 of CISG defines that “A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result.” Since CLAIMANT is a company that produces cheese, the profit is relevant for the reproduce process The failure of payment by RESPONDENT has caused CLAIMANT suffered cash damage due to the breach of the contract caused by the causing damage, hindering the seller's business activities Therefore, Pursuant to Article 61 and 74 of CISG, RESPONDENT is bound to pay damages to CLAIMANT correspondingly to the amount of payment which was not fully performed by RESPONDENT REQUEST FOR RELIEF For the above reasons, Counsels for CLAIMANT respectfully requests the Tribunal to: (a) Declare that RESPONDENT breached the Contracts of the sales of goods; (b) Order RESPONDENT to perform remedy pursuant to the CISG; and (c) Order RESPONDENT to bear the costs of these proceedings Respectfully signed and submitted by Counsels on behalf of Nieuwenhuis Vo.f on 26 Apr 2021 10 Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 WORKS CITED Case No 867 [ITALY Tribunale di Forlì 11 December 2008] CLOUT case No 176 [Oberster Gerichtshof, Austria, February 1996] (applying the Convention to the international sale of propane gas) CLOUT case No 154 [Cour d’appel de Grenoble, France, 22 February 1995] Oberlandesgericht Saarbrücken, Germany, 12 May 2010, Internationales Handelsrecht, 2010, 202, available in German on the Internet at www.globalsaleslaw.org CISG 1980 Rome Convention 1908 11 Downloaded by luanvan moi (luanvanmoi@gmail.com)