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

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 d

MINISTRY OF JUSTICE HANOI LAW UNIVERSITY

Group Assignment

Subject: International Trade and Business law

Assignment topic: 01

Group 4:

1 Lê Thị Trà My 433508

2 Bùi Quang Tuấn 433509

3 Trần Huyền My 433510

4 Nguyễn Lê Xuân Quỳnh 433511

Class: N02-TL1

Hanoi – 2021

BIÊN BẢN XÁC ĐỊNH MỨC ĐỘ THAM GIA VÀ KẾT QUẢ

THAM GIA LÀM BÀI TẬP NHÓM

Nhóm sốố: 04 L p: ớ N02.TL1 Khóa: 43

T ng ổ sốố thành viên c a nhóm: 4 ủ

Đêề tài nghiên c u: ứ Đêề 1

1 433508 Lê Thị Trà My 

2 433509 Bùi Quang Tuấn 

3 433510 Trần Huyền My 

4 433511 Nguyễn Lê Xuân Quỳnh 

Hà Nội, ngày 24 tháng 3 năm 2021

Kết quả điểm bài viết: NHÓM TRƯỞNG

Giáo viên chấm thứ nhất:.………

Trần Huyền My Giáo viên chấm thứ hai:.……….

Kết quả điểm thuyết trình:……….

- Giáo viên cho thuyết trình:……….

Điểm kết luận cuối cùng:………

HANOI LAW UNIVERSITY

2

MEMORIAL FOR CLAIMANT

Alkmaar city United Kingdom Dutch

COUNSELS FOR CLAIMANT

 Tran Huyen My

 Bui Quang Tuan

 Le Thi Tra My

Nguyen Le Xuan Quynh

TABLE OF CONTENT

TABLE OF ABBREVIATIONS 5

STATEMENT OF FACTS 6

ISSUSES 6

Issue 1 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 7

(C) The rules of private international law lead to the application of the law of a Contracting State 8

Issue 2: RESPONDENT has breached its contractual obligations pursuant to Article 53 of CISG 8

(A) RESPONDENT failed to pay the money that corresponding to the amount of goods as agreed in the contract 9

(B) The failure of payment created a fundamental breach pursuant to Article 25 of CISG 10

REQUEST FOR RELIEF 10

4

TABLE OF ABBREVIATIONS

CISG

United Nations Convention on Contracts for the International Sale of Goods

ROME Convention 1980 Rome Convention on the law applicable to

contractual obligations

STATEMENT OF FACTS

1 CLAIMANT Nieuwenhuis Vo.f in Noord-Holland, Alkmaar, Netherlands; RESPONDENT: Brown Ltd in UK

2 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

3 Since this is utterly untrue, CLAIMANT filed a claim against RESPONDENT to reclaim the remaining half of the price by the RESPONDENT

ISSUSES

Issue 1 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

1 [ITALY Tribunale di Forlì 16 February 2009 ]

2 Case No 867 [ITALY Tribunale di Forlì 11 December 2008 ]

3 case No 867 [Tribunale di Forlì, Italy, 11 December 2008]

4 CLOUT case No 176 [Oberster Gerichtshof, Austria, 6 February 1996] (applying the Convention to the international sale of propane gas).

5 Tribunale di Forlì, Italy, 16 February 2009.

6 Tribunale di Forlì, Italy, 16 February 2009

6

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 2 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 1 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

(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

8

(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

7 CLOUT case No 154 [Cour d’appel de Grenoble, France, 22 February 1995]

8 Oberlandesgericht Saarbrücken, Germany, 12 May 2010, Internationales Handelsrecht, 2010, 202, available in German on the Internet at

www.globalsaleslaw.org

9 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.

(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

WORKS CITED

1 Case No 867 [ITALY Tribunale di Forlì 11 December 2008]

2 CLOUT case No 176 [Oberster Gerichtshof, Austria, 6 February 1996] (applying the Convention to the international sale of propane gas)

3 CLOUT case No 154 [Cour d’appel de Grenoble, France, 22 February 1995]

4 Oberlandesgericht Saarbrücken, Germany, 12 May 2010, Internationales Handelsrecht, 2010, 202, available in German on the Internet at www.globalsaleslaw.org

5 CISG 1980

6 Rome Convention 1908