International Business Law and the Disputed Legal Issues - Assignment Example

International Law Name Instructors Name Date Question 1 See the Schaffer et al. (2012,pp.136-138) account of the 1994 US District Court Case, Delhi Carrier SPA v Rotorex Corpas well as the case on appeal to the US Federal Court, obtainable from the Pace University CISG case law website (http//cisgw3law.pace.edu/cases940909u1.html) and answer the following questions a. Provide a short summary of the relevant facts of the case and disputed legal issues on the initial US District Court Case, before Munson, Senior District judge. b. Why was the dispute governed by the CISG, and could the parties have avoided this? c. How if at all did Munson SDJ and Circuit Judge Winter on Appeal, differ on the legal issues of (i) whether Rotarect had breached the contract, (ii) if so, was the breach fundamental, (iii) how to calculate the profits (iv) were out of the pocket expenses recoverable and, (v) foreseeability and additional cost of sales. a. The Relevant Brief Facts and the Disputed Legal  Issues A manufacturer from Maryland that is in the business of producing compressors used in air conditioners was the defendant of the case while an air conditioner manufacturer from Italy was the plaintiff. The defendant had consent to vending ten thousand eight hundred compressors to the Italian air conditioner manufacturer (Albert 2009). According to the terms of sale in the sale contract, supply of the compressors from the Maryland manufacturer to the Italian air conditioner manufacturer was to be done through three shipments. The defendant successfully delivered the first shipment containing the compressors (Daniel 2009). However, during the course of the second shipment, as it made its way to the Italian manufacturer, the Italian manufacturer learnt that the compressors brought in during the first shipment did were not in the condition as per the contractual agreement (Curtin 2009). The Italian manufacturer therefore did not accept the second shipment. His course of action was firstly storing the compressors from the second shipment at the port and, then he made an attempt to remedy the defects he had discovered on the first shipment. Despite his efforts to remedy the defects he had noticed on the first shipment, his efforts were to no avail. He therefore decided to take a completely different course of action by suing the compressor manufacturing company from Maryland for damages due to breach of contract as per article 74 CISG (Bayles 1992). The Disputed Legal Issues 1. Whether it was  lawful for  the district court to  hold the defendant   liable for a fundamental  breach  of  the   contractual terms   and  agreement  as stipulated under the CISG 2. Whether the plaintiff  was entitled  to any  form  of legal  remedy Resolution of Issues 1. Whether it was  lawful for  the district court to  hold the defendant   liable for a fundamental  breach  of  the   contractual terms   and  agreement  as stipulated under the CISG It was lawful for the district court to hold the defendant liable for the breach of the contractual terms and agreement according to the CISG stipulations due to the fact that the pursuant had held his end of the deal of paying for the shipment of compressors but only for the plaintiff to send defected goods resulting to the defendant incurring expenses that he should not have otherwise incurred this resulted in him making losses in terms of delaying in orders made by their clients, missing out on profits and also reduction in their sales ( Blackstone, 1765–69). 2. Whether the plaintiff  was entitled  to any  form  of legal  remedy The pursuant was therefore liable to a legal remedy whereby he was supposed to be compensated for the damages he suffered in terms of the plaintiff’s cost incurred in trying to cure the lack of conformity of the compressors that were shipped to him during the first shipment from the defendant (Singapore FTA Network). The amount of money waged to the plaintiff to speed up process of compressor shipment from a third party entity for the purpose of alleviating losses from order commitments that the plaintiff could not live up to due to the compressors of the defendant not conforming with the contract specifications (R Baldwin, 2009). The expenses that the plaintiff incurred for storage at the delivery port of the defected compressors. The plaintiff also was unable to cash in from profits due to the reduces sales amount, in which case the plaintiff had credible evidence that conformed with the federal law and common law of New York, that provided a confirmable estimate of the level of damages he incurred financially. b) Why was the dispute governed by the CISG, and could the parties have avoided this? The parties could have definitely avoided this if they put the issue to arbitration (Fiorentino et al. 2006). In doing this they could have agreed on a specific amount that the defendant could have paid the plaintiff in order to cover the damages that the plaintiff incurred due to the defected goods and the cost incurred in storing the goods c) How if at all did Munson SDJ and Circuit Judge Winter on Appeal, differ on the legal issues of (i) whether Rotarect had breached the contract, (ii) if so, was the breach fundamental, (iii) how to calculate the profits (iv) were out of the pocket expenses recoverable and, (v) foreseeability and additional cost of sales. (i) The Munson SDJ judge and Circuit judge winter differed on the legal issue of whether Rotarect had breached in that the Munson SDJ judge believed that Rotarect was liable to paying more damages than he was legally bound to pay after the trial (ii) I believe the breach was fundamental as Rotarect went against the contract agreement that resulted in the plaintiff suffering huge losses and unwarranted expenses (iii) The profits that the plaintiff was unable to achieve I believe should be calculated based on the history of the company’s previous profits and also the prevailing market conditions (iv) However, I believe that out of the pocket expenses were not recoverable as there was no surety that the plaintiff would have not had to incur these expenses if the contract was not breached (v) I believe forseebility and cost of sales was recoverable as this was based on the history of the company. it was in the view of the court that the damages to take care of expenses that were incurred due to the foreseen cost of manufacturing air conditions were already taken care of in the damages to cover the inability of the plaintiff to cash in on profits due to reduced sales caused by the breach of contract by the defendant. Therefore the court turned down the plaintiff’s claim for the damages to take care of expenses that were incurred due to the foreseen cost of manufacturing air conditioners (Bergkamp 2001). Following the statutes stated in article 78 CISG the court ruled that the plaintiff had a right to a reasonable interest; due to the fact that there is no specification of interest rates as far as the CISG is concerned (ASEAN, 2004). Question 2 In July 2010, a part of a strategy to expand its range leading supermarket chain, Sing Song Supermarkets Pte (“SSP”) entered into a AUS$6 million contract to buy 30000 pockets of assorted Beef jerky snack food products (beef, camel and kangaroo) from the central Queensland, Australian firm Banjo Beef Pty Ltd (“Banjo”) for delivery in three equal installments on or about 20th January 2011, 20th March 2011 and 20th May 2011 a) Does Australian, Singaporean law and/or the CISG likely govern this sale of goods contract and why? b) If due to the substantial rise in the Australian Dollar between July 2010 and January 2011 it became commercially impractical for SSP to sell Banjo’s products through its supermarket chain due to stiff consumer resistance to high priced snack foods, world SSP have a legal excuse to avoid contract? c) If due to the catastrophic Queensland floods of January 2011, Banjo was unable to supply the first installment, would it be in fundamental breach of the contract. Alternatively, assuming delivery to the north Queensland Calms airport was part of the contract and Banjo was only able to deliver the first installment of resulting to expensive air charter services (triple the regular trucking costs) from its central Queensland plant to the Calms airport, could this likely recover those extra costs from SSP? d) Assuming that the first and the second installment are delivered and paid for compliant with the contract, but then due to the change of marketing strategy the SSP and Singaporean government regulations that made importing such products more time-consuming and expensive, it advised Banjo in advance that it did not want the third installment. Banjo accepted SSP advance refusal and was able to resell the third installment on the oversupplied Australian domestic market for 50% of the SSP premium contract price and also incurred (i) $10,000 in unavoidable pre-paid costs (having pre-paid at a discount, third installment freight costs)and (ii) cost of $1,000,000 and remarketing the third installment in Australia. Required: What (if any) legal remedies does Banjo have against SSP in these circumstances a) Brief Facts of the case Singapore is a member of the United Nations Convention on Contracts for International Sale of Goods (CISG). Australia has not endorsed the United Nations Convention on Contracts for International Sale of Goods (CISG). Therefore it is clear that the Australian government does not govern this sale of goods contract due to the fact that the Australian is not affiliated United Nations Convention on Contracts for International Sale of Goods (CISG) and therefore does not likely govern the sale of goods contract. On the other hand Singapore is a member of the United Nations Convention on Contracts for International Sale of Goods (CISG) and therefore Singapore and United Nations Convention on Contracts for International Sale of Goods (CISG) likely govern the sale of goods contract (PJ Lloyd and D Maclaren, 2003). For the reason of the undesired rise in the Australian Dollar between July 2010 and January 2011 it became commercially impractical for SSP to sell Banjo’s product through its supermarket (Bayles, 1992). Chain due to stiff consumer resistance to high priced snack foods, would SSP have legal excuse to avoid the contract. I believe SSP would have excuse to avoid the contract due to the fact that according to the United Nations Convention on Contracts for International Sale of Goods (CISG) a company has the right to sell the most profitable product according to them. In this case due to the heightened value of the Australian Dollar during the period between July 2010 and January 2011, SSP who had entered into a contract with Banjo an Australian company to sell their products would be at the losing end if they lived up to the contract or agreement (PJ Lloyd and D Maclaren, 2003). SSP through their chain of supermarkets were expected to sell the products of the Australian company but this proved a problem due the fact that automatically most consumers are not attracted to high priced products and therefore the high priced Banjo products as a result of the high value of Australian Dollar would not make good sales. b) The Disputed Legal Issues 1. Whether it was  lawful for  the district court to  hold the defendant   liable for a fundamental  breach  of  the   contractual terms   and  agreement  as stipulated under the CISG 2. Whether the plaintiff  was entitled  to any  form  of legal  remedy 1. Whether it was  lawful for  the district court to  hold the defendant   liable for a fundamental  breach  of  the   contractual terms   and  agreement  as stipulated under the CISG It was lawful for the district court to hold the defendant liable for the breach of the contractual terms and agreement according to the CISG stipulations for the reason of the disastrous Queensland floods of January 2011, Banjo was unable to supply the first installment, would it be in fundamental breach of the contract. Alternatively, assuming delivery to the north Queensland Calms airport was part of the contract and Banjo was only able to deliver the first installment of resulting to expensive air charter services (triple the regular trucking costs) from its central Queensland plant to the Calms airport, this could likely recover those extra costs from SSP (Daniel, 2009). 2. Whether the plaintiff  was entitled  to any  form  of legal  remedy The plaintiff was very much entitled to legal remedies against SSP for damages suffered and the parties could have definitely avoided this if they put the issue to arbitration. Assuming that the first and the second installment are delivered and paid for compliant with the contract, (Bielefeldt, 1998) but then due to the change of marketing strategy the SSP and Singaporean government regulations that made importing such products more time-consuming and expensive, it advised Banjo in advance that it did not want the third installment (Campbell 1993). Banjo accepted SSP advance refusal and was able to resell the third installment on the oversupplied Australian domestic market for 50% of the SSP premium contract price and also incurred (i) $10,000 in unavoidable pre-paid costs (having pre-paid at a discount, third installment freight costs)and (ii) cost of $1,000,000 and remarketing the third installment in Australia (Demirgüç-Kunt 2001). c) Resolution of Issues The catastrophic floods of January 2011 is an unforeseen event and therefore by the fact that Banjo were unable to supply the first installment due to this reason it would not be a breach of contract as they would claim to have had no possible way to deliver this first installment (Fabbricotti, 2003). However, if it was any other reason except for an unforeseen event whereby there was a possibility of them honoring the contract no matter how hard there would have been a breach of contract. Alternatively, assuming delivery to the north Queensland Calms airport was part of the contract and Banjo was only able to deliver the first installment of resulting to expensive air charter services (triple the regular trucking costs) from its central Queensland plant to the Calms airport, this would not likely recover those extra costs from SSP. This is due to the fact that the costs incurred by SSP were too great and even though Banjo delivered the first installment via the airport this would not be enough for them to recover damages that they incurred due to their inability to gain from profits that they would have gotten from sales (NUS Centre for International Law 2009). The damages incurred due to failure to deliver orders that they were committed to, damages that they incurred due to lateness of some orders. d) Whether Banjo have any Legal Remedies against SSP in the Circumstance in part (2d) In the circumstance in part (d), Banjo have no legal remedies against SSP in this circumstance as they agreed to the SSP advance refusal and was even able to resell the third installment on the oversupplied Australian domestic market for 50% of the SSP premium contract price and also incurred (i) $10,000 in unavoidable pre-paid costs (having pre-paid at a discount, third installment freight costs) and (ii) cost of $1,000,000 and remarketing the third installment in Australia (Anderson, 1956). Banjo were able to get all the benefits by the refusal of the SSP chain of supermarket but due to their agreement of the refusal of the SSP advance the forfeited all the legal remedies that would come by with the breach of contract (Brody 2000). Question 3 As a variation on question 2 above, assume instead that Banjo Beef Pty Ltd (“Banjo|”) is the main supplier of Beef Jerky in the Australian market and also has a thriving Food Oz restaurant chain in Queensland that sells “fair dinkim Aussi tucker” (genuine traditional Australian Cuisine). It now plans to expand into the receptive Singaporean market by entering into an exclusive licensing agreement with the rapidly expanding Fourquare chain of convenience stores, to sell its range of Beef Jerky and associated snack food products and also start up under a separate franchise type agreement, a Food Oz restaurant chain utilizing Banjo’s Menu range, restaurant décor, signage, logos, registered Australian trademarks, and business/marketing model. Required; Advice Banjo on how it ought to best proceeds in optimally structuring its intended expansion path into Singaporean via twin agreements with FourSquare or equally beneficial agreements, mindful of its intellectual property rights. For the reason of the substantial rise in the Australian Dollar between July 2010 and January 2011 it became commercially impractical for SSP to sell Banjo’s product through its supermarket. Chain due to stiff consumer resistance to high priced snack foods, would SSP have legal excuse to avoid the contract (Auby, 2002). I believe SSP would have excuse to avoid the contract due to the fact that according to the United Nations Convention on Contracts for International Sale of Goods (CISG) a company has the right to sell the most profitable product according to them (Bergkamp 2001). In this case due to the heightened value of the Australian Dollar during the period between July 2010 and January 2011, SSP who had entered into a contract with Banjo an Australian company to sell their products would be at the losing end if they lived up to the contract or agreement. SSP through their chain of supermarkets were expected to sell the products of the Australian company but this proved a problem due the fact that automatically most consumers are not attracted to high priced products and therefore the high priced Banjo products as a result of the high value of Australian Dollar would not make good sales (Dworkin 1986). Question 4 Visit the Australian Legal Information Institute website (http://www.austlii.edu.au), download the (Commonwealth) Court case Pacific Carriers Limited v BNP Paribas [2004] HCA 35 and answer the following questions a) Provide a summary account of the relevant facts that gave rise to the main parties involved. The dispute came about due to the vending of cargo legumes, that consisted of ten thousand metric tons of chick peas together with dun peas that were of the same amount, by an Australian legitimate grain merchant, New England Agricultural Traders Pty Ltd (NEAT), to an Indian International trading corporation that has its headquarters in the outskirt of Calcutta by the name Royal Trading Company (Royal) (Campbell 1993). BNP Paribus (BNP), was NEAT’s Sydney’s banking associate, and was doing all the financial work that involved the trading transaction. (http://www.austlii.edu.au) A Singaporean company by the name Singapore overseas Enterprises Pte Ltd (SSOE) was the banking associate for Royal and did all its paper work and financial transactions that involved the export (Coase 1960). The plaintiff, Pacific Carriers Limited (Pacific), in this case was the time chatterer of the MV Nelson which was the ship that was ferrying the traded goods (Farah 2006). The whole deal turned sour and came with disastrous consequences. Firstly there was a pandemonium on the credit letters issued and the lading bills. During the period the ferried cargo that consisted of legumes was making its way to India from Australia the legume prices plummeted (Feinman 2006). Hunter J discovered that due to this reason the Indian trading company intentionally delayed taking in the cargo they had ordered and refused to pay the buying price. Moreover, the ferry carrying the cargo, MV Nelson, experienced a lot of technical and mechanical anomalies with offloading the cargo in India, due to the enormous size of the ship and also due to the winds at the port (Coase 1937). b) Why there were letters of indemnity required and what procedures did BNP Paribas (“the Bank”) have for the issuance of guarantees and indemnities? The issue that led to the requirement of the letters of indemnity was that the ferry shipped in the legumes without handing in or having the official lading bills. This led to the ship being detained and put under police arrest. Rights claimed by Singapore overseas Enterprises Pte Ltd (SSOE) over Pacific Carriers was forwarded to arbitration, and the issue was resolved on the terms that payment of considerable damages and interest was done by Pacific Carriers (Durkheim 1893). This therefore resulted to New England Agricultural Traders Pty Ltd (NEAT) being rendered insolvent. This particular issue that led to appeal brought about two letters of indemnity that were apparently signed, by New England Agricultural Traders Pty Ltd (NEAT) and BNP Paribus (BNP), and later forwarded and received by pacific. Pacific therefore wanted to be issued a letter of indemnity, in order to be indemnified by BNP due to the losses they incurred when the delivered the cargo without having bills of lading (http://www.austlii.edu.au). c) In what circumstances did BNP Paribes’ employee Mrs. Dhiri impress the Bank’s “chop’ or stamp on the letter of indemnity and was the bank legally bound by her action? The circumstance that Mrs. Dhiri impressed the Bank’s chop or stamp on the letter of indemnity was on the occasion when BNP first co-signed with New England Agricultural Traders Pty Ltd (NEAT). This letter was addressed to MV Nelson operators or owners that were an agreement to indemnify them from any loss of cargo or any damage of goods and any other liability that might arise during the transportation of the cargo. By Mrs. Dhiri’s actions the bank was consequentially bound by her actions. Question 5 Assume that in the mid 2010, as a separate side agreement to Singapore’s more general ASEAN group and GATT/WTO commitments, in order to help boost economic development in nearby Cambodia and Laos, it agreed with those two countries to: Allow then substantial, very generous trade preferences in accessing Singapore’s economy by suspending its usual stringent phyto-sanitary import regulations on agricultural goods and waiving all import taxes and charges for a ten year period; and Grant Singaporean companies investing via wholly-owned subsidiaries in the agricultural, fertilizer production and food processing sectors equally generous capital investments and depreciation allowances and a tax holiday for the same ten year period on whether reinvested in those countries or repatriated to Singapore as interest, dividends or other profits and also allowing for an immediate expensing against Singaporean-sourced parent company income, any trading losses incurred in the Laotian, or Cambodian subsidiaries (World Trade Organization). Required: a) Would Singapore’s side-agreement breach its existing GATT/WTO commitments? Assuming that the first and the second installment are delivered and paid for compliant with the contract, but then due to the change of marketing strategy the SSP and Singaporean government regulations that made importing such products more time-consuming and expensive, it advised Banjo in advance that it did not want the third installment (NUS Centre for International Law 2009). If due to the catastrophic Queensland floods of January 2011, Banjo was unable to supply the first installment, would it be in fundamental breach of the contract (Beale, 2002). Alternatively, assuming delivery to the north Queensland Calms airport was part of the contract and Banjo was only able to deliver the first installment of resulting to expensive air charter services (triple the regular trucking costs) from its central Queensland plant to the Calms airport, this could likely recover those extra costs from SSP. The catastrophic floods of January 2011 is an unforeseen event and therefore by the fact that Banjo were unable to supply the first installment due to this reason it would not be a breach of contract as they would claim to have had no possible way to deliver this first installment (NUS Centre for International Law 2009). However, if it was any other reason except for an unforeseen event whereby there was a possibility of them honoring the contract no matter how hard there would have been a breach of contract (Clarke 1996). b) If another ASEAN member e.g. Myanmar strenuously objected to Singapore’s preferential side-agreement with Cambodia and Laos, what mechanisms would exist (if at all) for its resolution within the ASEAN free trade bloc? If Due to the substantial rise in the Australian Dollar between July 2010 and January 2011 it became commercially impractical for SSP to sell Banjo’s product through its supermarket. Chain due to stiff consumer resistance to high priced snack foods, would SSP have legal excuse to avoid the contract (Churchill 1986). I believe SSP would have excuse to avoid the contract due to the fact that according to the United Nations Convention on Contracts for International Sale of Goods (CISG) a company has the right to sell the most profitable product according to them. In this case due to the heightened value of the Australian Dollar during the period between July 2010 and January 2011, SSP who had entered into a contract with Banjo an Australian company to sell their products would be at the losing end if they lived up to the contract or agreement (Sridharan 2008). SSP through their chain of supermarkets were expected to sell the products of the Australian company but this proved a problem due the fact that automatically most consumers are not attracted to high priced products and therefore the high priced Banjo products as a result of the high value of Australian Dollar would not make good sales (Albrow, 1970). Singapore is a member of the United Nations Convention on Contracts for International Sale of Goods (CISG) (Anderson 1956). Australia has not endorsed the United Nations Convention on Contracts for International Sale of Goods (CISG). Therefore it is clear that the Australian government does not govern this sale of goods contract due to the fact that the Australian is not affiliated United Nations Convention on Contracts for International Sale of Goods (CISG) and therefore does not likely govern the sale of goods contract. 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