International Business Law - Delchi Carriers v Rotorex - Assignment Example

INTERNATIONAL BUSINESS LAW. By (Insert both names) (Name of class) (Professor’s name) (Institution) (City, State) (Date) Case Analysis: Delchi Carriers v Rotorex. a) Provide a summary of the relevant facts. In the wake of 1988, Rotorex sought to sell about 10,800 compressors to Delchi. Delchi had scheduled to resell the air conditioners in the spring and summer of that same year. Before the contract was executed Rotorex sent a sample compressor to Delchi. They also sent in writing performance specifications. Rotorex embarked on sending the first shipment via sea around March 26. Delchi paid for this delivery. It arrived in Italy at its factory by a credit note on April 20th. On the 9th May, Rotorex sent a second shipment of compressors. Payment was remitted by Delchi by a credit letter. Delchi soon discovered that the first shipment of compressors failed to conform to the sample that had been sent as well as the specifications as to performance. The discovery came about when the next shipment was en route. A Rotorex representative visited the Italian Delchi factory and, he was informed that 90 percent of the compressors sent had been rejected after a quality control inspection. The compressors had reduced capacity for cooling and, they also consumed a lot of power compared to the sample and specifications sent. Delchi attempted several times to solve the compressor’s defects but were unsuccessful. Delchi then asked Rotorex to assign a series of new compressors that conformed to the sample that had been sent as well as the specifications. Rotorex rejected their pleas stating that the specifications as to the performance of the compressors had been communicated to Delchi inadvertently. Delchi cancelled the contract in May and expedited an order for other suitable compressors from another supplier Sanyo. Delchi was nevertheless not able to obtain substitute compressors in time and therefore, they incurred losses in volume sales of ‘Arieles’. Delchi subsequently filed an action under the CISG or the United Nations Convention on Contracts for International Sales of Goods for a contract breach and a failure to convey products that conformed. Judge Munson found in favor of Delchi and held Rotorex liable for the sum of $ 1, 248,331.87. The amount was inclusive of consequential damages for profits that were lost because of the diminished level of sales. Also, the expenses incurred by Delchi when they tried to remedy the compressors that failed to conforming, the extra cost of expediting the shipment from Sanyo and the costs of managing and keeping the compressors they had rejected. The court similarly awarded interests prior to judgment under Article 78 of CISG. The court also denied a claim for damages by Delchi for damages that arose from other expenses (Delchi Carrier, S.p.A. v. Rotorex Corp 1995). The issue arising was whether Rotorex had fundamentally breached the contract with Delchi and whether Delchi was entitled to compensations. Judge Munson found that Rotorex had breached the contract fundamentally. Under Article 74 of the CISG, Delchi was entitled to an award of damages in monetary form. This was because of the breach by Rotorex. The damages were to be a sum that equaled the loss incurred and that included profits lost. b) Why was the dispute governed by CISG? Could the parties have avoided it? The dispute was governed by CISG because the contract was between two companies from different countries. The countries had signed and ratified the convention and, were bound by it. The contract was between the seller Rotorex which was from USA and the buyer Delchi from Italy. Both countries are signatories to the CISG. The CISG is a uniform law which governs the sale of goods worldwide. The CISG is also a lex mercatoria which means it is a body of law and trade practices that parties that are trading in the international market can use to regulate their arrangements (Kilian 2001). In an attempt to avoid the CISG, the parties could have stated in their agreement to exclude the application of this convention. The parties could have done so by derogating from the CISG subject to Article 12 of the same (Schaffer, Agusti, Earle 2008). c) How (if at all) did Munson SDJ and circuit judge Winter on appeal differ on the key legal issues? i) Whether Rotorex had breached the contract. The two justices were in agreement that Rotorex had breached the contract by failing to deliver the goods that Delchi was expecting. ii) If so was the breach fundamental. The breach was fundamental because it resulted in such detriment to Delchi such that it considerably and materially deprived the company of the compressors he expected from the contract. There was no conflicting opinion on this from the two justices (Zeller 2005). iii) How to calculate lost profits. Judge Munson calculated the lost profits by taking away the 478, 783 lire cost of manufacturing/ the total cost variable of a single ‘Arielle’ unit from the 654, 644 lire average selling price. The circuit judge Winter stated that since there was no precise stipulation in the CISG for calculating lost profits, Judge Munson was therefore, correct to use the formula which is the standard method used by courts in America. That is to deduct variable costs from revenue from sales so as to obtain a lost profits figure (Schneider 1995). iv) Were the out of pocket expenses recoverable? The district court failed to award the out of pocket expenses that Delchi incurred stating that these expenses had been accounted for in the claim by Delchi for lost profits and therefore, Judge Munson said that an award of further expenses would result to Delchi recovering twice. The circuit judges disagreed stating that under the CISG, a plaintiff may obtain damages to recover full loss incurred that included profits lost and, it was not limited to that only. The judge stated that Delchi’s profits that were lost were to be obtained by calculating the revenues that were hypothetical that were to be derived from sales that were not made less variable hypothetical costs that would have been made but were never sustained. This award of damages according to the Judge was according to Article 74 of the CISG equivalent to the loss. v) Foreseeability of additional lost sales. The expenses that Delchi incurred for customs, shipping and other matters that were related for the two consignments of compressors from Rotorex that were returned and expenses for storage for the second consignment at Genoa were expenses that were foreseeable and recoverable. These expenses were up front and, they had to be paid in order to get the compressors to the plant for manufacturing for inspection (Komarov 2005). The expenses were experienced prior to the detection of non conformity of the compressors. The justices were in agreement that Delchi should not be denied payments for damages that were incidental as this would effectively cut into their award for lost profit. CISG Application to sale of goods: Australian and Singaporean companies. a) Does the Australian, Singaporean law and or the CISG likely to govern this sale of goods contract and why? In its efforts to expand its range of exotic, foreign products the leading supermarket chain stores in Singapore Sing-Song Supermarket Pie hereinafter SSP contracted with Banjo Beef Party Ltd hereinafter Banjo an Australian firm. The contract was for delivery of packets of assorted Beef Jerky snack food products. Article 1 of the CISG provides that the convention will apply to contracts concerning the sale of goods involving parties that had their place of business in various states. This is so when the States are contracting in the convention or when the private international law rules guide the use of the law of a State that is contracting (D'Arcy et al. 2000). In this case the two firms, which are the SSP and Banjo, are located in States that are signatories to the CISG and thus CISG applies (Stoll and Gruber 2005). 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, would SSP have a legal excuse to avoid the contract? The rule is courts do not permit any party to flee or avoid an obligation in a contract simply because the party is unable to perform the contract. This is the situation even when the lack of ability to perform a contract was not the fault of the contracting party. The unforeseen circumstances include strikes, problems with delivery, and problems with the weather or even mechanical hitches (Piliounis 2000). The law may excuse non performance in certain circumstances such as, when the performance of the contract becomes legally or physically impossible to carry out, when the underlying contract purpose fails to exist and, once a change in surrounding circumstances makes the contract commercially or financially impracticable (Disa 2003). In order to determine the above possibilities that a party may claim as an excuse, the courts will inquire whether the party asserting the same could have foreseen a likelihood of the occurrence alleged. In the event that the situation was foreseeable, the law requires the party to make provision for it in the contract. In the event, the party did foresee but nonetheless failed to provide for the same, the courts will assume that the party had intentions to bear the risk (Honnold 1999). A force majeure clause excuses a party from failing to perform a contract when an event occurs which is particularized in the clause (Brunner 2009). The Australian dollar rose therefore, commercially it was not practicable for SSP to sell Banjo products through its chain markets as the consumers were resisting the high priced snack foods. According to the law when it becomes financially or commercially not practicable, the courts may excuse the performance of the contract (Ahmadpour 2005). The question is whether the rise in the Australian dollar was reasonably foreseeable. If the same was not reasonably foreseeable and no provision was made, SSP may be excused for non performance. If the rise in the dollar was foreseeable and SSP did not provide for it then they have an obligation to fulfill the contract (Schaffer, Earle and Agusti 2005). c) If due to the catastrophic Queensland floods of January 2011 Banjo was unable to supply the first instalment would it be in fundamental breach of contract? According to the CISG Article 25, a breach that is committed by any party becomes fundamental when it results to such loss to the other party as significantly and substantially to deny the party that which it is permitted to get from the contract. The exception to this is the party that breaches the contract was not able to foresee and, any other person who is reasonable of the same caliber in a similar situation would not have anticipated the outcome of the incidence. The disastrous Queensland’s floods were a not foreseeable and could not be anticipated (Schaffer, Earle and Agusti 2005). Article 79(1) similarly provides that non performance by a party is excused once the party proves that the hurdle was beyond its control. Thus it could not reasonably be expected to take the hurdle into consideration in a force majeure clause at the time the contract was being concluded. Banjo failed to supply the first installments because of the floods which were beyond its control and it could not have been foreseen. It is thus not a fundamental breach (Rimke 2000). Alternatively assuming delivery to the north Queensland claims airport was part of the contract and Banjo was only able to deliver the first installment by resorting to expensive air charter services (triple the regular trucking costs) from its central plant to the Cairns airport, could it likely recover those extra costs from SSP? According to the principles of UNIDROIT and the European Contract Law principles or the PECL, when a party is faced with any hardships or difficulties such a party is not released from the underlying obligations automatically. The contract still subsists. The cost will be borne by Banjo because the goods have not yet passed to SSP. Banjo is entitled to negotiate the contract when it is faced with hardships. The parties can agree to adopt the contract in a manner that restores the equilibrium of the contract. The other alternative would be for the party to terminate the contract (Rimke 2000). d) Assume that the first and second instalments were delivered and paid for compliant with the contract. Then, due to change of marketing strategy by SSP and Singaporean government regulations that made importing such products more time consuming and expensive, it advised Banjo in advance that it dint want the third instalment. Banjo accepted SSP’s advance refusal and was able to re-sell that third instalment on the over-supplied Australian domestic market for 50% of the SSP premium contract price also incurred I) $10,000 in unavoidable prepaid costs (having prepaid at a discount third instalment freight costs and ii) costs of $100,000 in re-marketing the third instalment in Australia. What (if any) legal remedy does Banjo have against SSP in these circumstances? a party has avoided a contract in a manner that is reasonable and within a time that is reasonable and, the seller is able to resell the goods, the party claiming damages is entitled to recoup the difference between price of the contract and price in the transaction which was substituted as well as any other damages that are recoverable, under Article 74 of the CISG. Banjo is entitled to recover the other 50% premium contract price that it would have obtained in the original contract. The convention stipulates that once a party fails to perform its contractual obligation, the party that is aggrieved is entitled to some remedies such as the right to claim any damages. Banjo can pursue compensation from SSP for damages suffered because of the termination of the contract (Okoli 2011). The aim of this provision is to put the party that is aggrieved in a position that it could have been had the contract been performed as agreed. Article 74 thus provides for the recovery of both the actual loss that is incurred and the total net gains that were not realized. Article 75 through 76 provides the way to calculate the damages (Guide to Article 76: Comparison with PECL 2011). Banjo’s Expansion to Singapore. As a variation on question two above, assume instead that Banjo Beef Pty Ltd (Banjo) is the main supplier of Beef Jerky in the Australian market and has a thriving Foodoz restaurant chain in Queensland that sells ‘Fair dinkum Aussie tucker’ a 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 Foursquare chain of convenience stores to sell its range of Beef Jerky and associated snack food products and start up under a separate franchise type agreement, a Foodoz restaurant chain utilizing Banjo’s menu range, restaurant decor, signage, logos, registered Australian trademarks and business/ marketing model. Advice Banjo on how it ought to proceed in optimally structuring its intended expansion path into Singapore via twin agreements with Four Square or equally beneficial agreements, mindful of intellectual property rights. Banjo’s Expansion into Singapore via Licensing. Companies are able to expand their businesses abroad by either direct sales or direct foreign investments or even through various types of licenses. Licensing enables companies to transfer their intellectual property rights legally (Hoy and Stanworth 2003). Licensing under Australian law. Under the Australian Law on intellectual property rights, licensing is the most widely used method of commercializing intellectual property. This means that permission is granted by the holder and owner of an intellectual property right to other persons or companies and organizations. The person or organization who receives grant to use does so on terms that have been agreed upon by the parties, as well as the laid down conditions (Zimmerer and Scarborough 2008). Licenses are of various types and franchise is one of the forms of licenses known today. Licensing an IP grants the licensee the permission and the rights to use a patent, trademark or even a copyright. The right is for use only and not ownership. The right to use the IP can be granted for a purpose that is defined, a specified territory and a period of time that can be determined. The person who gets the license or the licensee does not pay to use the product in questions but pays for legal rights exclusive permission to trade or use the product protected by IPR (Australian Government Department of Foreign Affairs and Trade 2011). Banjo plans to expand its business into the Singapore market which is a receptive and lucrative business venture. It wants to enter into an exclusive license with the Foursquare chain of convenience stores. An exclusive license is considered the most commonly used strategy to commercialize intellectual property right with any partner in a foreign market. The Beef Jerky is a Trademark in Australia and, it is owned by Banjo. Banjo wishes to expand its foreign market in Singapore. The best way to approach this is Banjo as the trademark owner will grant a license to Foursquare chain of convenience stores. The Foursquare will exploit the trademark in Singapore where Banjo does not have the infrastructure and capital to maximize the right in trademark that it enjoys in Australia (Dunning 1989). The licensor Banjo exploits its trademark in Singapore and, the licensee Foursquare is acting on the popular symbol of Beef Jerky which is recognized by the people in Singapore. This trademark recognition easily influences the consumers who are then motivated to buy the products. An exclusive licensing agreement thus gives Foursquare the right to sell the products of Banjo in Singapore. The licensee Foursquare takes all the risks involved and undertakes the necessary investments in stocking Beef Jerky in its chain of stores. It also manages the selling of products to the final customers or consumers of the product (Nanayakkara 2011). The licensor Banjo is later paid a royalty on every unit of product sold. The licensor undertakes little investment and this is an optimal way of expanding into the global or international market (George 2004). Recognition and enforceability of Australian sourced IPRs in Singapore. Singapore is recognized among the world’s most thriving countries and is also the biggest investment and trading partner with Australia in the South East of Asia. In July 2003, Singapore and Australia entered into a Free Trade Agreement commonly referred to as the Singapore-Australia Free Trade Agreement of the SAFTA. The agreement is comprehensive in the sense that the countries enjoy wide services and access to trade, investment, intellectual property and policy in competition policies (DFAT and SAFTA 2011) The SAFTA thus grants lucrative opportunities for merchandise and services to a broad range of exporters from Australia and, strengthens investments and trade links between the two countries. The tariffs placed by either country are favorable to each other enabling cheap inputs for businesses in either country on a wide range of goods. Banjo is able to enjoy the SAFTA that exists between Singapore and Australia as far as its intellectual property rights are concerned (Reynolds 2003). Singapore and Australia thought the SAFTA provided an outline that is clear in terms of cooperation, recognition and exchange of information on the protection, exploitation and management of intellectual property rights. The Australian sourced IPRs are recognized in Singapore and Banjo can enforce its rights in Singapore (DR Stanley 2009). Franchising. The FoodOz restaurant can best expand its foreign market in Australia through franchising. This restaurant in Queensland can license its IP to franchisees. This will comprise the trademark of the restaurant, the business system, logos and processes used. Franchising is a perfect way to distribute the restaurant services in Singapore. The Franchisor FoodOz remains the holder of the intellectual property right over the restaurant name and methods of service as well as the menu. The franchisee pays a royalty fee for the right to trade under the FoodOz Brand name (Pitts and Lei 2000). The franchisee FoodOz that will be in Singapore will benefit from the already established system of business and popular menu. Case Analysis: Pacific Carriers v. BNP Paribas. a) Provide a summary account of the relevant facts that give rise to this High Court case and the main parties involved. The case involved consignment of peas from Australia to India by a grain trader from Australia under the name New England Agricultural Traders Pty Ltd hereinafter NEAT. The trade from India was Royal Trading Company hereinafter Royal. The respondent in the case BNP Paribas was the banker of NEAT located in Sydney. The bank was financing the transaction for exports. The appellant was operating the MV Nelson which was the vessel that carried the Cargo. The appellants were PCL Carriers Ltd hereinafter PCL. The delivery of the cargo was without the bills of lading that were relevant. This vessel was arrested and, this caused PCL to suffer substantial losses. The matter that brought the matter to the High Court was the two indemnity letter from BNP which were purported to be signed nu NEAT and BNP. The letters were then purported to be addressed and sent to PCL. PCL stated that they were entitled to be paid by BNP courtesy of the indemnity letters. BNP contested that it was only NEAT that was to be pay PCL based on the real construction of the alleged letters and BNP was only acting as a verifying party to the execution of the letters by NEAT. BNP on the alternative argued that it was not to be held liable because the officer who attested and signed the indemnity letters had no capacity and authority to bind the bank to any indemnity. The person who signed one Ms Dhiri had no authority (Pacific Carriers Ltd v BNP Paribas 2004). The judge at the trial court found in favor of PCL and BNP thus appealed. On appeal at the Court of Appeal, the court did accept the construction of the indemnity letters that was being contended by PCL. The court upheld the defence of BNP which was based on the fact that Ms Dhiri had no authority neither ostensible nor actual capacity to bind the bank to any indemnity. PCL later sought special leave and appealed to the High Court (Christensen and Duncan 2009). b) Why were the letters of indemnity required? What procedures did BNP Paribas (‘the Bank’) have for the issuance of guarantees and indemnities? The commercial documents in this case the letter of indemnity are usually relied upon by other third parties who rely and act on the assumption of genuineness and authenticity that is established by the party’s method of execution. The facts and the circumstances surrounding the delivery are also authenticated by the indemnity letter. In business establishments like banking institutions, there are laid out channels of authority and necessary procedures that are formulated to enable documents that are conveyed to other parties are presented in a reliable manner. When issuing an indemnity letter that is expected to bind a bank as in the case herein, the transaction that formed a part in the ordinary business course of the bank provides written credits that were connected to the international transaction and sale of good. The indemnity letters herein were sourced and produced by an employee of BNP whom the bank portrayed as the Documentary Manager in the Credit Department (Graw, 2008). c) In what circumstances did BNP Paribas employee Ms Dhiri impress the Bank’s ‘chop’ or stamp on the letter of indemnity and was the Bank legally bound by her action? PCL relied in the indemnity letters and, their reliance was based on the content and the form of the letter. The Signature of Ms Dhiri who was a bank officer and the ‘chop’ or the stamp put on the correspondence and the fact that copies of the same were sent to PCL either directly or indirectly facilitated further reliance by PCL. The ‘chop’ was a design by BNP which was for use in credit letters and, this permitted the officer who had authority to use it to present a manifestation of legitimacy to the documents where it was placed (Graw 2008). During that time, BNP Paribas in Sydney had an organization structure that enabled Ms Dhiri as an officer of the Bank to whom the request of PCL was communicated to by NEAT. She was the authority that was in communication with PCL to convey the response of BNP. The response she conveyed was inclusive of the signature she placed on the indemnity letter and the stamping of documents with the stamp of the Bank. The stamp on the commercial document provided a strong presentation that the letter had been signed and stamp on BNP’s behalf (Pacific Carriers Ltd v BNP Paribas 2004). The High Court held that BNP was bound because the assumption that PCL made was reasonable and they acted upon it to their loss. The assumption was encouraged and facilitated by the actions of BNP who had placed Ms Dhiri in a capacity that enabled her to handle the indemnity letters that PCL had sought from the bank (Christensen and Duncan 2009). GATT/WTO-ASEAN, Singapore and FTAs with Laos and Cambodia. a) Would Singapore’s side agreement likely breach its existing GATT/WTO commitments? ASEAN was formed in the year 1967 in Bangkok by Malaysia, Indonesia, Singapore, Thailand and Philippines. The five countries were the original countries who were members of ASEAN which is an Association of South-East Asian Nations a Free Trade Area. ASEAN is also known as AFTA (Low 2003b). At the time when this regional trading block was formed, trade among the five countries was not significant. Today it is one of the most significant RTA in the continent of Asia. It aimed at eliminating barriers such as tariffs among the countries that were members through an agreement known as the Agreement on the Common Effective Preferential Tariff scheme or the CEPT (Low 2001). Singapore as a State is a voice to reckon with on issues dealing with free trade in the global market, World Trade Organization or the WTO and multilateralism. This country raises its opinion on the question of upholding an open, free and fair trading environment in the international scene. Singapore has placed a high significant precedence on the multilateral system of trading that is established under the WTO (Khor 2004). It views it as a strong and stable structure for developing robust and sound multilateral principles and rules. Singapore is thus active under WTO, ASEAN and APEC among other trading blocs (Herrmann 2008). Thus the side agreements that Singapore enters into with other countries is not a breach of its commitments under the ASEAN, the WTO and GATT rather a demonstration of its efforts to expand its trading partners in a bid to expand its trade with other countries (Elliott and Ikemoto 2004). b) If another ASEAN member for example Myanmar strenuously objected to Singapore’s preferential side-agreement with Cambodia and Laos, what mechanism would exist (if at all) for its resolution entirely within the ASEAN free trade block? The charter of ASEAN highlights the aspirations and the common aims and goals of the countries within the region as far as various areas and spheres are concerned (Fabbricotti 2003). In certain areas the implementation of the goals is clear and easy to interpret while other areas the goals require careful consideration. For instance, the provision of the Charter of ASEAN on settlement of disputes requires careful consideration (Sean 2009). The 8th Chapter of the Charter is committed and devoted to the questions surrounding dispute resolution and settlement. For instance Article 23 provides that, State members who are conflicting parties in a dispute may at any given time consent to approach the proper office, mediation and conciliation in a bid to finding an amicable solution within the prescribed and agreed limit of time. The provision further states that any party to a dispute may approach the Chairman of ASEAN or ASEAN’s Secretary General who acts in an ex-officio honor to make available the proper offices, mediation and reconciliation (Sean 2009). In resolving any objections of Singapore’s preferential side agreements, Myanmar may seek to utilize the mechanism available under the ASEAN agreement (Iwan 1996). There is the option of alternative dispute resolution through mediation or justice system. The success of ASEAN as a regional trading block is the comparative and or relative success in managing disputes (Vatikiotis 2006). In this situation Singapore in not in dispute with Myanmar, however there requires an intervention to determine whether Singapore is in violation of terms within the ASEAN free trade blocks. Myanmar can approach the Chairman of ASEAN to make a decision about Myanmar’s opinion concerning Singapore’s preferential side agreements with Cambodia and Laos (Fabbricotti 2003). Myanmar can also seek the intervention of the International Court of Justice of the ICJ. For example in 2003, Singapore and Malaysia unable to solve the dispute submitted their case through a special arrangement with ICJ as concerning the sovereignty of South Ledge, Middle Rocks and Pulau Batu Puteh. In order to approach ICJ both parties have to consent to its jurisdiction. 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