©MNoonan2012 Module 9 Commercial Dispute Resolution International Summer 2011-12.

©MNoonan2012

Module 9Commercial Dispute Resolution

InternationalSummer 2011-12

©MNoonan2012

This presentation and Copyright therein is the property of Maureen Noonan and is prepared for the benefit of students enrolled in the Commercial Transactions course conducted by the Law Extension Committee and is available for their individual study. Any other use or reproduction, including reproduction by those students for sale without consent is prohibited.

©MNoonan2012

Is this topic examinable?

Yes,either

--by a short direct question on this topic in Q6 of the exam. The appropriate answer would be descriptive.

Or

--as the whole subject of a problem question in Summer Semester 2011-12.

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International Disputes

Other relevant law and modules:

If a dispute involves an international sale of goods, the Vienna Convention is often relevant.

Insurance issues can also be involved.

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Methods of dispute resolution of International commercial disputes

involving a decision by a third party

Arbitration

Trans national Litigation

Indirectly-e.g. expert determination on a particular issue.

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Role of the lawyer in international commercial dispute resolution

Opportunities to be more involved in international law and harmonising efforts of model laws such as CISG.

Opportunities to use non legal skills e.g. languages, technical knowledge, cultural training, negotiation.

• As a professional mediator, arbitrator.• Management of international arbitrations for

exporters/importers/multinationals.• Role in international organisations.• Advising clients of alternatives for resolution

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Moot opportunity

Interested in International Arbitration?

LEC regularly puts together a team for the Vis moot in Vienna at Easter.

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Legal role in Risk Management

• Objective is to avoid dispute or minimise damage resulting from a dispute

• Must understand business• Conduct due diligence to ascertain main areas

where dispute/legal liability likely to arise• Appreciate bargaining position and

opportunities/limitations• Develop skills in risk allocation during contract

negotiation phase.• Sound understanding of Insurance required and

its interaction with contract risk allocation.

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Some Exporter Legal Risks

Customer does not pay-unpaid seller

Unable to recover /enforce rights in foreign country

Product liability-wrong item, quality, quantity, unsafe, late, incomplete

Unable to produce/acquire-breach contract

Loss in transit-who bears loss?

Competition cheaper-buyer defaults so they can take advantage of cheaper opportunity

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Some importer legal risks

Goods or services inappropriate, not what was ordered-claim for compensation available?

Supply does not meet local standards/lawsCrime –bribing foreign officialsTax, customs issuesUnfamiliar with particular free trade treaty

provisionsUnable to enforce rights /recover money in a

foreign countryUnable to sell items purchasedVulnerability to local customers for problems

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Some manufacturing risks

Raw material problemsMachineryFinanceDeliveryQuality/quantity issuesDamage to othersFailure to sell productsTitle issues

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Risk and Insurance

Unskilled allocation of risks (usually based on incorrect assumption that they can be imposed on other party or left to insurance) in contract negotiation and drafting stage can lead to:

• Multiple insurances covering same risks• Unnecessary extra costs built into prices• Unexpected contribution results between

insurers.• Unexpected legal consequences• Some risks not covered at all

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ARBITRATION

• Parties agree to resolve disputes by arbitration in accordance with nominated Rules.

• Parties appoint Arbitrator or panel

• Arbitration conducted

• Decision made by Arbitrator

• Binding on the parties

• Enforceable in approx 142 countries

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Arbitration process

• Can be similar to a court process• Can be informal• Can be remote• Can be on “papers” only, i.e. written materials and no

oral hearing• Parties can choose an arbitrator with expertise in their

business• Usual to choose 1 or 3 arbitrators so no deadlock

possible• Usually confidential, so limited precedent bank to consult

/ research. • Important elements are a process, rules defining how

that works, and a timetable to keep it moving along.

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International Disputes

Advantages of arbitration

• Neutrality

• Flexibility

• Efficiency

• Confidentiality

• Enforceability

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Global Survey –International Arbitration- large corporates- PWC 2007 – See: www.pwc.com

• 73% corporations prefer it to transnational litigation• Advantages outweigh disadvantages• Clear dispute resolution policy an important strategic asset. 65 % of

respondents had one. Minimised escalation and costs.• Arbitration clause in contract can give a tactical advantage• More than 75% arbitrations conducted under the auspices of an

arbitration institution such as ICC and London Court of International Arbitration; with regional centres growing

• Legal consequences most important for choice of venue• 91% liked finality and rejected idea of appeals• Concern that experienced arbitrators scarce. 90% wanted arbitrator

with established reputation in their field and region.• Corporations retain specialist arbitration counsel rather than usual

litigation lawyers to assist• 91% in house counsel well informed about international arbitration

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Framework for International Arbitration

UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (The New York Convention)

When local court faced with dispute covered by an arbitration agreement, it must stay proceedings and recognise and enforce arbitral awards.

Incorporated into Australian law via International Arbitration Act 1974(Cth). Note best practice amendments passed in June 2010 to improve its appeal for International Arbitration.

Australian Centre for International Commercial Arbitration. See www.acica.org.au

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International Arbitration Act (Cth)

Section 7(2) Subject to this part, where:(a) Proceedings instituted by a party to an arbitration

agreement to which this section applies against another party to the agreement are pending in a court; and

(b) (b) the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration;

(c) On the application of a party..the Court shall, by order, upon such conditions (if any) as it thinks fit, stay the proceedings….and refer the parties to arbitration……

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Recognition of foreign awardsSection 8(1) Subject to this Part, a foreign award is

binding….for all purposes on the parties to the arbitration agreement…

(2) Subject to this Part, a foreign award may be enforced in the Federal Court of Australia as if the award were a judgement or order of that court…..

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Exceptions to recognition and enforcement of foreign awards.

See Section 8, subsections 4-11.Examples of exceptions…incapacity at time

of arbitration agreement, arbitration agreement not valid in country where order made, no notice of appointment of arbitrator, decision beyond scope of arbitration.

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ACICA

The Australian Centre for International Commercial Arbitration is a non profit organisation formed in 1985 to provide a framework for international commercial arbitration and to foster Sydney as a centre for such arbitrations

See www.acica.org.au

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Why Sydney?

• Supportive legal environment-International Arbitration Act provides for various opt in/out alternatives, foreign lawyers can appear, signatory to NY Convention on Recognition and Enforcement of arbitral awards, supportive courts and political stability.

• Sophisticated legal profession and some internationally respected arbitrators such as Sir Laurence Street QC. Good support services, languages, resources.

• Cost savings when compared with London, NY, Paris, Geneva, HK…cost hotel rooms, rates etc.

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The fundamentals of arbitration

1. The agreement to arbitrate

2. Applicable law

3. Seat of arbitration

4. The arbitrators

5. The procedure

6. Confidentiality

7. The award

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The agreement to arbitrate

Agreement in contractEmpowers independent arbitrator(s) to determine

issues and disputesEnables parties to choose arbitrator, language,

rules, jurisdiction governing procedural issues and merits

Makes decision bindingIs enforceable under UN Convention on the

Recognition and Enforcement of Foreign Arbitral Awards 1958 (NY Convention 1958)

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The agreement to arbitrate

• Can refer all disputes to arbitration

• Can refer a specific dispute to arbitration.

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Dispute Resolution Clause

• Whether to refer disputes to arbitration or some other method

• Institutional or ad hoc arbitration• Rules, if institutional• Language• Where arbitration will be held• “seat” of arbitration-which law will govern procedure?• Which law will govern arbitration• Which law will govern merits of dispute• Activation trigger

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The “seat”

Important considerations:NeutralitySophisticated legal system with trained

professionalsRole of courts suits partiesPublic policy may affect remedies…party to

conventions?Appropriate facilities…hotels,

communications, security etc

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Law of Arbitration

Can be important to interpretation.

Under NY convention dispute must be capable of being arbitrated….how will that be interpreted under a particular law?

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Arbitration Clause

ACICA recommends:“Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA arbitration rules. The seat of arbitration shall be (location). The language of the arbitration shall be (language). The number of arbitrators shall be (1,3 or Article 8 of rules).”Note also need for choice of law clause.Notice of trigger, referral.

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Arbitration administration

• Institutional-established institutions with rules, procedures etc.

• Ad hoc-the parties design it themselves.

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International Arbitral Institutions• International Court of Arbitration and ICC in Paris• London Court of International Arbitration• Swiss Chambers of Commerce and Industry• Arbitration and Institute of Stockholm Chamber of Commerce• American Arbitration Association• HK International Arbitration Centre• Singapore International Arbitration Centre• China International Economic and Trade Arbitration Commission• Kuala Lumpur Regional Centre for Arbitration• The Australian Centre for International Commercial Arbitration• International Centre for the Settlement of Investment Disputes

Asia Pacific Regional Arbitration Group (APRAG) is association of 17 regional arbitral institutions in our area. See www.aprag.org

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Institutions

AdvantagesPre established and tested rules, guidelines and

practicesEstablished format which has proved workableNeutral entity to collect and hold fees, depositsList of experienced arbitrators, often by expertiseEfficient with trained and experienced staffPhysical facilities..rooms etcNeutral and independent

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Specialist forms of Arbitration

London Maritime Arbitrators Association-maritime disputes between commercial parties

Court of Arbitration for Sport-Lausanne, NY and Sydney

World Intellectual Property Organisation (WIPO) Geneva

International Centre for Settlement of Investment Disputes-involves states

WTO

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Arbitral Administration

SAMPLE ISSUES• How will arbitrators be chosen?• What language will be used for documents and oral

hearings-who will translate• What if one party delays or refuses to take a step• Interim measures• Degrees of discovery or disclosure• Procedure at hearings• Rules of evidence• Fees• Liability for costs

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Arbitration Rules

Arbitrations are conducted in accordance with rules chosen.

See for example ACICA Arbitration rules at www.acica.org.au. Selections follow.

Procedural as with civil/criminal procedure court system rules.

For other rules, see appropriate organisation

Parties can make their own if they prefer

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ACICA Rules

4. Party initiating gives ACICA a Notice of Arbitration which covers a demand for arbitration, contact details, copy of A clause, general nature of claim and remedy sought and proposal re number of arbitrators.

Notice can include detailed Statement of Claim or that can come later

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ACICA Rules

5. Within 30 days of receipt of Notice, Respondents submit Answer which includes contact details, any plea disputing jurisdiction, comments on particulars in notice and answer to relief/remedy sought.

It may also include Defence to Statement of claim, but this may come later.

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ACICA Rules

6. Parties may be represented8-16 Appointment of arbitrators17-31 Arbitral proceedings. Tribunal may

conduct arbitration as it sees appropriate provided that it treats parties equally and each is given opportunity to present their case.

Usually held in private21 Contents of statement of claim

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What does it all cost?

Appendix A to ACICA rules

Notice of Arbitration Registration fee $2,500

Admin fee

$1-$500,000 1% of amount in dispute

And upwards

Over $100m $39,000 plus 0.02% of amount in dispute above $100m up to maximum $60,000.

PLUS costs of representation, presenting case.

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Cost

Cost blowouts in Arbitrator and Party costs can mean Arbitration is as expensive (or, sometimes, more expensive) than transnational litigation.

Sometimes, still attractive / chosen because of other aspects (e.g. confidentiality, or because neither party wants to find itself in the courts of the other).

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Attitude of our courts

Mainly support

Care must be taken when drafting to avoid multi-party, multi-contract and multi-venue disputes.

If arbitration clause too narrow, it may limit range of disputes that can be settled by arbitration

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The Arbitral Tribunal

• How does arbitration process commence

• How many arbitrators on Tribunal?

• Role of Institution in formation of Tribunal

• How is chair chosen?

• Can a party object to appointment of an arbitrator? How?

• Who decides on any difficulties?

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Assessing Prospective Arbitrators

• CV?• Track record?• Expertise, language, neutral, skills in

procedure of arbitration• Qualifications and experience• Reputation• Cost• Compatibility with other Arbitrators.

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Note Local requirements related to other party

Under Arbitration Law of the PRC 1994 (CN), the arbitration commission is required to appoint “fair and honest persons as its arbitrators” and arbitrator must meet one of following:1. Engaged in arbitration work, or worked as a lawyer

or judge for at least 8 yrs

2. Engaged in legal research or teaching in senior positions

3. Legal knowledge and engaged in professional work relating to economics and trade in a senior position.

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Conflicts of interest

Arbitrator should disclose as cannot be neutral or be seen to be neutral.

Most legislation relating to arbitration includes a requirement to do so.

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Confidentiality

• Proceedings are private unless agreed otherwise….

• Privacy and confidentiality are important reasons for selecting arbitration for commercial organisations

• Lack of precedents, but some awards made public

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Awards

TYPESJurisdictionPreliminary issue e.g. any applicable statuteInterim-e.g. measures of protectionPartial award dealing with some claimsConsent awardDefault award-e.g. a party fails to appearFinal award

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Enforceability

NY Convention

An attractive feature over domestic court judgements

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Example

Australian company entering JV with Malaysian company to build infrastructure in Phillipines. You negotiate a clause submitting disputes to Australian courts.

However, judgement may not be enforceable (no reciprocal enforcement treaty with Malaysia), dispute very public, and judge may have no expertise.

Arbitral award would be enforceable (Malaysia and Australia both signatories to NY Convention), and can choose arbitrator(s) with expertise

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Another example

Importer of ginger from China. No choice of law clause. No arbitration clause. Ginger rotten.

Bring proceedings in China? Or Australia?

Vienna convention applies to sale?

Chinese law has closest connection?

Chinese law very different to ours. E.g. limitation periods, no precedent value

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WTO dispute settlement understanding (DSU)

Came out of Uruguay Round

Clearly defined rules and timetables

Parties/countries first discuss.

First WTO stage is good offices, conciliation.

Then a panel and endorsed (or rejected) by WTO membership.

Appeals on points of law are possible.

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DSU timetables

60 daysConsultation, mediation

45 daysPanel set up, appointments

6 mths Panel hears dispute and reports

3 wks Panel reports to WTO members

60 daysDispute Settlement Body adopts report (if no appeal) TOTAL 1 year

60-90 days Appeals report

30 daysDispute Settlement Body adopts appeals report. TOTAL 1.25 years

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How the panels work

• Each side presents case in writing to panel• First hearing-complaining country and

responding country present case• Rebuttals-written and oral• Experts, if appropriate• Draft panel report given to both sides• Interim report to both sides• Review for two weeks• Final report given to both sides and 3 weeks

later to all WTO members

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Remedies?

• Obligation on parties to respect ruling• Trade sanctions possible• Limited discussion in this course• Reading some cases is useful

e.g. See www.wto.org and go to Case Studies Thailand: Conciliating a Dispute on Tuna Exports to the EC

Dispute Settlement between Developing Countries-Argentina and Chilean Price Bands

Pakistan’s Dispute Settlement with the US on Combed Cotton Yarn exports.

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Trade with China

• Australian exports include mainly rural products, minerals and energy-wool, cotton, beef, dairy products, wine, iron ore, liquified natural gas-and a few services in education, tourism, architecture, banking and legal.

• Also considerable outsourced manufacturing done in China with products/components then imported.

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Trade Disputes involving China

Resolution mechanisms include:

• Consultation

• Negotiation

• Conciliation or mediation

• Arbitration

• Litigation

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• Less formal methods are preferred• Desirable to maintain a harmonious and

consensual working relationship, so confrontational/adversarial methods often not helpful.

• Conciliation and arbitration therefore common• Arbitration clauses common in JV contracts –

avoid unfamiliar Chinese court system, reduce costs, preserve business relationships, enforceability.

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• CIETAC (China’s International Economic and Trade Arbitration Commission) is the mechanism China has set in place to resolve problems in trade

• Legislative encouragement for negotiation and conciliation first and arbitration or litigation if that fails.

• JV contracts MUST contain provisions re settling of disputes.

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International Sales of Goods

Where a contract for sale of goods is between an Australian business and a foreign business in a country a party to the Vienna Convention, the terms of the Vienna Convention/aka CISG applies (by virtue of State Acts), with certain exceptions, unless specifically excluded and prevails over Australian law to the extent of any inconsistency.

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CISG application

Note that for the purposes of this module, certain subtleties of CISG application are glossed over to enable a general view to be given in one module.

In practice, these subtleties may have significance.

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CISG

Applies:

Where law of the contract is law of a party to the convention. Students can assume in this course that that is always so.

Does not apply

To sales of goods bought for personal, family or household use, auction sales, sales of financial instruments and securities, ships, electricity and sales by authority of law.

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Formation of Contract

While Agreement (offer and acceptance) and intention to be bound are elements of a contract under the Convention, consideration is not a necessary element.

See Article 23

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Offer

• Offer must be sufficiently definite and indicate an intention to be bound…indicate goods,price and quantity. Article 14

• Offer to be interpreted “according to the offeror’s intention as perceived by the offeree”

• Offer becomes effective when it reaches offeree. Article 15

• Offer can be revoked if revocation reaches offeree before they have dispatched acceptance. Article 16

• Offer terminated when rejection reaches offeror. Article 17

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Acceptance

Acceptance is statement or conduct indicating assent to an offer. Article 18

Acceptance effective as soon as it reaches offeror.

An acceptance which attempts to modify an offer is a counter-offer and a rejection of original offer. Article 19

Subjective intent important and parol evidence can be used, even if written contract meant to be complete record-different to local law.

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Modification and usage

Can be modified by agreement. Article 29

A failure to object to a unilateral attempt to modify does not constitute agreement.

Parties bound by any usage they have agreed or any practices they have established between themselves. Article 9

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Conformity

Seller must deliver goods which are of the quantity, quality and description required by contract and in containers or packaging required by Contract. Article 35.

In the absence of agreement to contrary, goods do not conform unless

• they are fit for the purposes for which goods of the same description would ordinarily be used

• fit for any particular purpose made known.• Have same qualities as any sample• Packaged in manner usual for such goods or if no such

way, adequate to preserve and protect goods.Note details in Article 35.

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Liability for non conformity

Seller liable for nonconformity existing at the time risk passes even if only becomes apparent later. Article 36

Also liable for nonconformity occurring after risk has passed due to a breach of any seller obligation.

If delivered prior to delivery date, seller can make up deficiency or part to time of delivery. Article 37

Buyer must examine goods for nonconformity within shortest period practicable Article 38

Buyer must notify non conformity or lose right to rely on it. Article 39

If goods do not conform, buyer may reduce the price in certain circumstances. Article 50

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Liability for third party claims

Seller must deliver goods free from rights or claims of third parties. Article 41

Seller must deliver goods free of IP claims. Article 42

Buyer cannot rely on these provisions unless they give notice. Articles 43,44.

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Payment

Buyer must pay price, including take steps required by contract or law to enable payment to be made. Articles 53,54.

In absence of price deemed to have agreed comparable price. Article 55

Buyer not bound to make payment until given the opportunity to examine goods, and other payment details. Article 58.

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Delivery

Seller must deliver and transfer property in goods. Article 30.

If place not specified, provisions in Article 31.Date –on date specified or within range

specified or reasonable time after contract. Article 33

Buyer must take delivery as required. Article 53, including all acts reasonably expected to enable delivery. Article 60.

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Risk

Loss or damage to goods after risk has passed to buyer does not discharge obligation to pay unless loss or damage caused by seller’s act or omission. Article 66

Where carriage included, risk passes when handed to first carrier. Article 67

See also 68, 70.

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Exemptions

See Article 79.Party not liable for failure due to an

impediment beyond their control Article 79

Party who fails to perform must notify other party of impediment. If notice not received within reasonable time, defaulting party is liable for damages resulting.

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Anticipatory breach

Article 71.A party may suspend performance if, after

entry into contract, it becomes apparent that the other party will not perform a substantial part of their obligation as a result of a serious deficiency in their ability to perform or creditworthiness or their conduct in performance or preparation.

Must give notice.

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Fundamental breach

Article 25

A fundamental breach results in such detriment to other party as substantially deprives them of what they are entitled to expect BUT not fundamental breach if party in breach did not foresee, and a reasonable person would not have foreseen such a result.

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Buyers remedies

Exercise rights provided by Articles 46-52-require performance, give an extension, require nonconformity to be remedied, avoid contract or reduce price.

And/or

Claim damages. Article 45

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Avoidance

No automatic avoidance.

Must be declaration.

Avoidance releases parties from contract obligations subject to damages, but does not affect terms re dispute settlement or rights and obligations on avoidance.

See Articles 72, 64, 49 for circumstances when declarations of avoidance can be made.

See Article 73 re instalment deliveries.

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Mitigation

Article 77

A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated.

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Damages and measure

Articles 74,75

Meant to provide equivalent of benefit of bargain

Must be capable of calculation

Lost profits recoverable

Can recover interest Article 78

Specific performance determined under domestic law Art 28

Restitution Article 81.

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©MNoonan2012 Module 9 Commercial Dispute Resolution International Summer 2011-12.

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Transcript of ©MNoonan2012 Module 9 Commercial Dispute Resolution International Summer 2011-12.