International Sale of Goods

Transcription

1 UIA Union Internationale des Avocats Training Course for Lawyers International Sale of Goods Prof. Dr. Burghard Piltz, Rechtsanwalt

2 We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts. U.S. Supreme Court 1972 (Bremen Case)

3 double approach assessment from a national point of view state A Competent Court according to the legal rules valid in state A state B Competent Court according to the legal rules valid in state A Applicable Law according to the legal rules valid in state A Applicable Law according to the legal rules valid in state A

4 PIL is national/domestic law with the function to settle international cases choice of an applicable law is a solution only to the extent that it is possible and implemented legally binding according to all jurisdictions involved solution could be an internationally harmonized PIL like Rome I, but even then remain irrespective of a valid choice of law: If a foreign law is applicable: Limits toforeign party autonomy lawsolution: is difficult setinternational up to apply by Rome I: uniform law Art. 10 no II European Rome party I: autonomy consent B2B-sales appearing not law accepted existent fromworldwide circumstances Art. 12 striking II Rome differing differences I: manner approaches between of performance to the decide statute whether and laws steps of the to be taken in the event European of improper choice countries of performance law is made validly special connecting differing range factors: of representation, choice of law set-off, preliminary issues Art. 9 Rome always I: overriding consent mandatory by both parties provisions required Art. 21 Rome I: ordre public Art. 23, 25 Rome I: preference of other conventions and EU provisions Conclusion: Even in the event of a valid choice of a national law the case will never be evaluated like a domestic one.

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6 subject matter 1. sales contract of goods 2. no exception according to Art. 2 or Art. 3 territorial 1. places of business in different States 2. contact with at least one Contracting State both places of business in Contracting States PIL of the forum leads to a Contracting State temporally formation of contract or offer to contract after CISG entering into force in the respective Contracting State

7 exports Contracting State imports German law others CISG foreign laws

8 All transactions & sales are subject to swiss law Es gilt das Recht der Bundesrepublik Deutschland unter Ausschluss aller internationalen und supranationalen Rechtsordnungen, insbesondere das UN-Kaufrecht. The application of laws on international sale of movable objects and on international purchase contracts on movable objects is excluded Swiss internal law : CISG is Swiss internal and not foreign law, folglich gilt CISG. This contract will be governed by international law. Neither the Hague Convention Relating to a Uniform Law on the International Sale of Goods of July 1, 1964, nor the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, shall apply.

9 language The SCT (the proper text and the reference to their incorporation) are to be formulated either in the language of the other party or in the language of the contract or the contract negotiations. reference Unmistakable reference to the incorporation of the SCT, at the latest when the contract is concluded (usually with the offer), outside the proper text of the SCT and in the language necessary. handing over The entire text of the SCT must be at hand of the other party, at the latest when the contract is concluded (usually with the offer), (duty of the user of SCT to inform the other party). explicit or implicit agreements precede

10 incorporation incorporation by reference according to art. 14 et seq and art. 8 CISG battle of forms in line with art 19 CISG validity not governed by the CISG, art. 4(b) CISG applicable national (gap filling) law applies

11 German law remaining validity (consent - dissent), if protective clause and consent to conclude knock-out rule problem: silent GTC clauses CISG counter-offer last-shot rule problem: conclusion of contract explicit or implicit agreements precede

12 seller art. 30 buyer art. 53 delivery of goods other agreements, payment of the price practices and usages handing over of prevail taking delivery relating documents art. 6, 9 transfer of the property in the goods further obligations further obligations eg. Incoterms

13 If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: (a) if the contract of sale involves carriage of the goods in handing the goods over to the first carrier for transmission to the buyer; (b) if, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place in placing the goods at the buyer s disposal at that place; (c) in other cases in placing the goods at the buyer s disposal at the place where the seller had his place of business at the time of the conclusion of the contract.

14 If the place of delivery and the place of taking delivery are not identical the transport of the goods must be arranged: Art. 32(2) and Art. 31(a) However, the carriage as such is not an obligation of the seller If the place of delivery and the place of taking delivery are identical, in the meaning of Art. 31(a) CISG no carriage of the goods is necessary in order to fulfil the contract of sale irrespectively of the fact that the goods are transported The fact that the transport of the goods is carried out by an independent carrier is a typical feature of a sale involving carriage of the goods, but does not amount to the decisive criterion In case of doubt, delivery transactions governed by the CISG are sales which involve carriage of the goods pursuant to Art. 31(a)

15 EXW FOB CIF DAT COD F.O.B. DAP

16 The obligations of the seller and the buyer regulated by the Incoterms Rules concern in particular: responsibility for export, import and transit clearance including security clearance contracts of carriage and insurance place/point of delivery and of taking delivery act of delivery, loading and unloading transfer of risks allocation of costs notices and assistance with information delivery documents packaging and marking

17 The Incoterms 2010 consist of 11 different clauses These 11 clauses are arranged in 2 groups according to the mode of transport 4 groups according to systematic characteristics E F C D

18 FCA - free carrier FAS - free alongside ship - any mode of transport - especially designed for dispatch in container - handing over the goods or placing them at disposal - only for sea or inland waterway transport - placing at disposal FOB - free on board - only for sea or inland waterway transport - placing on board the vessel or procuring goods already so delivered

19 München Hamburg Buenos Aires Mendoza Intersection for: place of delivery and place of taking delivery allocation of costs transfer of risks carriage export clearance up to the seller to obtain FCA the place of delivery may be fixed at the place of business of the seller or at any place between Munich and Hamburg import and transit clearance up to the buyer to obtain

20 CFR - cost and freight CIF - cost insurance and freight - only for sea or inland waterway transport - placing on board the vessel or procuring goods already so delivered - only for sea or inland waterway transport - placing on board the vessel or procuring goods already so delivered - insurance cover during carriage

21 CPT - carriage paid to - any mode of transport - handing over to the carrier CIP - carriage and insurance paid to - any mode of transport - handing over to the carrier - insurance cover during carriage

22 München Hamburg Buenos Aires Mendoza Intersection for: place of delivery transfer of risks agreed upon insurance CPT and CIP the place of delivery may be fixed at the place of business of the seller or at any place between Munich and Hamburg Intersection for: place of taking delivery carriage allocation of costs export clearance up to the seller to obtain import and transit clearance up to the buyer to obtain

23 München Hamburg Buenos Aires Mendoza Delivery CIF Buenos Aires. Arrival Buenos Aires not later than Delivery shall be CIF Jeddah (seaport). Delivery in an undamaged condition to buyer s installation site shall constitute Delivery. the buyer shall open a first-class payment guarantee before the arrival and release of the first container in the port of destination. The payment guarantee will expire upon payment of the goods or on. at the latest..

24 costs initiative / mode risk transit packaging, marking seller s places of business buyer s act of delivery main-transport exportclearance importclearance EXW V K K K K K K FCA V V K K K K K FAS V V K K / ship K K K FOB V V K K / ship K K K CPT V V V V K K K CIP V V V V K K K CFR V V V V / ship K K K CIF V V V V / ship K K K DAP V V V V V V K DAT V V V V V V K DDP V V V V V V V observations seller s minimum obligations 2 modes depending on place of delivery seller has to insure the transport seller has to insure the transport seller has to unload seller s maximum obligations place of delivery place of taking delivery placing at disposal handingover

25 If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may..., Art.45(1) If the buyer fails to perform any of his obligations under the contract or this Convention, the seller may..., Art. 61(1) uniform term of breach of contract

26 remedies by the buyer reduction in price repair substitute delivery avoidance damages additionally: interest insofar as reasonable for the seller only in case of a fundamental breach of contract only in case of a fundamental breach of contract additionally: interest art. 50 art. 46(3) art. 46(2) art. 49(1)(a) in principle intact restitution required within a reasonable time art. 45(1) (2)