Each assignment below should be prepared before the class, including those for the first class. They will be collected before the cases are discussed. Reports should contain about 500 words and should identify the relevant facts, the decisive issues and an analysis of the outcome.
 
 

CLASSES 1-2:

Topics:
Subjects of private international law
Sources of private international law
Choice of law
Jurisdiction
Enforcement of foreign judgments

Web sources:
United Nations Convention with respect to the International Sale of Goods (Vienna Convention)
Hague Convention with respect to the applicable law (1955)
Rome Convention with respect to the applicable law (European Union) (in particular articles 3 and 4)

Case studies:
LICRA vs Yahoo, the nazi memorabilia case
International Shoe - Judas Priest

Assignment: Applicable law in matters of contract
An American tourist comes to France for a holiday. He goes into a boutique on Boulevard Saint-Germain and buys a couch. He pays cash. He gets a receipt on the letterhead of the boutique which identifies the couch, indicates the price, that it has been paid, and that the price includes the cost of freight, insurance and duties to the New York apartment of the buyer.

72 hours later, after his return to New York, the customer measures his living room and decides that the couch is too big. So he immediately sends a fax to the Paris boutique, which the boutique receives, stating that he cancels the order.

In the meantime, the boutique has already had the couch loaded onto a ship toward New York.

Suppose that under French law, any consumer has the right to cancel any contract with a merchant within 7 days of the conclusion of the contract. Suppose that under New York law, any consumer has the right to cancel any contract with a merchant within 48 hours of the conclusion of the contract.

Assuming that either a New York or a Paris court would accept jurisdiction to hear the case, what are the US customer's chances of getting his money back?
 
 

CLASSES 3-4:

Topics:
International contracts (I)
- offer and acceptance
- battle of the forms
- electronic contracts

Web sources:
Guide to International Trade Law Sources on the Internet
European Union Electronic Commerce Directive
International Institute for the Unification of Private Law (UNIDROIT) articles 3 and 4.

Case:
Lucy v Zehmer - Lefkowitz

Assignment - The battle of the forms in international sales
A French exporter of textile weaving machinery receives a letter from an American company containing a document on the letterhead of the US firm and which is entitled "Order". The US firm orders a weaving machine from the French exporter and indicates the seller's stock keeping unit reference and a price of € 500,000 DDP as per the catalogue, delivery whenever possible. The American buyer's form states on its front that "All other terms and conditions of this order appear on the back hereof". On the reverse side, there are such terms which include the following provision: "This contract shall be governed by the law of the State of New York."

The French exporter decides to accept the order and mails back to his US customer, who receives, his standard form of "Conditions de vente" (terms of sale). On its face, the French exporter reproduces the stock keeping unit, the price of € 500,000 and states that delivery will be carried out within 30 days. This form also makes reference on its face to the "Autres conditions de vente" (other terms of sale) on the reverse side. Indeed on the reverse side of the "Conditions de vente", there is a provision which states that "Ce contrat sera régi par la loi française" (This contract shall be governed by the law of France).

After exchange of these documents, the French exporter makes the machine for delivery. But, in the meantime, the US buyer has run into a major problem: his own customer, for whose production it has ordered the French machine, has gone bankrupt and the US firm no longer needs (or wants) the French exporter's machine.

Can the US buyer get out of the deal? On what basis? Please refer to the relevant articles of the UN Convention on the International Sale of Goods (Vienna Convention).

Suppose now that the French exporter's shipment reaches the buyer's warehouse where it is received and, after inspection, the buyer claims deficiencies in the machine and writes the seller to take it back without charge. Would the result be the same?

Suppose now that the transaction is conducted by e-mail and that the respective standard forms are sent as PDF file attachments which neither party ever actually opens though they reach their respective designated (in advance) e-mail boxes. Applying the EU Directive's relevant provisions, what would the result be?

Topics:
International contracts (II)
- representations, errors and fraud in international contracts
- transfer of ownership - reservations of property
- warranties - implied and contractual
- transfer of risks - INCOTERMS etc.
- international transportation
- international insurance

Web sources:
Guide to International Trade Law Sources on the Internet
European Union Electronic Commerce Directive
International Institute for the Unification of Private Law (UNIDROIT) articles 3.4, 3.5 and 3.6

Assignment: Ownership
On April 10, 2001, an art collector from New York City places an order with a French collector for an original Picasso painting. The price is F 5 million FOB Paris Roissy Charles de Gaulle. The price is paid at the time of signing the order. According to the contract, the painting is to be loaded on board no later than May 15.

On May 1, 2001, a well known Museum in New York City, not knowing that the painting has already been sold, offers the French collector F 6 million. The French collector to sell the painting to the Museum; they sign a bill of sale and the second buyer walks away with the painting.

Considering himself to be quite honest, the French collector then writes to the New York collector apologizing for the change of plans, returning his payment and offering him a special effort on his next purchase as compensation for his disappointment. In closing he consoles the New York collector by telling that in any case he will have easy access to the painting which will be on exhibit at the  Museum right around the corner from his Gallery!

The New York collector decides to sue to get the painting. What are his chances of success?
 

Topics
International contracts (III)
- breaches
- remedies
- excuses for non-performance

Web sources:
Pace University Center for International Commercial Law in USA

Cases:
United Airlines - Bates - Falcone

Assignment :

A French exporter and an Indian importer have concluded a contract for the delivery of champagne: one 20 foot container on the 30th of each month for six months. The contract stipulates that, as regards delivery, time is of the essence. Payment is to be at sight of the exporter's invoice which is to be sent to the importer by e-mail on the day the goods are loaded. The goods are to be loaded at Le Havre.

The first two shipments are delivered on time and paid on time.

The third shipment is delivered 10 days late. The importer protests in writing but pays the exporter's price within 24 hours according to the contract.

The fourth shipment is again late, this time by 15 days.

The importer decides this time to withhold payment until the next shipment has left France.

Having not received its payment for the fourth shipment, and since in the meantime, the market price of the exporter's champagne had risen by 15%, and considering that the exporter has immediate possibilities to sell to other customers at the new price, the exporter e-mails to the importer to terminate the contract with immediate effet.

The Indian importer intends to sue the supplier for breach of contract. What are its chances of success?

In answering, please pay particular attention to articles 25, 49, 64 and 71 to 73 of the Vienna Convention.

Assignment :
In pre-Khadafi times, a French engineering and construction company accepts a contract to build a highway across the desert in Libya. The contract is with a Libyan company owned by a group of private Libyan investors.

Shortly after work is started on the highway, Khadafi takes power. The new government promptly triples the import duties on all imported asphalt.

Secondly the new government enacts a law requiring that all transportation within Libya of certain products (including specifically asphalt) must be carried out by Libyan nationals. Consequently, the French company must now contract the transportation of its asphalt through Libyan companies whereas it had intended to organize internally this strategic activity. The result of the law in practice is that the fuel supplies are sporadic, unpredictable and insufficient. Consequently, the contractor's equipment progressively rots in the Libyan desert.

Still the French company considers itself force to continue building the highway, otherwise how would it ever get paid anything. And the Libyan companies and officials with which it has contact all say that eventually the Libyan Government will make an effort to reward total completion of the highway.

Finally the highway is completed but late.

The Libyan invokes the delay to refuse to make the last payment of 33% of the price of the project.

The contract expressly provides that:

"A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences."

The French contractor asks what are its chances of success in the upcoming arbitration.

Assignment:
A French importer and a Japanes exporter have concluded a contract for the importing of rice into France. The contract was concluded on June 1. The contact price is US $ 100 per ton. The delivery was to be made CIF (cost, insurance and freight) Le Havre. The goods were to be loaded onto a vessel at Yokohama on June 30. Payment was to be made by presentation by the exporter of the invoice and shipping documents at the counters of the bank of the importer in France.

Had the goods been loaded on time, the documents would have reached the French bank on July 30, and the goods would have reached Le Havre on August 30.

In the end, the Japanese seller does not deliver the goods and does not inform the buyer that no delivery has been made.

Considering that the exporter has breached the contract, the importer wants to know what might the damages that it would collect in court.

Assume that

On June 30, the price of a ton of rice at Yokahma is $ 100 per ton, but at Le Havre at that date it is $ 110 per ton;

On July 30, the price at Yokohama is $120 per ton, and at Le Havre $ 130 per ton;

On August 30, the price at Yokohama is $ 140 per ton, and at Le Havre $ 150 per ton.

In particular to articles 74 to 77 of the Vienna Convention to prepare your answer.

Assignment:

Write a report on the 9/11 insurance case

World Trade Center insurance dispute settled for $2 bn

A group of seven major insurance companies has agreed to a $2 billion payment to settle a long-running dispute over insurance claims for New York's destroyed World Trade Center, clearing the way for the redevelopment of the iconic site, reports said Thursday.

The seven-strong group consisted of Allianz Global Risk, the Travelers Companies, Zurich American, Swiss Re, Employers' Insurance, Industrial Risk Insurers and Royal Indemnity, The New York Times reported.

The deal concludes a five-year legal battle between Larry Silverstein, who leased the WTC site just six weeks prior to the Twin Towers' destruction in the Sep 11, 2001 terrorist attacks, and insurers.

The settlement brings to $4.5 billion the amount awarded to Silverstein in insurance settlements, and provides a green light for the $9 billion redevelopment of the site to proceed.

All parties to the deal signed a confidentiality clause barring them from revealing how much each insurer had paid out.

The settlement was the largest in industry history, said Andreas Shell, claims crisis coordinator for Allianz, adding that his company was "extremely happy with the result".

The proceeds of the settlement will be split between the Port Authority of New York, which owns the site, and Silverstein Properties, which is spearheading its rebuilding.

Officials said the deal would enable them to obtain private financing for the project, which involves the $3 billion "Freedom Tower" as well as retail and other office towers, the newspaper reported.

"The unsettled insurance claims were the last major barrier to rebuilding and have been bitterly and intensely contested for almost six years," said New York Governor Eliot Spitzer, who in recent weeks had taken part in talks aimed at ending the dispute.

"This means we can now fund construction, access the financial markets and move on to what should be our primary focus: rebuilding," Spitzer told The New York Times.

As part of the deal, the Port Authority and Silverstein had to relinquish their claim that the companies owed more than $500 million in interest resulting from delays in making the payments. The insurers, in turn, abandoned their claim that they did not owe the money until the project was completed, in 2012.

At the time of the 9/11 terrorists attacks some two dozen insurers were engaged in an uncompleted deal with Silverstein to provide $3.5 billion in coverage for the WTC.

Conflict ensued amid disputes over which policy was in force at the time of the attack, and over claims by Silverstein that he was entitled to a twin payout as two jetliners had been involved in the attacks.

In 2004 following lengthy proceedings a court ruled that the developer was owed a maximum $4.6 billion, less than the $7 billion he had sought.

CLASS 5:

Topics:
Dispute settlement
Administrative remedies
Litigation
Alternative Dispute Resolution
Arbitration

Web research:
Court of Arbitration of the International Chamber of Commerce (ICC) in Paris
China International Trade and Economic Arbitration Commission (CIETAC)
International Center for the Settlement of Investment Disputes (ICSID) of the World
International Articles by Daniel Laprès on international arbitration

Case studies:

Mitsubishi Motors v Soler Plymouth Dodge
Affaire Danone c Wahaha
Affaire Tapie - le texte intégral de la sentence arbitrale, voir en particulier les pages pages 4-8, 15-16, 24-25, 28-32, 33-35, et 52-94.

Readings on the legal aspects of distribution networks

Topics:
Intellectual property and its protection
International agency agreements
International distribution agreements
International e-commerce
Competition law

Web readings:
Convention on the law applicable to agency
Delegatus non potest delegare, by William Chapman

Assignment:
Find a model agency agreement or an actual agency agreement and bring it to class.

Cases:
Pro Golf - Reyes - Chester - Wolfe
Kanavos - Simmons - O'Boyle - Detroit Pure Milk
 
 

At the end of the course, a written exam is held. The exam consists of theoretical and practical questions as well as case studies.

In the final evaluation account is taken of participation in class work and discussions, in particular the assignments submitted during the course.
 
 

__________________________________________________________
 
 
 

DANIEL ARTHUR LAPRES

Cabinet d'avocats
222 boulevard Saint-Germain, 75007 Paris
tel: (331) 01.45.04.62.52 - fax: (331) 45.44.64.45

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