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INTERNATIONAL CONTRACTS Flashcards

1
Q

A (Zurch) sells a computer to B (Berlin). B, therefore, withdraws from the contract with A, sends the notebook back and demands repayment of the purchase price. A refuses because she claims that they entered into a valid contract and that B has no right of withdrawal

Can B claim his money back? –> Which law is applicable?
Can B fill a lawsuit against A? –> Which court has jurisdiction?
Can B enforce a judgement against A? if so, where and how? –> where and how foreign judgements can be enforced?

A

SOLVE:

Germany
Berlin

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2
Q

Consequences of legal uncertainty in international trade

A
  1. Set incentives to abstain from international transactions.
  2. Reduces the number of international transactions.
  3. Reduces the variety of products available for sale nationally
  4. Reduces the quality of products available for sale nationally
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3
Q

Which is the narrow sense of PIL and the broad one?

A

Choice of law –> Narrow
Uniform substantive law –> Broad

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4
Q

What is forus convenience or forus non convenience?

A

The court decides if its system is convenient to decide about certain case.

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5
Q

What is the function of the PIL in the narrow sense?

A

Help to overcome legal uncertainty by assigning international transactions to one legal system with the help of choice of law rule

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6
Q

What is the function of the PIL in the broad sense?

A

Help to overcome legal uncertainty through the international unification of (substantive) private law

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7
Q

What are the sources of uniform substantive law?

A

National law
Public international law
European Union law

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8
Q

Which provisions apply if national law, international law and/or European law conflict/overlap?

National v. EU Law
National v. International law
EU Law v. International

A

National v. EU Law –> EU Law
National v. International law –> International law (but depends on each country)
EU Law v. International –> International

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9
Q

How to interpret an international treaty?

A

Vienna Convention

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10
Q

How do we interprete the CISG?

A

It’s possible to go back to the predecessors (ULF and ULIS) and the preparatory notes

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11
Q

What does CISG mean?

A

United Nation Convention on Contracts for the International Sale of Goods

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12
Q

What is the scope of Regulation of the CISG? (Positive and negative)

A

Positive scope of regulation: formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract.

Negative scope of regulation: the validity of the contract, transfer of property, product liability, agency, capacity, etc.

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13
Q

What do we use in cases where the CISG doesn’t apply? Filling the gaps

A
  1. Application of general principles of the CISG (Art. 7.2 CISG)
  2. Application of the national rules hat apply by virtue of PIL
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14
Q

What are the requirements for the application of the CISG?

A
  1. Parties must fall into the territorial scope of the CISG.
  2. Contract must fall into the the substantive scope of application.
  3. No opt-out by the parties
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15
Q

Explain the territorial scope of application of the CISG

A

2 alternatives:
i. Parties have their place of business in different contracting states
ii. Parties have their place of business in different states and the law of a contracting state of the CISG applies by virtue of the provisions of PIL.

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16
Q

Which Countries are not part of the CISG?

A

UK

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17
Q

In the following example, is the territorial requirement comply? CISG
A (German) sells to B (UK) leather shoes. But they are synthetic leather.

A

Yes:
UK is not part, German is.
The applicable rules of PILAW calls for application of the law at the habitual residence of the seller. Thus, German law is the designed law (Rome I Regulation)

Since Germany is a contracting state of CISG, the rules of PILAW lead to application of the law of a contracting state

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18
Q

Explain the substantive scope of application of the CISG

A

2 alternatives:
i. Contracts for the sale of goods.
ii. Contracts for the supply of goods to be produced.

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19
Q

Explain the third requirement of the scope of application of the CISG: No opt-out by the parties.

Make an example

A

2 alternatives:
i. Express opt-put/exclusion of the CISG
ii. Implicit opt-out/exclusion of the CISG

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20
Q

What is the difference between Rome I and Rome II, which one was created first?

A

Rome I –> Contractual obligations
Rome II –> Non-contractual obligations

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21
Q

When do we apply the Rome I Regulation?

A

In situations involving a conflict of laws, to contractual obligations in civil and commercial matters.

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22
Q

What are the requirements to apply Rome I?

A
  1. Territorial Requirement
  2. Temporal Requirement
  3. Substantive Requirement
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23
Q

Explain the territorial scope of application of the Rome I

A

Lawsuit iniciated in a member state.

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24
Q

Explain the temporal scope of application of the Rome I

A

Contracts concluded on or after 17.12.2009

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25
Explain the substantive scope of application of the Rome I
Contractual obligations in civil and commercial matters involving a conflict of laws, as long as application of Rome I is not excluded
26
Which law should I apply to a contract that concluded before 17.12.2009?
Rome Convention
27
How do we interpret the Rome I Regulation?
Interpretate in an autonomous way the European law. This means that even when a court is interpreting it, the court cannot do it as it usually do it or how the other member states would do it, but how should be done in the entire EU
28
Which issues are excluded from the substantive scope of application of Rome I?
Art. 1.3 Agency, capacity, arbitration agreement, family relationship, etc.
29
Is there any other requirement for the application of CISG or Rome I?
No No personal requirement, or nationality.
30
Which law should we apply for cases related to Denmark?
Rome I Regulation
31
What are the effects of BREXIT on the application of the Rome I Regulation?
Courts continue to apply Rome I Regulation because it's part of its domestic law. But when it’s about the EU they are no longer part of it.
32
What are the effects for other UE members of BREXIT on the application of the Rome I Regulation?
When there is a case that involves the UK, because of the Withdrawal Agreement the Rome I Regulation is still applied because the transition. Without this Agreement states should apply the Rome Convention. Also, the rules are part of its domestic law
33
What are the type of choice of law rules? Give some examples
1. True choice of law rules: Choice of law rules that actually determine the applicable law. Ex.: contracts of carriage, insurance contracts, etc. 2. Supporting choice of the law rules: Choice of law rules that support the determination of the applicable law Ex.: Overriding mandatory provisions, formal validity, incapacity.
34
Which are the connecting factors?
1. Substantive choice of law 2. Objective choice of law 3. Protective choice of law
35
What is the subjective choice of law?
Party autonomy
36
Arguments in favor or against party autonomy
Positive: Legal certainty Reduction of litigation costs: Economic efficiency Negative: Determination of the applicable law is a matter of the state sovereignty It’s not possible to leave everything to the parties, it’s necessary an objective balance Free choice of law increases legal uncertainty because it requires interpretation of the parties’ intension
37
Requirements of a valid choice of law
1. Valid external agreement about the applicable law = Declaration of choice 2. Valid internal agreement about the applicable law = Meeting of minds
38
How can be the valid external agreement about the applicable law? Explain
1. Express (wording) or implied (clearly demonstrated by the terms of the contract or the circumstances of the case) 2. ex ante or ex post
39
What is the internal agreement about the applicable law?
3.5 --> Validity of the consent. 10.1 --> Validity of the contract. Exception: 10.2 --> in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law
40
What is the objective choice of law?
Determination of the applicable law in the absence of a choice of law by the parties Art. 4
41
What does this mean?: Any law specified by this Regulation shall be applied whether or not it is the law of a Member State”
Universal Application
42
What is the protective choice of law?
derestrict the choice of law and objectively provide a connection when the party needs protection
43
Why do we need objective choice of law rules?
Invalidity: Parties chose a law, but it's invalid Ignorance/Oversight: Parties didn't that they can choose Intention: The parties consciously decide not to choose a law Impossibility: The parties wanted to choose the applicable law, but didn’t reach an agreement
44
What is the closest conection rule? Rome Convention
the contract shall be governed by the law of the country with which it is most closely connected
45
How can I defined which law is the closest connected to the contract? Rome Convention
Characteristic Performance Rule: it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance
46
What is the exception for the closest connection rule? Rome Convention
The matter of the contract is a right in immovable property or a right to use immovable property. In this case, it shall be presumed that the contract is most closely connected with the country where the immovable property is situated.
47
What is the law that governs a contract for the sale of goods?
Law of the country where the seller has his habitual residence
48
What is the law that governs a contract for the provision of services?
Law of the country where the service provider has his habitual residence
49
What is the law that governs a contract relating to a right in rem in immovable property or to a tenancy?
Law od the country where the property is situated
50
What is the law that governs a contract for relating to a temporal tenancy?
law of the country where the landlord has his habitual residence, provided that the tenant is a natural person and has his habitual residence in the same country
51
What is the law that governs a franchise contract?
law of the country where the franchisee has his habitual residence
52
What is the law that governs a distribution contract?
law of the country where the distributor has his habitual residence
53
What is the law that governs a contract relating to the sale of goods by auction
Law of the country where the auction takes place
54
What happens with the contracts that covered several elements of art. 4.1 Rome I?
law of the country where the party required to effect the characteristic performance of the contract has his habitual residence.
55
What should we do or which law should we apply when from all the circumstances of the case the contract is manifestly more closely connected to another country? What does it mean?
The law of that other country shall apply It's a escape clause The manifestly closely connection is determined by some factors as place of formation of the contract, performance, habitual residence, etc.
56
What should I do if the law applicable cannot be determined by Art. 4.1 and 4.2 Rome I?
The contract shall be governed by the law of the country with which it is most closely connected
57
Which parties are considered to be in need of protection?
Passengers, policyholders, employees, consumers
58
What law is applicable to a contract for the carriage of passengers if it has not been chosen by the parties?
Law of the country where the passenger has his habitual residence, just when the place of departure or the place of destination is situated in that country. If this requirements are not met, the law should be the one of the country where the carrier has his habitual residence
59
Is it possible that in a contract for the carraige of passenger, parties decided in any law?
No, just: (a) the passenger has his habitual residence; or (b) the carrier has his habitual residence; or (c) the carrier has his place of central administration; or (d) the place of departure is situated; or (e) the place of destination is situated.”
60
In a insurance contract where parties dind't choose the law governing the contract, which law should apply?
law of the country where the insurer has his habitual residence. Where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with another country, the law of that other country shall apply
60
In a insurance contract where parties dind't choose the law governing the contract, which law should apply?
law of the country where the insurer has his habitual residence. Where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with another country, the law of that other country shall apply
61
What is the limitation for the decision of the parties for the chosen law in employee matters?
Art. 8 --> Depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable
62
Why are consumers subject to protection?
Because of the market of lemons: Consumers just can see the price of the elements, so the consumer cannot tell if the product has good quality
63
When we exclude the protection for the consumers?
Art. 6.4 1. Services in other country than the one where the consumer has his habitual residence 2. Contract of carriage of passengers 3. Inmovable property 4. Something relate to a financial instrument
64
What are the requirements for the application of the protection of consumer rules?
1. Personal requirement: Consumer and professional 2. Substantive requirement: Art. 6.1 and 6.4 3. Situational requirements: Targeted activity criterion and connectivity criterion.
65
How does the preferential law approach work in consumer matters?
The choice of law applies only when it's better than the mandatory provisions of the country of its habitual residence. Therefore, consumer contracts are governed by a “law mix” consisting of the chosen law and the mandatory consumer’s habitual residence
66
What are the special rules to have into account in the assessment of a case? Rome I
Form Capacity Agency
67
What is the principle or main rule related to the form of the contract?
Favor negotii principle --> Favor of business: Form rules should make possible to fulfill the formal requirements, to try to guarantee the validity of the contract.
68
What are the Alternative connecting factors in favour of formal validity of international contracts?
Local contracts: Concluded in the same country. Distance contracts: Contract concluded when the parties are in different countries. Unilateral acts:
69
What is the law that governs the formal requirements of a local contract?
Law that governs the contract, of the law of the country where it was concluded.
70
What is the law that governs the formal requirements of a distance contract?
Law of the contract,law where it was concluded, or the law of either party’s current or habitual residence
71
What is the law that governs the formal requirements of a unilateral act?
Law of the contract, law of the place of acting, or law of the acting party’s habitual residence
72
What is the law that governs the formal requirements of a consumer contract and real state property?
Consumer contract: Law of the consumer's habitual residence Real State Property: Law where the property is situated.
73
What is the principle or main rule related to the capacity of the contract? (Special Rules)
Application of the national (autonomous) private international law
74
What is the exception to the principle related to capacity? (Special rules)
Local contracts: natural person who would have capacity under the law of that country may invoke his incapacity resulting from the law of another country, only if the other party to the contract was aware of that incapacity
75
What are the possible connecting factors for an agency contract and their possible problems?
1Law of the relationship between principal and agent  Problem: Not evident for third party 2 Law of the main contract  Problem: Uncertainty about agency until conclusion of the main contract 3. Preferred: Separate connecting factor  Problem: Which factor after all? Solution: Application of national autonomous PIL
76
What is the connecting factor for agency in Germany?
Law chosen by all parties or by the principal if all are aware, otherwise, law of the habitual residence of the agent as far as evident.
77
Which countries are part of the Hague Agency Convention? Which is the connecting factor in accordance with this Convention?
France, Netherlands, Portugal, and Argentina Location of the agent or where the agent acts
78
What are the types of mandatory rules (also its definitions)?
Simple mandatory rules Overriding mandatory rules
79
Effect depending on type and origin: Overriding mandatory rules
1. Provision of the lex fori: The court would superimpose some rules to manage the case 2. Provision of the foreign law at the place of performance: Possible to give effect to them if they render performance unlawful 3. Other foreign provisions: No application, but can be taken into account“ within the applicable law
80
What is the distinction between overriding mandatory rules and public policy rules?
Sword and shield --> "Activo pasivo": Las unas se tiene que aplicar, las otras se evitan que se apliquen
81
What are the general rules to have into account?
Universal application No renvoi Possibility of severability

PRIVATE INTERNATIONAL LAW (2 decks)

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