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PRIVATE INTERNATIONAL LAW > INTERNATIONAL CONTRACTS > Flashcards

INTERNATIONAL CONTRACTS Flashcards

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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
Q

Explain the substantive scope of application of the Rome I

A

Contractual obligations in civil and commercial matters involving a conflict of laws, as long as application of Rome I is not excluded

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26
Q

Which law should I apply to a contract that concluded before 17.12.2009?

A

Rome Convention

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27
Q

How do we interpret the Rome I Regulation?

A

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

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28
Q

Which issues are excluded from the substantive scope of application of Rome I?

A

Art. 1.3

Agency, capacity, arbitration agreement, family relationship, etc.

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29
Q

Is there any other requirement for the application of CISG or Rome I?

A

No

No personal requirement, or nationality.

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30
Q

Which law should we apply for cases related to Denmark?

A

Rome I Regulation

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31
Q

What are the effects of BREXIT on the application of the Rome I Regulation?

A

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.

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32
Q

What are the effects for other UE members of BREXIT on the application of the Rome I Regulation?

A

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

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33
Q

What are the type of choice of law rules?
Give some examples

A
  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
Q

Which are the connecting factors?

A
  1. Substantive choice of law
  2. Objective choice of law
  3. Protective choice of law
35
Q

What is the subjective choice of law?

A

Party autonomy

36
Q

Arguments in favor or against party autonomy

A

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
Q

Requirements of a valid choice of law

A
  1. Valid external agreement about the applicable law = Declaration of choice
  2. Valid internal agreement about the applicable law = Meeting of minds
38
Q

How can be the valid external agreement about the applicable law? Explain

A
  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
Q

What is the internal agreement about the applicable law?

A

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
Q

What is the objective choice of law?

A

Determination of the applicable law in the absence of a choice of law by the parties
Art. 4

41
Q

What does this mean?:
Any law specified by this Regulation shall be applied whether or not it is the law of a Member State”

A

Universal Application

42
Q

What is the protective choice of law?

A

derestrict the choice of law and objectively provide a connection when the party needs protection

43
Q

Why do we need objective choice of law rules?

A

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
Q

What is the closest conection rule? Rome Convention

A

the contract shall be governed by the law of the country with which it is most closely connected

45
Q

How can I defined which law is the closest connected to the contract? Rome Convention

A

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
Q

What is the exception for the closest connection rule? Rome Convention

A

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
Q

What is the law that governs a contract for the sale of goods?

A

Law of the country where the seller has his habitual residence

48
Q

What is the law that governs a contract for the provision of services?

A

Law of the country where the service provider has his habitual residence

49
Q

What is the law that governs a contract relating to a right in rem in immovable property or to a tenancy?

A

Law od the country where the property is situated

50
Q

What is the law that governs a contract for relating to a temporal tenancy?

A

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
Q

What is the law that governs a franchise contract?

A

law of the country where the franchisee has his habitual residence

52
Q

What is the law that governs a distribution contract?

A

law of the country where the distributor has his habitual residence

53
Q

What is the law that governs a contract relating to the sale of goods by auction

A

Law of the country where the auction takes place

54
Q

What happens with the contracts that covered several elements of art. 4.1 Rome I?

A

law of the country where the party required to effect the characteristic performance of the contract has his habitual residence.

55
Q

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?

A

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
Q

What should I do if the law applicable cannot be determined by Art. 4.1 and 4.2 Rome I?

A

The contract shall be governed by the law of the country with which it is most closely connected

57
Q

Which parties are considered to be in need of protection?

A

Passengers, policyholders, employees, consumers

58
Q

What law is applicable to a contract for the carriage of passengers if it has not been chosen by the parties?

A

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
Q

Is it possible that in a contract for the carraige of passenger, parties decided in any law?

A

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
Q

In a insurance contract where parties dind’t choose the law governing the contract, which law should apply?

A

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
Q

In a insurance contract where parties dind’t choose the law governing the contract, which law should apply?

A

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
Q

What is the limitation for the decision of the parties for the chosen law in employee matters?

A

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
Q

Why are consumers subject to protection?

A

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
Q

When we exclude the protection for the consumers?

A

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
Q

What are the requirements for the application of the protection of consumer rules?

A
  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
Q

How does the preferential law approach work in consumer matters?

A

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
Q

What are the special rules to have into account in the assessment of a case? Rome I

A

Form
Capacity
Agency

67
Q

What is the principle or main rule related to the form of the contract?

A

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
Q

What are the Alternative connecting factors in favour of formal validity of international contracts?

A

Local contracts: Concluded in the same country.
Distance contracts: Contract concluded when the parties are in different countries.
Unilateral acts:

69
Q

What is the law that governs the formal requirements of a local contract?

A

Law that governs the contract, of the law of the country where it was concluded.

70
Q

What is the law that governs the formal requirements of a distance contract?

A

Law of the contract,law where it was concluded, or the law of either party’s current or habitual residence

71
Q

What is the law that governs the formal requirements of a unilateral act?

A

Law of the contract, law of the place of acting, or law of the acting party’s habitual residence

72
Q

What is the law that governs the formal requirements of a consumer contract and real state property?

A

Consumer contract: Law of the consumer’s habitual residence
Real State Property: Law where the property is situated.

73
Q

What is the principle or main rule related to the capacity of the contract? (Special Rules)

A

Application of the national (autonomous) private international law

74
Q

What is the exception to the principle related to capacity? (Special rules)

A

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
Q

What are the possible connecting factors for an agency contract and their possible problems?

A

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
Q

What is the connecting factor for agency in Germany?

A

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
Q

Which countries are part of the Hague Agency Convention?

Which is the connecting factor in accordance with this Convention?

A

France, Netherlands, Portugal, and Argentina

Location of the agent or where the agent acts

78
Q

What are the types of mandatory rules (also its definitions)?

A

Simple mandatory rules
Overriding mandatory rules

79
Q

Effect depending on type and origin: Overriding mandatory rules

A
  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
Q

What is the distinction between overriding mandatory rules and public policy rules?

A

Sword and shield –> “Activo pasivo”: Las unas se tiene que aplicar, las otras se evitan que se apliquen

81
Q

What are the general rules to have into account?

A

Universal application
No renvoi
Possibility of severability

PRIVATE INTERNATIONAL LAW (2 decks)

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