Overview of Relevant Legal Frameworks for the Vis Moot Thursday 12 October, 2017

Division of Legal Issues Substantive Law and Procedural Law

What is the difference? Substantive Law: Procedural Law: “That part of the law which creates, defines, and regulates rights and duties of the parties ... The basic law of rights and duties (contract law, criminal law, tort law, etc.)” “That which prescribes method of enforcing rights or obtaining redress for their invasion … those which merely describe the manner in which such rights and duties may be exercised and enforced in a court” (i.e., civil or criminal procedure)

What does this mean at the Vis Moot? Substantive Law: Procedural Law: UN Convention on the International Sale of Goods (CISG) R. 48, Procedural Order No. 1, Para. 1: “Both Parties agree that the arbitration agreement is subject to the CISG” UNCITRAL Rules of Arbitration 2010 R. 12, Cl. Ex. 2, p. 12, Clause 20: “Any dispute … shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules … excluding the application, direct of by analogy, of the UNCITRAL Rules on Transparency.” …Is that all?

The CISG Developed by the UN Commission on International Trade Law (UNCITRAL) Came into force in January 1988 87 signatories

The CISG The purpose of the CISG is to provide a modern, uniform and fair regime for contracts for the international sale of goods. Thus, the CISG contributes significantly to introducing certainty in commercial exchanges and decreasing transaction costs.

Structure of the CISG Articles 1-6 answer the basic question of when the CISG applies to a transaction Art. 1 – Basic Applicability Art. 2 – Sales excluded from the CISG Art. 3 – Transactions excluded from the CISG Arts. 4-5 – What does the CISG govern? Art. 6 – Ability to derogate from the CSIG (Not an opt IN clause-- opt OUT clause) I.I Sphere of Application I.II General Provisions II Formation of the Contract III.I General Provisions III.II Obligations of the Seller III.III Obligations of the Buyer III.IV Passing of Risk III.V Provisions Common to Obligations of the Seller and of the Buyer IV Final Provisions PART I: Sphere of Application and General Provisions (Articles 1-13) Art. 1- Applies to contracts of the sale of goods when parties are located in different states and when either, both are Contracting States, or the rules of private international law lead to the application of the Convention (aka- when a choice of law clause designates the CISG) Art. 2- Example of a sale excluded, (2)(f)- electricity Art. 3- Read this article for information on goods to be manufactured or produced and for issues involving hybrid contracts Art. 6- Under Art. 6, a derogation or exclusion of the CISG has to be explicit. In contrast, the CISG doesn’t need to be specifically mentioned as the applicable law for it to be applied. Article 6 also allows a party to vary any provisions

Structure of the CISG Articles 7-13 explain how to interpret various facts, evidence, and the text of the convention Art. 7 –interpreting the text of the convention Art. 8 – interpreting statements of the parties Art. 9 - Trade Usage Art. 11 – No Writing Requirement* I.I Sphere of Application I.II General Provisions II Formation of the Contract III.I General Provisions III.II Obligations of the Seller III.III Obligations of the Buyer III.IV Passing of Risk III.V Provisions Common to Obligations of the Seller and of the Buyer IV Final Provisions Art. 7- The Convention should be interpreted with regard to its international character and with the need to promote uniformity Art. 9- Parties are bound to the usage to which they have agreed to or which they have established Art. 11- “Informality Principle”, a contract of sale doesn’t need to be evidenced by writing (unless an Art. 96 declaration exists). Even if an Art. 96 declaration is being made, there is still no implied writing requirement in the CISG and so you need to consult domestic choice of law to determine what writing requirements exist

Articles 14-24 answer whether there is a contract and what it contains Structure of the CISG Articles 14-24 answer whether there is a contract and what it contains Arts. 14-15 – definition of an offer and when it becomes effective Art. 16 – revocation of an offer Art. 17 – effect of rejection Art. 19 – nonmatching acceptance Material alterations = Rejection and counter offer Immaterial alteration = Acceptance without immediate rejection I.I Sphere of Application I.II General Provisions II Formation of the Contract III.I General Provisions III.II Obligations of the Seller III.III Obligations of the Buyer III.IV Passing of Risk III.V Provisions Common to Obligations of the Seller and of the Buyer IV Final Provisions PART II: Formation of the Contract (starts here, encompasses Art. 14-24)

Art. 25 – what breaches are fundamental? Structure of the CISG Art. 25 – what breaches are fundamental? Art. 26 – avoidance (where available) is only effective through notice to the other party Art. 27 – no liability for errors in transmission of communications Art. 29 – Modification of contracts I.I Sphere of Application I.II General Provisions II Formation of the Contract III.I General Provisions III.II Obligations of the Seller III.III Obligations of the Buyer III.IV Passing of Risk III.V Provisions Common to Obligations of the Seller and of the Buyer IV Final Provisions PART III: Sale of Goods (encompasses Art. 25-88 and has many different chapters and sections)

Section I. Delivery of the Goods and Handing Over of Documents Structure of the CISG Section I. Delivery of the Goods and Handing Over of Documents Arts. 31-34 Section II. Conformity of the Goods and Third Party Claims Arts. 35-44 Section III. Remedies for Breach of Contract by the Seller Arts. 45-52 I.I Sphere of Application I.II General Provisions II Formation of the Contract III.I General Provisions III.II Obligations of the Seller III.III Obligations of the Buyer III.IV Passing of Risk III.V Provisions Common to Obligations of the Seller and of the Buyer IV Final Provisions

Section I. Payment of the Price Section II. Taking Delivery Structure of the CISG Section I. Payment of the Price Arts. 54-59 Section II. Taking Delivery Art. 60 Section III. Remedies for Breach of Contract by the Buyer Arts. 61-65 I.I Sphere of Application I.II General Provisions II Formation of the Contract III.I General Provisions III.II Obligations of the Seller III.III Obligations of the Buyer III.IV Passing of Risk III.V Provisions Common to Obligations of the Seller and of the Buyer IV Final Provisions

Structure of the CISG Articles 65-70 explain when the risk of loss transfers from the seller to the buyer in various types of transactions I.I Sphere of Application I.II General Provisions II Formation of the Contract III.I General Provisions III.II Obligations of the Seller III.III Obligations of the Buyer III.IV Passing of Risk III.V Provisions Common to Obligations of the Seller and of the Buyer IV Final Provisions

Section I. Anticipatory Breach and Installment Contracts Arts. 71-73 Section II. Damages Arts. 74-77 Section III. Interest Section IV. Exemptions Arts. 79-80 Section V. Effects of Avoidance Arts. 81-84 Section VI. Preservation of the Goods Arts. 85-88 Structure of the CISG I.I Sphere of Application I.II General Provisions II Formation of the Contract III.I General Provisions III.II Obligations of the Seller III.III Obligations of the Buyer III.IV Passing of Risk III.V Provisions Common to Obligations of the Seller and of the Buyer IV Final Provisions

Art. 95 – Reserving nations will not be bound by Art. 1(1)(b) Structure of the CISG Articles 95-98 govern what nation reservations are permitted within the convention Art. 95 – Reserving nations will not be bound by Art. 1(1)(b) Art. 96 –Reserving nations can choose to have a writing requirement when they have such a domestic requirement I.I Sphere of Application I.II General Provisions II Formation of the Contract III.I General Provisions III.II Obligations of the Seller III.III Obligations of the Buyer III.IV Passing of Risk III.V Provisions Common to Obligations of the Seller and of the Buyer IV Final Provisions PART IV: Final Provisions (encompasses Articles 89-101) Art. 96- Remember this article in reference to Article 11. Article 96 allows a State to make a declaration that a writing requirement is needed. United States does not have such a declaration. To find which States have such declarations, consult the UNCITRAL website

Guidelines for Analysis Does the CISG apply? (Article 1) Is there a contract? Offer (Art. 14) Acceptance (Art. 18) What did the parties intend to do? (Art. 8) Was there any trade usage or course of dealings? (Art. 9) Was there a breach of contract? Was it fundamental? (Art. 25) Was there a modification to the contract? (Art. 29) What are the seller’s obligations? (Art. 30) What is the standard for non-conformity? (Art. 35) What are the buyer’s obligations? (Art. 53-59)

Guidelines for Analysis If the buyer breached, what are the available remedies for the seller? (Art. 61-65) When did the risk pass from the seller to the buyer? (Art. 66-69) What damages are available? How should they be calculated? (Art. 70-84) What happens to the goods in the meantime? (Art. 85-88)

Any other substantive laws? Yes. R. 12, Cl. Ex. 2, Clause 19: “This Agreement is governed by the UN Convention on the International Sale of Goods (“CISG”). For issues not dealt with by the CISG the UNIDROIT Principles are applicable.”

What does this mean at the Vis Moot? Substantive Law: Procedural Law: UN Convention on the International Sale of Goods (CISG) UNIDROIT Principles R. 12, Cl. Ex. 2, Clause 19: “This Agreement is governed by the UN Convention on the International Sale of Goods (“CISG”). For issues not dealt with by the CISG the UNIDROIT Principles are applicable.” UNCITRAL Rules of Arbitration 2010

What are the UNIDROIT Principles? UNIDROIT: International Institute for the Unification of Private Law Purpose is to study needs and methods for modernising, harmonising and co-ordinating private and in particular commercial law as between States and groups of States and to formulate uniform law instruments, principles and rules to achieve those objectives Full Title: The UNIDROIT Principles of International Commercial Contracts

The UNIDROIT Principles Important to understand: UNIDROIT Principles are NOT law. A state cannot “adopt” or “ratify” the UNIDROIT Principles. But, parties can select the UNIDROIT Principles to govern a contract if they wish. Even when not integrated into a contract, the UNIDROIT Principles are a highly authoritative source for questions of contract law Updated from time to time; most recent edition is 2016

What does this mean at the Vis Moot? Substantive Law: Procedural Law: UN Convention on the International Sale of Goods (CISG) UNIDROIT Principles UNCITRAL Rules of Arbitration 2010

The UNCITRAL Arbitration Rules First, a bit of background about international commercial arbitration…

What is Arbitration? A process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. Hallmarks of arbitration: Voluntary Binding (no right of appeal) Party autonomy: the parties determine the features and procedures that will be used to decide the outcome of their dispute

Why Arbitrate? Greater predictability – parties choose the seat of arbitration and thus the lex arbitri (law that will govern the arbitration proceedings) Greater autonomy – parties choose the rules that will govern how their dispute is settled Faster proceedings (no court backlogs) Lower cost (in general) Confidentiality (private proceedings)

Other Features of Arbitration Can be ad hoc or formal Ad hoc arbitration is when parties arbitrate without the involvement of an arbitration institution (such as the International Commercial Court of Arbitration, the Vienna International Arbitration Centre, the Hong Kong International Arbitration Centre, etc) and adopt their own rules. Formal arbitration is when parties submit their dispute to an arbitration institution (such as are listed above) and adopt the institution’s rules.

Structure of UNCITRAL Arbitration Rules Art. 1 – Scope of application Art. 2 – Notice and calculation of periods of time Art. 3 – Notice of arbitration Art. 4 – Response to notice of arbitration Art. 5 – Representation and assistance Art. 6 – Designating and appointing authorities Structure of UNCITRAL Arbitration Rules Section I – Introductory Rules Section II – Composition of the Arbitral Tribunal Section III – Arbitral Proceedings Section IV – The Award Annex

Structure of UNCITRAL Arbitration Rules Art. 7 – Number of arbitrators Art. 8-10 – Appointment of arbitrators Art. 11-13 – Disclosures by and challenge of arbitrators Art. 14 – Replacement of arbitrator Art. 15 – Repetition of hearings in the event of replacement Art. 16 – Exclusion of liability Structure of UNCITRAL Arbitration Rules Section I – Introductory Rules Section II – Composition of the Arbitral Tribunal Section III – Arbitral Proceedings Section IV – The Award Annex

Structure of UNCITRAL Arbitration Rules Art. 17 – General provisions Art. 18 – Place of arbitration Art. 19 – Language Art. 20 – Statement of claim Art. 21 – Statement of defense Art. 22 – Amendments to the claim or defense Art. 23 – Pleas as to jx of arbitral tribunal Art. 24 – Further written statements Art. 25 – Periods of time Art. 26 – Interim measures Art. 27 – Evidence Art. 28 – Hearings Art. 29 – Experts Art. 30 – Default Art. 31 – Closure of hearings Art. 32 – waiver of right to object Structure of UNCITRAL Arbitration Rules Section I – Introductory Rules Section II – Composition of the Arbitral Tribunal Section III – Arbitral Proceedings Section IV – The Award Annex

Structure of UNCITRAL Arbitration Rules Art. 33 – Decisions Art. 34 – Form and Effect of Award Art. 35 – Applicable Law Art. 36 – Settlement or other grounds for termination Art. 37 – Interpretation of the award Art. 38 – Correction of the award Art. 39 – Additional Award Art. 40 – Definition of Costs Art. 41 – Fees and expenses of arbitrators Art. 42 – Allocation of Costs Art. 43 – Deposit of costs Structure of UNCITRAL Arbitration Rules Section I – Introductory Rules Section II – Composition of the Arbitral Tribunal Section III – Arbitral Proceedings Section IV – The Award Annex

Structure of UNCITRAL Arbitration Rules Model Arbitration Clause for contracts Possible waiver statement Models statements of independence pursuant to article 11 of the Rules Structure of UNCITRAL Arbitration Rules Section I – Introductory Rules Section II – Composition of the Arbitral Tribunal Section III – Arbitral Proceedings Section IV – The Award Annex

How to get an award enforced? The New York Convention (full title: Convention on the Recognition and Enforcement of Foreign Arbitral Awards) 157 Signatories

The New York Convention Purpose: seeks to provide common legislative standards for the recognition of arbitration agreements and court recognition and enforcement of foreign and non-domestic arbitral awards principal aim is that foreign and non-domestic arbitral awards will not be discriminated against and it obliges Parties to ensure such awards are recognized and generally capable of enforcement in their jurisdiction in the same way as domestic awards. ancillary aim of the Convention is to require courts of Parties to give full effect to arbitration agreements by requiring courts to deny the parties access to court in contravention of their agreement to refer the matter to an arbitral tribunal.

What does that mean? Imagine that you have just won an arbitral award for damages of 3 million USD from a party located in a different country. How do you get your money? You must get your award enforced in the country where the losing party resides or has its place of business (i.e., go where the money is) How do you get your award enforced? A court of law in the country where the losing party resides must enforce the award (i.e., order the losing party to pay up)

NY Convention Article III: “Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition of domestic arbitral awards.” Effect: courts in contracting states are bound to recognize and enforce foreign awards, and courts in contracting states may not discriminate between domestic awards and foreign awards

NY Convention Also limits the grounds on which an award may be refused: Parties were under some incapacity or the arbitration agreement is not valid under the law to which the parties subjected it or under the law of the country where the award was made; Party against whom award is sought was unable to present his case at arbitration; Award deals with matters not falling within the scope of the arbitration agreement; Composition of the arbitral authority or arbitral procedure was not in accordance with the agreement of the parties or was not in accordance with the the law of the country where the arbitration took place Award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country or under the law of which the award was made No review on the merits.

What does this mean at the Vis Moot? Substantive Law: Procedural Law: UN Convention on the International Sale of Goods (CISG) UNIDROIT Principles UNCITRAL Rules of Arbitration 2010 NY Convention Vis Moot Rules, P. 6 Sec. IV, Para. 23 “Applicable arbitration law, i.e. ‘Danubian Law’” R. 45, Letter from H. Fasttrack, para. 3 What is the Danubian Law? IBA Guidelines on Conflict of Interest for International Arbitration R. 39, Notice of Challenge, para. 9

Where to Start? Art. 13 – Challenge of Arbitrator CISG: UNCITRAL Rules: Art. 19 – “Battle of the Forms” (offer and acceptance with inconsistent or different terms) Art. 35 – Conformity of the goods Art. 25 – Fundamental breach Art. 62, 53, and 54 – Buyer’s obligations and seller’s remedies What else? Art. 13 – Challenge of Arbitrator Art. 14 – Replacement of the Arbitrator IBA Guide on Conflict of Interest What else?

Where to Start? Born: International Commercial Arbitration CISG: Library UNCITRAL Rules: Library Schlechtriem and Schwenzer: Commentary on the UN Convention on the International Sale of Goods Honnold and Flechtner: Uniform Law for International Sales Undert the 1980 United Nations Convention Born: International Commercial Arbitration Redfern and Hunter: Redfern and Hunter on International Commercial Arbitration

Where to go from there? CISG: UNCITRAL Rules: CISG Database: http://www.iicl.law.pace.edu/cisg/cisg How to search the CISG Database: http://www.iicl.law.pace.edu/cisg/guide-new-pace-iicl-cisg-database-april-2017 The CISG Digest 2016: http://www.uncitral.org/pdf/english/clout/CISG_Digest_2016.pdf Professor Flechtner Lectures on the CISG: http://legal.un.org/avl/ls/Flechtner_IEL_video_1.html http://legal.un.org/avl/ls/Flechtner_IEL_video_2.html UNCITRAL Rules Recommendations: http://www.uncitral.org/pdf/english/texts/arbitration/arb-recommendation-2012/13-80327-Recommendations-Arbitral-Institutions-e.pdf Case Law on UNCITRAL Texts (“CLOUT Database”): http://www.uncitral.org/clout/search.jspx?f=en%23cloutDocument.textTypes.textType_s1%3aModel%5c+Law%5c+on%5c+International%5c+Commercial%5c+Arbitration%5c+%5c(1985%5c) Kluwer Database: http://www.kluwerarbitration.com/

Tips for Getting Started: Team members should: Read the CISG from start to finish; then, consult the Digest to see how CISG Articles are applied in Practice. Read the UNCITRAL Rules from start finish; then, look for articles and guidelines about using the UNCITRAL Rules in practice. Spend a lot of time in the library with relevant print authorities (5-10 hours each week) Spend a lot of time online reading case law, journal articles, and recently-published information about the relevant issues

When in Doubt….

Overview of Relevant Legal Frameworks for the Vis Moot ANY QUESTIONS?