Law Of International Business Australasia -Myassignmenthelp.Com

Question: Discuss About The Law Of International Business Australasia? Answer: Introduction In the United Nations Convention on Contracts for the International Sale of Goods (CISG), there are quite vast differences. Based on the pretence of solving these differentiations, CISG attempted to reconcile civil law, common law, and the socialist legal system with the advent of comprehensive international sales law. Particularly in the US, variances have been found in the adherence of the interpretative principle by the federal courts. There have been a number of expositions of CISG and this discussion presents a recent example of this (Perea, 2008). The case of Treibacher Industrie, A.G. v. Allegheny Technologies, Inc (12 September 2006) No 05-13995 US Court of Appeals (11th Circuit) was a leading case in which the court decided that the disputed term in the contract had to be constructed on the basis of the seven year course of dealings in between the parties (Gillette Walt, 2016). This was to be based on article 9(1) of the CISG, instead of going as per the customary usage whi ch was prevalent in the industry based on article 9(2) of CISG (Burnett and Bath, 2009). In the following parts, a summary of this case has been presented, where the arguments presented by the parties and the decision given by the court have been elucidated. Background of the case In this matter, a United States buyer located in Alabama (TDY Industries, Inc) and an Australian supplier (Treibacher) got in a range of contracts for the purpose of chemical compound being purchased for the consignment. Each of the contracts covered this compounds amount, which had to be delivered by the supplier to the buyer. For each and every contract which preceded the contract which was in dispute, the buyer had bought the compound delivered by the supplier in entirety (Andersen Zeller, 2010). At one of the instances, the buyer had desisted from the attempt of returning the compound which had not been used. During the time period of the two contracts in dispute, the buyer had notified the supplier that they would not be taking any additional delivery of this compound. They also stated that they would not be paying any sum for this compound; this was the compound which had been delivered but which had not been utilized. The buyer had actually gotten a less expensive source for the very same compound, and this fact was not known to the supplier (United Nations Commission on International Trade Law, 2008). The supplier had discovered a substitute buying party for this compound, which particularly offered at lower costs. The supplier then initiated a case against the buyer for the recovery of amount which the buyer should have had paid where they had taken the delivery of all the power which was indicated in the contracts (Unilex, 2006). On the motion of the seller for summary judgement, the claims of the buyer were isolated by the district court from the complaint and a motion was granted on all counts, save for Counts I and VI. Following a bench trial, the court provided the supplier with the judgements on these two counts and awarded them $5,327,042.85 (Pace Law School, 2009). Side of Party (Buyer- TDY) The buyer, i.e., TDY disagreed and presented before the bench trial that the very meaning of consignment here was an issue of dispute. In this regard, the buyer introduced certain experts from the metal industry for the purpose of testifying that he term consignment, based on the common usage of this term in the trade, depicted that no sale had taken place till the time the buyer actually made use of the compound. The buyer also disagreed with the meaning given to this term. The supplier had brought evidence of the previous dealings of the parties to depict that in the course of dealings during the seven year period, the parties understood this term as meaning that the buyer was under the legal duty for paying for all the compound which had been stated in the contract, but that the seller would delay billing for the buyer till they actually made used to it. Based on the CISG, the district court had ruled that evidence of parties for the interpretation of term in course of dealing ove rweighed the evidence of customary usage of this term in the industry. This led to the judgement being given against the buyer, which was thus appealed by the buyer (Pace Law School, 2009). As per the buyer, based on the CISG, the contractual term had to be constructed based on the customary use of the same in the industry, till the parties expressly agreed to any other use. It was also argued by the buyer where the alternative is seen, it becomes clear that the district court had erred in finding that the buyer and seller during their course of dealings had deemed this term to require the buyer to use and pay for the compound specified in the contract. It was also contended by the buyer that where the ruling given by the district court was upheld, where it is stated that the buyer would be contravening their contract with the seller, there was a need for remanding the case for new trial on damages. This was based on the notion that the district court had found erroneously that the supplier had reasonably mitigated their damages (Pace Law School, 2009). Decision of the Court The court heard all the parties and also reviewed the legal conclusion of the district court de novo and the factual findings for clear error. Reference was made to Newell v. Prudential Ins. Co., 904 F.2d 644, 649 (11th Cir.1990), and the Court of Appeals held that the district court had taken the proper construction of the contract based on CISG, based on the course of dealings of the parties. They further stated that the district court did not commit any error in their findings regarding the understanding of the parties to require the buyer to use the entire compound which had been specified in the contracts. With regards to the issue of mitigation of damages, it was reviewed for clear error based on the case of Bunge Corp. v. Freeport Marine Repair, Inc., 240 F.3d 919, 923 (11th Cir.2001). This led to the Court of Appeals stating that the evidence before the district court was in support of their finding that the mitigation efforts of the supplier had been reasonable based on the situation present. This led to the court of appeal affirming the judgement given by the district court (Pace Law School, 2009). Reasoning for this decision The court started their analysis by carrying a discussion on the CISG which governed the creation of and the duties and rights based on the contracts meant for the purpose of international sale of goods. In this regard, articles of the CISG had to be discussed, particularly article 8 and 9. In making the argument that the customary term usage took precedence over the understanding of parties of the term in the course of dealings, the buyer seized on the language covered under Article 9(2). It was contended by the buyer that this article had to be read to mean that till the time the contracting parties expressly agreed to the terms meaning there is an applicability of customary trade. Supporting this argument, the buyer also presented that the language of subsection 1 of this section. In their view, the drafting parties of CISG, through the separation of particular phrases, had intended to put the word agreed in this article, to give the meaning to the express agreement, in place of t he tacit agreement for the course of conduct. Based on this application of the language of CISGs article 9(2), the buyer contended that the contractual terms had to be interpreted, where the express agreement regarding the usage was absent, based on the customary use, in place of the use which had been established in between the parties though the conduct (Pace Law School, 2009). The construction of the buyer of this article resulted in article 8(3) becoming superfluous and also resulted in the latter part covered in article 9(1) becoming null. Where there was an absence of express agreement as to the meaning of the term, the parties would be bounded by the customary usage of term, even where it was shown a contrary use in the daily dealings. This led to the rejection of the interpretation of the buyer of article 9(2) and agreed with the district court adopting a reading which gave force to the two articles based on Cf. Gonzalez v. McNary, 980 F.2d 1418, 1420 (11th Cir.1993) (Pace Law School, 2009). The Court of Appeals therefore stated that the district court had not made any error in finding that in their feelings, the term consignment required the buyer to accept and also pay for the compound, irrespective of the use or non use of this compound. The transactions executed during the period of 1993 to 2000 were not disputed between the parties, and these very transactions were a proof of the consignment to mean this way. In each of these cases, the buyer discussed their needs with the seller, which led to a contract being executed between the two in which the buyer agreed to sell fix quantity of materials based on a fixed price for the delivery to the consignment. The seller would then deliver to the buyer the specified quantity of materials in the contracts (Pace Law School, 2009). A specific incident referred to in this regard was the one which took place in February 2000 in which the employee of the buyer had sent an email to their counterpart of the seller where the buyer expressed their desire of returning the unused portions of an element which had been delivered by the seller. The employee of the seller called up the employee of the buyer in response and also explained that the buyer could not return the element due to the buyer being under a contractual obligation to purchase the material. The seller had delivered this element as a part of this element which was the obligation of the seller to provide to the buyer based on the December 1999 construed contract. The employee of the buyer told the counterpart of the seller that the buyer would keep this element. As a result of this, this element was used by the buyer and a use report of this usage was sent to the seller and for this an invoice was sent by the seller to the buyer, which had been paid by the buyer. This very interaction was seen as an evidence of the buyer and sellers interpretation of the contract, in addition to the practice of buyer in between the seven year period for use and payment of the entire component. This supported the findings of the district court in their dealings and constructed the contracts where the buyer was required to make use of, and pay for the entire lot of the component based on each contract (Pace Law School, 2009). Conclusion Thus, the previous segments attained the objective of this discussion, as a thorough and effective summary of the selected case was presented. In doing so, the discussion went back to trace the origins and the backgrounds of the incidents which took place, followed by the contentions made by the buyer as a party of this case. Once this was done, the decision given by the different courts and most importantly the one given by Court of Appeals was elucidated. This case had a dispute being raised by the buyer and seller where the decision was given in favour of the seller by the district court, and later on when the buyer had appealed against this decision, the ruling was again given in favour of the seller but this time by the Court of Appeals. This case provides a good lesson on the interpretation of the articles of CISG by the federal courts of US, where the matter is decided based on the facts of the case, instead of adopting a blind application of the pertinent articles. References Andersen, C.B., Zeller, B. (2010). Practitioner's Guide to the CISG. New York: Juris Publishing, Inc. Burnett, R., and Bath, V. (2009) Law of International Business in Australasia. Annandale, NSW: Federation Press. Gillette, C.P., Walt, S.D. (2016). The UN Convention on Contracts for the International Sale of Goods: Theory and Practice. Cambridge: Cambridge University Press. Pace Law School. (2009). CISG Case Presentation. Retrieved from: https://cisgw3.law.pace.edu/cases/060912u1.html Perea, T. (2008) Treibacher Industrie, A.G. v. Allegheny Technologies, Inc.: A Perspective on the Lacluster Implementation of the CISG by American Courts. Pace International Law Review, 20(1), pp. 191-23. Unilex. (2006). Treibacher Industrie, A.G. v. Allegheny Technologies, Inc. Retrieved from: https://www.unilex.info/case.cfm?pid=1do=caseid=1136step=Abstract United Nations Commission on International Trade Law. (2008). Case Law on UNCITRAL Texts. Retrieved from: https://documents-dds-ny.un.org/doc/UNDOC/GEN/V08/530/94/PDF/V0853094.pdf?OpenElement