Exercises
1.Prepare answers to the following questions using paragraph form.
(1) What is party autonomy? Under the modern doctrine of private international law,is party autonomy an absolute principle? If not,what restrictions are normally imposed on it?
(2) What is the doctrine of most significant relationship? Summarize the reflection of the Doctrine in Chinese private international law in the field of contracts.
(3) Summarize the conflict rules in contracts under the Conflicts Act of 2010,and try to make an objective evaluation of them.
2.Multiple Choice
(1) Principally,party autonomy is permitted in foreign-related contracts under the Chinese legislation; however,it is excluded from ( ).
A.contracts of tenancy B.contracts of sale
C.contracts to establish join venture D.financing contracts
(2) Which of the following statements is not correct? ( )
A.Under Chinese law,the parties may choose a law which has no substantial relation with the contract.
B.The law chosen by the parties includes not only the substantive law but also conflicts law according to Chinese legislation.
C.If the parties fail to choose a governing law,the law which is most closely connected to the contract shall apply.
D.Characteristic performance is accepted by Chinese legislation.
3.Case Analysis
(1) Jill operates a wine sales business in London and also has a small representative office in Shanghai.Jill often buys goods from Wen,an exporter based in Shanghai.
Jill sends an order to Wen for three “ICY” refrigerators to be delivered to London by June 20th at Wen’s advertised catalogue price of $5,000 each.The “ICY” refrigerators are normally used for domestic purposes but in her order Jill states that they will be used for commercial wine storage.
The order is sent by fax from her London office and by email from the Shanghai office.The email states that California (USA) law is the proper law of the contract.Wen does reply to Jill’s order by fax,and sends the three refrigerators as requested.They arrive on June 30th,10 days late.
Jill immediately finds a number of problems with the refrigerators.They are suitable for domestic use but not commercial wine storage.Also,they all have a defect which reduces their value to $4,000 each.Jill planned to keep one of the refrigerators for her own business and sell the other two for a substantial profit.Because of their late arrival her purchasers no longer want to buy the refrigerators.
Please answer the following questions:
(a) Which is the law applicable to the dispute? Why?(https://www.daowen.com)
(b) Is there a valid contract between Wen and Jill? Why/ Why not?
(c) Assume there is a contract between Wen and Jill.What are the possible breaches of contract?
(d) What possible remedies could Jill seek against Wen? (Explain two possible methods that could be used to settle a dispute between Wen and Jill.)
(2) On December 7,2010,CLAIMANT sent a letter to RESPONDENT,stating that it would always offer the goods with the best price to RESPONDENT.
On December 15,2010,the parties concluded a contract with the price at 8% discount from the list price.This contract had been fulfilled smoothly.
On April 3,2011,RESPONDENT called CLAIMANT to propose a new order.On the line,the parties referred to the first contract and agreed that the terms were to be the same as those in the first one,with the adjustments for quantity,the dates of shipment and the current list price of commodity.
On the same day,however,CLAIMANT sent a confirmation and indicated that the discount was 4% from its list price.
On April 6,2011,Respondent replied by fax,pointing out that the price should have reflected an 8% discount.
On April 9,2011,CLAIMANT explained that 8% discount had been granted only for the first deal,but that it had never been intended or agreed that such a discount would apply to all future orders.
On April 10,2011,RESPONDENT informed CLAIMANT that it had considered seriously going back to its former supplier if CLAIMANT failed to provide the goods at 8% discount.
On May 2,2011,RESPONDENT informed CLAIMANT that it had returned to its former supplier as the result of CLAIMANT’s failure to provide the goods at 8% discount.
On May 23,2012,CLAIMANT commenced arbitration against RESPONDENT,alleging the latter breached the contract concluded on April 3,2011.
Claimant belongs to State E which is a party to CISG and has not made the reservation under Article 95.Respondent belongs to State M which is not a party to CISG.Both E and M are parties to New York Convention of 1958.
The contract of December 15,2010 provided that the commercial law of State E governs the contract and that any dispute arising out of the contract should be determined by German Arbitration Committee.
Under the domestic law of E,the clear price of the goods presupposes the formation of a contract.
Please answer the following questions:
(a) Does the Arbitral Tribunal have jurisdiction over this dispute or not?
(b) Which is the law applicable to merits of the dispute?
(c) Has the alleged contract been concluded under the applicable law?