This 18 hour course is dispensed at the Institut Supérieur de Commerce in Paris to students in the MBA program in International Business and Project Management.

Its objectives are to introduce participants to the basic rules applicable to international trade and distribution agreements.

Frequent recourse is made to economic analysis to explain legal rules.
 
 

In addition to the book of readings which will be distributed to participants, ample use should be made of the materials on the Professor's Webliography on International and Comparative Business Law, in particular the sections on Public and private international law and on International trade

For additional readings, students are referred to Richard Schaffer, Beverly Earle, and Filiberto Agusti, International Business Law and its Environment, South-Western, New York, 2005 in particular chapters 4, 5, 6, 7, 9, 10, 11, 12, 16 and 17.
 
 

Each assignment below should be prepared before the class, including those for the first class. They will be collected before the cases are discussed. Reports should contain about 500 words and should identify the relevant facts, the decisive issues and an analysis of the outcome.
 
 

CLASS OF NOVEMBER 15:

Topics:

Subjects of private international law
Sources of private international law
Choice of law
Jurisdiction
Enforcement of foreign judgments

Web sources:
United Nations Convention with respect to the International Sale of Goods (Vienna Convention)
Hague Institute for Private International Law

case studies:

LICRA vs Yahoo, the nazi memorabilia case

Assignment 1: Applicable law in matters of contract

An American tourist comes to France for a holiday. He goes into a boutique on Boulevard Saint-Germain and buys a couch. He pays cash. He gets a receipt on the letterhead of the boutique which identifies the couch, indicates the price, that it has been paid, and that the price includes the cost of freight, insurance and duties to the New York apartment of the buyer.

72 hours later, after his return to New York, the customer measures his living room and decides that the couch is too big. So he immediately sends a fax to the Paris boutique, which the boutique receives, stating that he cancels the order.

In the meantime, the boutique has already had the couch loaded onto a ship toward New York.

Suppose that under French law, any consumer has the right to cancel any contract with a merchant within 7 days of the conclusion of the contract. Suppose that under New York law, any consumer has the right to cancel any contract with a merchant within 48 hours of the conclusion of the contract.

Assuming that either a New York or a Paris court would accept jurisdiction to hear the case, what are the US customer's chances of getting his money back?
 
 

CLASS OF NOVEMBER 22:

Topics:

Battle of the forms
Electronic contracts
Representations, errors and fraud in international contracts
Ownership

Web sources:

Guide to International Trade Law Sources on the Internet
European Union Electronic Commerce Directive
International Institute for the Unification of Private Law (UNIDROIT) articles 3.4, 3.5 and 3.6

Assignment 3 - The battle of the forms in international sales

A French exporter of textile weaving machinery receives a letter from an American company containing a document on the letterhead of the US firm and which is entitled "Order". The US firm orders a weaving machine from the French exporter and indicates the seller's stock keeping unit reference and a price of € 500,000 DDP as per the catalogue, delivery whenever possible. The American buyer's form states on its front that "All other terms and conditions of this order appear on the back hereof". On the reverse side, there are such terms which include the following provision: "This contract shall be governed by the law of the State of New York."

The French exporter decides to accept the order and mails back to his US customer, who receives, his standard form of "Conditions de vente" (terms of sale). On its face, the French exporter reproduces the stock keeping unit, the price of € 500,000 and states that delivery will be carried out within 30 days. This form also makes reference on its face to the "Autres conditions de vente" (other terms of sale) on the reverse side. Indeed on the reverse side of the "Conditions de vente", there is a provision which states that "Ce contrat sera régi par la loi française" (This contract shall be governed by the law of France).

After exchange of these documents, the French exporter makes the machine for delivery. But, in the meantime, the US buyer has run into a major problem: his own customer, for whose production it has ordered the French machine, has gone bankrupt and the US firm no longer needs (or wants) the French exporter's machine.

Can the US buyer get out of the deal? On what basis? Please refer to the relevant articles of the UN Convention on the International Sale of Goods (Vienna Convention).

Suppose now that the French exporter's shipment reaches the buyer's warehouse where it is received and, after inspection, the buyer claims deficiencies in the machine and writes the seller to take it back without charge. Would the result be the same?

Suppose now that the transaction is conducted by e-mail and that the respective standard forms are sent as PDF file attachments which neither party ever actually opens though they reach their respective designated (in advance) e-mail boxes. Applying the EU Directive's relevant provisions, what would the result be?

Assignment 4: Ownership

On April 10, 2001, an art dealer from New York City places an order with a French dealer for an original Picasso painting. The price is F 5 million FOB Paris Roissy Charles de Gaulle. The price is paid at the time of signing the order. According to the contract, the painting is to be loaded on board no later than May 15.

On May 1, 2001, a well known Museum in New York City, not knowing that the painting has already been sold, offers the French dealer F 6 million. The French dealer decides to sell the painting to the Museum; they sign a bill of sale and the second buyer walks away with the painting.

Considering himself to be quite honest, the French dealer then writes to the New York dealer apologizing for the change of plans, returning his payment and offering him a special effort on his next purchase as compensation for his disappointment. In closing he consoles the New York dealer by telling that in any case he will have easy access to the painting which will be on exhibit at the  Museum right around the corner from his Gallery!

The New York dealer decides to sue to get the painting. What are his chances of success?
 

CLASS OF NOVEMBER 29:

Topics:

transfer of risks - INCOTERMS etc.
international transportation
international insurance
warranties - implied and contractual
breaches
remedies
excuses for non-performance

Web sources:

Incoterms 2000
Pace University Center for International Commercial Law in USA

Cases:

United Airlines - Bates - Falcone

Assignment 5:

In pre-Khadafi times, a French engineering and construction company accepts a contract to build a highway across the desert in Libya. The contract is with a Libyan company owned by a group of private Libyan investors.

Shortly after work is started on the highway, Khadafi takes power. The new government promptly triples the import duties on all imported asphalt.

Secondly the new government enacts a law requiring that all transportation within Libya of certain products (including specifically asphalt) must be carried out by Libyan nationals. Consequently, the French company must now contract the transportation of its asphalt through Libyan companies whereas it had intended to organize internally this strategic activity. The result of the law in practice is that the fuel supplies are sporadic, unpredictable and insufficient. Consequently, the contractor's equipment progressively rots in the Libyan desert.

Still the French company considers itself force to continue building the highway, otherwise how would it ever get paid anything. And the Libyan companies and officials with which it has contact all say that eventually the Libyan Government will make an effort to reward total completion of the highway.

Finally the highway is completed but late.

The Libyan invokes the delay to refuse to make the last payment of 33% of the price of the project.

The contract expressly provides that:

"A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences."

The French contractor asks what are its chances of success in the upcoming arbitration.

Assignment 7

Write a report on the 9/11 insurance case

Context of 'May 23, 2007: $2 Billion Settlement Ends Long Dispute Over WTC Insurance
 

CLASS OF DECEMBER 6:

Topics:

International agency agreements
International distribution agreements

Web research:

Convention on the law applicable to agency

Find a model agency agreement or an actual agency agreement and bring it to class.

Case studies

Pro Golf - Reyes - Chester - Wolfe

Kanavos - Simmons - O'Boyle - Detroit Pure Milk
 
 

CLASS OF DECEMBER 13:

Topics:

Intellectual property and its exploitation
Selective distribution and franchising

Web research:

World Intellectual Property Organisation, What is intellectual property
Articles 81 and 82 of the consolidated version of the Treaty establishing the European Economic Community

Case studies:

Red Owl - Bates - Mattis - Louis Vuitton c eBay / Tiffany v eBay
 
 

CLASS OF DECEMBER 19:

Topics:

Dispute settlement
Administrative remedies
Litigation
Alternative Dispute Resolution
Arbitration

Web research:

Court of Arbitration of the International Chamber of Commerce (ICC) in Paris
China International Trade and Economic Arbitration Commission (CIETAC)
International Center for the Settlement of Investment Disputes (ICSID) of the World Bank

Case studies:

Mitsubishi Motors v Soler Plymouth Dodge
Affaire Danone c Wahaha
Affaire Tapie - le texte intégral de la sentence arbitrale, voir en particulier les pages pages 4-8, 15-16, 24-25, 28-32, 33-35, et 52-94.
 
 

At the end of the course, a written exam is held. The exam consists of theoretical and practical questions as well as case studies. Below is one of the questions that will appear on the exam for 20% of the grade.

In the final evaluation account is taken of participation in class work and discussions, in particular the assignments submitted during the course.