Scope of Application of CISG and PICC

Transcription

1 Scope of Application of CISG and PICC

2 General Questions Legal nature of CISG: International Convention Legal Nature of PICC: Restatement, model, soft law

3 Sphere of Application Art. 1 CISG I. Art. 1(1)(a), (2) and (3) CISG Purpose of Art. 1 CISG Two different approaches Provisions complementing Art. 1(1) CISG Autonomous definition of sphere of application in Art. 1(1)(a) CISG Final provisions: Art. 92, 93, 94, 99, 100 CISG

4 Sphere of Application Art. 1 CISG I. Art. 1(1)(a), (2) and (3) CISG Place of business in different states objective recognisability Art. 10 CISG Purpose of Art. 1(3) CISG Barter contract, distribution agreement Tangible goods immovables

5 Sphere of Application Art. 1 CISG I. Art. 1(1)(a), (2) and (3) CISG Software Standard v. individual software Software on CD v. download Intellectual property rights, licenses, assignments of debts, market research? Mixed contracts?

6 Sphere of Application Art. 1 CISG II. Art. 1(1)(b) CISG Indirect application of CISG Purpose of Art. 95 CISG III. Applicability of CISG through parties choice of law? Direct/indirect

7 Sphere of Application Preamble PICC I. International contracts II. III. Not defined broad interpretation Applicability by courts A-national law? Applicability by arbitral tribunals IV. Choice of law by parties/choice of lex mercatoria ( shall be applied ) V. Interpretation and supplementation of international uniform instruments

8 Sphere of Application Consumer Contracts I. Purpose of excluding consumer contracts differences between merchants and consumers II. Art. 2(a) CISG III. Preamble PICC: commercial contracts IV. Recognisability as consumer V. Principles of International Consumer Contracts?

9 Sphere of Application Art. 2(b)-(f) CISG I. Reasons for excluding certain forms of sales II. Exclusion of certain goods III. Documentary sales

10 Sphere of Application Art. 3 CISG I. Art. 3(1) CISG: sale v. contract for work and labour II. Art. 3(2) CISG: sale v. contract for services One single contract v. several contracts III. Preponderant part Economic value v. function Ascertainment of value

11 Sphere of Application Art. 4 CISG I. Formation, rights and obligations of the parties II. Art. 4(a) CISG: validity Reasons for exclusion Autonomous determination of validity question Public policy, illegality, immorality Remedies for vitiated consent?

12 Sphere of Application Art. 4 CISG III. Art. 4(b) CISG: Transfer of property Reasons for exclusion Areas covered by domestic law IV. Other areas not covered by CISG Capacity, agency, assignment/ assumption of debt, limitation of action Substantive v. procedural rules V. Determination of domestic law

13 Sphere of Application PICC I. Agency, Art PICC II. III. IV. Validity, Art PICC Not covered: Capacity, immorality, illegality (Art. 3.1 PICC) Covered: Mistake, fraud, threat, gross disparity Third party rights, Art PICC Set-off, Art PICC

14 Sphere of Application PICC V. Assignment of rights, Art PICC VI. Transfer of obligations, Art PICC VII. Assignment of contracts, Art PICC VIII. Limitation, Art PICC IX. Not covered: Transfer of title

15 Sphere of Application Art. 5 CISG I. Personal injury Reasons for exclusion under CISG PICC: no explicit exclusion II. Property damages Covered by CISG Concurrent domestic tort remedies III. Claim for indemnity

16 Party Autonomy I. PICC: Opting in, but see Art. 1.5 PICC II. Art. 6 CISG: Opting out Mere choice of law of Contracting State How to opt out? III. Litigating under the wrong law Procedural issue? Subsequent choice of law IV. CISG: Opting in?

17 Freedom of Contract I. Art. 6 CISG II. Exception: Art. 12 CISG Art. 1.5 PICC Exceptions: Art. 1.7(2) - good faith, Art validity issues, Art exemption clauses, Art (2) agreed sums

18 Freedom of Form I. Art. 11 CISG, Art. 1.2 PICC II. III. General principle Domestic form requirements (Common Law, French systems) Form agreed to by parties Form for modification: Art. 29 CISG, Art PICC

19 Freedom of Form IV. Art. 12, 96 CISG Reservation under Art. 96 CISG Significance of reservation: examples V. Art. 13 CISG Scope of application Electronic communications VI. Art PICC